Exhibit a)
AGREEMENT FOR PURCHASE AND SALE
-------------------------------
OF
--
REAL PROPERTY
-------------
By and Between
METRIC REAL ESTATE, L.P.
as Seller,
and
CAPTEC NET LEASE REALTY, INC.
as Buyer.
October 31, 1997
1
TABLE OF CONTENTS
-----------------
ARTICLE PAGE
- ------- ----
1
BASIC DEFINITIONS.......................................................... 1
- -----------------
Section 1.1 Closing Date......................................... 1
------------
Section 1.2 Contract Period...................................... 1
---------------
Section 1.3 Inspection Period.................................... 1
-----------------
Section 1.4 Intangible Property.................................. 1
-------------------
Section 1.5 Leases............................................... 2
------
Section 1.6 Personal Property.................................... 2
-----------------
Section 1.7 Property............................................. 2
--------
Section 1.8 Real Property........................................ 2
-------------
Section 1.9 Title Company........................................ 2
-------------
Section 1.10 Title Report........................................ 2
------------
2
PURCHASE AND SALE.......................................................... 2
- -----------------
Section 2.1 Purchase and Sale.................................... 2
-----------------
Section 2.2 Purchase Price....................................... 3
--------------
Section 2.3 Buyer's Review and Seller's Disclaimer............... 3
--------------------------------------
3
CONDITIONS PRECEDENT....................................................... 7
- --------------------
Section 3.1 Conditions........................................... 7
----------
Section 3.2 Failure or Waiver of Conditions Precedent............ 8
-----------------------------------------
4
COVENANTS, WARRANTIES AND REPRESENTATIONS.................................. 9
- -----------------------------------------
Section 4.1 Seller's Warranties and Representations.............. 9
---------------------------------------
Section 4.2 [Omitted Intentionally].............................. 10
Section 4.3 Buyer's Warranties and Representations............... 10
--------------------------------------
Section 4.4 Buyer's Covenants.....................................11
-----------------
5
ESCROW AND CLOSING......................................................... 11
- ------------------
Section 5.1 Escrow Arrangements.................................. 11
-------------------
Section 5.2 Title Company's Duties and Closing................... 12
----------------------------------
Section 5.3 Closing Costs........................................ 13
-------------
Section 5.4 Prorations........................................... 13
----------
Section 5.5 Closing Date......................................... 14
------------
Section 5.6 Insurance............................................ 14
---------
Section 5.7 Tenant Estoppels/Tenant Notice....................... 14
------------------------------
Section 5.8 Delivery of Original Documents....................... 15
------------------------------
Section 5.9 Filing of Reports.................................... 15
-----------------
6
DEPOSIT.................................................................... 15
- -------
2
7
MISCELLANEOUS.............................................................. 17
- -------------
Section 7.1 Damage or Destruction................................ 17
---------------------
Section 7.2 Brokerage Commissions and Finder's Fees.............. 18
---------------------------------------
Section 7.3 Leasing Commissions.................................. 19
-------------------
Section 7.4 Successors and Assigns............................... 19
----------------------
Section 7.5 Notices.............................................. 19
-------
Section 7.6 Time................................................. 20
----
Section 7.7 Possession........................................... 20
----------
Section 7.8 Incorporation by Reference........................... 20
--------------------------
Section 7.9 No Deductions or Off-Sets............................ 20
-------------------------
Section 7.10 Attorneys' Fees...................................... 20
---------------
Section 7.11 Construction......................................... 21
------------
Section 7.12 Governing Law........................................ 21
-------------
Section 7.13 Disclosure of Information............................ 21
-------------------------
Section 7.14 Damages.............................................. 22
-------
Section 7.15 Termination without Breach........................... 23
--------------------------
Section 7.16 Counterparts......................................... 23
------------
Section 7.17 Entire Agreement..................................... 23
----------------
EXHIBITS
Exhibit A1-4 - Legal Description
Exhibit B - Street Addresses and
Purchase Price Allocation
Exhibit C - Form of Inquiry Memorandum
Exhibit C-1 - Schedule of Exceptions
Exhibit D - Form of Special Warranty Deed
Exhibit E - Form of General Assignment
Exhibit F - Form of Bill of Sale
Exhibit G - Form of Assignment of Leases
Exhibit H - Form of Subordination, Attornment and
Non-Disturbance Agreement
Exhibit I - Form of FIRPTA Certificate
Exhibit J - Form of Tenant Estoppel
Exhibit K - Form of Tenant Notice
Schedule 1 - Schedule of Leases
Schedule 2 - Delivery Items Per Letter of Intent
3
AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
(Texas NCS Store Locations)
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY is made and
entered into as of August 29, 1997 by and between METRIC REAL ESTATE, L.P., a
California limited partnership ("Seller"), and CAPTEC NET LEASE REALTY, INC., a
Delaware corporation ("Buyer").
Buyer and Seller entered into a Purchase and Sale Agreement ("First
Agreement") dated July 16, 1997 for the Property, as defined in Section 1.7.
Buyer and Seller terminated the First Agreement on July 31, 1997 and now desire
to execute this Agreement for Purchase and Sale in accordance with all the terms
and conditions stated herein.
ARTICLE 1
BASIC DEFINITIONS
-----------------
Section 1.1 Closing Date. The term "Closing Date" shall mean the date
upon which the escrow described in Article V closes, which date shall be no
later than the date specified in Section 5.5 hereof.
Section 1.2 Contract Period. The term "Contract Period" shall mean the
period from the date of this Agreement through and including the Closing Date.
Section 1.3 Inspection Period. The term "Inspection Period" shall mean
the period following the date of this Agreement, ending at 5 p.m. Pacific Time
on the later of (i) the thirtieth (30th) day following the execution of this
Agreement or (ii) the tenth (10th) day following delivery of the last Revised
Site Assessment (as defined below) to Buyer.
Section 1.4 Intangible Property. The term "Intangible Property" shall
mean Seller's rights and interests in the following: (i) the Leases, (ii)
governmental licenses, permits and approvals held by Seller relating to the
occupancy or use of the Real Property, if any, and (iii) existing warranties
held by Seller and given by third parties with respect to the Real Property, if
any.
Section 1.5 Leases. The term "Leases" shall mean the leases and/or
rental agreements described in Schedule 1 attached hereto and incorporated
herein by this reference.
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.
Section 1.7 Property. The term "Property" shall mean the Real Property,
the Personal Property and the Intangible Property.
Section 1.8 Real Property. The term "Real Property" shall mean those
certain parcels of real property more particularly described in Exhibit A 1-5
respectively attached hereto and incorporated herein by this reference (each a
"Location") located in the State of Texas (including, without limitation, any
and all improvements thereon, and all easements, rights of way and other rights
appurtenant thereto) with mailing addresses as set forth on Exhibit B also made
a part hereof.
4
Section 1.9 Title Company. The term "Title Company" shall mean Chicago
Title Company whose address for this transaction is as follows:
Chicago Title Company
288 Market Street
San Francisco, CA 94111
Attn: Beth Bailey-Gates
Escrow No. 19196
Fax No. (415) 434-2176
Phone No. (415) 291-5137
Section 1.10 Title Report. The term "Title Report" shall refer
collectively to the commitments for an owner's policy of title insurance with
respect to each location of the Real Property issued by Title Company under its
Order Nos. 204648-B, 204648-H, 204648-J, 204648-K and 204648-C respectively.
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 the sum of Four Million Three Hundred Six Thousand
Three Hundred Forty-Six and No/100 Dollars ($4,306,346.00) payable as follows:
(a) Payment of the Deposit (as defined below); and
(b) The balance of the Purchase Price shall be paid in cash through the
escrow established pursuant to Section 5.1 on the Closing Date.
Section 2.3 Buyer's Review and Seller's Disclaimer.
