EARNEST MONEY CONTRACT - COMMERCIAL IMPROVED PROPERTY
THIS CONTRACT FORM HAS BEEN PREPARED AND APPROVED FOR USE IN A TRANSACTION
INVOLVING THE SALE OF IMPROVED COMMERCIAL PROPERTY. SUCH APPROVAL RELATES TO
THIS CONTRACT FORM ONLY. THIS FORM HAS NOT BEEN DRAFTED FOR A SPECIFIC
TRANSACTION AND NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY
OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. TERMS AND PROVISIONS THAT ARE NOT
APPLICABLE SHOULD BE STRICKEN BY THE PARTIES. THE PARTIES ARE ADVISED TO CONSULT
THEIR ATTORNEYS BEFORE SIGNING.
1. PARTIES: METRIC INCOME TRUST SERIES, INC., a California corporation
("Seller"), agrees to sell and convey to MARY L. TISCORNIA, Trustee
under Revocable Trust Agreement dated August 13, 1979 ("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 San Bernardino 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, or rights-of-way; Seller's interest in and to
all licenses and permits with respect to the Property, Seller's
interest in all leases, service, maintenance, management or other
contracts relating to the ownership or operation of the Property;
Seller's interest in all warranties or guaranties relating to thereto
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) $1,650,000.00
B. Amount of Third Party Financing
(see Paragraph 4) Not Applicable
C. Total Sales Price (Sum of A and B) $1,650,000.00
4. THIRD PARTY FINANCING: Not Applicable.
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5. EARNEST MONEY: As a condition precedent to the validity of this
Contract, Buyer tenders herewith the sum of $50,000 to be deposited as
earnest money in escrow with Chicago Title Insurance Company, 388
Market Street, Suite 1300, San Francisco, California, Attn: Beth
Bailey-Gates ("Title Company"), and placed in an interest bearing
account, upon execution of the Contract by both parties. The amount so
deposited and any interest earned thereon is hereinafter referred to as
the "Deposit". Upon expiration of the Inspection Period (as defined
below), except as expressly provided to the contrary in this Contract,
the Deposit shall become non-refundable to Buyer except in the event of
Seller's default in the performance of its obligations under this
Contract.
6. CLOSING: The closing of the sale ("Closing") shall take place at the
Title Company on or before 5 p.m., on the thirtieth (30th) day
following expiration of the Inspection Period ("Closing Date"), unless
such date is changed in writing by Seller and Buyer, or otherwise
extended as herein provided.
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
good and indefeasible 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 and permits,
maintenance, management or other contracts,
warranties or guaranties, duly executed by Seller;
(3) Evidence of its capacity and authority for the
Closing of this transaction;
(4) All other necessary documents to close this
transaction as may be reasonably requested by Title
Company.
B. At the Closing, Buyer shall deliver to escrow, at Buyer's sole
cost and expense, the following:
(1) The total Sales Price;
(2) Evidence of its capacity and authority for the
Closing of this transaction;
(3) All other necessary documents to close this
transaction as may be reasonably requested by Title
Company.
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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.
7. FEASIBILITY STUDY AND INSPECTION: Buyer is granted the right to conduct
an engineering, and/or market and economic feasibility study of the
Property, and a physical inspection of all improvements, fixtures,
mechanical equipment, and personal property being sold hereby
(collectively, "Inspections"). Buyer shall have through 5 P.M. on that
date which is the twentieth (20th) business 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 Inspection
Period, terminate this Contract for all purposes (except as provided
herein) and the Deposit shall be returned to Buyer, less (i) the sum of
$100 to be delivered to and retained by Seller as consideration for
this Contract, which consideration is deemed earned as of the date of
this Contract, and (ii) any escrow or title cancellation fees or
charges of Title Company. If Buyer does not give the Disapproval Notice
prior to expiration of the Inspection Period, 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. All Inspections shall be at
Buyer's expense and Buyer shall indemnify, protect, defend and hold
Seller harmless from and against any damages, liabilities, claims,
demands, costs or expenses arising therefrom (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: Damon Raike and Company, as broker ("Seller's Broker"),
and N.E. Toussaint & Associates, Ltd., as selling or co-broker
("Buyer's Broker"), each of whom is appropriately licensed in the state
in which the Property is located (collectively, "Broker"), have
negotiated the transaction contemplated in this Contract. Upon Closing,
Seller agrees to pay Buyer's Broker a cash fee of $46,250, which Title
Company shall pay
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from the sales proceeds upon Closing. Seller agrees to pay Seller's
Broker its fee in accordance with Seller's separate agreement with
Seller's Broker. 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.
