FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED January 6, 1999
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 24, 1998
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Date of Report
(Date of earliest event reported)
Metric Income Trust Series, Inc.
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(Exact name of registrant as
specified in its charter)
0-18294 California 94-3087630
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(Registration (State or Other (IRS Employer
File Jurisdiction of Identification
Number) Incorporation) Number)
One California Street, San Francisco, California 94111-5415
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(415) 678-2000
(800) 347-6707 Watts line for all states
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
Exhibit a) Earnest Money Contract by and between Metric Income Trust
Series, Inc., as Seller, and Brauvin, Inc. Buyer, dated
November 13, 1998.
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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
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William A. Finelli
Chief Financial Officer
Date: April 19, 1999
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EARNEST MONEY CONTRACT - COMMERCIAL IMPROVED PROPERTY
1. PARTIES. METRIC INCOME TRUST SERIES, INC., a California corporation
("Seller"), agrees to sell and convey to BRAUVIN INC., an Illinois
corporation ("Buyer"), and Buyer agrees to buy from Seller, the
following property for the consideration and upon and subject to the
terms, provisions, and conditions hereinafter set forth.
2. PROPERTY. A parcel of land situated in Riverside County, State of
California and more particularly described as set forth on Exhibit A
attached hereto and incorporated herein ("Land"); together with all
buildings, improvements, fixtures, and all property of every kind and
character and description owned by Seller located on or attached to the
Land ("Improvements"); all privileges, and appurtenances pertaining
thereto including any right, title and interest of Seller in and to
adjacent streets, alleys, rights-of-way or easements for ingress and
egress; Seller's interest in and to all licenses and permits with
respect to the Land and the Improvements; Seller's interest in that
certain lease dated November 30, 1989 between Seller and National
Convenience Stores Incorporated ("NCS"), as amended pursuant to that
certain Lease Amendment dated as of October 14, 1992 between Seller and
NCS (collectively, the "Lease"), which Lease was assumed by Circle K
Stores, Inc. ("Circle K"), pursuant to that certain Assignment and
Assumption of Lease dated April 28, 1994 between NCS and Circle K; and
Seller's interest in all warranties or guaranties relating to the Land,
the Improvements or to any tangible personal property and fixtures
located on or attached to the Land or Improvements; all of the above
hereinafter collectively called "Property".
3. CONTRACT SALES PRICE.
A. Cash payable at closing (inclusive of
Deposit described in Paragraph 5) $970,000
B. Amount of Third Party Financing
(see Paragraph 4) Not Applicable
C. Total Sales Price (Sum of A and B) $970,000
4. THIRD PARTY FINANCING. Not Applicable.
5. EARNEST MONEY. Within two (2) business days after the end of the
Inspection Period (as defined below), Buyer shall deposit the sum of
$50,000 as earnest money in escrow with Chicago Title Insurance
Company, 388 Market Street, Suite 1300, San Francisco, California,
Attn: Beth Bailey-Gates ("Title Company"), which amount shall be placed
in an interest bearing account. The amount so deposited and any
interest earned thereon is hereinafter referred to as the "Deposit".
The entire amount of the Deposit shall be non-refundable to Buyer
except in the event that Seller shall default in the performance of or
otherwise be unable to perform its obligations under this Contract.
6. CLOSING: The closing of the sale ("Closing") shall take place at the
Title Company before 5 p.m., on or before the fifteenth (15th) day
following expiration of the Inspection Period ("Closing Date") and,
subject to an extension of the Closing Date owing to Seller's right to
cure as set forth in Paragraph 12 hereof, the transaction contemplated
herein shall close not later than December 29, 1998, unless such date
is changed in writing by Seller and Buyer, or otherwise extended as
herein provided.
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A. At the Closing, Seller shall deliver to escrow, at Seller's
sole cost and expense, the following:
(1) A duly executed and acknowledged Grant Deed conveying
title in fee simple to all of the Land and
Improvements, subject to the Approved Title Matters
(as such term is defined in Paragraph 12 hereof)
and/or as otherwise approved by Buyer in writing;
(2) A Bill of Sale conveying title, free and clear of all
liens, to any personal property specified herein and
to the extent assignable, licenses, permits,
warranties or guaranties, duly executed by Seller;
(3) The original Lease;
(4) An Assignment and Assumption of the Lease in the form
attached hereto as Exhibit C;
(5) Evidence of its capacity and authority for the
Closing of this transaction;
(6) Seller's FIRPTA Affidavit; and
(7) All other documents necessary to close this
transaction as may be reasonably requested by Title
Company or required by local practice and custom.
B. At the Closing, Buyer shall deliver to escrow, at Buyer's sole
cost and expense, the following:
(1) The total Sales Price (subject to any applicable
prorations);
(2) Evidence of its capacity and authority for the
Closing of this transaction; and
(3) All other documents necessary to close this
transaction as may be reasonably requested by Title
Company or required by local practice and custom.
