FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED March 13, 1998
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
March 3, 1998
-------------
Date of Report
(Date of earliest event reported)
Metric Income Trust Series, Inc.
--------------------------------
(Exact name of registrant as
specified in its charter)
0-18294 California 94-3087630
------- ---------- ----------
(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
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
Exhibit a) Agreement for purchase and Sale of Real Property by and between
Metric Income Trust Series, Inc., as Seller, and London Realty
Company, L.P., as buyer, dated February 18, 1998.
SIGNATURE
---------
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
----------------------
William A. Finelli
Chief Financial Officer
Date: April 22, 1998
--------------------
AGREEMENT FOR PURCHASE AND SALE
-------------------------------
OF
REAL PROPERTY
-------------
By and Between
METRIC INCOME TRUST SERIES, INC.,
a California corporation,
as Seller,
and
LONDON REALTY COMPANY, L.P.,
a Georgia limited partnership,
as Buyer.
February 18, 1998
Property Located At:
1281 Southlake Circle
Morrow, Georgia
Known As:
Pearle Vision Store
<PAGE>
EXHIBITS
Exhibit A - Legal Description
Exhibit B - Title Report
Exhibit C - List of Due Diligence Items
Exhibit D - Form of Inquiry Memorandum
Exhibit D-1 - Schedule of Exceptions
Exhibit E - Form of Transfer Tax Declaration
Exhibit F - Form of Deed
Exhibit G - Form of General Assignment
Exhibit H - Form of Bill of Sale
Exhibit I - Form of Assignment of Lease
Exhibit J - Form of FIRPTA Certificate
Exhibit K - Form of Affidavit of Title
Exhibit L - Form of Letter to Tenant
Exhibit M - Form of Tenant Estoppel
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY is made and
entered into as of February 18, 1998 by and between METRIC INCOME TRUST SERIES,
INC., a California corporation ("Seller"), and LONDON REALTY COMPANY, L.P., a
Georgia limited partnership ("Buyer").
ARTICLE 1 - BASIC DEFINITIONS
Section 1.1 - Closing Date.
--------------------------
The term "Closing Date" shall mean the date upon which the escrow
described in Article 5 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. on February 23, 1998.
Section 1.4 - Intangible Property.
---------------------------------
The term "Intangible Property" shall mean Seller's rights and interests
in the following: (i) the Lease, (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, and (iv) any
existing warranties held by Seller and given by third parties with respect to
the Real Property.
Section 1.5 - Lease.
-------------------
The term "Lease" shall mean that certain Lease Agreement dated May 4,
1988 between Anthony A. Petrarca, as Landlord and Eyelab, Inc., as Tenant, as
amended by that certain First Amendment to Lease dated March 31, 1997, between
Pearle Vision, Inc., the successor-in-interest to Eyelab, Inc., and Metric
Income Trust Series, Inc., the successor-in-interest to Anthony A. Petrarca.
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 located on the Real Property and utilized in connection with the
ownership and operation of the Real Property by Seller, but specifically
excluding any and all personal computers, software, facsimile machines and copy
machines located on the Real Property or utilized in connection therewith.
Section 1.7 - Property.
----------------------
The term "Property" shall mean the Real Property, as more particularly
described in Exhibit A attached to this Agreement, the Personal Property and the
Intangible Property.
Section 1.8 - Real Property.
---------------------------
The term "Real Property" shall mean that certain real property
(including, without limitation, any and all improvements) with a mailing address
of 1281 Southlake Circle, Morrow, Georgia. The land component of the Real
Property is described with precision in the Title Report.
Section 1.9 - Title Company.
---------------------------
The term "Title Company" shall mean Chicago Title Insurance Company
whose address for this transaction is as follows:
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Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, California 94111
Attn: Ms. Mary Hart, Escrow Officer
Escrow No. 9726690
Fax No. (415) 956-2175
Phone No. (415) 291-5137
Section 1.10 - Title Report.
---------------------------
The term "Title Report" shall mean the commitment for title insurance
with respect to the Real Property, having an effective date of November 5, 1997,
issued by the Title Company under its Case No. 97-26690, a copy of which is
attached to this Agreement as Exhibit B.
ARTICLE 2 - PURCHASE AND SALE
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 One
Million Five Thousand and No/100 Dollars ($1,005,000.00) payable as follows:
(a) Payment of the Deposit (as such term is hereinafter defined); 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.
----------------------------------------------------
(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. By placing its initials in the space provided below, Buyer
acknowledges its receipt of each of the documents to be delivered by Seller
described on Exhibit C.
Buyer's Initials:/s/
---
Buyer shall have until the end of the Inspection Period to approve in
writing all of such documents. Any such documents not expressly disapproved by
Buyer in writing before the end of the Inspection Period shall be deemed
approved.
Any exceptions to the Title Report, the survey or other documents and
information pertaining to exceptions to title not expressly disapproved by Buyer
in writing on or before the end of the Inspection Period shall be deemed
approved and shall be referred to as the "Exceptions." Within five (5) days
after receipt by Buyer of 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 prior to the Closing Date as matters affecting
title any disapproved exceptions other than items 1-19 of the Schedule B-Section
2 of the Title Report (all of the foregoing of which shall constitute
"Exceptions"), but Seller shall not be required to institute any litigation or
incur any cost in excess of $10,000 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 and accepts such title as
Seller is willing to convey, or (ii) terminates this Agreement.
(b) Prior to expiration of the Inspection Period, Buyer shall have the
right, at its sole cost and expense, 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
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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
condition set forth in Section 3.1(a) (i) 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, 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.
(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, 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/
---
Buyer hereby specifically waives the provisions of Section 1542 of the
California Civil Code (Section 1542), or similar provision of any other
applicable State's law. Section 1542 provides:
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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.
Section 2.4 - Environmental Report.
----------------------------------
Not later than the Closing Date, Seller agrees to provide Buyer at
Seller's expense an update of Seller's existing Phase I report in respect to the
Real Property accompanied by documentation allowing Buyer to rely thereon.
Seller shall have no liability to Buyer in the event Seller does not provide to
Buyer no later than the Closing Date the update and reliance documentation
referred to in the previous sentence, but if Seller does not provide same to
Buyer no later than the Closing Date, Buyer shall have the right on the Closing
Date to terminate this Agreement by so notifying Seller in which event the
provisions of Section 7.16 shall be applicable. As part of its inspection of the
Property, Buyer shall have the right to obtain whatever additional environmental
reports Buyer desires with respect to the Real Property, the expense of which
shall be paid by Buyer. Buyer shall have until the end of the Inspection Period
to approve or disapprove any such environmental reports; and if Buyer
disapproves any such environmental report, this Agreement shall be terminated by
Buyer before the end of the Inspection Period in accordance with Section 3.2
hereof. Buyer agrees to send to Seller a copy of any environmental report
obtained by Buyer in respect of the Property promptly after Buyer's receipt of
same.
ARTICLE 3 - CONDITIONS PRECEDENT
Section 3.1 - Conditions.
------------------------
(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 Sections 2.3 and 2.4 above.
(ii) The willingness of Title Company or some other
reputable title insurer acceptable to Buyer to issue its standard
(American 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 of
such policy and the Exceptions (as defined in Section 2.3(a) hereof).
(iii) Neither the tenant nor the Landlord under the Lease
being in default under the Lease on the Closing Date.
(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 condition
set forth in Section 3.1(a) (i) above.
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) (i) on or before
the end of the Inspection Period 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.