(a) Seller has furnished to Buyer copies of a current preliminary title
report or title commitment and applicable title exception documents, a survey
and Lease for each of the Locations. Seller is in the process of revising
certain of the Phase I Environmental Site Assessments ("Revised Site
Assessments"). Buyer shall have ten (10) days after receipt of the last of the
Revised Site Assessments to review and approve the Revised Site Assessments. By
placing its initials in the space provided below, Buyer acknowledges its receipt
of each of the documents to be delivered by Seller pursuant to the Letter of
Intent and specified in Schedule 1 and Schedule 2 attached hereto (collectively
"Documents") with the exception of the Revised Site Assessments.
Buyer's Initials: /s/
---
Buyer shall have until the end of the Inspection Period to approve in
writing such Documents. Any Document not expressly disapproved by Buyer in
writing, respectively on or before the end of the Inspection Period shall be
deemed approved.
Any exceptions to the Title Report, the surveys, 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 "Approved Exceptions." Within five (5)
days after any notice from Title Company identifying the need to amend or add
any exception to the Title Report (which notice Seller shall cause Title Company
to promptly deliver to Buyer), Buyer shall notify Seller of any objections Buyer
may have to said amendment or addition, failure to disapprove such amendment or
addition shall be deemed to be approval. Seller shall use reasonable efforts to
remove as matters affecting title any disapproved exceptions prior to the
Closing Date, but Seller shall not be required to institute any litigation or
incur any cost in excess of $2,500 to do so. If, prior to the Closing Date,
Seller notifies Buyer that Seller will not or will not be able to remove any of
the disapproved exceptions, then, within five (5) days after the giving of such
5
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, in which event
neither Seller nor Buyer shall have any further rights or obligations hereunder
excepting the obligation of the Seller to cause the Title Company to promptly
return the Deposit (as defined below) to Buyer and Buyer's indemnification
obligations under Section 2.3(c) and Section 7.13(c) hereto, each of which
obligations shall survive such termination.
(b) Buyer has inspected each Location and upon execution of this
Agreement is deemed to approve the physical aspects of each Location, subject to
Section 2.3(a) hereof and the condition set forth in Section 3.1(a)(ii) hereof.
(c) Subject to the provisions of Section 2.3(b), prior to expiration of
the Inspection Period, Buyer shall have the right, at its sole cost and expense,
to review the Documents and copy all of Seller's non-privileged and
non-confidential documents and information relating to the operation or
condition of the Property and to conduct whatever inspections, studies, tests
and investigations Buyer desires to conduct relating to the Property including,
without limitation, the physical, environmental, economic and legal condition of
the Property (the "Inspections"). Buyer shall indemnify and defend Seller
against and hold Seller harmless from any and all loss, cost, claim, liability
and expense (including reasonable attorneys' fees) arising out of Buyer's
activities on the Real Property during the Inspection Period. Prior to
expiration of the Inspection Period, Buyer shall complete the Inspections and
notify Seller in writing of its approval or disapproval of the Property. Failure
to timely disapprove the Property in writing shall be deemed to be approval by
Buyer and constitute Buyer's waiver of the condition set forth in Section
3.1(a)(i) below. In the event Buyer shall disapprove any Location pursuant to
this Section 2.3(c), Seller shall have the right to (i) consummate the
transaction contemplated hereby with respect to only such Locations as have been
approved by Buyer or (ii) terminate this Agreement.
(d) Buyer hereby agrees that the waiver or satisfaction of the
conditions set forth in Section 3.1(a)(i) through (iii) 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, appraisals, 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, appraisals 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) 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.
(e) 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, 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
6
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 Buyer assumes the risk that adverse
physical, environmental, economic or legal conditions may not have been revealed
by its investigation.
BUYER REPRESENTS TO SELLER THAT BUYER SHALL CONDUCT ALL INSPECTIONS BUYER DEEMS
NECESSARY, UNDERSTANDING THAT THE CONVEYANCE OF THE PROPERTY SHALL BE "AS-IS",
"WHERE-IS", "WITH ALL FAULTS", AND THAT SELLER IS RELYING UPON THE FACT THAT
BUYER WILL CONDUCT SUCH INSPECTIONS (INCLUDING WITHOUT LIMITATION SOIL TESTS,
ASBESTOS TESTS, HAZARDOUS WASTE ANALYSES, AND ANY OTHER ENVIRONMENTAL
INVESTIGATIONS) AS BUYER DEEMS NECESSARY. BUYER WARRANTS THAT BUYER HAS
EXPERIENCE IN SUCH MATTERS AND THAT BUYER WILL EXERCISE DUE DILIGENCE AND GOOD
FAITH IN MAKING A FULL AND COMPLETE INSPECTION, INVESTIGATION AND REVIEW AS
AFORESAID. IT IS UNDERSTOOD THAT THE SALES PRICE REFLECTS THAT THE PROPERTY IS
BEING SOLD BY SELLER AND THAT BUYER IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT SELLER HAS NOT MADE AND DOES NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE
QUALITY, PHYSICAL CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS
THEREON, COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR
OTHER LAWS REGARDING DISCRIMINATION OR HANDICAPPED ACCESSIBILITY,
PRESENCE/ABSENCE OF ANY HAZARDOUS MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE
LEVELS OR ANY OTHER MATTER OR THING AFFECTING OR RELATED TO THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF HABITABILITY OR SUITABILITY OR
WARRANTIES OF MERCHANTABILITY AND/OR OF FITNESS FOR A PARTICULAR PURPOSE),WHICH
MIGHT BE PERTINENT IN CONSIDERING THE MAKING OF THE PURCHASE OF THE PROPERTY,
AND BUYER, BY ACCEPTANCE HEREOF, DOES HEREBY RELEASE AND FOREVER DISCHARGE
SELLER AND SELLER'S SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS, OBLIGATIONS
AND LIABILITIES (WHETHER BASED IN TORT, CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN
WHOLE OR IN PART, TO ANY SUCH REPRESENTATION AND/OR ALLEGED REPRESENTATION.
(f) Except with respect to any claims arising out of any breach of
covenants, representations or warranties set forth in Sections 4.1 or 4.2 below,
Buyer, for itself and its agents, affiliates, successors and assigns, hereby
releases and forever discharges Seller, its agents, advisors, partners,
affiliates, successors and assigns from any and all rights, claims and demands
at law or in equity, whether known or unknown at the time of this agreement,
which Buyer has or may have in the future, arising out of the physical,
environmental, economic or legal condition of the Property. Buyer hereby
specifically acknowledges that Buyer has carefully reviewed this subsection and
discussed its import with legal counsel and that the provisions of this
subsection are a material part of this Agreement.
Buyer's Initials: /s/
---
Buyer hereby specifically waives the provisions of Section 1542 of the
California Civil Code ("Section 1542"). Section 1542 provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which, if known by him, must have materially affected his
settlement with the debtor.
7
ARTICLE 3
CONDITIONS PRECEDENT
--------------------
Section 3.1 Conditions.
(a) Buyer's obligation to purchase the Property shall be subject to and
contingent upon the satisfaction or waiver (which waiver shall be in writing
except where failure to respond constitutes waiver as provided in Section 2
above) by Buyer of the following conditions precedent:
(i) Buyer's inspection and approval, within the Inspection
Period, of all physical, environmental, economic and legal matters
relating to the Property, pursuant to Section 2.3 above.
(ii) Buyer's written notification to Seller on or before
December 5, 1997 of Buyer's receipt and approval of MAI appraisals of
all of the Locations, performed on behalf of Buyer and at Buyer's
expense, which result in an aggregate appraised fair market value of
the Locations of not less than the Purchase Price.
(iii) The willingness of Title Company or some other reputable
title insurer to issue its Texas standard owner's form policies of
title insurance (collectively "Buyer's Title Policies"), insuring Buyer
in the amount of the Purchase Price allocated to each Location as set
forth on Exhibit B, respectively, that title to such Location is vested
of record in Buyer on the Closing Date, subject only to the printed
conditions and exceptions of such policy and such other exceptions as
approved by Buyer during the Inspection Period; with extended coverage
endorsements, if available, insuring over the general exceptions and/or
exclusions otherwise contained in such title policies.