C. At the Closing, Title Company shall issue to Buyer its CLTA
Owner's Standard Coverage Policy of title insurance ("Title
Policy") in the full amount of the Sales Price, dated as of
the Closing Date, insuring Buyer's fee simple title to the
Land and Improvements subject only to the standard printed
exceptions contained in the usual form of Title Policy,
non-delinquent real property taxes and assessments, Approved
Title Matters and such other matters as Buyer may approve in
writing. Notwithstanding the preceding sentence, Buyer may, at
its election and at its sole cost and expense, seek to obtain
from Title Company overstandard coverage and any and all
endorsements to the Title Policy which Buyer may deem
necessary or desirable; provided, however, that Buyer shall
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satisfy itself as to the availability of all such coverage and
Title Company's commitment to issue such coverage prior to
expiration of the Inspection Period. Title Company's
unwillingness or inability to issue, at closing, a policy
(other than the Title Policy), or any of the endorsements
requested by Buyer and agreed to by Title Company during the
Inspection Period, shall not constitute a failure of a
condition precedent excusing Buyer's performance hereunder,
unless such unwillingness or inability on the part of the
Title Company is owing to some condition of title which had
not been disclosed to Buyer prior to the expiration of the
Inspection Period and which materially adversely affects the
condition of title to the Property.
D. In addition to the items to be delivered by Seller at Closing
as described in Paragraph 6(A) above, it shall be a condition
precedent to Buyer's obligation to close this transaction,
that Buyer receive (i) a tenant estoppel certificate from the
tenant under the Lease in substantially the form attached
hereto as Exhibit D addressed to Seller and Brauvin Capital
Trust, Inc.; (ii) (a) an acknowledgement from Circle K that
its obligations under that certain indemnification letter
dated April 22, 1998 in favor of Seller (the "Indemnification
Letter"), upon conveyance of the Property to Buyer will run to
Buyer, as Seller's successor-in-interest and its successors
and assigns or (b) the Indemnification Letter reissued by
Circle K in favor of Buyer and its successors and assigns; --
(iii) subject to the provisions of Paragraph 6(C) above and
the limitations of Paragraph 12 below, the Title Policy; (iv)
the Survey (as defined below) with no changes from that which
is approved (or deemed to be approved) by Buyer during the
Inspection Period, certified to Brauvin Capital Trust, Inc.
and the Title Company, and (v) (a) the Phase I Environmental
Site Assessment (to be updated at Buyer's election) addressed
to Brauvin Capital Trust, Inc., or (b) a letter from the
applicable environmental firm which prepared such assessment
for Seller stating that the same may be relied upon by Brauvin
Capital Trust, Inc. Seller shall make commercially reasonable
efforts to obtain the items described in clauses (i) and (ii)
of this Paragraph 6(D) and shall reasonably cooperate with
Buyer's efforts to obtain the items described in clauses
(iii), (iv) and (v) of this Paragraph 6(D). Seller shall not
be, or be deemed to be, in breach of this Contract in the
event it or Buyer, as the case may be, is unable to obtain any
of the items described in this Paragraph 6(D). If, following
the expiration of the Inspection Period, the transaction
contemplated hereby fails to close owing solely to a failure
of one or more of the conditions precedent set forth in this
Paragraph 6(D) to be satisfied, then Buyer may terminate this
Contract, the Deposit shall be returned to Buyer and Buyer
shall be entitled to recover from Seller its reasonable and
substantiated out of pocket expenses incurred in connection
with this transaction up to a maximum of $7,500.00.
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7. FEASIBILITY STUDY AND INSPECTION. Prior to expiration of the
Inspection Period (as defined below), Buyer shall have the
right, at its sole cost and expense, to review and copy all of
Seller's non-privileged and non-confidential documents and
information relating to the operation or condition of the
Property and to conduct whatever inspections, studies, tests
and investigations Buyer desires to conduct relating to the
Property including, without limitation, the physical,
environmental, economic and legal condition of the Property
(the "Inspections"). Buyer shall have through 5 P.M. on that
date which is the thirtieth (30th) day following the Effective
Date of this Contract ("Inspection Period") to perform such
Inspections and in this regard, Buyer or his designated agents
may enter upon the Property upon reasonable notice at
reasonable times for purposes of such analysis, tests and
inspections which may be deemed necessary by Buyer. If Buyer
determines, in his sole judgment, that the Property is not
suitable for any reason for Buyer's intended use or purpose,
or is not in satisfactory condition, then Buyer may, by
written notice to Seller ("Disapproval Notice") on or before
the end of the first business day following the expiration of
the Inspection Period, terminate this Contract for all
purposes (except as otherwise specifically provided herein).