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ARTICLE 4 - COVENANTS, WARRANTIES AND REPRESENTATIONS
Section 4.1 - Seller's Warranties and Representations.
-------------------------------------------------------
Seller hereby represents and warrants to Buyer as follows:
(a) This Agreement has been approved by Seller's Board of Directors.
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 its Board of
Directors 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 "Agent") the Senior Vice President and
Director of Property Sales of Metric Management, Inc., an affiliate of Metric
Realty, the Seller's advisor, 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 of the date hereof, except as specifically set forth in
Exhibit D-l 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 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 or any
improvement on 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.
In addition, except for matters, if any, disclosed in the environmental
reports, if any, delivered to Buyer by Seller or which may be disclosed
in any environmental reports obtained by Buyer, based upon inquiry, by
means of the Inquiry Memorandum as aforesaid, Agent has no current
actual knowledge of, nor any reasonable cause to believe, that (a)
there has occurred, any release of Hazardous Substances (as hereinafter
defined) located on or beneath the Real Property; or (b) Seller has
been required by any governmental agency to undertake any remediation
activity with respect to Hazardous Substances on the Real Property. As
used herein the term "Hazardous Substances" shall mean and include any
and all toxic or hazardous substances, materials or wastes listed in
the United States Department of Transportation Table (49 CFR 172.101)
or by the Environmental Protection Agency as hazardous substances (40
CFR Part 302) and in any and all amendments thereto in effect as of the
Closing Date, or such substances, materials or wastes otherwise
regulated under any applicable local, state or federal law including,
without limitation, petroleum products; or
(v) With the possible exception of the lack of repair or
maintenance respecting the roof on the building which is a part of the
Property, there are any defaults by the Seller as the landlord under
the Lease.
(c) Seller has delivered to Buyer a true, correct and complete copy of
the only Lease for occupancy of any portion of the Real Property and all
amendments thereto (collectively, the "Lease"); and there are no currently
uncured defaults by the tenant under the Lease;
(d) There are no leasing commissions owed in connection with the Lease.
Section 4.2 - Seller's Covenants.
---------------------------------
Seller hereby covenants and agrees that:
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(a) During the Contract Period, Seller will not enter into any service
contracts binding upon Buyer other than in the ordinary course of business and
on terms consistent with then current market conditions 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
modification of the Lease 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 modification in writing within five (5)
working days following Seller's written notice to Buyer of a request for such
action.
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, and
(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.
Section 4.4 - Limitations.
-------------------------
The parties agree that (a) Seller's warranties and representations
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 nine (9) months after the Closing Date (the
"Limitation Period"), and (b) Buyer shall provide actual written notice to
Seller of any breach of such warranties or representations 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 or representations.
ARTICLE 5 - ESCROW AND CLOSING
Section 5.1 - Escrow Arrangements.
---------------------------------
An escrow for the purchase and sale contemplated by this Agreement has
been opened by Seller with Title Company under its escrow number 9726690. 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 cash portion of the Purchase Price
("Seller's Funds"), plus sufficient cash to pay Buyer's share of all
escrow costs, prorations and closing expenses as set forth in Sections
5.3 and 5.4 below;
(ii) a counterpart Assignment of Lease (as defined in
subparagraph (b) (iv) below), duly executed by Buyer;
(iii) a counterpart General Assignment (as defined in
subparagraph (b) (ii) below), duly executed by Buyer;
(iv) a counterpart Closing Statement setting forth all
prorations and disbursements in respect to this transaction (the
"Closing Statement");
(v) duplicate counterparts of the State of Georgia Transfer
Tax Declaration in the form attached hereto as Exhibit E; and
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(vi) an affidavit satisfactory to the Title Company
regarding payment of all commissions due in connection with the Lease
or the transaction contemplated herein in accordance with the Georgia
Commercial Real Estate Broker Lien Act.
(b) Seller shall deposit:
(i) a duly executed and witnessed and notarized 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 Lease affecting the Property as of
the Closing Date in the form attached hereto as Exhibit I (the
"Assignment of Lease"), duly executed 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) required
pursuant to Section 5.7 below;
(vii) a certificate from Seller based upon an updated
Inquiry Memorandum and an updated response thereto as set forth in
Exhibit D-1 attached hereto, as to the status of the Seller's
warranties and representations set forth in Section 4.1 (b) hereof as
of a time no earlier than three (3) days prior to the Closing Date; and
if this certificate discloses any new items as to the matters set forth
in Section 4.1 (b) hereof which are adverse to Buyer's interests in
regard to its contemplated purchase of the Property, Buyer shall have
the option, to be exercised by written notice delivered by Buyer to
Seller on or before the Closing Date, to terminate this Agreement and
receive a full refund of all monies deposited by Buyer hereunder, or to
waive such matters and proceed with the closing of the transaction
contemplated herein without reduction of the Purchase Price, and in the
event Buyer fails to so terminate this Agreement on or before the
Closing Date, Buyer shall be deemed to have elected to close and
consummate the transaction contemplated herein;
(viii) an Affidavit of Title in the form attached to this
Agreement as Exhibit K;
(ix) an Affidavit of Seller's Residence as respects O.C.G.A.
ss. 48-7-128, or other evidence reasonably satisfactory to Buyer
indicating that no withholding is required by Buyer from the Purchase
Price payable to Seller at Closing;
(x) a letter to the tenant under the Lease in the form
attached to this Agreement as Exhibit L;
(xi) a counterpart Closing Statement;
(xii) duplicate counterparts of State of Georgia Transfer
Tax Declarations; and
(xiii) an affidavit satisfactory to the Title Company
regarding payment of all commissions due in connection with the Lease
or the transaction contemplated herein in accordance with the Georgia
Commercial Real Estate Broker Lien Act.
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;
(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 Title Policy; Title Company's
certified Closing statement; a conformed copy of the Deed showing
available recordation information, an original of each of the
Assumption Agreement, the Bill of Sale, the Assignment of Lease, the
General Assignment and the FIRPTA Certificate and copies of all other
documents deposited into Escrow; and
(e) Delivering to Seller the Purchase Price, plus or minus
closing adjustments and prorations, Title Company's certified Closing
Statement, a conformed copy of the Deed, an original of each of the
Assumption Agreement, the Bill of Sale, the Assignment of Lease, the
General Assignment and the Closing Certificate and copies of all other
documents delivered to Title Company.
Anything contained in this Agreement to the contrary notwithstanding,
because the Deed must be recorded in the records of Clayton County, Georgia, and
because the escrow closing will occur at the Title Company's office in San
Francisco, California, Seller and Buyer will instruct the Title Company to
forward in advance of the Closing Date the Deed to the Title Company's office in
Atlanta, Georgia so that the San Francisco and Atlanta offices of the Title
Company can coordinate the closing. In this regard, as it will not be possible
for the Title Company to deliver to Buyer the Title Policy on the Closing Date,
the condition precedent set forth in Section 3.1 (a) (ii) will be satisfied by
the Title Company's delivering to the Buyer on the Closing Date the Title Report
marked by the Title Company and effective as of the Closing Date so as to
irrevocably commit the Title Company to issue to Buyer Buyer's Title Policy
after the Deed has been recorded subject only to the conditions and exceptions
specified in Section 3.1 (a) (ii).
Section 5.3 - Closing Costs.
