FORM 8-K/A
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED January 9, 1998
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 30, 1997
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Date of Report
(Date of earliest event reported)
Metric Income Trust Series, Inc.
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(Exact name of registrant as
specified in its charter)
0-18294 California 94-3087630
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(Registration (State or Other (IRS Employer
File Jurisdiction of Identification
Number) Incorporation) Number)
One California Street, San Francisco, California 94111-5415
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(415) 678-2000
(800) 347-6707 Watts line for all states
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
a) Agreement for Purchase and Sale of Real Property by and between METRIC
INCOME TRUST SERIES, INC., as seller, and ARNOLD SCHLESINGER, as buyer.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant
has duly caused this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
METRIC INCOME TRUST SERIES, INC.,
a California Corporation
By: /s/ William A. Finelli
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William A. Finelli
Chief Financial Officer
Date: June 23, 1998
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<PAGE>
AGREEMENT FOR PURCHASE AND SALE
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OF
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REAL PROPERTY
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By and Between
METRIC INCOME TRUST SERIES, INC.,
a California corporation,
as Seller,
and
ARNOLD SCHLESINGER,
as Buyer.
November 19, 1997
Property Located At:
18850 Hawthorne Boulevard
Torrance, California
Known As:
Wickes Furniture Store
<PAGE>
TABLE OF CONTENTS
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ARTICLE
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1 BASIC DEFINITIONS
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Section 1.1 Closing Date
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Section 1.2 Contract Period
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Section 1.3 Inspection Period
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Section 1.4 Intangible Property
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Section 1.5 Leases
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Section 1.6 Personal Property
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Section 1.7 Title Report
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Section 1.8 Property
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Section 1.9 Real Property
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Section 1.10 Title Company
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2 PURCHASE AND SALE
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Section 2.1 Purchase and Sale
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Section 2.2 Purchase Price
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Section 2.3 Buyer's Review and Seller's Disclaimer
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3 CONDITIONS PRECEDENT
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Section 3.1 Conditions
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Section 3.2 Failure or Waiver of Conditions Precedent
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4 COVENANTS, WARRANTIES AND REPRESENTATIONS
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Section 4.1 Seller's Warranties and Representations
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Section 4.2 Seller's Covenants
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Section 4.3 Buyer's Warranties and Representations
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Section 4.4 Limitations
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5 ESCROW AND CLOSING
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Section 5.1 Escrow Arrangements
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Section 5.2 Title Company's Duties and Closing
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Section 5.3 Closing Costs
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Section 5.4 Prorations
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Section 5.5 Closing Date
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Section 5.6 Insurance
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Section 5.7 Tenant Estoppel
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Section 5.8 Delivery of Original Documents
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Section 5.9 Filing of Reports
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6 DEPOSIT
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7 MISCELLANEOUS
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Section 7.1 Damage or Destruction
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Section 7.2 Brokerage Commissions and Finder's Fees
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Section 7.3 Leasing Commissions
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Section 7.4 Successors and Assigns
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Section 7.5 Notices
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Section 7.6 Time
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Section 7.7 Possession
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Section 7.8 Incorporation by Reference
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Section 7.9 No Deductions or Off-Sets
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Section 7.10 Attorneys' Fees
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Section 7.11 Construction
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Section 7.12 No Merger
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Section 7.13 Governing Law
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Section 7.14 Disclosure of Information
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Section 7.15 Damages
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Section 7.16 Termination without Breach
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Section 7.17 Counterparts
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Section 7.18 Entire Agreement
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EXHIBITS
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Exhibit A - Title Report
Exhibit B - Legal Description
Exhibit C - List of Due Diligence Items
Exhibit D - Form of Inquiry Memorandum
Exhibit D-1 - Schedule of Exceptions
Exhibit E - Form of Buyer's Closing Certificate
Exhibit F - Form of Deed
Exhibit G - Form of General Assignment
Exhibit H - Form of Bill of Sale
Exhibit I - Form of Assignment of Leases and Contracts
Exhibit J - Form of FIRPTA Certificate
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
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OF
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REAL PROPERTY
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THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY is made and
entered into as of November 19, 1997 by and between METRIC INCOME TRUST SERIES,
INC., a California corporation ("Seller"), and ARNOLD SCHLESINGER ("Buyer").
ARTICLE 1
BASIC DEFINITIONS
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Section 1.1 Closing Date. The term "Closing Date" shall mean the date upon which
the escrow described in Article V closes, which date shall be no later than the
date specified in Section 5.5 hereof.
Section 1.2 Contract Period. The term "Contract Period" shall mean the period
from the date of this Agreement through and including the Closing Date.
Section 1.3 Inspection Period. The term "Inspection Period" shall mean the
period following the date of this Agreement, ending at 5 p.m. Pacific Standard
Time on November 28, 1997.
Section 1.4 Intangible Property. The term "Intangible Property" shall mean
Seller's rights and interests in the following: (i) the Leases, (ii) any service
contracts pertaining to the Real Property, (iii) any governmental licenses,
permits and approvals held by Seller relating to the occupancy or use of the
Real Property, (iv) any existing warranties held by Seller and given by third
parties with respect to the Real Property, and (v) the name, if any, under which
the Real Property is commonly operated or commonly known.
Section 1.5 Leases. The term "Leases" shall mean all leases and/or rental
agreements for occupancy of any portion of the Real Property.
Section 1.6 Personal Property. The term "Personal Property" shall mean Seller's
interest, if any, in all furniture, fixtures, machinery, appliances, equipment
and other personal property, if any, located on the Real Property and utilized
in connection with the ownership and operation of the Real Property by Seller.
Section 1.7 Title Report. The term "Title Report" shall mean the preliminary
title report with respect to the Real Property dated as of November 4, 1997,
issued by Title Company under its Order No. 7145304X59, a copy of which is
attached to this Agreement as Exhibit A.
Section 1.8 Property. The term "Property" shall mean the Real Property, as more
particularly described in Exhibit B attached to this Agreement,the Personal
Property and the Intangible Property.
Section 1.9 Real Property. The term "Real Property" shall mean that certain real
property (including, without limitation, any and all improvements) commonly
known as 18850 Hawthorne Boulevard, Torrance, California. The land component of
the Real Property is described with precision in the Title Report.
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Section 1.10 Title Company. The term "Title Company" shall mean Chicago Title
Insurance Company whose address for this transaction is as follows:
388 Market Street, Suite 1300
San Francisco, CA 94111
Attn: Mary Hart
Escrow No. 20538
Facsimile No. (415) 434-2176
Telephone No. (415) 291-5137
ARTICLE 2
PURCHASE AND SALE
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Section 2.1 Purchase and Sale. Seller agrees to sell the Property to Buyer, and
Buyer agrees to purchase the Property from Seller upon all of the terms,
covenants and conditions set forth in this Agreement.
Section 2.2 Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be the sum of SEVEN MILLION FIVE HUNDRED FIFTY THOUSAND AND NO/100
($7,550,000.00) payable as follows:
(a) Payment of the Deposit (as defined below); and
(b) The balance of the Purchase Price shall be paid in
cash through the escrow established pursuant to Section 5.1 on the Closing Date.
Section 2.3 Buyer's Review and Seller's Disclaimer.
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(a) On or before the date of this Agreement, Seller has
furnished to Buyer copies of each of the documents described on Exhibit C hereto
pertaining to the Property. All of the documents described on Exhibit C shall be
provided at Seller's sole cost and expense. By placing its initials in the space
provided below, Buyer acknowledges its receipt of each of the documents to be
delivered by Seller as provided in Exhibit C.
Buyer's Initials: /s/
---
Buyer shall have a period of ten (10) working days from the date of
this Agreement to approve in writing all of such documents. Any such documents
not expressly disapproved by Buyer in writing within such ten (10) day period
shall be deemed approved.
Any exceptions to the Title Report, the survey, if any, or other
documents and information pertaining to exceptions to title not expressly
disapproved by Buyer in writing on or before the expiration of such ten day
period shall be deemed approved and shall be referred to as the "Exceptions."
Within five (5) days after any notice from Title Company identifying the need to
amend or add any exception to the Title Report, Buyer shall notify Seller of any
objections Buyer may have to said amendment or addition, failure to disapprove
such amendment or addition shall be deemed to be approval. Seller shall use
reasonable efforts to remove as matters affecting title any disapproved
exceptions prior to the Closing Date, but Seller shall not be required to
institute any litigation or incur any cost in excess of $2,500 to do so. If,
prior to the Closing Date, Seller notifies Buyer that Seller will not or will
not be able to remove any of the disapproved exceptions, then, within five (5)
days after the giving of such notice by Seller, or prior to the Closing Date,
whichever is earlier, Buyer shall give Seller and Title Company written notice,
either that Buyer (i) waives its prior disapproval of the disapproved exceptions
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and accepts such title as Seller is willing to convey, or (ii) terminates this
Agreement.