If Buyer does not timely give the Disapproval Notice, any and
all objections with respect to the Inspections and to the
condition and suitability of the Property shall be deemed to
have been waived by Buyer for all purposes. In the event the
transaction contemplated in this Contract shall not close,
through no fault of Seller, Buyer shall restore the Property
to its original condition, if changed due to the tests and
inspections performed by Buyer, and shall provide Seller with
a copy of the results of any tests and inspections made by
Buyer, excluding any market and economic feasibility studies.
Buyer shall indemnify, protect, defend and hold Seller
harmless from and against any damages, liabilities, claims,
demands, costs or expenses arising from Buyer's Inspections
(Buyer's obligations pursuant to this sentence shall survive
Closing or termination of this Contract).
BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT THE ATTACHED
ADDENDUM IS A PART OF THIS CONTRACT AND SHALL BE APPLICABLE TO
THE TRANSACTION CONTEMPLATED HEREIN.
8. BROKER'S FEE: Newell Investment Company, Inc. ("Newell") and
BT Commercial/Damon Raike & Co. ("BT/Raike"), as co-brokers
(collectively, "Brokers"), each of whom is appropriately
licensed in the state in which the Property is located, have
negotiated the transaction contemplated in this Contract. Upon
Closing, Seller agrees to pay (i) Newell a cash fee of $19,400
and (ii) BT/Raike a cash fee of $38,800, which Title Company
shall pay from the sales proceeds upon Closing. Each of the
parties represents to the other that it has not incurred any
liability for brokerage fees or commission in connection with
this transaction other than the liability of Seller as set
forth above. Each party indemnifies and agrees to hold the
other party harmless from any and all claims and/or expense
resulting to the other party by reason of a breach of the
representation made by such party herein.
9. POSSESSION. The possession of the Property shall be delivered
to Buyer at Closing in its present "as-is" condition, ordinary
wear and tear excepted, subject to the rights of the tenant
therein.
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10. SALES EXPENSES TO BE PAID IN CASH AT OR PRIOR TO CLOSING. The
following items will paid as follows:
Item Seller Buyer Split 50/50
Escrow fees X
Recording fees X
Transfer taxes X
Title Policy fees X
(Standard CLTA)
Title Policy fees X
(overstandard coverage
and endorsements)
Survey fees (excluding
updates) X
Title Company Doc. Prep. X
fees (if any)
Phase I Report
(including updates) X
11. PRORATIONS. Rents, assessments, current taxes, utility charges
and maintenance fees and all other ordinary operating items of
income and expense relating to the Property shall be prorated
at the date of Closing. If ad valorem taxes for the year in
which the sale is closed are not available on the Closing
Date, proration of taxes shall be made on the basis of taxes
assessed in the previous year, with a subsequent cash
adjustment of such proration to be made between Seller and
Buyer, if necessary, when actual tax figures are available.
12. TITLE APPROVAL. Within ten (10) days of the Effective Date of
this Contract, Seller shall deliver to Buyer a Preliminary
Title Report, issued by Title Company (the "PTR") and, to the
extent available, legible copies of all recorded instruments
noted as exceptions in the PTR, together with an ALTA survey
of the Land and Improvements (the "Survey"). If Buyer has an
objection to items disclosed in such PTR or shown on the
Survey, Buyer shall have ten (10) days from the date of
receipt of the last of the PTR, the Survey or the underlying
title exception documents (the "Title Inspection Period") to
make written objections to Seller; provided, however, that the
Title Inspection Period shall not extend, in any event, beyond
the end of the Inspection Period, unless otherwise agreed by
the parties in writing. Any items disclosed in such PTR or
shown on the Survey, if not timely objected to by Buyer, shall
be deemed approved ("Approved Title Matters"). If Buyer makes
such written objections, Seller shall have thirty (30) days
from the date of its receipt of such written objections to
cure the same. If required, the Closing Date shall be extended
to allow such cure period. Seller agrees to utilize reasonable
efforts and reasonable diligence to cure such objections, if
any; provided, that if Buyer has given timely written
objection notice of the same during the Title Inspection
Period (or within three (3) business days after obtaining
knowledge thereof, if any such item is first disclosed
following the end of such Title Inspection Period), Seller
shall remove (i) all liens of definitive or ascertainable
amount (other than taxes and assessments) and (ii) any other
defects, provided, further that Seller shall have no
obligation to remove the items described in clauses (i) and
(ii) of this Paragraph 12 to the extent the aggregate cost to
remove the same exceeds $10,000. If the objections are not
cured within such time period, Buyer may (i) terminate this
Contract upon written notice to Seller and neither party shall
have any further rights or obligations pursuant to this
Contract except as otherwise provided above, or (ii) waive the
unsatisfied objections and close the transaction and the Sales
Price shall not be reduced. Seller shall bear the cost, if
any, of having the Survey certified to Brauvin Capital Trust,
Inc.; Buyer shall bear the cost, if any, of making any changes
or updates to the Survey requested by Buyer or its lender, if
any.