---------------------------
Seller and Buyer shall each pay one-half of the escrow fee charged by
Title Company. Seller shall pay for (i) the cost of the updated survey, (ii) the
cost for Buyer's Title Policy, provided that Buyer shall pay the cost of any
endorsements thereto desired by Buyer, (iii) the cost of the State of Georgia
transfer tax, and (iv) the cost of an update of the existing Phase I
environmental report. Buyer shall pay all recording fees and the cost of any,
engineering reports and the like obtained by Buyer. Each party shall pay its own
attorneys' fees.
Section 5.4 - Prorations.
------------------------
(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, subject to the
expenses paid directly or reimbursed by any tenant, shall be prorated between
Seller and Buyer as of the Closing Date. Items of income and expense for the
Closing Date shall be attributable to Seller. Buyer shall receive a credit in
escrow in the amount of any deposits under the Lease 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 any rent then due and owing
for any period after the Closing Date, and then to pay any rent owing for any
period before and including the Closing Date which amount will be remitted by
Buyer to Seller immediately upon receipt. 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).
8
<PAGE>
(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 February 26, 1998; provided, however,
in the event Seller and Buyer cannot agree to a date mutually acceptable to
Buyer and Seller, the Closing Date shall occur on February 26, 1998.
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 Estoppels.
------------------------------
Seller shall use its best efforts to obtain and to deliver to Buyer on
or before the Closing Date an estoppel certificate executed not more than
fifteen (15) days prior to the Closing Date substantially in the form attached
hereto as Exhibit M from Pearle Vision, Inc., the only tenant of the Property.
In the event Seller is unable to obtain this certificate prior to the Closing
Date, Seller shall have the right to deliver to Buyer, in lieu thereof, a
certificate from Seller containing the same certifications. The foregoing
sentence notwithstanding, in the event that Seller is unable to obtain the
estoppel certificate from Pearle Vision, Inc. and wishes to deliver to Buyer in
lieu thereof the certificate from Seller, Buyer shall have the right by notice
given to Seller on the Closing Date to decline to accept the certificate from
Seller and to terminate this Agreement on the Closing Date in which event the
provisions of Section 7.16 of this Agreement shall be applicable. 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 which have not previously been delivered
to Buyer.
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 (the "Deposit")
established with the Title Company for this transaction cash in the amount of
$10,000.00. On or before the last day of the Inspection Period, Buyer shall
deposit in escrow the additional sum of $40,000.00 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." In the event that (a) the conditions precedent set forth in Section
3.1 above shall have been satisfied or waived, (b) Seller shall have performed
fully or tendered performance of its obligations hereunder and (c) Buyer shall
be unable or fail to perform its obligations hereunder, then the entire amount
of the Deposit shall be paid to and retained by Seller. Buyer hereby certifies
to the Title Company that Buyer's FEIN number is 58-1764515.
BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT SELLER'S
DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY BUYER WOULD
BE DIFFICULT OR IMPOSSIBLE TO ESTIMATE OR DETERMINE, THAT THE AMOUNT OF
9
<PAGE>
THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE
DAMAGES SELLER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR
IN THIS AGREEMENT FAILS TO CLOSE, AND THAT SUCH ESTIMATE IS REASONABLE
UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT. BUYER
AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT SHALL BE THE
SOLE AND EXCLUSIVE REMEDY OF SELLER IN THE EVENT OF A BREACH OF THIS
AGREEMENT BY BUYER.
ACCEPTED AND AGREED TO:
/s/ /s/
--- ---
Seller Buyer
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 deductible under
Seller's insurance policies and 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 $100,000.00, either party may elect to terminate this Agreement by
written notice to the other given not more than ten (10) days following notice
to Buyer of 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 of this Agreement
pursuant to this paragraph, the Deposit shall be returned to Buyer. 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.
10
<PAGE>
(e) If, prior to the Closing Date, there shall be any condemnation or
eminent domain proceedings instituted or pending against any part of the
Property, then Buyer may elect to terminate this Agreement by written notice
given to Seller and the Title Company within ten (10) days after Buyer has
received notice from Seller of such proceedings. Upon such notice to Seller, the
Deposit shall be returned to Buyer, and upon such return, this Agreement shall
terminate and be null and void and of no further force or effect. Failure of
Buyer to notify Seller and the Title Company within said ten (10) days that
Buyer has elected to terminate this Agreement, shall be deemed to mean that
Buyer has elected not to terminate this Agreement. If Buyer does not so elect to
terminate this Agreement, then the transaction contemplated herein shall take
place as provided herein without abatement of the Purchase Price, and there
shall be paid or assigned to Buyer on the Closing Date all interest of Seller in
and to any condemnation awards which have been or may be payable to Seller on
account of such occurrence.
Section 7.2 - Brokerage Commissions and Finder's Fees.
-----------------------------------------------------
Each party to this Agreement warrants to the other 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 the indemnifying party's acts. Buyer acknowledges that
Seller will pay Real Estate Compensation to Cannon Financial, Inc. in an amount
equal to 4% of the Purchase Price and to Equitable Management Corporation in an
amount equal to 4% of the Purchase Price; and Buyer acknowledges that Seller may
pay Real Estate Compensation to SSR Realty Advisors, Inc. or its affiliates, but
Buyer shall have no obligation or liability with respect thereto.
Section 7.3 - Leasing Commissions.
---------------------------------
Seller and Buyer shall each indemnify, protect, defend and hold the
other harmless from and against any leasing commissions payable by the
indemnifying party as provided in Section 4.2(b) above.
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, the foregoing
notwithstanding, London Realty Company, L.P. shall have the right to assign this
Agreement to any entity substantially controlled by London Realty Company, L.P.
or Bob London, the general partner of London Realty Company, L.P., provided that
there is no increase in the price to be paid by such assignee for the Property.
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) sent by Federal Express or
similar nationally recognized overnight courier service, or (iii) transmitted 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.
1 California Street
Suite 1400
San Francisco, CA 94111-5415
Phone No. (415) 678-2135
Fax No. (415) 678-2291
Attn: Mr. Minton J. Newell
with a copy to: Sanford H. Zatcoff, Esq.
Holt Ney Zatcoff & Wasserman, LLP
100 Galleria Parkway
Suite 600
Atlanta, Georgia 30339
Phone No. (770) 956-9600
Fax No. (770) 956-1490
11
<PAGE>
To Buyer: London Realty Company, L.P.
2931 Piedmont Road, N.E., Suite E
Atlanta, Georgia 30305
Phone No. (404) 231-9600
Fax No. (404) 231-9127
with a copy to: Alex Kliros, Esq.
Greenfield, Bost & Kliros, P.C.
990 Hammond Drive
Suite 650
Atlanta, Georgia 30328
Phone No. (770) 393-2100
Fax No. (770) 392-1803
The foregoing addresses may be changed from time to time by written
notice. Notices shall be deemed received upon actual receipt or delivery (or
refusal to accept delivery).
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. Any rental rebates, rollbacks or the like mandated with
respect to the period of Seller's ownership of the Property shall be paid when
due by Buyer.
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 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 Georgia.
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;
12
<PAGE>
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) "Metric" shall mean Metric Management, Inc., a
Delaware corporation; Metric Property Management, Inc., a Delaware
corporation, Metric Realty, an Illinois general partnership, and SSR
Realty Advisors, Inc., a Delaware corporation; 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 Metric
any of their respective Affiliates or Seller.
(b) Restrictions on Disclosure. Buyer agrees that, unless Buyer has
obtained the prior written consent of Metric, 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 Buyer's lawyers,
accountants and as required by applicable law or governmental authorities, and
other than to Metric or any of their respective Affiliates, any Disclosure
Document.