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_ ___ ___
Survey fees ___ _X_ ___
Doc. Prep. fees ___ ___ _X_
Phase I Report _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 Commitment for Title
Insurance or Preliminary Title Report, as applicable, issued by Title
Company (the "Commitment") and, to the extent available, legible copies
of all recorded instruments noted as exceptions in the Commitment,
together with a survey of the Land and Improvements. If Buyer has an
objection to items disclosed in such Commitment or shown on the survey,
Buyer shall have until the end of the Inspection Period to make written
objections to Seller. Any items disclosed in such Commitment or shown
on the survey if not timely objected to by Buyer shall be deemed
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approved ("Approved Title Matters"). If Buyer makes such written
objections, Seller shall have thirty (30) days from the date 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 Seller shall not be required to expend more than
$1,000 to do so. If the objections are not cured within such time
period, Buyer may (i) terminate this Contract upon written notice to
Seller 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) waive the
unsatisfied objections and close the transaction and the Sales Price
shall not be reduced.
13. DEFAULT: If Buyer fails to perform its obligations under this Contract,
Seller may, at its option, 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
and the Deposit shall be returned to Buyer and Buyer shall be entitled
to recover from Seller as liquidated damages Buyer's reasonable out of
pocket costs and expenses incurred in connection with the transaction
contemplated herein up to a maximum of $2,000. 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. Specific performance is waived by both parties
hereto.
Buyer (/s/ M.L.T.) and Seller (/s/ R.Z.) agree to the above.
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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) without the prior written consent of
Buyer (which consent will not be unreasonably withheld), 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
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consent of Buyer (which consent will not be unreasonably withheld), not
enter into, or alter, amend or otherwise modify, or supplement any
lease; (iv) advise Buyer promptly of any 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.
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: 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.
19. MISCELLANEOUS:
A. Any notice required or permitted to be delivered hereunder
shall be deemed received when personally delivered or one (1)
business day after being sent by Federal Express or other
nationally recognized overnight delivery service, charges
prepaid, or three (3) business days after being sent by United
States mail, postage prepaid, certified mail, return receipt
requested, in each case addressed to Seller or Buyer, as the
case may be, at the address 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.
21. TERMINATION OF OFFER: Unless accepted by Seller, as evidenced by
Seller's signature hereto and delivered to Buyer by 5:00 P.M. on
September 30, 1996, this offer to purchase shall be null and void and
of no further force or effect.
22. CONSULT YOUR ATTORNEY: THIS IS INTENDED TO BE A LEGALLY BINDING
CONTRACT. READ IT CAREFULLY. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY ANY BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE
TRANSACTION RELATING THERETO. THESE ARE QUESTIONS FOR YOUR ATTORNEY.
CONSULT YOUR ATTORNEY BEFORE SIGNING.
EXECUTED in multiple originals as of the 24th day of September, 1996 (the
"Effective Date"). (Fill in date Seller signs.)
SELLER'S BROKER: SELLER:
- ---------------- -------
DAMON RAIKE AND COMPANY, METRIC INCOME TRUST SERIES, INC.,
a CALIF CORP. a California corporation
------------------------
By: /s/ By: /s/ Ronald E. Zuzack
---------------------- ------------------------
Its: Broker
----------------------
State/License No. 00227200 Its: Executive Vice President
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BUYER'S BROKER: BUYER:
- --------------- ------
N.E. TOUSSAINT & ASSOCIATES, LTD., /s/ Mary L. Tiscornia
a California Corporation -------------------------------
------------------------- MARY L. TISCORNIA, Trustee under
Revocable Trust Agreement dated
By: /s/ N.E. Toussaint August 13, 1979
---------------------
Its: President
---------------------
State/License No. 01106160
--------
Receipt of $50,000.00 as the Deposit
is acknowledged in the form
of personal check.
----------------------------------
Receipt Acknowledged by
TITLE COMPANY:
- --------------
CHICAGO TITLE INSURANCE
COMPANY
By: /s/ E. M. Bailey-Sates
----------------------
Its: Sr. Escrow Officer
----------------------
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ADDENDUM
TO
EARNEST MONEY CONTRACT-COMMERCIAL IMPROVEMENT 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"), MARY L. TISCORNIA, Trustee under Revocable Trust Agreement dated
August 13, 1979 ("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, the authorized agent of 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.