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As contemplated by Paragraph 6(C) above, Buyer shall fully
satisfy itself as to the condition of title to the Property
and its ability to obtain all desired title insurance coverage
from the Title Company during the Inspection Period. In the
event any matter affecting title is newly disclosed to Buyer
following the expiration the Inspection Period and prior to
the Closing Date, then Buyer shall have three (3) business
days within which to give Seller written notice of objection
to only such newly described matter(s) and Seller shall then
have thirty (30) days from the date of its receipt of such
written objection to cure the same subject to the limitations
of this Paragraph 12. If required, the Closing Date shall be
extended to allow such cure period. Any such new matter, if
not timely objected to by Buyer, shall be deemed an Approved
Title Matter.
13. DEFAULT. If Buyer fails to perform its obligations under this
Contract, Seller, as its sole and exclusive remedy, may
terminate this Contract and receive and retain the Deposit as
liquidated damages. If Seller fails to perform its obligations
under this Contract, Buyer may terminate this Contract, the
Deposit shall be returned to Buyer and Buyer shall be entitled
to recover from Seller as liquidated damages Buyer's
reasonable and substantiated out of pocket costs and expenses
incurred in connection with this transaction up to a maximum
of $7,500. Buyer and Seller acknowledge and agree that the
damages sustained by either party in the event of default by
the other party hereto would be difficult and impractical to
determine and the amounts specified above have been agreed
upon by Buyer and Seller, after negotiation, as their best
reasonable estimate as of the date of this Contract of the
amount of such damages as would be sustained by the
non-defaulting party under such circumstances. Notwithstanding
the foregoing, in the event, and only in the event, that
Seller's breach hereunder shall be attributable to Seller's
willful or voluntary default in the performance of its
obligations as provided in this Contract, then, and only then,
may Buyer seek specific performance of this Contract.
Buyer ( /s/ ) and Seller ( /s/ ) agree to the above.
14. ATTORNEYS' FEES. The prevailing party in any legal proceeding
against any other party hereto brought under or with relation
to the Contract or transaction shall be entitled to recover
court costs and reasonable attorneys' fees from the
non-prevailing party.
15. ADDITIONAL DOCUMENTS TO BE PROVIDED BY SELLER. At the times
set forth in the attached Addendum, Seller shall deliver to
Buyer copies of certain additional documents and information
relating to the Property.
16. COVENANTS OF SELLER. From the Effective Date of this Contract
until the Closing Date or earlier termination of this
Contract, Seller shall: (i) operate the Property in the
customary and ordinary course of its business and will use its
reasonable efforts to reasonably preserve for Buyer the
relationships of Seller and its suppliers, tenants and others
with respect to the Property; (ii) not enter into any written
or oral service contract or other agreement with respect to
the Property that will not be fully performed by Seller on or
before the Closing Date, or that will not be cancelable by
Buyer without liability within thirty (30) days after the
Closing Date; (iii) without the prior written consent of Buyer
(which consent shall not be unreasonably withheld or delayed)
not enter into, or alter, amend or otherwise modify, or
supplement the Lease; and (iv) advise Buyer promptly of any
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litigation, arbitration, administrative hearing, or
legislation before any governmental body or agency of which
Seller receives written notice, concerning or affecting the
Property which is instituted or threatened after the date
hereof. In the event, Seller takes any action described in
clause (iii) of this Paragraph 16, despite Buyer having
reasonably withheld its consent, then Buyer may elect to
terminate this Contract and the Deposit shall be returned to
Buyer.
17. CONDEMNATION. If prior to Closing Date condemnation
proceedings are commenced against any material portion of the
Property, Buyer may, at its option, terminate this Contract by
written notice to Seller within ten (10) days after Buyer is
advised of the commencement of condemnation proceedings and
the Deposit shall be refunded to Buyer. Alternatively, Buyer
shall have the right to appear and defend in such condemnation
proceedings, and any award in condemnation shall, at the
Buyer's election made prior to Closing, become the property of
Seller and reduce the Sales Price by the same amount or shall
become the property of Buyer and the Sales Price shall not be
reduced.
18. CASUALTY LOSS. Except as specifically provided herein, this
Contract shall remain in full force and effect notwithstanding
the occurrence of any damage to or destruction of the Property
prior to closing. Risk of loss by damage or destruction to the
Property prior to the closing shall be borne by Seller. In the
event any such damage or destruction is not fully repaired
prior to Closing (Seller shall have no duty to repair the
same), Buyer, at its option may either (i) terminate this
Contract upon written notice to Seller within ten (10) days
after Buyer is advised of such damage or destruction in which
event the Deposit shall be returned to Buyer and neither party
shall have any further rights or obligations pursuant to this
Contract except as otherwise provided above, or (ii) elect to
close the transaction, in which event Seller's right to all
insurance proceeds resulting from such damage or destruction
shall be assigned in writing by Seller to Buyer and the Sales
Price shall not be reduced. In the event that following the
Closing there shall occur damage or destruction to the
Property for which Seller is entitled to receive insurance
proceeds under Circle K's insurance policy, then Seller agrees
to cooperate with Buyer to assign its rights, if any, to any
such proceeds to Buyer and to execute such documents as may be
necessary to effectuate such assignment.