(c) Indemnification. Buyer and Buyer's principals shall indemnify and
hold harmless Metric, their respective Affiliates and Seller, and all directors,
officers, employees, 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 7.15 - 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 solely to the assets
of Seller. In no event shall Buyer seek satisfaction for any such obligation
from any of the officers, shareholders, directors or agents of Seller. Buyer
specifically 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, provided, however, in the event
that Seller willfully and wrongfully refuses to deliver the Deed to Buyer, Buyer
may sue Seller for specific performance to cause the delivery of the Deed.
Section 7.16 - 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 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 between Seller and Buyer dated November 20, 1997.
13
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
SELLER:
METRIC INCOME TRUST SERIES, INC., a California
corporation
By: /s/ Herman H. Howerton
----------------------------
Herman H. Howerton
Its: Vice President, General Counsel
BUYER:
LONDON REALTY COMPANY, L.P., a Georgia limited
partnership
By: /s/ Bob London (SEAL)
---------------------------
Bob London, General Partner
14
<PAGE>
EXHIBIT A
ALL THAT TRACT of land in Land Lot 112 of the 12th District, Clayton County,
Georgia, described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the
northeast right-of-way line of Merchant's Way (80 foot right-of-way) with the
northwest right-of-way line of Exchange Place (variable right-of-way at this
point); thence, along the northwest right-of-way line of Exchange Place, North
86 degrees 13 minutes East 20.81 feet to a point; thence, continuing along the
northwest right-of-way line of Exchange Place (a 50 foot right-of-way), the
following courses and distances: (1) North 51 degrees 00 minutes East 129.25
feet to a point, and (2) along the arc of a curve to the left (which arc is
subtended by a chord having a bearing and distance of North 47 degrees 40
minutes East 108.08 feet and a radius of 929.934 feet) 108.14 feet to a 3/4 inch
reinforcing rod found at the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING as thus established, thence, leaving said northwest right-of-way line,
running North 46 degrees 58 minutes West 223.30 feet to a tack found on the
southeast side of Southlake Circle (private street) (said southeast side being
located along the back of the southeast curb thereof); thence along the
southeast side of Southlake Circle, the following courses and distances: (1)
along the arc of a curve to the left (which arc is subtended by a chord having a
bearing and distance of North 38 degrees 00 minutes East 102.09 feet and a
radius of 1447.500 feet) 102.11 feet to a point, and (2) along the arc of a
curve to the left (which arc is subtended by a chord having a bearing and
distance of North 33 degrees 08 minutes 30 seconds East 72.86 feet and a radius
of 736.276 feet) 72.89 feet to a reinforcing rod found; thence, leaving the
southeast side of Southlake Circle, South 58 degrees 43 minutes 30 seconds East
228.30 feet to a 3/4-inch reinforcing rod found on the northwest right-of-way
line of said Exchange Place (a 50-foot right-of-way); thence, along the
northwest right-of-way line of Exchange Place, along the arc of a curve to the
right (which arc is subtended by a chord having a bearing and distance of South
37 degrees 30 minutes 45 seconds West 221.02 feet and a radius of 929.934 feet)
221.55 feet to the TRUE POINT OF BEGINNING, said tract containing 1.03 acres as
shown on plat of ALTA/ACSM Land Title Survey by Watts & Browning - Engineers,
bearing the seal and certification of G.M. Gillespie, Georgia Registered
Professional Land Surveyor No. 2121, dated January 3, 1989, last revised
November 12, 1997.
TOGETHER WITH all right, title and interest in and to the non-exclusive,
perpetual easements appurtenant to the above described tract created by that
certain Declaration of Easement by and among Southlake Development Properties,
Decatur Federal Savings & Loan Association, Fulton National Bank of Atlanta and
A-T-O Properties Inc., dated March 18, 1976, recorded in Deed Book 804, page
264, Clayton County, Georgia records, as re-recorded at Deed Book 808, page 329,
aforesaid records, as amended by First Amendment to Declaration of Easement
dated November 9, 1989, between Decatur Federal Saving & Loan Association and
Anthony A. Petrarca, recorded December 1, 1989, in Deed Book 1600, page 658,
aforesaid records.
15
<PAGE>
EXHIBIT B
---------
Commitment for Title Insurance Issued by Chicago Title Insurance Company,
effective November 5, 1997, not included with this Amendment. The Registrant
agrees to provide the Securities and Exchange Commission copies of said Title
Report upon request.
EXHIBIT C
---------
1. The Lease.
2. The Title Report.
3. Any plans and specifications for any improvements located on the Real
Property in Seller's possession.
4. A survey of the Real Property prepared by Watts & Browning Engineers dated
dated January 3, 1989, last revised November 12, 1997.
5. A Phase I Environmental Report in respect to the Property prepared by Law
Engineering, Inc.
16
<PAGE>
EXHIBIT D
---------
Inquiry Memorandum
------------------
TO: Portfolio Accounting LEGAL
-------------------- -----
Sherie Kidwell Herman H. Howerton, Managing Director,
Portfolio Acctg. Mgr. General Counsel
PORTFOLIO MANAGEMENT cc: Sanford T. Zatcoff, Esq.
-------------------- Property Sales Closing File
Rich Faber, Portfolio Manager
Craig Fawcett, Assistant
Portfolio Manager
PORTFOLIO CLIENT SERVICES
-------------------------
Cindy Halicky, Director,
Operations Services
FROM: Minton J. Newell
DATE: February 17, 1998
RE: Internal Due Diligence
Haverty's Furniture Store, Plano, TX
Metric Real Estate, L.P.
RESPONSE MANDATORY
================================================================================
Pursuant to the proposed Agreement for Purchase and Sale Agreement by and
between METRIC INCOME TRUST SERIES, INC., ("Seller"), and LONDON REALTY COMPANY,
L.P., ("Buyer") we are required to provide a certification to the Buyer relative
to our knowledge of certain conditions which may affect the properties.
Please carefully read and review the attached. They are the pages from the
contract which outline the covenants, warranties and representations we will be
making as of the signing date. If you currently have knowledge of any facts
which would make these representations untrue or incorrect, please immediately
advise Tana Laura. If you have no such knowledge, please advise accordingly.
Please send your signed copy of this statement to Tana Laura. We must have your
response by Thursday, February 18, 1998.
Should you become aware of any fact which would make these representations
untrue prior to the closing date, please contact me immediately.
================================================================================
I have no knowledge of any facts which would make the attached representations
untrue as of this date except as noted below.
EXCEPTIONS: NONE
17
<PAGE>
Printed Name: Printed Name: Printed Name:
Herm H. Howerton Richard Faber Craig Fawcett
- ---------------- ------------- -------------
Signature: Signature: Signature:
/s/ Herm H. Howerton /s/ Richard Faber /s/ Craig Fawcett
- -------------------- ----------------- -----------------
Date: Date: Date:
2/18/98 2/18/98 2/18/98
- ------- ------- -------
Printed Name: Printed Name:
Cynthia A. Halicky Sherie Kidwell
Signature: Signature:
/s/ Cynithia A. Halicky /s/ Sherie Kidwell
- ----------------------- ------------------
Date: Date:
2/18/98 2/18/98
- ------- -------
18
<PAGE>
ATTACHMENT
----------
(b) Minton J. Newell (the "Agent") the Senior Vice President and Director of
Property Sales of Metric Management, Inc., an affiliate of Metric Realty, the
Seller's advisor, 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 of the date hereof, except as specifically set forth in Exhibit
D-l 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 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 or any
improvement on 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.