(b) to expiration of the Inspection Period, Buyer shall have
the right, at its sole cost and expense, to review and copy all of Seller's
non-privileged and non-confidential documents and information relating to the
operation or condition of the Property and to conduct whatever inspections,
studies, tests and investigations Buyer desires to conduct relating to the
Property including, without limitation, the physical, environmental, economic
and legal condition of the Property (the "Inspections"). Buyer shall indemnify
and defend Seller against and hold Seller harmless from any and all loss, cost,
claim, liability and expense (including reasonable attorneys fees) arising out
of Buyer's activities on the Real Property during the Inspection Period. Prior
to expiration of the Inspection Period, Buyer shall complete the Inspections and
notify Seller in writing of its approval or disapproval of the Property. Failure
to timely disapprove the Property in writing shall be deemed to be approval by
Buyer and constitute Buyer's waiver of the condition set forth in Section
3.1(a)(i) below.
(c) Buyer hereby agrees that the waiver or satisfaction of the
conditions set forth in Section 3.1(a)(i) and (iv) below shall constitute an
acknowledgment that Buyer (a) has concluded whatever studies, tests, and
investigations Buyer desired to conduct relating to the Property including,
without limitation, economic reviews and analyses, soils tests, engineering
analyses, environmental analyses and analysis of any applicable records of the
planning, building, public works or any other governmental or quasi-governmental
entity having or asserting jurisdiction over the Property; (b) has reviewed and
read (or has elected not to do so) and has understood all instruments affecting
the Property and/or its value which Buyer deems relevant, including, without
limiting the generality of the foregoing, all documents referred to in the Title
Report and all leases, operating statements, demographic studies and market
analyses; (c) and its consultants have made all such independent studies,
analyses and investigations, as Buyer has deemed necessary, including, without
limitation, those relating to environmental matters and the leasing, occupancy
and income of the Property; (d) is relying solely on its own investigations as
to the Property and its value and is assuming the risk that adverse physical,
economic or other conditions (including, without limitation, adverse
environmental conditions (including, without limitation, soils and groundwater
conditions) and status of compliance with the requirements of the Americans With
Disabilities Act of 1990 or the Fair Housing Act of 1968, as amended) may not
have been revealed by such investigation; and (e) that Seller has given Buyer
every opportunity to consider, inspect and review to its satisfaction the
physical, environmental, economic and legal condition of the Property and all
files and information in Seller's possession which Buyer deems material to the
purchase of the Property.
(d) Except as otherwise expressly provided in Section 4.1
below, Seller disclaims the making of any representations or warranties, express
or implied, regarding the Property or its value or matters affecting the
Property, including, without limitation, the physical condition of the Property,
title to or the boundaries of the Real Property, pest control matters, soil
condition, hazardous waste, toxic substance or other environmental matters,
compliance with the Americans With Disabilities Act of 1990 (as amended), Fair
Housing Act of 1968 (as amended) or other building, health, safety, land use and
zoning laws, regulations and orders, structural and other engineering
characteristics, traffic patterns and all other information pertaining to the
Property. Buyer, moreover, acknowledges (i) that Seller did not develop or
construct the Real Property, (ii) that Buyer has entered into this Agreement
with the intention of making and relying upon its own investigation of the
physical, environmental, economic and legal condition of the Property and (iii)
that Buyer is not relying upon any representations and warranties, other than
those specifically set forth in Section 4.1 below, made by Seller or anyone
acting or claiming to act on Seller's behalf concerning the Property or its
value. Buyer further acknowledges that it has not received from Seller any
accounting, tax, legal, architectural, engineering, property management or other
advice with respect to this transaction and is relying solely upon the advice of
its own accounting, tax, legal, architectural, engineering, property management
and other advisors. Buyer agrees that the Property is to be sold to and accepted
by Buyer in its "AS IS" condition and WITH ALL FAULTS on the Closing Date and
assumes the risk that adverse physical, environmental, economic or legal
conditions may not have been revealed by its investigation.
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(e) Except with respect to any claims arising out of any
breach of covenants, representations or warranties set forth in Sections 4.1 or
4.2 below, Buyer, for itself and its agents, affiliates, successors and assigns,
hereby releases and forever discharges Seller, its agents, advisors, partners,
affiliates, successors and assigns from any and all rights, claims and demands
at law or in equity, whether known or unknown at the time of this agreement,
which Buyer has or may have in the future, arising out of the physical,
environmental, economic or legal condition of the Property. Buyer hereby
specifically acknowledges that Buyer has carefully reviewed this subsection and
discussed its import with legal counsel and that the provisions of this
subsection are a material part of this Agreement.
Buyer's Initials: /s/
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Buyer hereby specifically waives the provisions of Section 1542 of the
California Civil Code (Section 1542). Section 1542 provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which, if known by him, must have materially affected his settlement with the
debtor.
ARTICLE 3
CONDITIONS PRECEDENT
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Section 3.1 Conditions.
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(a) Notwithstanding anything in this Agreement to the
contrary, Buyer's obligation to purchase the Property shall be subject to and
contingent upon the satisfaction or waiver by Buyer of the following conditions
precedent:
(i) Buyer's inspection and approval, within the
Inspection Period, of all physical, environmental, economic and legal
matters relating to the Property, pursuant to Section 2.3 above.
(ii) The willingness of Title Company or some other
reputable title insurer to issue its standard California Land Title
Association owner's form policy of title insurance ("Buyer's Title
Policy"), insuring Buyer in the amount of the Purchase Price that title
to the Real Property is vested of record in Buyer on the Closing Date,
subject only to the printed conditions and exceptions of such policy
and the Exceptions.
(b) Notwithstanding anything in this Agreement to the
contrary, Seller's obligation to sell the Property shall be subject to and
contingent upon the satisfaction or waiver by Seller of the following conditions
precedent:
(i) The willingness of Title Company to issue the
Buyer's Title Policy.
(ii) Buyer's timely satisfaction or waiver of the
conditions set forth in Section 3.1(a)(i) above.
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Section 3.2 Failure or Waiver of Conditions Precedent. In the event any
of the conditions set forth in Section 3.1 are not fulfilled or waived by the
party intended to be benefited thereby, this Agreement shall terminate. Either
party may, at its election, at any time or times on or before the date specified
for the satisfaction of the condition, waive in writing the benefit of any of
the conditions set forth in Section 3.1(a) and 3.1(b) above. Buyer's failure to
notify Seller in writing of the failure of any of the conditions set forth in
Section 3.1(a) on or before the date specified for satisfaction shall constitute
a waiver of such condition. In any event, Buyer's consent to the close of escrow
pursuant to this Agreement shall waive any remaining unfulfilled conditions.
ARTICLE 4
COVENANTS, WARRANTIES AND REPRESENTATIONS
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Section 4.1 Seller's Warranties and Representations. Seller hereby represents
and warrants to Buyer as follows:
(a) This Agreement has been approved by the Investment
Committee of the investment manager of Seller. Seller has full power and lawful
authority to enter into and carry out the terms and provisions of this Agreement
and to execute and deliver all documents which are contemplated by this
Agreement and all actions of Seller and of its general partner necessary to
confer such power and authority upon the persons executing this Agreement and
all documents which are contemplated by this Agreement on behalf of Seller have
been taken; and
(b) Minton J. Newell, the authorized agent of Seller, based
solely upon inquiry, by means of the Inquiry Memorandum attached to this
Agreement as Exhibit D (the "Inquiry Memorandum"), of the individuals listed
thereon, each of whom responded to such Inquiry Memorandum, and without any
independent investigation or further inquiry, has no Actual Knowledge (as
defined below), as of the date hereof, except as specifically set forth in
Exhibit D-1 attached hereto and incorporated herein by reference, that:
(i) Seller has received any written notice from any
governmental authorities that eminent domain proceedings for the
condemnation of the Real Property are pending;
(ii) Seller has received any written notice of any
threatened or pending litigation against Seller which would materially
and adversely affect the Real Property;
(iii) Seller has received any written notice from any
governmental authority that the improvements located on the Real
Property are presently in violation of any applicable building codes;
(iv) Seller has received any written notice from any
governmental authority that Seller's use of the Real Property is
presently in violation of any applicable zoning, land use or other law,
order, ordinance, rule or regulation affecting the Real Property.
As used in this Section 4.1(b), the phrase "Actual Knowledge" shall refer only
to the current actual knowledge of Minton J. Newell and shall not be construed,
by imputation or otherwise, to refer to the knowledge of Seller or of any
officer, director, agent, manager, representative, employee or advisor of
Seller, or of any advisor to Seller, or any officers, directors or employees of
any advisor or its affiliates, or impose upon Minton J. Newell any duty to
inquire into or investigate the matter to which such actual knowledge, or
absence thereof, pertains.
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Section 4.2 Seller's Covenants. Seller hereby covenants and agrees that:
(a) During the Contract Period, Seller will not enter into any
service contracts binding upon Buyer without Buyer's prior approval, which
approval shall not be unreasonably withheld and shall be deemed given if Buyer
should fail to approve or disapprove any proposed contract in writing within
five (5) working days following Seller's request for such action.
(b) During the Contract Period, Seller will not enter into any
leases for any portion of the Real Property without Buyer's prior approval,
which approval shall not be unreasonably withheld and shall be deemed given if
Buyer should fail to approve or disapprove any proposed lease in writing within
five (5) working days following Seller's request for such action. The cost to
landlord of any leasing commissions and/or tenant improvements payable in
connection with the lease of any portion of the Real Property which becomes
effective at any time during the Contract Period shall be prorated between Buyer
and Seller, based on the initial term of the lease, as of the Closing Date.