(iv) Satisfaction or waiver of each and every condition to
closing to be satisfied or waived by Seller as set forth in that
certain Agreement for Purchase and Sale of Real Property dated as of
even date herewith by and between Metric Income Trust Series, Inc. and
Buyer with respect to certain real property located in the states of
California and Georgia as more particularly described therein (the
"Companion Contract") and the closing of the transactions contemplated
therein concurrently with the closing of the transactions contemplated
hereby.
(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) [Omitted Intentionally]
(ii) The willingness of Title Company to issue the Buyer's
Title Policies.
(iii) Buyer's timely satisfaction or waiver of the conditions
set forth in Section 3.1(a)(i) through (iii) above.
(iv) Satisfaction or waiver of each and every condition to
closing to be satisfied or waived by Buyer as set forth in that certain
Agreement for Purchase and Sale of Real Property dated as of even date
herewith by and between Metric Income Trust Series, Inc. and Buyer with
respect to certain real property located in California and Georgia as
more particularly described therein (the "Companion Contract") and the
closing of the transactions contemplated therein concurrently with the
closing of the transactions contemplated hereby.
8
Section 3.2 Failure or Waiver of Conditions Precedent. In the event any
of the conditions set forth in Section 3.1 are not fulfilled or waived by the
party intended to be benefited thereby, this Agreement shall terminate. Either
party may, at its election, at any time or times on or before the date specified
for the satisfaction of the condition, waive in writing the benefit of any of
the conditions set forth in Section 3.1(a) and 3.1(b) above. Buyer's failure to
notify Seller in writing of the failure of any of the conditions set forth in
Section 3.1(a) on or before the date specified for satisfaction shall constitute
a waiver of such condition. In any event, Buyer's consent to the close of escrow
pursuant to this Agreement shall waive any remaining unfulfilled conditions.
ARTICLE 4
COVENANTS, WARRANTIES AND REPRESENTATIONS
-----------------------------------------
Section 4.1 Seller's Warranties and Representations. Seller hereby
represents and warrants to Buyer as follows:
(a) This Agreement has been approved by the investment committee of
Seller's general partner. 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 general partner necessary to confer such power and authority
upon the persons executing this Agreement and all documents which are
contemplated by this Agreement on behalf of Seller have been taken; and
(b) Minton J. Newell, the authorized agent of Seller ("Agent"), based
solely upon inquiry, by means of the Inquiry Memorandum attached to this
Agreement as Exhibit C (the "Inquiry Memorandum"), of the individuals listed
thereon, each of whom responded to such Inquiry Memorandum, and without any
independent investigation or further inquiry, has no Actual Knowledge (as
defined below), as of the date hereof, except as specifically set forth in
Exhibit C-1 attached hereto and incorporated herein by reference, that:
(i) Seller has received any written notice from any
governmental authorities that eminent domain proceedings for the
condemnation of the Real Property are pending;
(ii) Seller has received any written notice of any threatened
or pending litigation against Seller which would materially and
adversely affect the Real Property;
(iii) Seller has received any written notice from any
governmental authority that the improvements located on the Real
Property are presently in violation of any applicable building codes;
or
(iv) Seller has received any written notice from any
governmental authority that Seller's use of the Real Property is
presently in violation of any applicable zoning, environmental, land
use or other law, order, ordinance, rule or regulation affecting the
Real Property.
As used in this Section 4.1(b), the phrase "Actual Knowledge" shall refer only
to the current actual knowledge of Minton J. Newell and shall not be construed,
by imputation or otherwise, to refer to the knowledge of Seller or of any
officer, director, agent, manager, representative, employee or advisor of
Seller, or of any advisor to Seller, or any officers, directors or employees of
any advisor or its affiliates, or impose upon Minton J. Newell any duty to
inquire into or investigate the matter to which such actual knowledge, or
absence thereof, pertains.
Section 4.2 [Omitted Intentionally]
Section 4.3 Buyer's Warranties and Representations. Buyer hereby
represents and warrants to Seller that (a) Buyer and any entity to which Buyer
may assign this Agreement pursuant to Section 7.4 below have, and as of the
Closing Date shall have, full power and lawful authority to enter into and carry
out the terms and conditions of this Agreement and to execute and deliver all
documents which are contemplated by this Agreement, (b) all actions necessary to
confer such power and authority upon the persons executing this Agreement and
9
all documents which are contemplated by this Agreement to be executed on behalf
of Buyer or its assignee have been taken, (c) Buyer is duly qualified and
authorized to do business in, and is in good standing under the laws of, the
State of Michigan, (d) Buyer is not an "employee benefit plan" (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (e) Buyer is not a "governmental plan" within the meaning of Section
3(32) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of the
Internal Revenue Code (the "Code"), (f) Buyer is acquiring the Property for its
own account and no part of the assets of Buyer constitute "plan assets" of an
"employee benefit plan" within the meaning of 29 C.F.R. Section 2510.3-101, (g)
neither Buyer nor any shareholder, officer, partner, manager, member or advisor
of Buyer is (1) an Affiliate (as defined below) of Seller or SSR (as defined
below), (2) a "party in interest" as defined in Section 3(14) of ERISA, or (3) a
"disqualified person" as defined in Section 4975(e)(2) of the Code, and (h) one
or more of the following circumstances is true: (1) equity interests in Buyer
are "publicly offered securities" within the meaning of 29 C.F.R. Section
2510.2-101(b)(2), (2) less than 25% of all equity interests in Buyer are held by
"benefit plan investors" within the meaning of 29 C.F.R. Section
2510.3-101(f)(2), or (3) Buyer is a corporation that qualifies as either an
"operating company" or a "real estate operating company" within the meaning of
29 C.F.R. Section 2510.3-101(c) and (e).
Section 4.4 Buyer's Covenants. Buyer hereby covenants and agrees to
diligently pursue obtaining the MAI appraisals described in Section 3.1(a)(ii)
immediately following the mutual execution of this Agreement in order that the
condition precedent set forth in Section 3.1(a)(ii) may be timely satisfied.
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. On
or before the Closing Date, Seller and Buyer shall deliver escrow instructions
to the Title Company consistent with this Article 5 and the parties shall
deposit in escrow the funds and documents described below.
(a) Buyer shall deposit or cause to be deposited:
(i) the balance of the Purchase Price (net of the Deposit)
("Buyer's Funds"), plus sufficient cash to pay Buyer's share of all
escrow costs, prorations and closing expenses as set forth in Section
5.3 and 5.4 below;
(ii) with respect to each Location, a counterpart General
Assignment (as defined in subparagraph (b)(ii) below, duly executed by
Buyer;
(iii) with respect to each Location, a counterpart Assignment
of Lease (as defined in subparagraph (b)(iv) below), duly executed and
acknowledged by Buyer;
(iv) all other documents necessary to close this transaction
and the transaction contemplated by the Companion Contract as may be
requested by Title Company.
(b) Seller shall deposit:
(i) a duly executed and acknowledged special warranty deed
to each of the Locations each, respectively, in the form attached to
this Agreement as Exhibit D (each a "Deed" and collectively, the
"Deeds");
(ii) with respect to each Location, a duly executed
assignment of Seller's interest in the Intangible Property in the form
attached to this Agreement as Exhibit E (the "General Assignment");
(iii) with respect to each Location, a duly executed bill of
sale in the form attached to this Agreement as Exhibit F (the "Bill of
Sale");
10
(iv) with respect to each Location, a counterpart assignment
by Seller and assumption by Buyer of Seller's interest in the Lease
affecting such Location as of the Closing Date in the form attached
hereto as Exhibit G (the "Assignment of Lease"), duly executed and
acknowledged by Seller;
(v) with respect to each Location, a Subordination,
Attornment and Non-Disturbance Agreement in the form attached hereto as
Exhibit H, executed by the tenant at such Location (the "SNDA").