19. MISCELLANEOUS.
A. Any notice required or permitted to be delivered
hereunder shall be deemed received when personally
delivered or received by facsimile transmission or
one (1) business day after being sent by Federal
Express or other nationally recognized overnight
delivery service, charges prepaid, in each case
addressed to Seller Buyer and their respective
counsel, as the case may be, at the addresses or
facsimile numbers set forth below the signature of
such party hereto.
B. This Contract shall be construed under and in
accordance with the laws of the state in which the
Property is located.
C. This Contract shall be binding upon and inure to the
benefit of the parties hereto and their respective
heirs, executors, administrators, legal
representatives, successors, and assigns.
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D. In case any one or more the provisions contained in
the Contract shall for any reason be held to be
invalid, illegal, and unenforceable in any respect,
such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this
Contract shall be construed as if such invalid,
illegal, or unenforceable provision had never been
contained herein.
E. This Contract constitutes the sole and only agreement
of the parties hereto and supersedes any prior
understandings or written or oral agreements between
the parties respecting the within subject matter and
cannot be changed except by their written consent.
F. Time is of the essence of this Contract.
G. Words of any gender used in this Contract shall be
held and construed to include any other gender, and
words in the singular number shall be held to include
the plural, and vice versa, unless the context
requires otherwise.
20. ASSIGNMENT. Buyer may not assign this Contract without the
prior written consent of Seller which Seller may grant or
withhold in its sole and absolute discretion; provided,
however, that Buyer may assign its rights hereunder prior to
Closing to Brauvin Capital Trust, Inc., a Maryland corporation
or a wholly owned affiliate thereof; provided (i) such
assignee executes a written assumption of all of Buyer's
obligations under this Contract, in the form and substance of
Exhibit E attached hereto, (ii) Buyer shall not be released
from its obligations and liabilities under this Contract, and
(iii) such assignment shall be without any increase in price,
fees, commissions or other compensation to Buyer in
consideration of such assignment. Subject to the foregoing,
this Contract shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns.
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EXECUTED in multiple originals as of November 13, 1998 (the "Effective Date").
(Fill in date Seller signs.)
SELLER: BUYER:
METRIC INCOME TRUST SERIES, INC., a BRAUVIN INC.,
California corporation an Illinois corporation
By: /s/ Herman H. Howerton By: /s/ Barry Bain
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Its: Vice President, General Counsel Its:
------------------------------- ----------------------------------
c/o SSR Realty Advisors 30 North LaSalle Street, Suite 3100
One California Street, Suite 1400 Chicago, Illinois 60602
San Francisco, CA 94111 Attention: Barry D. Bain, Senior Vice
President
Attention: Property Sales
Fax No.: (415) 678-2291 Fax No.: (312) 759-7800
Phone No.: (415) 678-2107 Phone No.: (312) 759-7660
With a copy to: With a copy to:
Landels Ripley & Diamond, LLP Patzik, Frank & Samotny, Ltd.
350 The Embarcadero Center, 6th Floor 150 South Wacker Drive, Suite 900
San Francisco, CA 94105 Chicago, IL 60606
Attention: Richard S. Winer, Esq. Attention: Allan L. Yusim
Fax No.: (415) 512-8750 Fax No.: (312) 551-1101
Tel: No.: (415) 512-8700 Tel No.: (312) 551-8300
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ADDENDUM
TO
EARNEST MONEY CONTRACT-COMMERCIAL IMPROVED PROPERTY
This Addendum To Earnest Money Contract - Commercial Improved Property (this
"Addendum") is made concurrently with and forms a part of that certain Earnest
Money Contract - Commercial Improved Property (the "Contract") executed this
date between METRIC INCOME TRUST SERIES, INC., a California corporation
("Seller"), and BRAUVIN INC., an Illinois corporation ("Buyer"). In addition to
and notwithstanding anything to the contrary contained in the Contract, Seller
and Buyer further agree as follows:
1. Except as otherwise expressly provided in the Contract or this Addendum,
Seller disclaims the making of any representations or warranties, express
or implied, regarding the Property or its value, condition of title,
physical condition (including, without limitation, pest control, hazardous
substances or environmental matters), compliance with laws (including,
without limitation, the Americans With Disabilities Act of 1990 or other
laws respecting building, zoning or land use matters) or any other matters
or information with respect to the Property.