In addition, except for matters, if any, disclosed in the environmental
reports, if any, delivered to Buyer by Seller or which may be disclosed
in any environmental reports obtained by Buyer, based upon inquiry, by
means of the Inquiry Memorandum as aforesaid, Agent has no current
actual knowledge of, nor any reasonable cause to believe, that (a)
there has occurred, any release of Hazardous Substances (as hereinafter
defined) located on or beneath the Real Property; or (b) Seller has
been required by any governmental agency to undertake any remediation
activity with respect to Hazardous Substances on the Real Property. As
used herein the term "Hazardous Substances" shall mean and include any
and all toxic or hazardous substances, materials or wastes listed in
the United States Department of Transportation Table (49 CFR 172.101)
or by the Environmental Protection Agency as hazardous substances (40
CFR Part 302) and in any and all amendments thereto in effect as of the
Closing Date, or such substances, materials or wastes otherwise
regulated under any applicable local, state or federal law including,
without limitation, petroleum products; or
(v) With the possible exception of the lack of repair or
maintenance respecting the roof on the building which is a part of the
Property, there are any defaults by the Seller as the landlord under
the Lease.
EXHIBIT D - 1
-------------
SCHEDULE OF EXCEPTIONS
[NONE]
EXHIBIT E
Form of Real Estate Transfer Tax Declaration not included with this Amendment.
The Registrant agrees to provide the Securities and Exchange Commission copies
of said Real Estate Transfer Tax Declaration upon request.
19
<PAGE>
EXHIBIT F
---------
Form of Deed
------------
LIMITED WARRANTY DEED
THIS INDENTURE, made this 21st day of _______, 1998, between METRIC
INCOME TRUST SERIES, INC., a California corporation (the "Grantor") and LONDON
REALTY COMPANY, L.P., a Georgia limited partnership (the "Grantee").
WITNESSETH that, in consideration of Ten Dollars ($10.00) in hand paid
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Grantor does hereby transfer and convey unto Grantee the
land described in Exhibit "A" attached hereto and made a part hereof, together
with all buildings and other improvements located thereon, and together with all
fixtures, rights, members, easements, minerals, flowers, shrubs, crops, trees,
timber, emblements, tenements, hereditaments, reversions, remainders, rents,
issues, profits, leases, condemnation awards and payments, and appurtenances in
any manner appertaining or belonging to said property.
TO HAVE AND TO HOLD said property unto Grantee in fee simple absolute
forever. Grantor shall warrant and forever defend the title and interest to said
property unto Grantee against the claims of all persons claiming by, through or
under Grantor, but not otherwise, and except for those matters set forth in
Exhibit "B" attached hereto and made a part hereof. Where the context requires
or permits, "Grantor" and "Grantee" shall include their respective heirs,
successors and assigns.
IN WITNESS WHEREOF, Grantor has executed this deed under seal on the
date above written.
Signed, sealed and delivered in the GRANTOR:
presence of:
METRIC INCOME TRUST SERIES, INC., a
/s/ California corporation
- ---
Unofficial Witness
By: /s/ Herman H. Howerton
-----------------------
/s/ Tana Laura Name: Herman H. Howerton
- -------------- Title: Vice-President/Secty.
Notary Public
TANA J. LAURA (CORPORATE SEAL)
Comm #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan. 15, 2001
My Commission Expires: January 15, 2001
20
<PAGE>
EXHIBIT G
---------
Form of 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 LONDON REALTY
COMPANY, L.P., a Georgia limited partnership ("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 (the
"Agreement") dated as of February 18, 1998 entered into by and between Assignor,
as Seller, and Assignee, as Buyer.
Assignee hereby assumes and agrees to keep, perform and fulfill all of
Assignor's obligations as obligor under any of the following contracts (the
"Assigned Contracts"): that certain Lease Agreement dated May 4, 1988 between
Anthony A. Petrarca as, Landlord, and Eyelab, Inc., as Tenant, as assigned by
Anthony A. Petrarca to Assignor by Assignment of Lease and Intangible Property
dated November 29, 1989, as amended by that certain First Amendment to Lease
dated March 31, 1997, between Pearle Vision, Inc., the successor-in-interest to
Eyelab, Inc., and Metric Income Trust Series, Inc., the successor-in-interest to
Anthony A. Petrarca; any service contracts pertaining to the Real Property (as
defined in the Agreement), any governmental licenses, permits and approvals held
by Assignor relating to the occupancy or use of the Real Property, and any
existing warranties held by Assignor and given by third parties with respect to
the Real Property. 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 March 3, 1998.
ASSIGNOR:
METRIC INCOME TRUST SERIES, INC., a California
corporation
By: /s/ Herman H. Howerton
----------------------
Its: Vice-President/Secty.
---------------------
ASSIGNEE:
LONDON REALTY COMPANY, L.P., a Georgia limited
partnership
By: /s/ Bob London (SEAL)
----------------
Bob London, General Partner
21
<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 LONDON REALTY COMPANY, L.P., a Georgia limited
partnership ("Buyer"), all of the personal property described in Schedule 1
attached hereto and by this reference incorporated herein. 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 February
18, 1998 between Seller and Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 3rd day
of March, 1998.
SELLER:
METRIC INCOME TRUST SERIES, INC., a California
corporation
By:/s/ Herm H. Howerton
--------------------
Its:Vice President/Secty.
--------------------
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
I, Tana J. Laura, a notary public in and for the state and county
aforesaid, DO HEREBY CERTIFY that Herman H. Howerton, personally known to me to
be the Vice-President of Metric Income Trust Series, Inc., a California
corporation (the "Corporation") and known to me to be the same person whose name
is subscribed to the foregoing instrument as the Vice-President of the
Corporation, appeared before me this day in person and acknowledged that he
signed, sealed and delivered the said instrument as the free act and deed of the
Corporation for the uses and purposes therein set forth.
GIVEN under my hand and official seal this 24th day of February, 1998.
TANA J. LAURA
Comm #1122580 /s/ Tana J. Laura
NOTARY PUBLIC CALIFORNIA ------------------
City & County of San Francisco Notary Public
Comm. Exp. Jan. 15, 2001
SCHEDULE 1
Schedule of Personal Property
[None]
22
<PAGE>
EXHIBIT I
---------
ASSIGNMENT OF LEASE
-------------------
This ASSIGNMENT is entered into this 3rd day of March, 1998, by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Assignor"),
and LONDON REALTY COMPANY, L.P., a Georgia limited partnership ("Assignee").
RECITALS
--------
A. Assignor is the landlord under that certain lease described on
Schedule 1 attached hereto (the "Lease") relating to that certain real property
described in Schedule 2 attached hereto (the "Property").
B. Assignor and Assignee are parties to that certain Agreement for
Purchase and Sale of Real Property dated as of February 18, 1998 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
Lease.
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 Lease.
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 Lease.
3. Assignee assumes as of and from the date hereof all of Assignor's
obligations under the Lease.
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 Lease.
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.
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.
Signed, sealed and delivered in the ASSIGNOR:
presence of:
METRIC INCOME TRUST SERIES, INC., a
/s/ California corporation
- ---
Unofficial Witness
By: /s/ Herman H. Howerton
----------------------
/s/ Tana Laura Name: Herman H. Howerton
- -------------- Title: Vice President/ Secty.