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2. In addition to the materials to be provided by Seller as provided in
the Contract, Buyer acknowledges that Seller has delivered to Buyer, or
shall within five (5) days hereafter (or at such other time specified
below) deliver to Buyer, a copy of each of the following items:
Items Already Delivered by Seller
a. ___________________________________________________________________
b. ___________________________________________________________________
c. ___________________________________________________________________
d. ___________________________________________________________________
e. ___________________________________________________________________
f. ___________________________________________________________________
g. ___________________________________________________________________
Additional Items to be Delivered by Seller
a. Survey of the Property within three (3) business days of
Seller's receipt of the same.
b. Phase I Environmental Site Assessment within three (3)
business days of Seller's receipt of the same.
c. ___________________________________________________________________
d. ___________________________________________________________________
e. ___________________________________________________________________
f. ___________________________________________________________________
g. ___________________________________________________________________
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
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respecting the Property (other than those, if any, specifically
provided in the Contract) made by or on behalf of Seller, (iii) 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 (iv) 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, 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 or any of their respective agents,
advisors or affiliates.
6. Seller agrees that Buyer may consummate the purchase of the Property as
part of a so- called like kind exchange (the "Exchange") pursuant to
Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), provided that: (i) the closing shall not be delayed or
affected by reason of the Exchange nor shall the consummation or
accomplishment of the Exchange be a condition precedent or condition
subsequent to Buyer's obligations under this Agreement; (ii) the
Exchange shall be consummated or accomplished through a qualified
intermediary; and (iii) Seller shall not be required to take an
assignment of the sale and purchase agreement for the exchange property
for purposes of consummating or accomplishing the Exchange. Buyer shall
pay all Seller's costs associated with such Exchange. Neither party
shall by this Agreement or acquiescence to the Exchange (1) have its
rights, duties, obligations or liabilities under this Agreement
affected or diminished in any manner, or (2) be responsible for
compliance with or be deemed to have warranted to the other party that
the Exchange in fact complies with Section 1031 of the Code.
BUYER (/s/ M.L.T.) AND SELLER (/s/ R.Z.) AGREE TO THE FOREGOING.
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EXHIBIT A
LEGAL DESCRIPTION
NCS STORE, RANCHO CUCAMONGA
7287 Archibald
RANCHO CUCAMONGA, CA:
PARCEL 1
PARCEL 3 OF PARCEL MAP NO. 9079, IN THE CITY OF RANCHO CUCAMONGA, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT THEREOF RECORDED APRIL 1, 1985, IN
BOOK 95, PAGES 3 AND 4, OF PARCEL MAPS, RECORDS OF SAN BERNARDINO.
PARCEL 11
NON-EXCLUSIVE MUTUAL ACCESS EASEMENTS CREATED PURSUANT TO THE TERMS, PROVISIONS
AND CONDITIONS OF THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS RECORDED APRIL 30, 1985 AS INSTRUMENT NO. 85-100617, OFFICIAL
RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, AND IN THE OWNER'S CERTIFICATE OF
PARCEL MAP NO. 9079, IN THE CITY OF RANCHO CUCAMONGA, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER PLAT THEREOF RECORDED APRIL 1, 1985 IN BOOK 95,
PAGES 3 AND 4 OF PARCEL MAPS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF
CALIFORNIA
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EXHIBIT B
Inquiry Memorandum
To: LEGAL PORTFOLIO CLIENT SERVICES
Herm Howerton, EVP, General Cynthia Halicky, VP,
Counsel Operations/Investor Services
PORTFOLIO MANAGEMENT INVESTMENT SERVICES
Ronald Zuzack, EVP, CIO James Keagy, EVP, Director
Lorenz Menrath, SVP, of Investment Services
Dir. of Portfolio Mgmnt.
Theodore Koros, Portfolio Manager PORTFOLIO CLIENT SERVICESc
Cynthia Halicy, VP,
RISK MANAGEMENT Operations/Investor Services
George Fogelsong
Risk Manager cc:Scott Rogers, Esq.
Property Sales Closing File
FROM: Minton Newell
DATE: September 25, 1996
SUBJECT: Internal Due Diligence
NCS Store, 7287 Archibald Avenue
Rancho Cucamonga, California
Metric Income Trust Series, Inc.