(vi) 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 I (the "FIRPTA Certificate");
(vii) with respect to each Location, the duly executed
estoppel certificate required pursuant to Section 5.7 below; and
(viii) with respect to each Location, the duly executed Tenant
Notice (as defined in Section 5.7 below.
Section 5.2 Title Company's Duties and Closing. Seller and Buyer shall
instruct Title Company to close escrow on the Closing Date by:
(a) Recording all documents as may be necessary to clear title
in accordance with the requirements of the Title Report applicable to each
Location, subject only to the Approved Exceptions;
(b) Recording the Deeds in the appropriate counties consistent
with each Location and instructing the County Recorder of each such County not
to affix the amount of any documentary or transfer taxes to the Deed but to
attach a separate statement to such Deed after recording;
(c) Paying all closing costs and making all prorations in
accordance with Sections 5.3 and 5.4 of this Agreement and a closing statement
of adjustments and prorations prepared by Title Company and approved by Buyer
and Seller prior to the Closing Date (the "Closing Statement");
(d) Delivering to Buyer the Buyer's Title Policies; Title
Company's certified Closing Statement; conformed copies of the Deeds and any
other documents recorded at closing showing available recordation information
(collectively, the "Recorded Documents"), an original with respect to each
Location of each of the Assignment of Lease, the Bill of Sale, the General
Assignment and copies of all other documents delivered to Title Company; and
(e) Delivering to Seller the entire Purchase Price, plus or
minus closing adjustments and prorations, Title Company's certified Closing
Statement, conformed copies of the Recorded Documents, an original with respect
to each Location of each of the Assignment of Lease, the Bill of Sale, the
General Assignment and copies of all other documents delivered to Title Company.
Section 5.3 Closing Costs. Seller shall pay (a) the local governmental
documentary transfer or transaction taxes or fees due on the transfer of the
Property from Seller to Buyer (the portion of the Purchase Price allocated to
each Location is set forth on Exhibit B in order to facilitate the calculation
of such transfer taxes); (b) one half of the escrow fee charged by Title
Company; (c) the cost for standard owner's title coverage with respect to each
Location; and (d) the cost of an ALTA survey with respect to each Location.
Buyer shall pay (a) the extra premium for any excess or over standard title
coverage, if available, -- for example, any requested endorsements, including,
without limitation, any endorsements insuring over the general exceptions and/or
exclusions otherwise contained in Title Company's standard form of owner's
policy of title insurance; and (b) one half of the escrow fee charged by the
Title Company. Each party shall pay its own attorneys' fees.
11
Section 5.4 Prorations.
(a) Real property taxes and assessments shall not be prorated inasmuch
as the tenant for each Location is obligated to pay such taxes and assessments
under the relevant lease. Rent (whether prepaid or applicable to the current
rental period) and all other items of income and expense with respect to the
Property shall be prorated between Seller and Buyer as of the Closing Date. All
such items attributable to the period through and including the Closing Date
shall be credited to Seller. All such items attributable to the period following
the Closing Date shall be credited to Buyer. If either Buyer or Seller receives
any revenues attributable to the period during which it is not the owner of the
Property, said party shall promptly forward such amounts to the other party (if
such revenues are only partially attributable to the period during which said
party is not the owner of the Property, the amount paid to the other party shall
be based upon proration as of the Closing Date as set forth above). Buyer shall
use its best efforts to collect and assist Seller in collecting any revenue
which is owed to Seller as of the Closing Date or which comes due thereafter.
(b) Buyer and Seller shall cooperate to produce on or before the
Closing Date a schedule of prorations which is as complete and accurate as
reasonably possible. All prorations which can be reasonably estimated as of the
Closing Date shall be made in escrow on the Closing Date. All other prorations
and any adjustments to initial estimated prorations, shall be made by Buyer and
Seller within thirty (30) days following the Closing Date or such later time as
may be required, in the exercise of due diligence, to obtain the necessary
information for proration. Any net credit due one party from the other as a
result of such post-closing prorations and adjustments shall be paid to the
other in cash immediately upon the parties' written agreement to a final
schedule of post-closing adjustments and prorations which obligation shall
survive the Closing for a period of 180 days.
Section 5.5 Closing Date. The Closing Date shall occur on a date
mutually agreed upon by Buyer and Seller, which shall be not later than December
16, 1997.
Section 5.6 Insurance. Seller's existing liability and property
insurance pertaining to the Property shall be cancelled as of the Closing Date,
and Seller shall receive any premium refund due thereon.
Section 5.7 Tenant Estoppels/Tenant Notice. Seller shall use
commercially reasonable efforts to obtain and to deliver to Buyer on or before
the Closing Date an estoppel certificate substantially in the form attached
hereto as Exhibit J from the tenant with respect to each Location; provided,
however, that if the lease between Seller and any such tenant mandates delivery
by such tenant of an estoppel certificate, Seller shall cause such delivery. In
the event Seller is unable to obtain such a certificate from the tenant of the
Property with respect to any given Location 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. Buyer agrees that with respect to any
Location for which a certificate executed by Seller is provided, 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.
Upon Closing, Seller shall execute and deliver to Buyer a notice to
tenant with respect to each Location in the form attached hereto as Exhibit K
(the "Tenant Notice").
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, written third party contracts
and warranties, surveys, soils reports and other original documents, if any, in
Seller's possession pertaining to the Property.
Section 5.9 Filing of Reports. Title Company shall be solely
responsible for the timely filing of any reports or returns required pursuant to
the provisions of Section 6045(e) of the Internal Revenue Code of 1986 (and any
similar reports or returns required under any state or local laws) in connection
with the closing of the transactions contemplated in this Agreement.
12
ARTICLE 6
DEPOSIT
-------
Within two (2) days of the mutual execution of this Agreement, Buyer
shall deposit in an escrow established with the Title Company with respect to
this transaction, cash in the amount of $25,000.00. Within two (2) working days
following expiration of the Inspection Period, Buyer shall deposit in escrow the
additional sum of $50,000.00 in cash or certified funds. Title Company shall
invest all funds so deposited in an interest-bearing cash-management account
reasonably acceptable to Buyer and Seller. The funds so deposited and all
interest thereon are referred to collectively as the "Deposit." From and after
the date that the conditions precedent set forth in Sections 3.1(a)(i) through
(iii) above shall have been satisfied or waived, the Deposit shall be
non-refundable to Buyer (except as expressly provided below). In the event that
Buyer shall breach, be unable or otherwise fail to perform its obligations
hereunder, then the entire amount of the Deposit shall be paid by Title Company
to Seller and retained by Seller.
ANY DEFAULT BY BUYER IN THE PERFORMANCE OF ITS OBLIGATION UNDER THE
COMPANION CONTRACT SHALL CONSTITUTE A DEFAULT OF BUYER'S OBLIGATIONS HEREUNDER.
IN THE EVENT OF DEFAULT BY BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER
OR UNDER THE COMPANION CONTRACT, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT FORTHWITH AND WITHOUT FURTHER OBLIGATIONS TO BUYER AND TO OBTAIN
IMMEDIATE DISBURSEMENT OF AND TO RETAIN THE DEPOSIT THEN HELD BY ESCROW HOLDER
UNDER THIS AGREEMENT AND UNDER THE COMPANION CONTRACT. SUCH RETENTION OF THE
DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF
CALIFORNIA CIVIL CODE SECTIONS 3769 OR 3275, BUT INSTEAD, IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677
OF THE CALIFORNIA CIVIL CODE. THE PARTIES ACKNOWLEDGE THAT THE ACTUAL DAMAGES
WHICH WOULD RESULT TO SELLER AS A RESULT OF SUCH FAILURE WOULD BE EXTREMELY
DIFFICULT TO ESTABLISH. IN ADDITION, BUYER DESIRES TO HAVE A LIMITATION PUT UPON
ITS POTENTIAL LIABILITY TO SELLER IN THE EVENT THAT THIS TRANSACTION SHALL FAIL
TO CLOSE. BY PLACING THEIR RESPECTIVE INITIALS IN THE SPACES HEREINAFTER
PROVIDED, THE PARTIES ACKNOWLEDGE THAT UPON THE BREACH, INABILITY OR FAILURE TO
PERFORM BY BUYER UNDER THE TERMS OF THIS AGREEMENT AND/OR THE COMPANION
CONTRACT, SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE
DEPOSIT HEREUNDER AND THEREUNDER AND THAT SELLER'S RECEIPT AND RETENTION OF THE
DEPOSIT HEREUNDER AND THEREUNDER SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN
THE EVENT OF SUCH BREACH, INABILITY OR FAILURE TO PERFORM BY BUYER.