Notwithstanding the foregoing, Seller hereby represents and warrants to
Buyer that Minton J. Newell, property sales consultant to Seller, based
solely upon inquiry, by means of the Inquiry Memorandum attached hereto as
Exhibit B (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 B-1
attached hereto and incorporated herein by reference, that:
a. Seller has received any written notice from any governmental
authorities that eminent domain proceedings for the condemnation of the
Real Property are pending;
b. Seller has received any written notice of any threatened or pending
litigation against Seller which would materially and adversely affect the
Real Property;
c. Seller has received any written notice from any governmental
authority that the Improvements located on the Land are presently in
violation of any applicable building codes;
d. Seller has received any written notice from any governmental
authority that Seller's use of the Property is presently in violation of
any applicable zoning, land use, environmental or other law, order,
ordinance, rule or regulation affecting the Property.
Seller hereby represents and warrants to Buyer that the Contract has been
approved by the 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 Contract and all actions of Seller necessary to confer
such power and authority upon the persons executing this Contract and all
documents which are contemplated by the Contract on behalf of Seller have
been taken. Seller's representations and warranties as set forth herein and
in the Contract to which this Addendum pertains, shall survive the Closing
for a period of sixty (60) days only.
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2. Buyer acknowledges that Seller has delivered to Buyer, or shall within five
(5) days hereafter (or at such other time specified in the Contract or
below) deliver to Buyer, a copy of each of the following items:
Items to be Delivered by Seller
a. Copy of Preliminary Title Report.
b. Survey of the Property within three (3) business days of Seller's
receipt of the same.
c. Existing Phase I Environmental Site Assessment and any updates
thereto, within three (3) business days of Seller's receipt of the
same.
d. Copy of the Lease.
e. Copy of the Indemnification Letter.
f. Circle K's financial statements as required by the Indemnification
Letter within three (3) business days of Seller's receipt of the same.
3. Buyer acknowledges and agrees that (i) Buyer has made or has had, or will
have, an adequate opportunity to make such inquiries, inspections, tests
and evaluations of the Property (including, without limitation, its value,
condition of title, physical condition, environmental condition and
compliance with laws) as Buyer has deemed necessary or advisable, (ii)
Buyer is not relying and will not rely upon any representations or
warranties respecting the Property (other than those, if any, specifically
provided in the Contract) made by or on behalf of Seller, (iii) except for
its reliance upon any specific representations or warranties of Seller, and
subject to the limitations upon the survival of the same set forth in
Paragraph 1 of this Addendum, (a) Buyer is assuming and shall assume the
risk that adverse conditions relating to the Property may not have been or
may not be revealed by Buyer's investigation of the Property, and (b) Buyer
is purchasing and shall purchase the Property in its "AS-IS" condition and
WITH ALL FAULTS on the Closing Date.
4. Buyer further acknowledges and agrees that except for any claims arising
out of breach of the specific provisions of the Contract, and subject to
the survival period of Seller's representations and warranties set forth
herein, Buyer expressly, irrevocably and unconditionally waives, releases
and discharges Seller, its agents, partners, advisors, affiliates,
successors and assigns, from any and all rights, claims, damages and causes
of action, whether at law or in equity, whether or not known or unknown as
of the date hereof and/or as of the Closing Date, which Buyer may have or
become entitled to assert arising out of Buyer's purchase of the Property
or its value, condition or title, physical condition, environmental
condition, compliance with laws, or other matters respecting the Property.
5. Buyer agrees that, unless Buyer has obtained the prior written consent of
Seller, Buyer shall not directly or indirectly release, publish or
otherwise distribute any report, prospectus, advertisement, circular or
other document which names or refers in any manner directly or indirectly
to Seller, Metric Realty, SSR Realty Advisors or any of their respective
agents, advisors or affiliates; provided, however, that Buyer may make
limited disclosure of Seller's identity, the purchase price and the
intended use of the Property to the extent the same are required in
connection with Buyer's meeting federal or state securities law disclosure
requirements or Buyer is required to disclose such information to its
lender(s) in connection with obtaining financing.
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<PAGE>
BUYER (_/s/_) AND SELLER (_/s/_) AGREE TO THE FOREGOING.
EXHIBIT A
Legal Description
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 21654 AS PER PLAT ON FILE IN BOOK 150, PAGES 58 AND
59 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL B:
A NON-EXCLUSIVE EASEMENT OF USE AND ENJOYMENT IN, TO AND THROUGH THE ENTRY WAYS
LOCATED ON OR SUPPLYING TO THE PARCELS AND THE TRAFFIC AREAS (EXCEPT FOR AREAS
SITUATED UNDERNEATH GASOLINE CANOPIES, PARKING AREAS AND SIDEWALKS) FOR SUCH
PARCELS, FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS FOR THE BENEFIT OF THE
OWNERS, THEIR OFFICERS, DIRECTORS, EMPLOYEES, LICENSEES, AGENTS, CONTRACTORS,
INVITEES, VISITORS, CUSTOMERS AND TENANTS, AS SET FORTH IN A DOCUMENT RECORDED
AUGUST 19, 1988 AS INSTRUMENT NO. 236813 OFFICIAL RECORDS, WHICH ARE APPURTENANT
TO PARCEL 1 OF PARCEL MAP NO. 21634.