RESPONSE MANDATORY
- --------------------------------------------------------------------------------
Pursuant to the proposed Earnest Money Contract - Commercial Improved Property
by and between METRIC INCOME TRUST SERIES, INC., a California corporation
("Seller"), MARY L. TISCORNIA, Trustee under Revocable Trust Agreement dated
August 13, 1979 ("Buyer"), we are required to provide a certification to the
Buyer relative to our knowledge of certain conditions which may affect the
property.
Please carefully read and review the attached. They are the pages from the
contract which outline the 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
September 27, 1996.
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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 as noted below.
EXCEPTIONS:
None
- --------------------------------------------------------------------------------
Herman H. Howerton Ronald E. Zuzack George M. Foglesong
- ---------------------- ----------------------- ----------------------
Printed Name Prined Name Prined Name
\s\ H.H. Howerton \s\ Ronald E. Zuzack \s\George M. Foglesong
- ---------------------- ----------------------- ----------------------
Signature Sigature Sigature
9-25-96 9-30-96 9-25-96
- ---------------------- ----------------------- ----------------------
Date Date Date
Lorenz Menrath Theodore P. Koros James S. Keagy
- ---------------------- ----------------------- ----------------------
Printed Name Printed Name Prined Name
\s\ Lorenz Menrath \s\ Theodore P. Koros \s\ James S. Keagy
- ---------------------- ----------------------- ----------------------
Signature Signature Sigature
10-17-96 9-25-96 9-29-96
- ---------------------- ----------------------- ----------------------
Date Date Date
Cynthia A. Halicky
- ---------------------- ----------------------- ----------------------
Printed Name
\s\ Cynthia A.Halicky
- ----------------------
9-25-96
- ----------------------
Date
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EXHIBIT B-1
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
[to be attached]
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Form of Grant Deed
Form of Grant Deed, recorded on November 12, 1996 as No. 96-419015, San
Bernardino County, not filed with this Amendment. Metric Income Trust Series,
Inc. agrees to provide the Securities and Exchange Commission copes of said
Grant Deed upon request.
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 MARY L. TISCORNIA, Trustee under Revocable Trust
Agreement dated August 13, 1979 ("Buyer"), all personal property, if any, owned
by Seller and used at the real property located at 7287 Archibald Avenue, Rancho
Cucamonga, California, which is being sold and conveyed by Seller to Buyer
concurrently herewith, together with all assignable licences, permits,
maintenance contracts, warranties and guaranties, if any, relating thereto.
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 THEREOF, Seller has executed this Bill of Sale this 12th day of
November, 1996.
SELLER:
METRIC INCOME TRUST SERIES, INC., a
California Corporation
By: /s/ Ronald E. Zuzack
------------------------
Its: Executive Vice President
------------------------
Form of Lease
Form of Lease by and between Metric Income Trust Series, Inc. and National
Convenience Stores Incorporated, dated November 30, 1989, not filed with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Lease upon request.
Form of Assignment and Assumption of Lease
Form of Assignment and Assumption of Lease between National Convenience Stores
Incorporated and the Circle K Corporation not filed with this Amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Assignment and Assumption of Lease upon request.
Form of Seller's Escrow Instructions
Seller's Escrow Instructions, in the form of a letter to Chicago Title Company
dated November 5, 1996 from Seller's representative, not filed with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Seller's Escrow Instructions upon request.
Form of Seller's Final Closing Statement
Seller's Final Closing Statement, prepared by Chicago Title Company, dated
November 12, 1996, 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.
Form of Buyer's Exchange Closing Statement
Buyer's Exchange Closing Statement, prepared by Old Republic Title Company,
dated November 12, 1996, not filed with this amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Buyer's Exchange Closing Statement upon request.
Form of FIRPTA Certificate
Form of FIRPTA Certificate, dated November 12, 1996, signed by Ronald E. Zuzack,
Executive Vice President of Metric Realty, not filed with this Amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Certificate upon request.
Form of Real Estate Withholding Exemption Certificate
Real Estate Withholding Exemption Certificate (Form 590-RE), dated November 5,
1996, signed by Ronald Zuzack, Executive Vice President of Metric Realty, not
filed with this Amendment. Metric Income Trust Series, Inc. agrees to provide
the Securities and Exchange Commission copies of said Certificate upon request.
Form of Tenant Estoppel Letter
Tenant Estoppel, in the form of a letter to Metric Income Trust Series, Inc.
from Circle K Stores Inc., dated October 30, 1996, signed by Donald S. Smith,
Executive Director, Real Estate Administration, not filed with this Amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Tenant Estoppel Letter upon request.