Buyer shall be responsible for all such costs for any leases commencing after
the Closing Date.
Section 4.3 Buyer's Warranties and Representations. Buyer hereby represents and
warrants to Seller that (a) Buyer and any entity to which Buyer may assign this
Agreement pursuant to Section 7.4 below have, and as of the Closing Date shall
have, full power and lawful authority to enter into and carry out the terms and
conditions of this Agreement and to execute and deliver all documents which are
contemplated by this Agreement, (b) all actions necessary to confer such power
and authority upon the persons executing this Agreement and all documents which
are contemplated by this Agreement to be executed on behalf of Buyer or its
assignee have been taken, (c) Buyer is duly qualified and authorized to do
business in, and is in good standing under the laws of, the State of California,
(d) Buyer is not an "employee benefit plan" (as defined in Section 3 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (e) Buyer
is not a "governmental plan" within the meaning of Section 3(32) of ERISA or a
"plan" within the meaning of Section 4975(e)(1) of the Internal Revenue Code
(the "Code"), (f) Buyer is acquiring the Property for its own account and no
part of the assets of Buyer constitute "plan assets" of an "employee benefit
plan" within the meaning of 29 C.F.R. Section 2510.3-101, (g) neither Buyer nor
any shareholder, officer, partner, manager, member or advisor of Buyer is (1) an
Affiliate (as defined below) of Seller or SSR (as defined below), (2) a "party
in interest" as defined in Section 3(14) of ERISA, or (3) a "disqualified
person" as defined in Section 4975(e)(2) of the Code, and (h) one or more of the
following circumstances is true: (1) equity interests in Buyer are "publicly
offered securities" within the meaning of 29 C.F.R. Section 2510.2-101(b)(2),
(2) less than 25% of all equity interests in Buyer are held by "benefit plan
investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2), or (3)
Buyer is a corporation that qualifies as either an "operating company" or a
"real estate operating company" within the meaning of 29 C.F.R. Section
2510.3-101(c) and (e).
Section 4.4 Limitations. The parties agree that (a) Seller's warranties,
representations and covenants contained in this Agreement and in any document
(including any certificate) executed by Seller pursuant to this Agreement shall
survive Buyer's purchase of the Property only for a period of ninety (90) days
after the Closing Date (the "Limitation Period"), and (b) Buyer shall provide
actual written notice to Seller of any breach of such warranties,
representations or covenants and shall allow Seller thirty (30) days within
which to cure such breach, or, if such breach cannot reasonably be cured within
thirty (30) days, an additional reasonable time period, so long as such cure has
been commenced within such thirty (30) days and diligently pursued. If Seller
fails to cure such breach after actual written notice and within such cure
period, Buyer's sole remedy shall be an action at law for damages as a
consequence thereof, which must be commenced, if at all, within the Limitation
Period; provided, however, that if within the Limitation Period Buyer gives
Seller written notice of such a breach and Seller commences to cure and
thereafter terminates such cure effort, Buyer shall have an additional thirty
(30) days from the date of such termination within which to commence an action
at law for damages as a consequence of Seller's failure to cure. The Limitation
Period referred to herein shall apply to known as well as unknown breaches of
such warranties, representations and covenants.
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ARTICLE 5
ESCROW AND CLOSING
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Section 5.1 Escrow Arrangements. An escrow for the purchase and sale
contemplated by this Agreement has been opened by Seller with Title Company. On
or before the Closing Date, Seller and Buyer shall deliver joint escrow
instructions to the Title Company consistent with this Article 5 and the parties
shall deposit in escrow the funds and documents described below.
(a) Buyer shall deposit or cause to be deposited:
(i) the balance of the Purchase Price less the
Deposit ("Seller's Funds"), plus sufficient cash to pay Buyer's share
of all escrow costs, prorations and closing expenses as set forth in
Section 5.3 and 5.4 below;
(ii) a counterpart General Assignment (as defined in
subparagraph (b)(ii) below), duly executed by Buyer;
(iii) a counterpart Assignment of Leases (as defined
in subparagraph (b)(iv) below), duly executed and acknowledged by
Buyer;
(iv) a duly executed closing certificate in the form
attached to this Agreement as Exhibit E (the "Closing Certificate").
(b) Seller shall deposit:
(i) a duly executed and acknowledged deed to the Real
Property in the form attached to this Agreement as Exhibit F (the
"Deed");
(ii) a duly executed assignment of Seller's interest
in the Intangible Property in the form attached to this Agreement as
Exhibit G (the "General Assignment");
(iii) a duly executed bill of sale in the form
attached to this Agreement as Exhibit H (the "Bill of --------- Sale");
(iv) a counterpart assignment by Seller and
assumption by Buyer of Seller's interest in the Leases affecting the
Property as of the Closing Date in the form attached hereto as Exhibit
I (the "Assignment of Leases"), duly executed and acknowledged by
Seller;
(v) a certificate from Seller certifying the
information required by 1445 of the Internal Revenue Code and the
regulations issued thereunder to establish, for the purposes of
avoiding Buyer's tax withholding obligations, that Seller is not a
"foreign person" as defined in Internal Revenue Code 1445(f)(3) in the
form attached to this Agreement as Exhibit J (the "FIRPTA
Certificate");
(vi) the duly executed estoppel certificate(s)
referred to in Section 5.7 below; and
(vii) a California Form 590 duly executed by Seller.
Section 5.2 Title Company's Duties and Closing. Seller and Buyer shall instruct
Title Company to close escrow on the Closing Date by:
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(a) Recording all documents as may be necessary to clear title
in accordance with the requirements of this Agreement;
(b) Recording the Deed and the Assignment of Leases, in that
order, and instructing the County Recorder not to affix the amount of any
documentary or transfer taxes to the Deed but to attach a separate statement to
the Deed after recording;
(c) Paying all closing costs and making all prorations in
accordance with Sections 5.3 and 5.4 of this Agreement and a closing statement
of adjustments and prorations prepared by Title Company and approved by Buyer
and Seller prior to the Closing Date (the "Closing Statement");
(d) Delivering to Buyer the Buyer's Title Policy; Title
Company's certified Closing Statement; conformed copies of the Deed, the
Assignment of Leases and any other documents recorded at closing showing
available recordation information (collectively, the "Recorded Documents"), an
original of each of the Bill of Sale, the General Assignment and the FIRPTA
Certificate and copies of all other documents delivered to Title Company; and
(e) Delivering to Seller the Purchase Price, plus or minus
closing adjustments and prorations, Title Company's certified Closing Statement,
conformed copies of the Recorded Documents, an original of each of the Bill of
Sale, the General Assignment and the Closing Certificate and copies of all other
documents delivered to Title Company.
Section 5.3 Closing Costs. Seller and Buyer shall each pay one-half of (a) the
city documentary transfer or transaction taxes or fees due on the transfer of
the Property from Seller to Buyer, (b) the escrow fee charged by Title Company,
and (c) any other miscellaneous closing costs. Seller shall pay (a) the county
documentary transfer or transaction taxes or fees due on the transfer of the
Property from Seller to Buyer, and (b) the premium for Buyer's Title Policy
(other than the cost of extended or additional coverage which shall be paid by
Buyer as provided below). Buyer shall pay (a) the recording costs for this
transaction, (b) the costs of any surveys or environmental reports ordered by
Buyer, and (c) if Buyer desires a policy of title insurance different from that
specified in Section 3.l(a)(ii) above (for example, ALTA coverage or any
endorsements), Buyer shall pay the extra premium for such policy and
endorsements and any related survey costs. Each party shall pay its own
attorneys' fees
Section 5.4 Prorations.
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(a) Real property taxes and assessments, personal property
taxes (if any), rent (whether prepaid or applicable to the current rental
period) and all other items of income and expense with respect to the Property
shall be prorated between Seller and Buyer as of the Closing Date. Buyer shall
be responsible for all leasing commissions and the cost to landlord of tenant
improvements attributable to periods after the Closing Date for all leases
executed during the Contract Period as set forth in Section 4.2(b). Buyer shall
receive a credit in escrow in the amount of any deposits under Leases in effect
on the Closing Date, or any portion thereof, which are in Seller's possession
and refundable to the tenant as of the Closing Date plus the amount of any
prepaid rent for periods from and after the Closing Date. Buyer shall not be
entitled to any interest on such deposits which may have accrued prior to the
Closing Date unless such interest, under the terms of the applicable Lease,
accrues for the benefit of the tenant. Seller shall receive a credit in escrow
for any refundable deposits and/or bonds held by any utility, governmental
agency or service contractor with respect to the Property. Any rent collected by
Buyer after the Closing Date shall be applied first to pay the then current
month's rent, and then to any rent then due and owing for any period prior to
the Closing Date, and Buyer shall remit such amounts immediately upon receipt to
Seller, and then to pay any rent owing for any period after the Closing Date. If
either Buyer or Seller receives any revenues attributable to the period during
which it is not the owner of the Property, said party shall promptly forward
such amounts to the other party (if such revenues are only partially
attributable to the period during which said party is not the owner of the
Property, the amount paid to the other party shall be based upon proration as of
the Closing Date as set forth above). Buyer shall use its best efforts to
8
<PAGE>
collect and assist Seller in collecting any revenue which is owed to Seller as
of the Closing Date or which comes due thereafter.