EXHIBIT B
Inquiry Memorandum
The Inquiry Memorandum, dated December 1998, is not included with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Inquiry Memorandum upon request.
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<PAGE>
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made and entered into
effective the 24 day of December, 1998 ("Effective Date"), by and between METRIC
INCOME TRUST SERIES, INC., a California corporation ("Assignor") and BCT
RUBIDOUX L.L.C., a Delaware limited liability company ("Assignee").
RECITALS
A. Assignor, as Landlord, and National Convenience Store Incorporated
("NCS") entered into that certain Lease Agreement dated November 30, 1989 as
amended pursuant to that certain lease amendment dated as of October 14, 1992
between Assignor and NCS (collectively, the "Lease"), whereby Assignor leases to
Tenant (as defined below) certain premises located in the City of Rubidoux,
County of Riverside, State of California, as more particularly described in the
Lease ("Premises").
B. The Lease was assumed by Circle K Stores, Inc. ("Tenant") pursuant
to that certain Assignment of Assumption of Lease dated April 28, 1994 between
NCS and Tenant.
C. Assignor desires to convey the Premises and assign the Lease to
Assignee.
D. All capitalized terms not otherwise defined herein shall have the
same meanings as defined in the Lease unless the context indicated otherwise.
THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, and the mutual promises and covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the undersigned hereby agree as follows:
1. Assignor does hereby transfer, assign, convey, set over and deliver
unto Assignee all of Assignor's right, title and interest in, to and under the
Lease and Assignee does hereby assume and agree to perform all of Assignor's
rights, duties, obligation and liabilities, as Landlord, in, to and under the
Lease arising and to be performed from and after the date of this Assignment.
Concurrently with the execution of this Assignment, Assignor is delivering to
Assignee a copy of the Lease.
2. Assignee shall indemnify, defend and hold harmless Assignor from and against
any and all costs, liabilities, losses damages, expenses or claims including,
without limitation, reasonable attorneys' fees, with respect to events or
conditions first occurring on or after the date hereof and arising out of or
relating to Assignee's failure to perform its obligations under the Lease so
long as such is not caused by an act or omission of Assignor, its employees or
agents. Assignor shall indemnify, defend and hold harmless Assignee from and
against any and all costs, liabilities, damages, expenses or claims including,
without limitation, reasonable attorneys' fees arising out of or relating to
Assignor's failure to perform its obligations under the Lease, with respect to
events or conditions first occurring prior to the date hereof and so long as
such is not caused by Assignee, its employees, agents, successors or assigns.
3. This Assignment and the obligations of Assignor, if any, hereunder
shall survive the closing of the purchase and sale transaction referred to in
that certain Earnest Money Contract-Commercial Improved Property dated November
13, 1998 by and between Assignor and Assignee (the "Contract of Sale"), and
shall be binding upon and inure to the benefit of Assignee and its successors
and assigns.
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<PAGE>
4. This Assignment and Assumption of Lease may be executed by
facsimile, in any number of counterparts, each of which may be executed by any
one or more of the parties hereto, but all of which shall constitute one
instrument, and shall be binding and effective when all of the parties hereto
have executed at least one counterpart.
5. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
EXECUTED effective the date shown above.
ASSIGNOR:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Name: Herman H. Howerton
------------------
Its: Vice-President
--------------
ASSIGNEE:
BCT RUBIDOUX L.L.C.
a Delaware limited liability company
By: /s/ James L. Brault
-------------------
Name: James L. Brault
---------------
Its: President
---------
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<PAGE>
EXHIBIT D
Tenant Estoppel Certificate
The Tenant Estoppel Certificate, produced by Tosco Marketing Company, dated
December 16, 1998, is not included with this Amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Tenant Estoppel Certificate upon request.
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
FOR TEN AND NO/100 DOLLARS ($10.00) and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, BRAUVIN, INC., an
Illinois corporation ("Assignor"), does hereby assign, transfer and convey unto
BCT RUBIDOUX L.L.C., a Delaware limited liability company ("Assignee"), all of
its right, title and interest, in and to that certain Earnest Money Contract
dated on or about November 13, 1998, by and between Metric Income Trust Series,
Inc., as Seller, and Assignor, as Purchaser, together with all of its right,
title and interest in and to the Lease as more specifically enumerated therein.
Assignee has hereby executed the within Assignment and Assumption for
the purpose of assuming any and all of the obligations of Assignor under the
Contract and Lease, as aforesaid.
IN WITNESS WHEREOF, this Assignment and Assumption has been executed as
of the 21st of December, 1998.