FURTHER, BY PLACING THEIR RESPECTIVE INITIALS IN THE SPACES HEREINAFTER
PROVIDED, THE PARTIES HERETO ALSO AGREE THAT IN THE EVENT BUYER SHALL ELECT TO
POSTPONE THE CLOSING WITH RESPECT TO ANY AFFECTED LOCATION AS PERMITTED UNDER
SECTION 7.1(b) HEREOF, THEN ANY AFFECTED LOCATION ADDITIONAL DEPOSIT (AS DEFINED
IN SECTION 7.1(b)) SHALL CONSTITUTE LIQUIDATED DAMAGES IN ACCORDANCE WITH THE
PROVISIONS OF THIS ARTICLE 6 AND THAT IN THE EVENT BUYER SHALL BREACH, BE UNABLE
OR OTHERWISE FAIL TO PERFORM ITS OBLIGATIONS HEREUNDER WITH RESPECT TO SUCH
AFFECTED LOCATION, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AS TO
SUCH AFFECTED LOCATION FORTHWITH AND WITHOUT FURTHER OBLIGATION TO BUYER AND TO
OBTAIN IMMEDIATE DISBURSEMENT OF AND TO RETAIN THE AFFECTED LOCATION ADDITIONAL
DEPOSIT THEN HELD BY ESCROW HOLDER UNDER THIS AGREEMENT AS LIQUIDATED DAMAGES
AND THAT SELLER'S RECEIPT AND RETENTION OF SUCH AFFECTED LOCATION ADDITIONAL
DEPOSIT SHALL BE THE SOLE ADDITIONAL REMEDY OF SELLER AT LAW IN THE EVENT OF
SUCH BREACH, INABILITY OR FAILURE TO PERFORM BY BUYER WITH RESPECT TO SUCH
AFFECTED LOCATION.
BUYER ( /s/ ) AND SELLER ( /s/ ) AGREE.
13
In the event that this transaction is consummated as contemplated by this
Agreement, then the entire amount of the Deposit hereunder shall be applied to
the Purchase Price hereunder and shall be paid by Title Company to Seller.
Buyer shall have the right to terminate this Agreement and the Companion
Contract and the entire amount of the Deposit shall be returned immediately to
Buyer in the event that (a) Buyer shall have performed fully or tendered
performance of its obligations hereunder and under the Companion Contract and
(b) Seller shall be unable or fail to convey the Property to Buyer as provided
in this Agreement. In the event, and only in the event, that Seller's breach
under clause (b) shall be attributable to Seller's willful or voluntary default
in its obligation to convey the Property to Buyer as provided in this Agreement,
then, subject to Section 7.14 hereof, Buyer may pursue any remedy available at
law for damages.
ARTICLE 7
MISCELLANEOUS
-------------
Section 7.1 Damage or Destruction.
(a) Subject to the provisions of subsection (b) below, Buyer shall be
bound to purchase the Property for the Purchase Price as required by the terms
of this Agreement without regard to the occurrence during the Contract Period of
any damage to or destruction of the Improvements ("Contract Period Damage").
Buyer shall receive a credit in escrow in the amount of any insurance proceeds
(net of reasonable costs incurred in securing such proceeds) collected by Seller
prior to the Closing Date as a result of any Contract Period Damage to 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 Improvements at any affected Location attributable to any
Contract Period Damage exceeds twenty percent (20%) of the Purchase Price
allocated to the affected Location as determined by the insurer of such
Improvements, then Buyer, by written notice (the "Postponement Notice") given to
Seller as soon as practicable and prior to the Closing Date, may elect to
postpone the Closing Date with respect to such Location until the Improvements
at such Location have been repaired, replaced or restored by the tenant therein,
or at Seller's sole option by Seller, to substantially their condition prior to
the Contract Period Damage. Concurrently with the delivery of the Postponement
Notice, Buyer shall deposit $25,000 in escrow as an additional earnest money
deposit with respect to such affected Location (the "Affected Location
Additional Deposit"), which deposit shall be subject to the provisions of
Article 6 hereof. Escrow with respect to the affected Location shall close
promptly within thirty (30) days of Seller's written notice to Buyer of the
completion of the repair, replacement or restoration of the Contract Period
Damage. In the event such Contract Period Damage is not repaired, replaced, or
restored, as the case may be, within one (1) year of Seller's receipt of Buyer's
Postponement Notice, Seller or Buyer may elect to terminate this Agreement as it
pertains to such affected Location and the entire amount of the Affected
Location Additional Deposit shall be immediately refunded to Buyer.
(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 at the
affected Location to the extent reasonably feasible prior to the Closing Date.
Seller's election to commence the repair, replacement or restoration of the
Property at the affected Location 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").
(d) Notwithstanding anything in this Agreement to the contrary, the
insurance proceeds to be credited or delivered to Buyer pursuant to Section
7.1(a), if any, shall exclude business interruption or rental loss insurance
proceeds, if any, allocable to the period through the Closing Date, which
proceeds shall be retained by Seller.
Section 7.2 Brokerage Commissions and Finder's Fees. Each party to this
Agreement warrants to the other that each party to this Agreement is acting as a
principal and not as an agent or broker for any other person or entity and that,
14
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 (and with respect to the Georgia
Location, no notice(s) of lien for any such services has been received). Each
party hereby agrees to indemnify and defend the other against and to hold the
other harmless from any and all loss, cost, liability or expense (including, but
not limited to, attorneys' fees and returned commissions) resulting from any
claim for Real Estate Compensation by any person or entity based upon such acts
or from payment of Real Estate Compensation to any person by Buyer or by any
entity affiliated with Buyer. Buyer acknowledges that Seller shall pay Real
Estate Compensation to Damon Raike & Company and Arroyo & Coates (each a
"Broker", collectively, "Brokers") pursuant to the separate written agreements
between Seller and each Broker, respectively. Buyer further acknowledges that
Metric Property Management, Inc. may also receive Real Estate Compensation from
Seller.
Section 7.3 Leasing Commissions. Seller shall indemnify, protect,
defend and hold Buyer harmless from and against any leasing commissions payable
in connection with the current terms of the Leases (specifically excluding
therefrom any commission for option periods, renewal periods, extension periods
or waivers of termination rights or as otherwise 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, Buyer may assign its rights hereunder to an Affiliate of
Buyer provided that (i) such assignee executes a written assumption (in form and
substance in all respects satisfactory to Seller) of all of Buyer's obligations
under this Agreement, (ii) Buyer shall not be released from its obligations and
liabilities under this Agreement, and (iii) such assignment shall be without any
increase in price, fees, commissions or other compensation to Buyer in
consideration of such assignment. Subject to the foregoing, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
successors and assigns.
Section 7.5 Notices. All written notices required to be given pursuant
to the terms hereof shall be either (i) personally delivered, (ii) deposited in
the United States mail, registered or certified return receipt requested,
postage prepaid, (iii) sent by Federal Express or similar nationally recognized
overnight courier service, or (iv) transmittal by facsimile with a hard copy
sent within one (1) business day by any of the foregoing means, and addressed as
follows:
To Seller: c/o SSR Realty Advisors
One California Street, Suite 1400
San Francisco, California 94111
Attn: Property Sales
Fax No: (415) 678-2291
Phone No: (415) 678-2107
copy to: SSR Realty Advisors
1 California Street, Suite 1400
San Francisco, CA 94111
Attn: Herman H. Howerton, Esq.