(b) Buyer and Seller shall cooperate to produce on or before
the Closing Date a schedule of prorations which is as complete and accurate as
reasonably possible. All prorations which can be reasonably estimated as of the
Closing Date shall be made in escrow on the Closing Date. All other prorations
and any adjustments to initial estimated prorations, shall be made by Buyer and
Seller within thirty (30) days following the Closing Date or such later time as
may be required, in the exercise of due diligence, to obtain the necessary
information for proration. Any net credit due one party from the other as a
result of such post-closing prorations and adjustments shall be paid to the
other in cash immediately upon the parties' written agreement to a final
schedule of post-closing adjustments and prorations.
Section 5.5 Closing Date. The Closing Date shall occur on a date mutually agreed
upon by Buyer and Seller, which shall be not later than December 16, 1997.
Section 5.6 Insurance. Seller's existing liability and property insurance
pertaining to the Property shall be cancelled as of the Closing Date, and Seller
shall receive any premium refund due thereon.
Section 5.7 Tenant Estoppel. Seller shall use its best efforts to obtain and to
deliver to Buyer on or before the Closing Date an estoppel certificate from
Wickes Furniture Company, Inc. ("Wickes") in the form specified in Section 25.1
of that certain Lease dated as of May 27, 1989 pursuant to which Wickes occupies
the Property. In the event Seller is unable to obtain such a certificate from
Wickes prior to the Closing Date, Buyer shall have the right to terminate this
Agreement upon written notice to Seller or Buyer may request in writing that
Seller deliver to Buyer, in lieu thereof, a certificate from Seller containing
the same certifications. If Seller, in its sole discretion, agrees to deliver
such alternate certificate from Seller, the transaction contemplated herein
shall close as scheduled. If Seller declines to deliver such alternate
certificate from Seller, this Agreement shall terminate. Buyer agrees that, if
Seller delivers to Buyer after the close of escrow an estoppel certificate
satisfying the requirements of this Section 5.7 and executed by the tenant,
Buyer will accept such tenant estoppel and the certificate executed by Seller
with respect to such Lease shall have no further force and effect.
Section 5.8 Delivery of Original Documents. Seller agrees to deliver to Buyer on
or immediately following the Closing Date all original Leases, service
contracts, plans and specifications, plot plans, surveys, soils reports and
other original documents in Seller's possession pertaining to the Property.
Section 5.9 Filing of Reports. Title Company shall be solely responsible for the
timely filing of any reports or returns required pursuant to the provisions of
Section 6045(e) of the Internal Revenue Code of 1986 (and any similar reports or
returns required under any state or local laws) in connection with the closing
of the transaction contemplated in this Agreement.
ARTICLE 6
DEPOSIT
-------
Buyer has previously deposited in the escrow established with Title
Company for this transaction cash in the amount of $50,000.00. Within two (2)
working days following expiration of the Inspection Period, Buyer shall deposit
in escrow the additional sum of $50,000.00 in cash or certified funds. Title
Company shall invest all funds so deposited in an interest-bearing
cash-management account reasonably acceptable to Buyer and Seller. The funds so
deposited and all interest thereon are referred to collectively as the
"Deposit." From and after the date that the condition precedent set forth in
Section 3.1(a)(i) above shall have been satisfied or waived, the Deposit shall
be non-refundable to Buyer (except as expressly provided below) and in the event
that Buyer shall breach, be unable or otherwise fail to perform its obligations
hereunder, then the entire amount of the Deposit shall be paid by Title Company
to Seller and retained by Seller.
9
<PAGE>
IN THE EVENT OF DEFAULT BY BUYER IN THE PERFORMANCE OF ITS OBLIGATION HEREUNDER
TO PURCHASE THE PROPERTY, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT FORTHWITH AND WITHOUT FURTHER OBLIGATION TO BUYER AND TO OBTAIN
IMMEDIATE DISBURSEMENT OF AND TO RETAIN THE DEPOSIT THEN HELD BY ESCROW HOLDER.
SUCH RETENTION OF THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN
THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3769 OR 3275, BUT INSTEAD, IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671,
1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. THE PARTIES ACKNOWLEDGE THAT THE
ACTUAL DAMAGES WHICH WOULD RESULT TO SELLER AS A RESULT OF SUCH FAILURE WOULD BE
EXTREMELY DIFFICULT OR IMPOSSIBLE TO ESTABLISH AND THAT THE AMOUNT OF THE
DEPOSIT IS THE PARTIES BEST GOOD FAITH ESTIMATE OF SELLER'S DAMAGES. IN
ADDITION, BUYER DESIRES TO HAVE A LIMITATION PUT UPON ITS POTENTIAL LIABILITY TO
SELLER IN THE EVENT THAT THIS TRANSACTION SHALL FAIL TO CLOSE. BY PLACING THEIR
RESPECTIVE INITIALS IN THE SPACES HEREINAFTER PROVIDED, THE PARTIES ACKNOWLEDGE
THAT UPON THE BREACH, INABILITY OR FAILURE TO PERFORM BY BUYER UNDER THE TERMS
OF THIS AGREEMENT, SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT
OF THE DEPOSIT AND THAT SELLER'S RECEIPT AND RETENTION OF THE DEPOSIT SHALL BE
THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF SUCH BREACH, INABILITY OR
FAILURE TO PERFORM BY BUYER.
BUYER (/s/) AND SELLER (/s/) AGREE.
In the event that this transaction is consummated as contemplated by this
Agreement, then the entire amount of the Deposit shall be credited against the
Purchase Price. The entire amount of the Deposit shall be returned immediately
to Buyer in the event that (a) the conditions precedent set forth in Section 3.1
above shall have been satisfied or waived, (b) Buyer shall have performed fully
or tendered performance of its obligations hereunder, and (c) Seller shall be
unable or fail to perform its obligations under this Agreement.
ARTICLE 7
MISCELLANEOUS
-------------
Section 7.1 Damage or Destruction.
---------------------
(a) Subject to the provisions of subsection (b) below, Buyer
shall be bound to purchase the Property for the Purchase Price as required by
the terms of this Agreement without regard to the occurrence during the Contract
Period of any damage to or destruction of the Improvements ("Contract Period
Damage"). Buyer shall receive a credit in escrow in the amount of any insurance
proceeds (net of reasonable costs incurred in securing such proceeds) collected
by Seller prior to the Closing Date as a result of any Contract Period Damage
and not expended by Seller on repair, replacement or restoration of the Property
pursuant to subsection (c) below. Seller promptly shall deliver to Buyer any
such insurance proceeds as shall be collected by Seller following the Closing
Date.
(b) Notwithstanding the foregoing, if the cost of repair,
replacement or restoration of the Property attributable to any Contract Period
Damage exceeds twenty percent (20%) of the Purchase Price, either party may
elect to terminate this Agreement by written notice to the other given not more
than ten (10) days following the event of damage or destruction and not later
than one day prior to the Closing Date. If the Contract Period Damage arises out
of an uninsured risk, Seller shall elect, by written notice given within such
10-day period, either to terminate this Agreement or to close escrow as
contemplated in this Agreement with a reduction in the Purchase Price equal to
the cost of repair, replacement or restoration of the Property. Upon termination
10
<PAGE>
of this Agreement pursuant to this paragraph, Seller shall return to Buyer the
Deposit. In the event neither party timely elects to terminate this Agreement
pursuant to this subsection, the provisions of subsection (a) above shall be
applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller
may, but shall not be obligated to, use any insurance proceeds collected with
respect to such Contract Period Damage to repair, replace or restore the
Property to the extent reasonably feasible prior to the Closing Date. Seller's
election to commence the repair, replacement or restoration of the Property
prior to the Closing Date shall in no way imply that Seller has made any
representation or warranty with respect to any work performed in connection with
such repair, replacement or restoration ("Seller's Repairs"). The plans,
materials, choice of contractor and all other material aspects of the
performance of Seller's Repairs shall be subject to Buyer's review and approval
(which shall not be unreasonably withheld) and to the general disclaimer set
forth in Section 2.3 above. In the event that Buyer does not approve any aspect
of Seller's Repairs in writing within five (5) days following Seller's request
for such approval, Seller may, at its option, terminate this Agreement by
written notice delivered to Buyer on or before the Closing Date.
(d) Notwithstanding anything in this Agreement to the
contrary, the insurance proceeds to be credited or delivered to Buyer pursuant
to this Section 7.1 shall exclude business interruption or rental loss insurance
proceeds, if any, allocable to the period through the Closing Date, which
proceeds shall be retained by Seller.