ASSIGNOR:
---------
BRAUVIN, INC.
By: /s/ Barry Bain
--------------
Name: Barry Bain
----------
Title: Vice-President
--------------
ASSIGNEE:
---------
BCT RUBIDOUX L.L.C
By: /s/ James L. Brault
-------------------
Name: James L. Brault
----------------
Title: President
---------
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<PAGE>
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO AND
MAIL TAX STATEMENTS TO:
BCT RUBIDOUX L.L.C.
c/o Brauvin Capital Trust Inc.
30 North LaSalle, Street, Suite 3100
Chicago, IL 60602
Attn: Barry D. Bain
- --------------------------------------------------------------------------------
GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of the transfer tax which is due by a
separate statement which is not being recorded with this Grant Deed.
THIS GRANT DEED ("Deed") is made and entered into this 21st day of
December, 1998 by METRIC INCOME TRUST SERIES, INC., a California corporation
("Grantor"), and in favor of BCT RUBIDOUX L.L.C., a Delaware limited liability
company ("Grantee").
WITNESSETH:
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Grantor hereby GRANTS to Grantee that certain real
property located in the City of Rubidoux, County of Riverside, State of
California commonly known as 5804 Mission Boulevard, Rubidoux, California, being
more particularly described on Schedule 1 attached hereto and incorporated
herein by this reference (the "Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the day
and year first set forth above.
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Its: Vice-President
--------------
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<PAGE>
STATE OF California)
)ss.
COUNTY OF San Francisco)
On this 21st day of December __, 1998, before me, Valerie Solar, a notary public
in and for said state, personally appeared Herman H. Howerton, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person, acted,
executed the instrument.
WITNESS my hand and official seal.
Valerie Solar
-------------
Notary Public
My Commission Expires: 9/17/02
-------
VALERIE SOLAR
Comm. # 1196523
NOTARY PUBLIC - CALIFORNIA
City & County of San Francisco
My Comm. Expires Sept. 17, 2002
SCHEDULE 1
LEGAL DESCRIPTION
Parcel A:
Parcel 1 of parcel map no. 21654 as per plat on file in book 150, pages 58 and
59 of parcel maps, records of riverside county, California.
Parcel B:
A non-exclusive easement of use and enjoyment in, to and through the entry ways
located on or supplying to the parcels and the traffic areas (except for areas
situated underneath gasoline canopies, parking areas and sidewalks) for such
parcels, for vehicular and pedestrian ingress and egress for the benefit of the
owners, their officers, directors, employees, licensees, agents, contractors,
invitees, visitors, customers and tenants, as set forth in a document recorded
August 19, 1988 as instrument no. 236813 official records, which are appurtenant
to parcel 1 of parcel map no. 21634.
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<PAGE>
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 BCT RUBIDOUX L.L.C., a Delaware limited liability
company ("Buyer"), all personal property, if any, owned by Seller and used at
the real property located at 5804 Mission Boulevard, Rubidoux, California, which
is being sold and conveyed by Seller to Buyer concurrently.
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.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 21st day
of December, 1998.
SELLER:
-------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Its: Vice President
--------------
SELLER'S ESCROW INSTRUCTIONS LETTER
Seller's Escrow Instructions Letter from Landels Ripley & Diamond, LLP, dated
December 22, 1998, and acknowledged by Chicago Title Insurance Company on
December 24, 1998, is not included with this Amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Seller's Escrow Instructions Letter upon request.
SELLER'S FINAL CLOSING STATEMENT
Seller's Final Closing Statement, dated December 24, 1998, is not included with
this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Seller's Final Closing
Statement upon request.
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<PAGE>
FIRTPA CERTIFICATE
To inform BCT RUBIDOUX L.L.C., an Illinois corporation ("Transferee"),
that withholding of tax under Section 1445 of the Internal Revenue Code of 1986,
as amended, (the "Code"), will not be required upon transfer of certain real
property to Transferee by METRIC INCOME TRUST SERIES, INC., a California
corporation ("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 number is as follows:94-
3087630
3. Transferor's office address is:
c/o SSR Realty Advisors
One California Street, Suite 1400
San Francisco, California 94111-5414
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 understands that Transferee is relying on this Certification
in determining whether withholding is required upon said transfer.
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: December 21, 1998.
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ Herman H. Howerton
----------------------
Its: Vice President
--------------
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<PAGE>
ENVIRONMENTAL INDEMNIFICATION AND REMEDIATION LETTER
The Environmental Indemnification and Remediation Letter, executed by Circle K
Stores Inc., dated December 18, 1998, is not included with this Amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Environmental Indemnification and Remediation Letter
upon request
CALIFORNIA WITHHOLDING EXEMPTION CERTIFICATE
The California Withholding Exemption Certificate for Real Estate Sales (Form
590-RE), executed by Seller, dated December 21, 1998, is not included with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of California Withholding Exemption Certificate upon
request
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