Notary Public
(CORPORATE SEAL)
TANA J. LAURA
Comm #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan. 15, 2001
23
<PAGE>
Signed, sealed and delivered in the ASSIGNEE:
presence of:
LONDON REALTY COMPANY, L.P., a Georgia
/s/ limited partnership
- ---
Unofficial Witness
By: /s/ Bob London (SEAL)
--------------
/s/ Bob London, general partner
- ---
Notary Public
(NOTARY SEAL)
My Commission Expires: Aug. 1, 1998
SCHEDULE 1
----------
Schedule of Lease
Lease Agreement dated May 4, 1988 between Anthony A. Petrarca as Landlord and
Eyelab, Inc., as Tenant, as assigned by Anthony A. Petrarca to Metric Income
Trust Series, Inc. by Assignment of Lease and Intangible Property dated November
29, 1989, as amended by that certain First Amendment to Lease dated March 31,
1997, between Pearle Vision, Inc., the successor-in-interest to Eyelab, Inc.,
and Metric Income Trust Series, Inc., the successor-in-interest to Anthony A.
Petrarca.
SCHEDULE 2
----------
ALL THAT TRACT of land in Land Lot 112 of the 12th District, Clayton County,
Georgia, described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the
northeast right-of-way line of Merchant's Way (80 foot right-of-way) with the
northwest right-of-way line of Exchange Place (variable right-of-way at this
point); thence, along the northwest right-of-way line of Exchange Place, North
86 degrees 13 minutes East 20.81 feet to a point; thence, continuing along the
northwest right-of-way line of Exchange Place (a 50 foot right-of-way), the
following courses and distances: (1) North 51 degrees 00 minutes East 129.25
feet to a point, and (2) along the arc of a curve to the left (which arc is
subtended by a chord having a bearing and distance of North 47 degrees 40
minutes East 108.08 feet and a radius of 929.934 feet) 108.14 feet to a 3/4 inch
reinforcing rod found at the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING as thus established, thence, leaving said northwest right-of-way line,
running North 46 degrees 58 minutes West 223.30 feet to a tack found on the
southeast side of Southlake Circle (private street) (said southeast side being
located along the back of the southeast curb thereof); thence along the
southeast side of Southlake Circle, the following courses and distances: (1)
along the arc of a curve to the left (which arc is subtended by a chord having a
bearing and distance of North 38 degrees 00 minutes East 102.09 feet and a
radius of 1447.500 feet) 102.11 feet to a point, and (2) along the arc of a
curve to the left (which arc is subtended by a chord having a bearing and
distance of North 33 degrees 08 minutes 30 seconds East 72.86 feet and a radius
of 736.276 feet) 72.89 feet to a reinforcing rod found; thence, leaving the
southeast side of Southlake Circle, South 58 degrees 43 minutes 30 seconds East
228.30 feet to a 3/4-inch reinforcing rod found on the northwest right-of-way
line of said Exchange Place (a 50-foot right-of-way); thence, along the
northwest right-of-way line of Exchange Place, along the arc of a curve to the
right (which arc is subtended by a chord having a bearing and distance of South
37 degrees 30 minutes 45 seconds West 221.02 feet and a radius of 929.934 feet)
221.55 feet to the TRUE POINT OF BEGINNING, said tract containing 1.03 acres as
shown on plat of ALTA/ACSM Land Title Survey by Watts & Browning - Engineers,
bearing the seal and certification of G.M. Gillespie, Georgia Registered
Professional Land Surveyor No. 2121, dated January 3, 1989, last revised
November 12, 1997.
TOGETHER WITH all right, title and interest in and to the non-exclusive,
perpetual easements appurtenant to the above described tract created by that
certain Declaration of Easement by and among Southlake Development Properties,
Decatur Federal Savings & Loan Association, Fulton National Bank of Atlanta and
A-T-O Properties Inc., dated March 18, 1976, recorded in Deed Book 804, page
264, Clayton County, Georgia records, as re-recorded at Deed Book 808, page 329,
aforesaid records, as amended by First Amendment to Declaration of Easement
dated November 9, 1989, between Decatur Federal Saving & Loan Association and
Anthony A. Petrarca, recorded December 1, 1989, in Deed Book 1600, page 658,
aforesaid records.
24
<PAGE>
EXHIBIT J
---------
Form of FIRPTA Certificate
--------------------------
To inform LONDON REALTY COMPANY, L.P., a Georgia limited partnership
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Codes"), will not be required upon
transfer of certain real property to Transferee by METRIC INCOME TRUST SERIES,
INC., a California corporation, ("Transferor"), the undersigned hereby certifies
the following on behalf of Transferor:
1. Transferor 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. Transferor's U.S. employer identification/social security number
is as follows: 94-3087630.
3. Transferor's office address is: c/o Metric Realty, 1 California
Street, Suite 1400, San Francisco, California 94111-5415.
Transferor 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.
Transferor understand that Transferee is relying on this
Certification in determining whether withholding is required upon said transfer.
Transferor hereby agrees to indemnify, protect, defend and hold
Transferee harmless from and against any and all obligations, liabilities,
claims, losses, actions, causes of action, rights, demands, damages, costs and
expenses of every kind, nature or character whatsoever (including, without
limitation, attorneys' and paralegals' fees and costs and court costs) incurred
by Transferee as a result of: (i) Transferor's failure to pay U.S. Federal
income tax which the Transferor is required to pay under applicable U.S. arising
in connection with the subject transaction; or (ii) any false or misleading
statement contained herein.
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 Transferor.
Date: March 3, 1998
TRANSFEROR:
METRIC INCOME TRUST SERIES, INC., a
California corporation
By: /s/ Herman H. Howerton
----------------------
Its: Vice-President/ Secty.
---------------------
25
<PAGE>
EXHIBIT K
---------
AFFIDAVIT OF TITLE
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Personally appeared before me the undersigned officer, Herman H.
Howerton ("Deponent") who, being duly sworn according to law, deposes and says
on oath, to the best of his knowledge, as follows:
1. That Deponent is presently a Vice President of METRIC INCOME TRUST
SERIES, INC., a California corporation (the "Corporation"), and as such, has
personal knowledge of the facts sworn to in this Affidavit.
2. That the Corporation is the owner of certain real estate (the
"Property"), a description of which is attached hereto as Exhibit A and made a
part hereof.
3. That the Corporation is in open, exclusive, notorious, continuous,
adverse and peaceable possession of the Property and that, during the period of
the Corporation's ownership of the Property, the title thereto has never been
disputed, questioned or rejected or title insurance thereon refused, and
Deponent knows of no one claiming any adverse interest in the Property
whatsoever.
4. That the Corporation are in full force and effect and no proceeding
is pending for the dissolution or annulment of the Partnership. All licenses and
franchise taxes due and payable by the Partnership have been paid in full.
5. That there is no outstanding indebtedness incurred by the
Corporation for equipment, appliances or other fixtures attached to the
Property.
6. That there are no disputes concerning the location of the lines and
corners of the Property.
7. That no improvements or repairs have been made to the Property by or
at the instance of the Corporation during the one-hundred (100) days immediately
preceding the date hereof and there are no outstanding bills incurred by or at
the instance of the Corporation for labor and materials used in making
improvements or repairs on the Property or for services of architects, surveyors
or engineers; or if any such work, improvements or repairs have been made by or
at the instance of the Corporation within the last one-hundred (100) days, the
work, improvements and repairs are complete and there are no unpaid bills of any
nature incurred by or at the instance of the Corporation either for services of
any architect, engineer or surveyor or for labor or materials for any recent
improvements that may have been placed upon the Property in either the
construction or repair of any improvements thereon.