Section 7.2 Brokerage Commissions and Finder's Fees. Each party to this
Agreement warrants to the other that each party to this Agreement is acting as a
principal and not as an agent or broker for any other person or entity and that,
except for the commissions mentioned below, no person or entity can properly
claim a right to a real estate commission, real estate finder's fee, real estate
acquisition fee or other real estate brokerage-type compensation (collectively,
"Real Estate Compensation") based upon the acts of that party with respect to
the transaction contemplated by this Agreement. Each party hereby agrees to
indemnify and defend the other against and to hold the other harmless from any
and all loss, cost, liability or expense (including but not limited to
attorneys' fees and returned commissions) resulting from any claim for Real
Estate Compensation by any person or entity based upon such acts or from payment
of Real Estate Compensation to any person by Buyer or by any entity affiliated
with Buyer. Buyer acknowledges that Seller shall pay Real Estate Compensation to
Damon Raike and Company and The Royston Group (collectively, "Broker") pursuant
to a separate written agreement between Seller and Broker. Buyer further
acknowledges that Seller may pay Real Estate Compensation to its advisor, SSR
Realty Advisors, Inc., and/or one or more of its Affiliates (as defined below).
Section 7.3 Leasing Commissions. Seller shall indemnify, protect, defend and
hold Buyer harmless from and against any leasing commissions payable in
connection with the current terms of the Leases (specifically excluding
therefrom any commission for option periods, renewal periods, extension periods
or waivers of termination rights or otherwise as provided in Section 4.2(b)
above). Buyer shall indemnify and hold Seller harmless from and against any
other leasing commissions relating to the Property.
Section 7.4 Successors and Assigns. Buyer shall not assign any of Buyer's rights
or duties hereunder without the prior written consent of Seller, which consent
Seller may grant or withhold in its sole and absolute discretion; provided,
however, Buyer may assign its rights hereunder to an Affiliate of Buyer provided
that (i) such assignee executes a written assumption (in form and substance in
all respects satisfactory to Seller) of all of Buyer's obligations under this
Agreement, (ii) Buyer shall not be released from its obligations and liabilities
under this Agreement, and (iii) such assignment shall be without any increase in
price, fees, commissions or other compensation to Buyer in consideration of such
assignment. Subject to the foregoing, this Agreement shall inure to the benefit
of and be binding upon the parties hereto and their successors and assigns.
Section 7.5 Notices. All written notices required to be given pursuant to the
terms hereof shall be either (i) personally delivered, (ii) deposited in the
United States mail, registered or certified return receipt requested, postage
11
<PAGE>
prepaid, (iii) sent by Federal Express or similar nationally recognized
overnight courier service, or (iv) transmittal by facsimile with a hard copy
sent within one (1) business day by any of the foregoing means, and addressed as
follows:
To Seller: c/o SSR Realty Advisors, Inc.
One California Street, Suite 1400
San Francisco, California 94111
Attn: Property Sales
Facsimile No: (415) 678-2291
Telephone No: (415) 678-2107
copy to: SSR Realty Advisors, Inc.
One California Street, Suite 1400
San Francisco, CA 94111
Attn: Herman H. Howerton, Esq.
Facsimile No: (415) 678-2296
Telephone No: (415) 678-2135
Landels Ripley & Diamond, LLP
350 The Embarcadero, 6th Floor
San Francisco, CA 94105
Attn: Scott D. Rogers, Esq.
Facsimile No: (415) 512-8750
Telephone No: (415) 512-8700
To Buyer: Mr. Arnold Schlesinger
9595 Wilshire Boulevard, Suite 410
Beverly Hills, CA 90212
Facsimile No: (310) 273-3382
Telephone No: (310) 273-0864
The foregoing addresses may be changed from time to time by written
notice. Notices shall be deemed received upon the earlier of actual receipt or
delivery (or refusal to accept delivery) or three (3) working days following
sending as provided above.
Section 7.6 Time. Time is of the essence of every provision contained in this
Agreement.
Section 7.7 Possession. Possession of the Property shall be delivered to Buyer
on the Closing Date, subject to then existing tenancies.
Section 7.8 Incorporation by Reference. All of the exhibits attached to this
Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.9 No Deductions or Off-Sets. Buyer acknowledges that the Purchase
Price to be paid for the Property pursuant to this Agreement is a net amount and
shall not be subject to any off-sets or deductions.
Section 7.10 Attorneys' Fees. In the event any dispute between Buyer and Seller
should result in litigation, the prevailing party shall be reimbursed for all
reasonable costs incurred in connection with such litigation, including, without
limitation, reasonable attorneys' fees.
Section 7.11 Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
12
<PAGE>
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
Section 7.12 No Merger. The provisions of this Agreement shall not merge with
the delivery of the Deed but shall, except as otherwise provided in this
Agreement, survive the close of escrow.
Section 7.13 Governing Law. This Agreement shall be construed and interpreted in
accordance with and shall be governed and enforced in all respects according to
the laws of the State of California.
Section 7.14 Disclosure of Information.
-------------------------
(a) Certain Definitions. For purposes of this Section 7.14,
the following terms shall have the respective meanings assigned to them in this
subsection (a):
(i) "Affiliate" shall mean: any person or entity
directly or indirectly controlling, controlled by or under common
control with the subject person or entity; any person or entity owning
or controlling 10% or more of the outstanding voting securities of the
subject entity; any officer, director or partner of the subject entity;
and any entity for which the subject person or entity acts in the
capacity of officer, director or partner;
(ii) "Buyer Group" shall mean Buyer and its
Affiliates, and the directors, officers, employees, partners, agents
and representatives of such parties;
(iii) "SSR" shall mean SSR Realty Advisors, Inc.
and/or any of its Affiliates; and
(iv) "Disclosure Document" shall mean any offering
circular, prospectus, report, advertisement, correspondence or other
document which names or refers in any manner, directly or indirectly,
to SSR, any of its Affiliates or Seller.
(b) Restrictions on Disclosure. Buyer agrees that, unless
Buyer has obtained the prior written consent of Seller, Buyer shall not release,
publish or otherwise distribute, and shall not authorize or permit any person or
entity (including without limitation any member of the Buyer Group) to release,
publish or otherwise distribute, to any person or entity other than Metric or
any of its Affiliates, any Disclosure Document.
(c) Indemnification. Buyer and Buyer's principals shall
indemnify and hold harmless SSR, its Affiliates and Seller, and all directors,
officers, employees, members, shareholders, partners, agents and representatives
of such parties, against and from any and all liability, losses, damages, costs
and obligations whatsoever (including without limitation attorneys fees and
costs) which arise out of or relate in any way to the release, publishing or
other distribution of any Disclosure Document by Buyer or by any person or
entity (including without limitation any member of the Buyer Group) whom Buyer
has authorized or permitted to release, publish or otherwise distribute such
Disclosure Document.
Section 7.16 Damages. Buyer agrees that any liability of Seller under any claim
brought prior to the Closing Date pursuant to this Agreement or any document or
instrument delivered simultaneously or in connection with, or pursuant to this
Agreement, shall be limited solely to the Property, and no other assets of
Seller shall be subject to levy or execution. With respect to any such claim
brought following the Closing Date, any liability of Seller shall be limited to
the sum of $50,000.00 to be satisfied solely out of the assets of Seller. In no
event shall Buyer seek satisfaction for any such obligation from any of the
directors, officers, employees, members, shareholders, partners, agents and
representatives of Seller or any of their respective directors, officers,
employees, members, shareholders, partners, agents and representatives. Except
with respect to a willful or voluntary default by Seller in its obligation to
convey the Property to Buyer as provided in this Agreement, Buyer specifically
13
<PAGE>
waives any right to seek specific performance of Seller's obligations under this
Agreement and acknowledges that its only remedy in the event of a breach of this
Agreement by Seller shall be the right (as limited by this Section 7.15) to seek
money damages at law.
Section 7.17 Termination without Breach. In the event either party desires to
exercise any right expressly provided in this Agreement to terminate this
Agreement, such party shall give written notice of such termination and the
reason therefor to the other party. Thereafter, except in the event of a
termination based upon a default by either party in the performance of its
obligations under this Agreement, and effective as of the effective date of such
notice, each party shall be released from its obligations hereunder and all
monies and documents deposited into Escrow shall be returned to the party which
deposited them, all documents delivered by Seller to Buyer relating to the
Property shall be returned and all reports, studies, analyses and tests prepared
by or for Buyer relating to the Property shall immediately be delivered to
Seller; provided, however, that nothing herein shall limit Buyer's indemnity set
forth in Section 2.3(b) and 7.14(c) hereof.
Section 7.17 Counterparts. This Agreement may be executed in one or more
counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
Section 7.18 Entire Agreement. This Agreement and the attached exhibits, which
are by this reference incorporated herein, and all documents in the nature of
such exhibits, when executed, contain the entire understanding of the parties
and supersede any and all other written or oral understanding, including,
without limitation, the Letter of Intent.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
SELLER: BUYER:
- ------ -----
METRIC INCOME TRUST SERIES, INC., /s/ Arnold Schlesinger
a California corporation ----------------------
ARNOLD SCHLESINGER
By: /s/ Herm H. Howerton
--------------------
Its: Vice President, General Counsel
-------------------------------
FIRST AMENDMENT TO
------------------
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
------------------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY ("Amendment") is dated for reference purposes only as of November 25,
1997, by and between METRIC INCOME TRUST SERIES, INC., a California corporation
("Seller"), and ARNOLD SCHLESINGER ("Buyer").