Fax No: (415) 678-2296
Phone No: (415) 678-2135
Landels Ripley & Diamond, LLP
350 The Embarcadero, 6th Floor
San Francisco, CA 94105
Attn: Richard S. Winer, Esq.
Fax No: (415) 512-8750
Phone No: (415) 512-8700
15
To Buyer: Captec Net Lease Realty, Inc.
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, MI 48106
Fax No: (313) 994-1376
Phone No: (313) 994-5505
copy to: David N. Parsigian, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
101 North Main Street, 7th Floor
Ann Arbor, MI 48104-1400
Fax No: (313) 747-7147
Phone No: (313) 668-7117
The foregoing addresses may be changed from time to time by written
notice. Notices shall be deemed received upon the earlier of actual receipt or
delivery (or refusal to accept delivery) or three (3) working days following
sending as provided above.
Section 7.6 Time. Time is of the essence of every provision contained
in this Agreement.
Section 7.7 Possession. Possession of the Property shall be delivered
to Buyer on the Closing Date, subject to then existing tenancies.
Section 7.8 Incorporation by Reference. All of the exhibits attached to
this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.9 No Deductions or Off-Sets. Buyer acknowledges that the
Purchase Price to be paid for the Property pursuant to this Agreement is a net
amount and shall not be subject to any off-sets or deductions, subject, however,
to the prorations required hereby.
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 actually incurred, based upon
time expended, calculated at normal hourly rates.
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 Governing Law. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California.
Section 7.13 Disclosure of Information.
(a) Certain Definitions. For purposes of this Section 7.13, the
following terms shall have the respective meanings assigned to them in this
subsection (a):
(i) "Affiliate" shall mean: any person or entity directly or
indirectly controlling, controlled by or under common control with the
subject person or entity; any person or entity owning or controlling
10% or more of the outstanding voting securities of the subject entity;
any officer, director or partner of the subject entity; and any entity
for which the subject person or entity acts in the capacity of officer,
director or partner;
(ii) "Buyer Group" shall mean Buyer and its Affiliates,
and the directors, officers, employees, partners, agents and
representatives of such parties;
(iii) "SSR" shall mean SSR Realty Advisors and/or any of
its Affiliates; and
16
(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 Seller,
SSR or any of their respective Affiliates.
(b) Restrictions on Disclosure. Buyer agrees that, unless Buyer has
obtained the prior written consent of Seller, Buyer shall not release, publish
or otherwise distribute, and shall not authorize or permit any person or entity
(including without limitation any member of the Buyer Group) to release, publish
or otherwise distribute, to any person or entity other than Seller, SSR or any
of their respective Affiliates, any Disclosure Document; 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 to its lender(s) in connection
with obtaining financing.
(c) Indemnification. Buyer and Buyer's principals shall indemnify and
hold harmless SSR, its 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).
Section 7.14 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 Seller's interest in 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, the aggregate
liability of the Seller hereunder (or under any other document or instrument
delivered simultaneously or in connection with or pursuant hereto) and the
seller under the Companion Contract thereunder (or any other document or
instrument delivered simultaneously or in connection with or pursuant thereto)
shall be limited to the amount of $1,000,000.00. In no event shall Buyer seek
satisfaction for any such obligation from any of the general or limited
partners, employees or agents of Seller. Buyer specifically waives any right to
seek specific performance of Seller's obligations under this Agreement and
acknowledges that (except as provided in Section 6 above with respect to a
willful or voluntary default by Seller of its obligation to convey the Property)
its only remedy in the event of a breach of this Agreement by Seller prior to
closing shall be the right to terminate this Agreement and the Companion
Contract, and receive the refund of the Deposit. Seller and Buyer agree that
such breach or default by Seller shall not be or be deemed to be a willful or
voluntary breach or default, among other things, if: (i) Seller is then subject
to a judicial prohibition against completing the sale transaction contemplated
in this Agreement or in the Companion Contract, or (ii) Seller shall in good
faith believe that circumstances exist such that Seller may incur, suffer or be
exposed to material liabilities or increased liabilities to any third party
arising out of the presence upon the Real Property of any hazardous or toxic
substances, materials or waste as a result of Seller's completing the
transaction contemplated in this Agreement or in the Companion Contract.
Section 7.15 Termination without Breach. In the event either party
desires to exercise any right expressly provided in this Agreement to terminate
this Agreement, such party shall give written notice of such termination and the
reason therefor to the other party. Thereafter, except in the event of a
termination based upon a default by either party in the performance of its
obligations under this Agreement, and effective as of the effective date of such
notice, each party shall be released from its obligations hereunder and all
monies and documents deposited into Escrow shall be returned to the party which
deposited them, all documents delivered by Seller to Buyer relating to the
Property shall be returned and all reports, studies, analyses and tests prepared
by or for Buyer relating to the Property shall immediately be delivered to
Seller; provided, however, that nothing herein shall limit Buyer's indemnity set
forth in Section 2.3(c) and 7.13(c) hereof.
Section 7.16 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.
17
Section 7.17 Entire Agreement. This Agreement and the attached
exhibits, which are by this reference incorporated herein, and all documents in
the nature of such exhibits, when executed, contain the entire understanding of
the parties and supersede any and all other written or oral understanding,
including, without limitation, the Letter of Intent.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
SELLER:
- -------
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin Howley
----------------
Its: President
---------
BUYER:
- ------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
SELLER'S BROKERS:
- -----------------
DAMON RAIKE & COMPANY
By: /s/
Its: Broker
------
State/License No. 00404237
--------
ARROYO & COATES:
- ----------------
By: /s/
Its: CEO
---
State/License No. 00995512
--------
Receipt of $____________ as the deposit
is acknowledged in the form of
- --------------------------------
TITLE COMPANY:
- --------------
CHICAGO TITLE COMPANY
By: /s/
---
Its: Coordinator
-----------
18
FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
------------------------------------------------
THIS FIRST AMENDMENT to Agreement for Purchase and Sale of Real
Property (this "Amendment") is made and shall be effective as of December 15,
1997, by and between METRIC REAL ESTATE, L.P. ("Seller") and CAPTEC NET LEASE
REALITY, INC. ("Buyer").
RECITALS
--------
A. Seller and Buyer have entered into that certain Agreement for
Purchase and Sale of Real Property dated as of October 31, 1997, by and between
Seller and Buyer (the "Original Agreement").
B. Seller and Buyer desire to extend the Closing Date as set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto do agree as
follows:
AGREEMENT
---------
1. The recitals set forth above are true and correct and are
incorporated herein by this reference.
2. Section 3.1(a)(iv) of the Original Agreement is hereby supplemented
by adding the words "as the same may be amended from time to time" after the
words "as more particularly described therein" and before the defined term "(the
`Companion Contract')" occurring in the seventh and eighth lines thereof.
3. Section 5.1(b)(v) of the Original Agreement is hereby amended to add
the words "in accordance with the provisions of Article XXVII of the Lease,"
after the reference to Exhibit H in the third line thereof.
4. The Closing Date described in Section 5.5 of the Original Agreement
is hereby extended until December 19, 1997.
5. Exhibit H to the Original Agreement is hereby deleted in its
entirety and a new Exhibit H in the form attached hereto as Schedule 1 is hereby
substituted in lieu thereof.
6. In all other respects the Original Agreement shall remain unchanged
and in full force and effect.
7. This Amendment may be executed in counterparts each of which shall
be deemed to be an original and all of which, taken together, shall constitute
but one and the same instrument.
8. This Amendment shall be governed by and construed in accordance with
the laws of the State of California.