8. That there are no pending suits, judgments, bankruptcies,
executions, liens for past due taxes, assessments, encumbrances or leases that
could in any way affect the title to the Property, or constitute a lien thereon,
except as set forth on Exhibit B attached hereto and made a part hereof, and the
Corporation is not surety on the bond of any county official or any other bond
that through default of the principal therein a lien could be created superior
to any conveyance executed by the Corporation.
9. That there are no liens for past due taxes of any nature or any
unpaid assessments for paving, sidewalks, curbing, sewer or any other street
improvements of any kind against the Property or the Corporation.
10.That no real estate broker's services have been engaged in
connection with the management, sale, purchase, lease, option or other
conveyance of any interest in the Property, except Cannon Financial, Inc.,
Equitable Management Corporation and SSR Realty Advisors, Inc., and no notice of
lien for any such services has been received by the Corporation.
26
<PAGE>
This affidavit is made to induce London Realty Company, L.P. to acquire
the Property, the attorney certifying title to so certify and Chicago Title
Insurance Company to issue an owner's title insurance policy with respect to the
Property.
/s/ Herman H. Howerton (SEAL)
----------------------
Sworn to and subscribed
before me this 24th day of
February, 1998.
/s/ Tana J. Laura
- -----------------
Notary Public
TANA J. LAURA
Comm #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan. 15, 2001
EXHIBIT A
---------
ALL THAT TRACT of land in Land Lot 112 of the 12th District, Clayton County,
Georgia, described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the
northeast right-of-way line of Merchant's Way (80 foot right-of-way) with the
northwest right-of-way line of Exchange Place (variable right-of-way at this
point); thence, along the northwest right-of-way line of Exchange Place, North
86 degrees 13 minutes East 20.81 feet to a point; thence, continuing along the
northwest right-of-way line of Exchange Place (a 50 foot right-of-way), the
following courses and distances: (1) North 51 degrees 00 minutes East 129.25
feet to a point, and (2) along the arc of a curve to the left (which arc is
subtended by a chord having a bearing and distance of North 47 degrees 40
minutes East 108.08 feet and a radius of 929.934 feet) 108.14 feet to a 3/4 inch
reinforcing rod found at the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING as thus established, thence, leaving said northwest right-of-way line,
running North 46 degrees 58 minutes West 223.30 feet to a tack found on the
southeast side of Southlake Circle (private street) (said southeast side being
located along the back of the southeast curb thereof); thence along the
southeast side of Southlake Circle, the following courses and distances: (1)
along the arc of a curve to the left (which arc is subtended by a chord having a
bearing and distance of North 38 degrees 00 minutes East 102.09 feet and a
radius of 1447.500 feet) 102.11 feet to a point, and (2) along the arc of a
curve to the left (which arc is subtended by a chord having a bearing and
distance of North 33 degrees 08 minutes 30 seconds East 72.86 feet and a radius
of 736.276 feet) 72.89 feet to a reinforcing rod found; thence, leaving the
southeast side of Southlake Circle, South 58 degrees 43 minutes 30 seconds East
228.30 feet to a 3/4-inch reinforcing rod found on the northwest right-of-way
line of said Exchange Place (a 50-foot right-of-way); thence, along the
northwest right-of-way line of Exchange Place, along the arc of a curve to the
right (which arc is subtended by a chord having a bearing and distance of South
37 degrees 30 minutes 45 seconds West 221.02 feet and a radius of 929.934 feet)
221.55 feet to the TRUE POINT OF BEGINNING, said tract containing 1.03 acres as
shown on plat of ALTA/ACSM Land Title Survey by Watts & Browning - Engineers,
bearing the seal and certification of G.M. Gillespie, Georgia Registered
Professional Land Surveyor No. 2121, dated January 3, 1989, last revised
November 12, 1997.
TOGETHER WITH all right, title and interest in and to the non-exclusive,
perpetual easements appurtenant to the above described tract created by that
certain Declaration of Easement by and among Southlake Development Properties,
Decatur Federal Savings & Loan Association, Fulton National Bank of Atlanta and
A-T-O Properties Inc., dated March 18, 1976, recorded in Deed Book 804, page
264, Clayton County, Georgia records, as re-recorded at Deed Book 808, page 329,
aforesaid records, as amended by First Amendment to Declaration of Easement
dated November 9, 1989, between Decatur Federal Saving & Loan Association and
Anthony A. Petrarca, recorded December 1, 1989, in Deed Book 1600, page 658,
aforesaid records.
27
<PAGE>
EXHIBIT B
---------
1. All unpaid taxes and assessments for 1998 and subsequent years.
2. Terms and conditions of the unrecorded Lease Agreement between Anthony A.
Petraca, as Landlord, and Eyelab, Inc., as Tenant, dated May 4, 1988, as
assigned to Metric Income Trust Series, Inc., as amended.
3. The following Easements from Southlake Associates to Georgia Power
Company:
(a) dated November 21, 1975, recorded December 23, 1975 in Deed Book
795, page 10, Clayton County, Georgia records (affects Fee Parcel
only); and
(b) dated February 24, 1978, recorded February 28, 1978 in Deed Book
897, page 678, aforesaid records.
4. Permit for Anchors, Guy Poles and Wires from J.W. Bealle to Georgia Power
Company dated March 22, 1974, recorded April 8, 1974, in Deed Book 727,
page 371, aforesaid records (affects Fee Parcel only).
5. Easement from James W. Bealle to Georgia Power Company, dated March 8,
1976, recorded March 31, 1976 in Deed Book 805, page 626, aforesaid
records.
6. Water Easement from Carter & Associates to Clayton County Water Authority,
dated May 11, 1977, recorded May 13, 1977 in Deed Book 859, page 196,
aforesaid records.
7. Sewer Easement from Southlake Development Properties to Clayton County
Water Authority, dated November 21, 1977, recorded November 22,1977 in
Deed Book 886, page 853, aforesaid records.
8. Restrictions contained in the following instruments:
(a) Guidelines for Development of Peripheral Land among Crow,
Carter Property Company No. Ten, A-T-O Properties Inc. and
Rich's, Inc., dated September 6, 1974, recorded February 7,
1975 in Deed Book 759, page 443, aforesaid records; and
(b) Peripheral Land Agreement among Southlake Associates, A-T-O
Properties Inc. and R.H. Macy & Co., Inc., dated as of
September 3, 1974, recorded March 21, 1975 in Deed Book 763,
page 492, aforesaid records.
9. Declaration of Easement by Southlake Development Properties, dated March
18, 1976, recorded March 19, 1976 in Deed Book 804, page 264, aforesaid
records, re-recorded Aril 22, 1976 in Deed Book 808, page 329, aforesaid
records, as amended by First Amendment to Declaration of Easement dated
November 9, 1989, between Decatur Federal Savings & Loan Association and
Anthony A. Petrarca, recorded in Deed Book 1600, page 658, aforesaid
records.
10. Restrictions and Covenants contained in Warranty Deed, Agreement and
Declaration between Southlake Development Properties and Far West
Services, Inc., dated as of August 21, 1978, recorded August 22, 1978 in
Deed Book 920, page 399, aforesaid records.
11. Restrictive Covenants and Reservations contained in Warranty Deed,
Agreement and Declaration between Southlake Development Properties and
Decatur Federal Savings & Loan Association, dated March 18, 1976, recorded
March 19, 1976 in Deed Book 804, page 251, aforesaid records, re-recorded
April 22, 1976 in Deed Book 808, page 337, aforesaid records, and
re-recorded May 10, 1976 in Deed Book 810, page 503, aforesaid records
(affects Easement Parcel only).