Recitals:
--------
A. Seller and Buyer entered into that certain Agreement for Purchase
and Sale of Real Property dated as of November 19, 1997 ("Agreement") with
respect to certain real property located at 18850 Hawthorne Boulevard, Torrance,
California, and being more particularly described in the Agreement.
14
<PAGE>
B. Buyer has requested, and Seller has agreed, that Buyer be allowed
additional time to complete its inspections and investigations of the Property
upon the terms and conditions set forth below.
Agreement:
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
1. Each of the above recitals is true and correct and incorporated
herein by this reference.
2. All words and phrases having their initial letters capitalized in
this Amendment but not specifically defined herein shall have the meanings set
forth in the Agreement.
3. The Inspection Period (as defined in Section 1.3 of the Agreement)
is hereby extended to 5 p.m. Pacific Standard Time on December 10, 1997.
Similarly, the date for approval or disapproval by Buyer of the Phase I
Environmental Report provided to Buyer pursuant to Section 2.3(a) of the
Agreement is hereby extended to 5 p.m. Pacific Standard Time on December 10,
1997.
4. Except as specifically provided herein, none of the provisions
herein contained shall in any way be construed as a modification of any of the
terms and conditions of the Agreement, and all other terms and conditions of the
Agreement shall remain unchanged and in full force and effect.
5. Each of Seller and Buyer hereby specifically acknowledges and agrees
that (i) the Agreement, as amended hereby, is and remains a valid and binding
agreement and obligation of such party enforceable in accordance with its terms;
and (ii) to the best of such party's current actual knowledge, there has
occurred no breach or default and there exists no event or condition which with
the giving of notice or the passage of time, or both, would constitute a breach
or default by the other party under the Agreement.
6. This Amendment may be executed in one or more counterparts and each
such counterpart may be delivered by facsimile transmission. All counterparts so
executed shall constitute one contract, binding on all parties, even though all
parties are not signatory to the same counterpart.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the day and year first above written.
SELLER:
- ------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herm H. Howerton
--------------------
Its: Vice President, General Counsel
-------------------------------
BUYER:
- -----
By: /s/ Arnold Schlesinger
----------------------
ARNOLD SCHLESINGER
15
<PAGE>
SECOND AMENDMENT TO
-------------------
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
------------------------------------------------
THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY ("Amendment") is dated for reference purposes only as of December 12,
1997, by and between METRIC INCOME TRUST SERIES, INC., a California corporation
("Seller"), and ARNOLD SCHLESINGER ("Buyer").
Recitals:
--------
A. Seller and Buyer entered into that certain Agreement for Purchase
and Sale of Real Property dated as of November 19, 1997, as amended pursuant to
that certain First Amendment to Agreement for Purchase and Sale of Real Property
dated as of November 25, 1997 (collectively, the "Agreement") with respect to
certain real property located at 18850 Hawthorne Boulevard, Torrance,
California, and being more particularly described in the Agreement.
B. Buyer has requested, and Seller has agreed, that Buyer be allowed
additional time to complete its inspections and investigations of the Property
upon the terms and conditions set forth below.
Agreement:
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
1. Each of the above recitals is true and correct and incorporated
herein by this reference.
2. All words and phrases having their initial letters capitalized in
this Amendment but not specifically defined herein shall have the meanings set
forth in the Agreement.
3. The Inspection Period (as defined in Section 1.3 of the Agreement)
is hereby extended to 5 p.m. Pacific Standard Time on December 17, 1997. Article
6 of the Agreement is amended to require the deposit in escrow by Buyer of the
additional sum of $50,000 by 5 p.m. Pacific Standard Time on December 17, 1997
rather than two (2) working days following expiration of the Inspection Period.
The Closing Date (as defined in Section 1.1 of the Agreement is hereby extended
from December 16, 1997 to December 30, 1997.
4. Except as specifically provided herein, none of the provisions
herein contained shall in any way be construed as a modification of any of the
terms and conditions of the Agreement, and all other terms and conditions of the
Agreement shall remain unchanged and in full force and effect.
5. Each of Seller and Buyer hereby specifically acknowledges and agrees
that (i) the Agreement, as amended hereby, is and remains a valid and binding
agreement and obligation of such party enforceable in accordance with its terms;
and (ii) to the best of such party's current actual knowledge, there has
occurred no breach or default and there exists no event or condition which with
the giving of notice or the passage of time, or both, would constitute a breach
or default by the other party under the Agreement.
16
<PAGE>
6. This Amendment may be executed in one or more counterparts and each
such counterpart may be delivered by facsimile transmission. All counterparts so
executed shall constitute one contract, binding on all parties, even though all
parties are not signatory to the same counterpart.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the day and year first above written.
SELLER:
- ------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howeton
---------------------
Its: Vice President, General Counsel
-------------------------------
BUYER:
- -----
By: /s/ Arnold Schlesinger
----------------------
ARNOLD SCHLESINGER
17
<PAGE>
EXHIBIT A
---------
Title Report
------------
Title Report, issued by the Chicago Title Company, dated November 4, 1997 is
not included with this Amendment. Metric Income Trust Series, Inc. agrees to
provide the Securities and Exchange Commission copies of said Title Report upon
request.
18
<PAGE>
EXHIBIT B
---------
Legal Description
-----------------
PARCEL A:
PARCEL 1, IN THE CITY OF TORRANCE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS SHOWN ON PARCEL MAP NO. 19431, FILED IN BOOK 211 PAGES 58 TO 60 INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY
EXCEPT AN UNDIVIDED ONE-HALF INTEREST IN AND TO ALL OIL, GAS AND OTHER
HYDROCARBON SUBSTANCES AND MINERALS, IN AND UNDER SAID LAND, AS RESERVED BY M.
B. SILBERBERG, INDIVIDUALLY AND M. B. SILERBERG, AS TRUSTEE, IN DEED RECORDED
NOVEMBER 2 1937 IN BOOK 15338 PAGE 152, OFFICIAL RECORDS.
PARCEL B:
AN EASEMENT FOR INGRESS AND EGRESS TO BE LIMITED TO SURFACE TRANSPORTATION USE
EXCLUSIVELY OVER THAT PORTION OF LOT 18 OF THE MC DONALD TRACT, IN THE CITY OF
TORRANCE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 15 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BOUNDED AS FOLLOWS:
ON THE SOUTH BY THE NORTHERLY LINE OF PARCEL 1 OF PARCEL MAP NO. 2307, FILED IN
BOOK 32 PAGE 61 OF PARCEL MAPS, OF SAID COUNTY AND ITS WESTERLY PROLONGATION; ON
THE EAST BY THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID PARCEL 1; ON
THE NORTH BY A LINE THAT IS PARALLEL WITH AND 20 FEET NORTHERLY MEASURED AT
RIGHT ANGLES FORM THE NORTHERLY LINE OF SAID PARCEL 1 AND BOUNDED WESTERLY BY
THE WESTERLY LINE OF THE LAND DESCRIBED IN RESOLUTION NO. 80-263, RECORDED
FEBRUARY 2, 1981 AS INSTRUMENT NO. 81-124160 OF SAID COUNTY.
EXHIBIT C
List of Due Diligence Items
---------------------------
Preliminary Title Report With Recorded Documents
Current Lease(s)
Most Recent Tenant Financials in Seller's Possession
Plans and Specifications in Seller's Possession
Existing Survey of Property in Seller's Possession
Existing Phase I Environmental Report
19
<PAGE>
EXHIBIT D
---------
Inquiry Memorandum
------------------
Inquiry Memorandum, dated November 1997 signed by Sherie Kidwell, Herman H.
Howerton, Richard Faber, Craig Fawcett, Lorenz Menrath George Fogelsong, and
Minton J. Newell is not included with this amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchcange Commission copies of
said Inquiry Memorandum upon request.
EXHIBIT D-1
-----------
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
------------------------------
[NONE]
20
<PAGE>
EXHIBIT E
BUYER'S CLOSING CERTIFICATE
---------------------------
THIS BUYER'S CLOSING CERTIFICATE ("Certificate") is made and
entered into as of this 23rd day of December, 1997 by ARNOLD SCHLESINGER, an
individual ("Buyer"), to and for the benefit of METRIC INCOME TRUST SERIES,
INC., a California corporation ("Seller"), under and pursuant to the terms of
that certain Agreement for Purchase and Sale of Real Property dated as of
November 19, 1997 between Seller and Buyer, as amended pursuant to that certain
First Amendment to Agreement for Purchase and Sale of Real Property dated as of
November 25, 1997 and that certain Second Amendment to Agreement for Purchase
and Sale of Real Property dated as of December 12, 1997 (collectively, the
"Agreement"). All words and phrases having their initial letters capitalized in
this Certificate and not specifically defined herein shall have their meanings
set forth in the Agreement.