19
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
SELLER:
-------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc. a California
corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
----------
BUYER:
------
By: CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
20
EXHIBIT A 1
-----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
Lot Forty-nine (49), New City Block 12858, Grandys Subdivision, an addition to
the City of San Antonio, Bexar County, Texas, according to the map or plat
thereof, recorded in Volume 9508, Page 133, Deed and Plat Records of Bexar
County, Texas
EXHIBIT A 2
-----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
A 0.599 acre (26,091 square feet) tract known as Lot Two (2), Block Ten (10),
NCB 17488, Northgate Stop N Go Subdivision, as recorded in Volume 9508, Page 189
of the Deed and Plat Records of Bexar County, Texas and more particularly
described as follows:
BEGINNING at a point on the West right-of-way line of Babcock Road, said point
being South 40 deg. 13 min. 31 sec. East, a distance of 24.49 feet from the
point of intersection with the South right-of-way line of Eckhert Road and the
POINT OF BEGINNING;
THENCE along the West right-of-way line of Babcok Road, South 40 deg. 13 min.
31 sec. East, a distance of 145.06 feet to a point, said point being the
Southeast corner of this 0.599 acre tract;
THENCE departing the West right-of-way line of Babcock Road, South 53 deg. 29
min. 05 sec. West, a distance of 168.02 feet to a point, said point being the
Southwest corner of this 0.599 acre tract;
THENCE North 36 deg. 30 min. 55 sec. West, a distance of 168.33 feet to a point
on the South right-of-way line of Eckhert Road, said point being the Northwest
corner of this 0.599 acre tract;
THENCE on a curve to the left whose radius is 500.00 feet, delta of 04 deg. 35
min. 01 sec. and a length of 40.00 feet to a PCC;
THENCE on a curve to the left whose radius is 1793.00 feet, delta of 02 deg. 57
min. 41 sec. and length of 92.67 feet to a PRC;
THENCE on a curve to the right whose radius is 25.00 feet, delta of 88 deg. 49
min. 05 sec. and a length of 38.75 feet to the POINT OF BEGINNING and containing
0.599 acres (26,091 square feet) of land more or less.
21
EXHIBIT A 3
-----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Fort Worth, County of
Tarrant, State of Texas, described as follows:
Being all of Lot 1, Block 200 , Wedgwood Addition to the City of Fort Worth,
Tarrant County, Texas according to the plat recorded in Volume 388-45, Page 73
Plat Records, Tarrant County, Texas, and being more particularly described as
follows:
BEGINNING at a "Y" cut in concrete walk in the North right-of-way line of Alta
Mesa Boulevard and in the East right-of-way line of Woodway Drive, for the
Southwest corner of said Lot 1;
THENCE North 00 deg. 01 min. West, along the west line of said Lot and the said
East right-of-way line, a distance of 150.00 feet to a "+" found in concrete
walk for the Northwest corner of said Lot 1, and being the most Westerly
Southwest corner of Lot 2 of said Block 200, as recorded in Volume 388-48, page
617 of said Deed Records;
THENCE South 83 deg. 52 min. East, along the North line of said Lot 1 and a
South line of said Lot 2, a distance of 175.0 feet to a "+" cut in the concrete
for the Northeast corner of said Lot 1, a "Y" cut in concrete curb bears South
83 deg. 52 min. East, 2.56 feet;
THENCE South 00 deg. 01 min. East, along the East line of said Lot 1 and a West
line of said Lot 2, a distance of 150.00 feet to a "+" found in concrete walk in
the North right-of-way line of said Alta Mesa Boulevard, for the Southeast
corner of said Lot 1;
THENCE North 83 deg. 52 min. West, along the South line of said Lot 1 and the
said North right-of-way line, a distance of 175.0 feet to the POINT OF BEGINNING
and containing 26,099 square feet or land.
EXHIBIT A 4
-----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Grand Prairie, County of
Tarrant, State of Texas, Described as follows:
Description of a 30,622 square foot (0.7030 acre) tract of land in the City of
Grand Prairie, Tarrant County, Texas and being all of Lot 1, Block "A" of the
Houseman/NCS Addition, an Addition to the City of Grand Prairie, Tarrant County,
Texas, according to the plat thereof recorded in Volume 388-102, Page 43 of the
Plat Records of Tarrant County, Texas. (P.R.T.C.T.) and being more particularly
described by metes and bounds as follows (with bearings referenced to the plat
of said Houseman/NCS Addition):
BEGINNING at a 5/8 inch iron rod set at the Intersection of the east
right-of-way (R.O.W) line of Duncan Perry Road (a 70 foot R.O.W.) and the south
R.O.W. line of Tarrant Road ( 100 foot R.O.W.) marking th northwest corner of
Lot 1, Block "A" of said Houseman/NCS Addition, from which a 1/2 inch iron rod
found bears South 15 deg. 52 min. West, 0.9 feet;
THENCE North 89 deg. 27 min. 47 sec. East, along the common north line of said
Lot 1 and the South R.O.W. line of said Tarrant Road, a distance of 175.00 feet
to a 5/8 inch iron rod found for the common northeast corner of said Lot 1 and
the most northerly northwest corner of Lot 2, Block "A" of said Houseman/NCS
Addition;
THENCE South 00 deg. 12 min. 07 sec. West, departing the south R.O.W. line of
said Tarrant Road and along the common east line of said Lot 1 and a west line
of said Lot 2, a distance of 175.00 feet to a 5/8 inch iron rod found for the
common southeast corner of said Lot 1 and an interior corner of said Lot 2;
22
THENCE South 89 deg. 27 min. 47 sec. West, along the common south line of said
Lot 1 and a north line of said Lot 2, a distance of 175.00 feet to a 5/8 inch
iron rod found in the east R.O.W. line of Duncan Perry Road marking the common
southwest corner of said Lot 1 and the most westerly northwest corner of said
Lot 2;
THENCE North 00 deg. 12 min. 07 sec. East, along the common west line of said
Lot 1 and the east R.O.W line of said Duncan Perry Road, a distance of 175.00
feet to the POINT OF BEGINNING of the herein described tract containing within
the metes recited 30,622 square feet (0.7030 acre) of land, more or less.
EXHIBIT A 5
-----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Kennedale, County of
Tarrant, State of Texas, described as follows:
Lot Two (2), Block One (1) of NCS Subdivision, an addition to the City of
Kennedale, Tarrant County, Texas, according to the map or plat thereof, recorded
in Volume 388-188, Page 82, Deed Records of Tarrant County, Texas;
Together with that certain pedestrian and vehicular access easement granted in
deed dated March 29, 1985 from Harvey Properties Co. to National Convenience
Stores Incorporated, recorded in Volume 8149, Page 235, Deed Records of Tarrant
County, Texas; and
Together with that certain access easement dated July 10, 1990 granted by
National Convenience Stores Incorporated to Metric Real Estate, L.P., recorded
in Volume 9998, Page 1388 and refiled in Volume 10084, Page 228, Deed Records of
Tarrant County, Texas.
23
EXHIBIT B
---------
Street Addresses and Purchase Price Allocations
-----------------------------------------------
STREET ADDRESS ALLOCATED PURCHASE PRICE
- -------------- ------------------------
5494 Babcock $ 841,278
San Antonio, TX
1201 N. Little School Rd. $ 991,496
Kennedale, TX
2485 W. Tarrant Rd. $ 1,003,882
Grand Prairie, TX
3850 Alta Mesa Blvd. $ 635,643
Fort Worth, TX
8620 Fredericksburg Road $ 834,047
San Antonio, TX
24
EXHIBIT C
---------
Inquiry Memorandum
------------------
TO:PORTFOLIO ACCOUNTING LEGAL
-------------------- -----
Sherie Kidwell, Portfolio Acctg. Mgr. Herman H. Howerton, Managing Director,
General Counsel
PORTFOLIO MANAGEMENT RISK MANAGEMENT
-------------------- ---------------
Rich Faber, Portfolio Manager George Fogelsong, Risk Manager
Craig Fawcett, Assistant Portfolio
Manager.
PORTFOLIO CLIENT SERVICES cc:. Richard S. Winer, Esq.