12. Permit for Anchors, Guy Poles and Wires from Scott Development Co. to
Georgia Power Company dated March 14, 1974, recorded April 8, 1974 in Deed
book 727, page 372, aforesaid records (affects Easement Parcel only).
28
<PAGE>
13. All Matters disclosed by plat of ALTA/ACSM Land Title Survey prepared by
Watts & Browning Engineers, bearing the seal and certification of G.M.
Gillespie, Georgia Professional Land Surveyor No. 2121, dated January 3,
1989, last revised November 12, 1997, and such state of facts occurring
after November 12, 1997 as would be disclosed by a current, accurate
survey and inspection of the real property herein described.
EXHIBIT L
---------
Form of Letter to Tenant
------------------------
March 3, 1998
Pearle Vision, Inc.
Re: Lease Agreement (the "Lease") dated May 4, 1988 between
Anthony A. Petrarca, as Landlord and Eyelab, Inc., as Tenant,
as assigned by Anthony A. Petrarca to Metric Income Trust
Series, Inc. by Assignment of Lease and Intangible Property
dated November 29, 1989, as amended by that certain First
Amendment to Lease dated March 31, 1997, between Pearle
Vision, Inc., the successor-in-interest to Eyelab, Inc., and
Metric Income Trust Series, Inc., the successor-in-interest to
Anthony A. Petrarca, with respect to approximately 5,755
square foot free-standing retail store located at 1281
Southlake Circle, Morrow, Georgia
Gentlemen:
You are hereby notified that Metric Income Trust Series, Inc. has sold
its fee interest in the property located at 1281 Southlake Circle, Morrow,
Georgia and has assigned its interest as Landlord under your Lease to London
Realty Company, L.P. ("Buyer").
You are further notified that 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 should be paid to Buyer. Please make your rent
checks payable to London Realty Company, L.P., and please mail the rent checks
to 2931 Piedmont Road, N.E., Suite E, Atlanta, Georgia 30305.
Please have a new insurance certificate issued with respect to all
insurances which you are required to carry pursuant to the Lease naming London
Realty Company, L.P. as the Owner and Landlord instead of Metric Income Trust
Series, Inc., and send the new insurance certificate to the address in the
preceding paragraph.
Any written notices you desire or are required to make to the Landlord
under your lease should be sent to the Buyer at the above address.
Very truly yours,
METRIC INCOME TRUST SERIES, INC.
By: /s/ Herman H. Howerton
----------------------
Name: Herman H. Howeton
Title: Vice President
29
<PAGE>
EXHIBIT M
---------
Form of Estoppel Certificate
----------------------------
February 27, 1998
Re: Lease Agreement dated May 4, 1988 between Anthony A. Petrarca,
as Tenant, and Eyelab, Inc. ("Lessee"), as Tenant, as assigned
by Anthony A. Petrarca to Metric Income Trust Series, Inc.
("Lessor") by Assignment of Lease and Intangible Property
dated November 29, 1989, as amended by that certain First
Amendment to Lease dated March 31, 1997, between Pearle
Vision, Inc., the successor-in-interest to Eyelab, Inc., and
Metric Income Trust Series, Inc., the successor-in-interest to
Anthony A. Petrarca (the "Lease") with respect to an
approximately 5,755 square foot free-standing retail store
located at 1281 Southlake Circle, Morrow, Georgia
Gentlemen:
Lessee understands that London Realty Company, L.P., a Georgia
limited partnership, is considering acquiring the above-referenced building (the
"Building") and has requested certain information from Lessee relative to its
Lease.
Therefore, with respect to the Lease, Lessee hereby
acknowledges the following:
1. A complete, true and accurate copy of the Lease and
all amendments or modifications thereto is attached
hereto as Schedule 1.
2. Lessee has accepted the premises demised under the
Lease.
3. The Commencement Date of the Lease is September 27,
1988 and the term of the Lease has been extended so
that it expires on March 31, 2007. There are no
renewal options.
4. Lessee has paid Lessor a security deposit under the
Lease in the amount of $-0-.
5. Current base monthly rental under the Lease is
$9,057.75 which has been paid through and including
February 28, 1998.
6. To Lessee's actual knowledge, there are no defaults
of Lessor under the Lease nor any existing conditions
which upon the giving of notice or lapse of time or
both would constitute a default under the Lease
except as follows:
7. Lessee has been billed and has paid $0 for insurance
reimbursement to Lessor applicable to the period of
time commencing 02/01/98 through 02/28/98.
Lessee:
PEARLE VISION, INC., formerly known as
Eyelab, Inc.
By: /s/
---
Its:Vice President
--------------
Dated: February 27, 1998
30
<PAGE>
SELLER'S FINAL CLOSING STATEMENT
--------------------------------
Seller's Final Closing Statement, dated March 3, 1998 is not filed with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Final Closing Statement upon request.
AFFIDAVIT OF SELLER'S GAIN
--------------------------
Affidavit of Seller's Gain, executed by Herman H. Howerton, Vice President of
Registrant, is not filed with this Amendment. Metric Income Trust Series, Inc.
agrees to provide the Securities and Exchange Commission copies of said
Affidavit of Seller's Gain upon request.
ESCROW INSTRUCTIONS
-------------------
Escrow Instructions, in the form of a letter dated February 24, 1996 to Chicago
Title Insurance Co., signed by Buyer's and Seller's counsels, is not filed with
this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Escrow Instructions upon
request.
ASSIGNMENT, ACCEPTANCE and NOTICE/REPLACEMENT PROPERTY
CONTRACT/DIRECTION TO CONVEY
----------------------------
Assignment, Acceptance and Notice/ Replacement Property Contract/ Direction to
Convey is not filed with this Amendment. Metric Income Trust Series, Inc. agrees
to provide the Securities and Exchange Commission copies of said Assignment,
Acceptance and Notice/ Replacement Property Contract/ Direction to Convey upon
request.
AGREEMENT BETWEEN SECONDARY CLIENT AND LAW ENGINEERING
ENVIRONMENTAL SERVICES, INC.
----------------------------
Agreement between Secondary Client and Law Engineering and Environmental
Services, Inc., is not filed with this Amendment. Metric Income Trust Series,
Inc. agrees to provide the Securities and Exchange Commission copies of said
Agreement upon request.
CERTIFICATE THAT PEARLE VISION INC. HAS NOT BEEN BILLED
FOR TAXES AND INSURANCE
-----------------------
Certificate that Pearle Vision, Inc. has not been billed for taxes and insurance
for 1998 is not filed with this Amendment. Metric Income Trust Series, Inc.
agrees to provide the Securities and Exchange Commission copies of said
Certificate upon request.
ALTA/ACSM LAND TITLE SURVEY MAPS
--------------------------------
ALTA/ACSM Land Title Survey maps, dated January 3, 1989, are not filed with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said maps upon request.
PURCHASER'S AFFIDAVIT AS TO BROKERS
-----------------------------------
Purchaser's Affidavit as to Brokers is not filed with this Amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Affidavit upon request.
UNCONDITIONAL WAIVERS AND RELEASES OF COMMERCIAL REAL ESTATE
BROKER'S LIENS
--------------
Unconditional Waivers and Releases of Commercial Real Estate Broker's Liens from
Equitable Management Corporation, Cannon Financial, Inc., and SSR Realty
Advisors, Inc., are not filed with this Amendment. Metric Income Trust Series,
Inc. agrees to provide the Securities and Exchange Commission copies of said
Waivers and Releases upon request.
31