As a condition to closing of the transaction contemplated in
the Agreement and as a material and substantial inducement to Seller to sell and
convey the Property to Buyer, Buyer hereby confirms, certifies and agrees as
follows:
1. Buyer hereby acknowledges and agrees that Buyer (a) has
concluded whatever studies, tests, and investigations Buyer desired to conduct
relating to the Property including, without limitation, economic reviews and
analyses, soils tests, engineering analyses, environmental analyses and analysis
of any applicable records of the planning, building, public works or any other
governmental or quasi-governmental entity having or asserting jurisdiction over
the Property; (b) has reviewed and read (or has elected not to do so) and has
understood all instruments affecting the Property and/or its value which Buyer
deems relevant, including, without limiting the generality of the foregoing, all
documents referred to in the Title Report and all leases, operating statements,
demographic studies and market analyses; (c) and its consultants have made all
such independent studies, analyses and investigations, as Buyer has deemed
necessary, including, without limitation, those relating to environmental
matters and the leasing, occupancy and income of the Property; (d) is relying
solely on its own investigations as to the Property and its value and is
assuming the risk that adverse physical, economic or other conditions
(including, without limitation, adverse environmental conditions (including,
without limitation, soils and groundwater conditions) and status of compliance
with the requirements of the Americans With Disabilities Act of 1990 or Fair
Housing Act of 1968, as amended) may not have been revealed by such
investigation; and (e) that Seller has given Buyer every opportunity to
consider, inspect and review to its satisfaction the physical, environmental,
economic and legal condition of the Property and all files and information in
Seller's possession which Buyer deems material to the purchase of the Property.
2. Buyer hereby further acknowledges and agrees that (a)
Seller has not made and has specifically disclaimed the making of any
representations or warranties, express or implied, regarding the Property or its
value or matters affecting the Property, including, without limitation, the
physical condition of the Property, title to or the boundaries of the Real
Property, pest control matters, soil condition, hazardous waste, toxic substance
or other environmental matters, compliance with the Americans With Disabilities
Act of 1990, Fair Housing Act of 1968 (as amended) or other building, health,
safety, land use and zoning laws, regulations and orders, structural and other
engineering characteristics, traffic patterns and all other information
pertaining to the Property, (b) Seller did not develop or construct the Real
Property, (c) Buyer entered into the Agreement and is closing the contemplated
transaction with the intention of making and relying upon its own investigation
of the physical, environmental, economic and legal condition of the Property,
(d) Buyer is not relying upon any representations and warranties, other than
those specifically set forth in Section 4.1 in the Agreement, made by Seller or
anyone acting or claiming to act on Seller's behalf concerning the Property or
its value.
3. Buyer further acknowledges that it has not received from
Seller any accounting, tax, legal, architectural, engineering, property
management or other advice with respect to this transaction and is relying
21
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solely upon the advice of its own accounting, tax, legal, architectural,
engineering, property management and other advisors. Buyer agrees and confirms
that the Property is being purchased by and accepted by Buyer in its "AS IS"
condition and WITH ALL FAULTS on the Closing Date and assumes the risk that
adverse physical, environmental, economic or legal conditions may not have been
revealed by its investigation.
4. Except with respect to any claims arising out of any breach
of covenants, representations or warranties set forth in Sections 4.1 or 4.2 of
the Agreement, Buyer, for itself and its agents, affiliates, successors and
assigns, hereby releases and forever discharges Seller, its agents, advisors,
partners, affiliates, successors and assigns from any and all rights, claims and
demands at law or in equity, whether known or unknown at the time of this
agreement, which Buyer has or may have in the future, arising out of the
physical, environmental, economic or legal condition of the Property.
5. Buyer hereby specifically acknowledges that Buyer has
carefully reviewed this Certificate and discussed its import with legal counsel
and that the provisions of this Certificate are a material and substantial
inducement to Seller to consummate the transaction contemplated in the
Agreement.
6. Buyer hereby specifically waives the provisions of Section
1542 of the California Civil Code ("Section 1542"). Section 1542 provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
IN WITNESS WHEREOF, Buyer has executed and delivered this Certificate
as of the date and year first set forth above.
BUYER:
/s/ Arnold Schlesinger
- ----------------------
ARNOLD SCHLESINGER, an individual
22
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EXHIBIT F
WHEN RECORDED MAIL TO:
Mr. Arnold Schlesinger
9595 Wilshire Boulevard, Suite 410
Beverly Hills, CA 90212
MAIL TAX STATEMENTS TO:
(Same as Above)
GRANT DEED
----------
THIS GRANT DEED ("Deed") is made and entered into this ___ day of
December, 1997, by METRIC INCOME TRUST SERIES, INC., a California corporation
("Grantor"), and in favor of ARNOLD SCHLESINGER, an individual ("Grantee").
W I T N E S S E T H :
-------------------
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, GRANTOR hereby GRANTS, to Grantee that certain
real property in the City of Torrance, County of Los Angeles, State of
California (the "Property") commonly known as 18850 Hawthorne Boulevard,
Torrance, California, and more particularly described as follows:
LEGAL DESCRIPTION IS ATTACHED HERETO AS EXHIBIT A AND INCORPORATED
HEREIN BY THIS REFERENCE.
The foregoing grant is expressly subject to all matters of record as of
the date hereof and those certain unrecorded matters identified and described in
Exhibit B attached hereto and incorporated herein by this reference.
EXECUTED as of the day and year set forth above.
GRANTOR:
- -------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Herman H. Howerton,
General Counsel and Secretary
[ALL SIGNATURES TO BE ACKNOWLEDGED]
[OFF-RECORD TRANSFER TAX DECLARATION REQUIRED]
23
<PAGE>
EXHIBIT A
DESCRIPTION OF PROPERTY
-----------------------
PARCEL A:
PARCEL 1, IN THE CITY OF TORRANCE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS SHOWN ON PARCEL MAP NO. 19431, FILED IN BOOK 211 PAGES 58 TO 60 INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY
EXCEPT AN UNDIVIDED ONE-HALF INTEREST IN AND TO ALL OIL, GAS AND OTHER
HYDROCARBON SUBSTANCES AND MINERALS, IN AND UNDER SAID LAND, AS RESERVED BY M.
B. SILBERBERG, INDIVIDUALLY AND M. B. SILERBERG, AS TRUSTEE, IN DEED RECORDED
NOVEMBER 2 1937 IN BOOK 15338 PAGE 152, OFFICIAL RECORDS.
PARCEL B:
AN EASEMENT FOR INGRESS AND EGRESS TO BE LIMITED TO SURFACE TRANSPORTATION USE
EXCLUSIVELY OVER THAT PORTION OF LOT 18 OF THE MC DONALD TRACT, IN THE CITY OF
TORRANCE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 15 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BOUNDED AS FOLLOWS:
ON THE SOUTH BY THE NORTHERLY LINE OF PARCEL 1 OF PARCEL MAP NO. 2307, FILED IN
BOOK 32 PAGE 61 OF PARCEL MAPS, OF SAID COUNTY AND ITS WESTERLY PROLONGATION; ON
THE EAST BY THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID PARCEL 1; ON
THE NORTH BY A LINE THAT IS PARALLEL WITH AND 20 FEET NORTHERLY MEASURED AT
RIGHT ANGLES FORM THE NORTHERLY LINE OF SAID PARCEL 1 AND BOUNDED WESTERLY BY
THE WESTERLY LINE OF THE LAND DESCRIBED IN RESOLUTION NO. 80-263, RECORDED
FEBRUARY 2, 1981 AS INSTRUMENT NO. 81-124160 OF SAID COUNTY.
EXHIBIT B
OFF-RECORD MATTERS
------------------
1. All matters which a correct survey of the Property would disclose.
2. All matters which could be ascertained by a physical inspection of
the Property.
3. Interest of tenants in possession.
4. A lien for non-delinquent taxes for real property and personal
property, and any general or special assessments against the
Property.
5. Zoning ordinances and regulations and any other laws, ordinances or
governmental regulations restricting, regulating or relating to the
use, occupancy or enjoyment of the Property.
24
<PAGE>
EXHIBIT G
GENERAL ASSIGNMENT
------------------
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC INCOME TRUST SERIES, INC., a California
corporation ("Assignor"), hereby assigns, transfers and conveys to ARNOLD
SCHLESINGER, an individual ("Assignee"), all of Assignor's right, title and
interest in and to the Intangible Property, as that term is defined in that
certain Agreement for Purchase and Sale of Real Property dated as of November
19, 1997 entered into by and between Assignor, as seller, and Assignee, as
buyer, as amended pursuant to that certain First Amendment to Agreement for
Purchase and Sale of Real Property dated as of November 25, 1997 and that
certain Second Amendment to Agreement for Purchase and Sale of Real Property
dated as of December 12, 1997 (collectively, the "Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all of
Assignor' s obligations as obligor under any contracts included in Intangible
Property under the Agreement (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of the
obligations to be performed by Assignor pursuant to and in accordance with, or
with respect to, the Assigned Contracts and agrees to indemnify, protect, defend
and hold Assignee harmless from and against any and all claims, damages, losses,
costs and expenses (including attorneys' fees) arising in connection with the
Assigned Contracts and relating to the period prior to Closing.
This General Assignment is given pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of December 31, 1997.
ASSIGNEE:
/s/ Arnold Schlesinger
- ----------------------
ARNOLD SCHLESINGER, an individual
ASSIGNOR:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Herman H. Howerton,
General Counsel and Secretary
25
<PAGE>
EXHIBIT H
BILL OF SALE
------------
For valuable consideration, receipt of which is acknowledged, METRIC
INCOME TRUST SERIES, INC., a California corporation ("Seller"), grants, sells,
transfers and assigns to ARNOLD SCHLESINGER, an individual ("Buyer"), all of the
Personal Property (as defined in the Agreement referred to below), if any, owned
by Seller. Buyer acknowledges and agrees that such Personal Property is sold to
and shall be accepted by Buyer in its "As-Is" condition and WITH ALL FAULTS and
without any representation of any kind or nature except to the extent, if any,
specifically made in that certain Agreement for Purchase and Sale of Real
Property dated as of November 19, 1997 between Seller and Buyer, as amended
pursuant to that certain First Amendment to Agreement for Purchase and Sale of
Real Property dated as of November 25, 1997 and that certain Second Amendment to
Agreement for Purchase and Sale of Real Property dated as of December 12, 1997
(collectively, the "Agreement").
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 30 day
of December, 1997.
SELLER:
- ------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Herman H. Howerton,
General Counsel and Secretary
26
<PAGE>
EXHIBIT I
Assignment of Leases
--------------------
Recording Requested By
and
When Recorded Mail To:
Mr. Arnold Schlesinger
9595 Wilshire Boulevard, Suite 410
Beverly Hills, CA 90212
- --------------------------------------------------------------------
Space Above This Line For Recorder's Use
ASSIGNMENT OF LEASES
This ASSIGNMENT is entered into this ____ day of December, 1997, by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Assignor"),
and ARNOLD SCHLESINGER, an individual ("Assignee").
RECITALS
--------
A. Assignor is the landlord under those certain leases described on
Schedule 1 attached hereto (the "Leases") relating to that certain real property
described in Exhibit A attached hereto and commonly known as 18850 Hawthorne
Boulevard, Torrance, California (the "Property").
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of November 19, 1997, as amended pursuant to that certain
First Amendment to Agreement for Purchase and Sale of Real Property dated as of
November 25, 1997 and that certain Second Amendment to Agreement for Purchase
and Sale of Real Property dated as of December 12, 1997 pursuant to which
Assignor has agreed to sell and Assignee has agreed to purchase the Property and
Assignor has agreed to assign and Assignee has agreed to assume the Leases.
For valuable consideration, receipt of which is acknowledged, Assignor
and Assignee agree as follows:
1. Assignor assigns to Assignee all of the right, title and interest of
Assignor in the Leases.
2. Assignor agrees to indemnify and hold Assignee harmless from and
against any and all losses, costs, liabilities, damages and expenses, including,
without limitation, reasonable attorneys' fees, accruing prior to the date
hereof and arising out of the Leases.
3. Assignee assumes as of and from the date hereof all of Assignor's
obligations under the Leases.
4. Assignee agrees to indemnify and hold Assignor harmless from and
against any and all losses, costs, liabilities, damages and expenses including,
without limitation, reasonable attorneys' fees, accruing on or after the date
hereof and arising out of the Leases.
5. If Assignor or Assignee is required to employ counsel to enforce any
of the terms of this Agreement or for damages by reason of any alleged breach of
this Agreement or for a declaration of rights hereunder, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and court costs
incurred.
27
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6. This Assignment shall be binding on, and inure to the benefit of,
the parties hereto, their successors in interest, and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first hereinabove written.
ASSIGNEE:
- --------
/s/ Arnold Schlesinger
- ----------------------
ARNOLD SCHLESINGER, an individual
ASSIGNOR:
- --------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Herman H. Howerton,
General Counsel and Secretary
[ALL SIGNATURES TO BE ACKNOWLEDGED]
Notorized Statements
--------------------
The Acknowledgement that Herman H. Howerton personally appeared before Notary
Public Tana J. Laura on December 22, 1997 is not included with this amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Notary Statement upon request.
The Acknowledgement that Arnold Schlesinger personally appeared before Notary
Public Harvey A. Howard on December 23, 1997 is not included with this
amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Notary Statement upon request.
Schedule 1
Schedule of Leases
------------------
TENANT DATE OF LEASE
- ------ -------------
Wickes Furniture Company, Inc. May 2, 1989
28
<PAGE>
SCHEDULE 2
Legal Description
-----------------
PARCEL A:
PARCEL 1, IN THE CITY OF TORRANCE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS SHOWN ON PARCEL MAP NO. 19431, FILED IN BOOK 211 PAGES 58 TO 60 INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY
EXCEPT AN UNDIVIDED ONE-HALF INTEREST IN AND TO ALL OIL, GAS AND OTHER
HYDROCARBON SUBSTANCES AND MINERALS, IN AND UNDER SAID LAND, AS RESERVED BY M.
B. SILBERBERG, INDIVIDUALLY AND M. B. SILERBERG, AS TRUSTEE, IN DEED RECORDED
NOVEMBER 2 1937 IN BOOK 15338 PAGE 152, OFFICIAL RECORDS.
PARCEL B:
AN EASEMENT FOR INGRESS AND EGRESS TO BE LIMITED TO SURFACE TRANSPORTATION USE
EXCLUSIVELY OVER THAT PORTION OF LOT 18 OF THE MC DONALD TRACT, IN THE CITY OF
TORRANCE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 15 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BOUNDED AS FOLLOWS:
ON THE SOUTH BY THE NORTHERLY LINE OF PARCEL 1 OF PARCEL MAP NO. 2307, FILED IN
BOOK 32 PAGE 61 OF PARCEL MAPS, OF SAID COUNTY AND ITS WESTERLY PROLONGATION; ON
THE EAST BY THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID PARCEL 1; ON
THE NORTH BY A LINE THAT IS PARALLEL WITH AND 20 FEET NORTHERLY MEASURED AT
RIGHT ANGLES FORM THE NORTHERLY LINE OF SAID PARCEL 1 AND BOUNDED WESTERLY BY
THE WESTERLY LINE OF THE LAND DESCRIBED IN RESOLUTION NO. 80-263, RECORDED
FEBRUARY 2, 1981 AS INSTRUMENT NO. 81-124160 OF SAID COUNTY.
29
<PAGE>
EXHIBIT J
FIRPTA CERTIFICATE
------------------
To inform ARNOLD SCHLESINGER, an individual ("Transferee"), that
withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code"), will not be required upon transfer of certain real
property to Transferee by METRIC INCOME TRUST SERIES, INC., a California
corporation ("Transferror"), the undersigned hereby certifies the following on
behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is
as follows: 94-3087630;
3. Transferror's office address is as follows:
c/o SSR Realty Advisors, Inc.
One California Street, Suite 1400
San Francisco, CA 94111
Transferror understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferror.
Date: December 30, 1997
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Herman H. Howerton,
General Counsel and Secretary
30
<PAGE>
TENANT NOTICE
-------------
December 30, 1997
Re: Wickes Furniture
18850 Hawthorne Boulevard
Torrance, California
This is to notify you that METRIC INCOME TRUST SERIES, INC., a
California corporation ("Seller"), has sold its fee interest in the property
described above and in connection therewith has assigned its interest as
landlord under your lease to ARNOLD SCHLESINGER, an individual ("Buyer").
You are further notified that any refundable security deposits or any
prepaid rents under your lease have been transferred to Buyer.
You are further notified that commencing as of the date hereof, all
rental payments under your lease shall be paid to Buyer. Please make your rent
checks payable to Arnold Schlesinger, and please deliver the rent checks to the
following address:
Mr. Arnold Schlesinger
9595 Wilshire Boulevard, Suite 410
Beverly Hills, CA 90212
Any written notices you desire or are required to make to the landlord under
your lease should be sent to Buyer at the above address.
Any inquiries about the project or your lease should be made to Buyer at the
above address, or by telephone to Buyer at (310) 273-0864.
Very truly yours,
SELLER:
- ------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Herman H. Howerton,
General Counsel and Secretary
31
<PAGE>
Commission Release
------------------
Commission Release, made as of December 22, 1997 by Blickman Torkis L.P., and
the Royston Group in favor of Metric Income Trust Series Inc. not included with
this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Commission Release upon
request.
Seller's Escrow Instruction Letter
----------------------------------
Seller's Escrow Instruction Letter from Landels Ripley & Diamond, LLP, dated
December 22, 1997 and acknowledged by Chicago Title Insurance Company not
included with this amendment. Metric Income Trust Series, Inc. agrees to provide
the Securities and Exchange Commission copies of Seller's Escrow Instruction
Letter upon request.
Seller's Final Closing Statement
--------------------------------
The Seller's Final Closing Statement, produced by the Chicago Title Company and
dated 12/31/97 is not included with this Amendment. Metric Income Trust Series,
Inc. agrees to provide the Securities and Exchange Commission copies of said
Seller's Final Closing Statement upon request.
Tenant Estoppel Certificate
---------------------------
The Tenant Estoppel Certificate, produced by the Imperial Thrift and Loan
Association, dated December 19, 1997 and signed by an officer of Wickes
Furniture Company is not included with this Amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Tenant Estoppel Certificate upon request
32