------------------------- Property Sales Closing File
Cynthia Halicky, Director of
Operations
FROM: Minton J. Newell
DATE: October 27, 1997
RE: Internal Due Diligence
5 NCS Stores, Texas
Ft. Worth, Grand Prairie, Kennedale, San Antonio (2)
Metric Real Estate, L.P.
RESPONSE MANDATORY
------------------
================================================================================
Pursuant to the proposed Agreement for Purchase and Sale of Real Property by and
between METRIC REAL ESTATE, L.P., a California limited partnership, and CAPTEC
NET LEASE REALTY, INC., ("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 October 29, 1997.
Should you become aware of any fact which would make these representations
untrue prior to the closing of the contemplated transaction, please contact me
immediately.
25
I have no knowledge of any facts which would make the attached representations
untrue as of this date exept as noted below.
EXCEPTIONS: NONE
Printed Name: Printed Name: Printed Name:
Herm H. Howerton Richard Faber Cynthia A. Halicky
- ---------------- ------------- ------------------
Signature: Signature: Signature:
/s/ Herm H. Howerton /s/ Richard Faber /s/ Cynthia A. Halicky
- -------------------- ----------------- ----------------------
Date: Date: Date:
10/29/97 10/29/97 10/29/97
- -------- -------- --------
Printed Name: Printed Name: Printed Name:
George M. Foglesong Sherie Kidwell Craig Fawcett
- ------------------- -------------- -------------
Signature: Signature: Signature:
/s/ George M. Foglesong /s/ Sherie Kidwell /s/ Craig Fawcett
- ----------------------- ------------------ -----------------
Date: Date: Date:
10/29/97 10/29/97 10/29/97
- -------- -------- --------
26
ATTACHMENT
----------
Minton J. Newell, the authorized agent of Seller ("Agent"),
based solely upon inquiry, by means of the Inquiry Memorandum attached to this
Agreement as Exhibit C (the "Inquiry Memorandum"), of the individuals listed
thereon, each of whom responded to such Inquiry Memorandum, and without any
independent investigation or further inquiry, has no Actual Knowledge (as
defined below), as of the date hereof, except as specifically set forth in
Exhibit C-1 attached hereto and incorporated herein by reference, that:
(i) Seller has received any written notice from any
governmental authorities that eminent domain proceedings for the
condemnation of the Real Property are pending;
(ii) Seller has received any written notice of any threatened
or pending litigation against Seller which would materially and
adversely affect the Real Property;
(iii) Seller has received any written notice from any
governmental authority that the improvements located on the Real
Property are presently in violation of any applicable building codes;
or
(iv) Seller has received any written notice from any
governmental authority that Seller's use of the Real Property is
presently in violation of any applicable zoning, environmental, land
use or other law, order, ordinance, rule or regulation affecting the
Real Property.
As used in this Section the phrase "Actual Knowledge" shall refer only to the
current actual knowledge of Minton J. Newell and shall not be construed, by
imputation or otherwise, to refer to the knowledge of Seller or of any officer,
director, agent, manager, representative, employee or advisor of Seller, or of
any advisor to Seller, or any officers, directors or employees of any advisor or
its affiliates, or impose upon Minton J. Newell any duty to inquire into or
investigate the matter to which such actual knowledge, or absence thereof,
pertains.
EXHIBIT C
---------
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
------------------------------
[NONE]
27
EXHIBIT D 1
-----------
Form of Special Warranty Deed
-----------------------------
WHEN RECORDED, RETURN TO: CERTIFIED TO BE A TRUE
- -------------------------
COPY
OF DOCUMENT RECORDED
12/23/97
David Eby IN BOOK___SERIES 97-0180929
CAPTEC Financial Group, Inc. OF OFFICIAL RECORDS.
24 Frank Lloyd Wright Drive CHICAGO TITLE INSURANCE
CO.
Lobby L - 4th floor BY /s/
Ann Arbor, MI 48106-0544 ---
- ------------------------------------------------
SPECIAL WARRANTY DEED
---------------------
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF BEXAR
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by CAPTEC NET LEASE REALY,
INC. (herein called "Grantee", whether one or more), the receipt and sufficiency
of which are hereby acknowledged, has GRANTED, SOLD and CONVEYED and by these
presents does hereby GRANT, SELL and CONVEY unto Grantee the real property in
Bexar County, Texas, together with all rights and appurtenances thereto (the
"Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL
CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF HAZARDOUS
28
MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY OR SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS ASSIGNS
FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT,
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
Grantee, by acceptance hereof, does hereby assume and agree to pay all ad
valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 16th day of December,1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
THE STATE OF California
----------
COUNTY OF San Francisco
-------------
This instrument was acknowledged before me on the 16th day of December,
1997, by Kevin M. Howley, the President of MR, Inc., a California corporation,
on behalf of said corporation.
/s/ Tana Laura
--------------
Notary Public
TANA J. LAURA
Comm. #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan 15, 2001
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
Lot Forty-nine (49), New City Block 12858, Grandys Subdivision, an addition to
the City of San Antonio, Bexar County, Texas, according to the map or plat
thereof, recorded in Volume 9508, Page 133, Deed and Plat Records of Bexar
County, Texas
29
EXHIBIT D 2
Form of Special Warranty Deed
-----------------------------
WHEN RECORDED, RETURN TO: CERTIFIED TO BE A TRUE
- ------------------------
COPY
OF DOCUMENT RECORDED
12/23/97
David Eby IN BOOK___SERIES 97-0180926
CAPTEC Financial Group, Inc. OF OFFICIAL RECORDS.
24 Frank Lloyd Wright Drive CHICAGO TITLE INSURANCE
CO.
Lobby L - 4th floor BY /s/
Ann Arbor, MI 48106-0544 ---
SPECIAL WARRANTY DEED
---------------------
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF BEXAR
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by CAPTEC NET LEASE REALY,
INC. (herein called "Grantee", whether one or more), the receipt and sufficiency
of which are hereby acknowledged, has GRANTED, SOLD and CONVEYED and by these
presents does hereby GRANT, SELL and CONVEY unto Grantee the real property in
Bexar County, Texas, together with all rights and appurtenances thereto (the
"Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL
CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF HAZARDOUS
30
MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY OR SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS ASSIGNS
FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT,
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
Grantee, by acceptance hereof, does hereby assume and agree to pay all ad
valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 16th day of December,1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
--------------
THE STATE OF California
----------
COUNTY OF San Francisco
-------------
This instrument was acknowledged before me on the 16th day of December,
1997, by Kevin M. Howley, the President of MR, Inc., a California corporation,
on behalf of said corporation.
/s/ Tana Laura
--------------
Notary Public
TANA J. LAURA
Comm. #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan 15, 2001
31
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
A 0.599 acre (26,091 square feet) tract known as Lot Two (2), Block Ten (10),
NCB 17488, Northgate Stop N Go Subdivision, as recorded in Volume 9508, Page 189
of the Deed and Plat Records of Bexar County, Texas and more particularly
described as follows:
BEGINNING at a point on the West right-of-way line of Babcock Road, said point
being South 40 deg. 13 min. 31 sec. East, a distance of 24.49 feet from the
point of intersection with the South right-of-way line of Eckhert Road and the
POINT OF BEGINNING;
THENCE along the West right-of-way line of Babcok Road, South 40 deg. 13 min. 31
sec. East, a distance of 145.06 feet to a point, said point being the Southeast
corner of this 0.599 acre tract;
THENCE departing the West right-of-way line of Babcock Road, South 53 deg. 29
min. 05 sec. West, a distance of 168.02 feet to a point, said point being the
Southwest corner of this 0.599 acre tract;
THENCE North 36 deg. 30 min. 55 sec. West, a distance of 168.33 feet to a point
on the South right-of-way line of Eckhert Road, said point being the Northwest
corner of this 0.599 acre tract;
THENCE on a curve to the left whose radius is 500.00 feet, delta of 04 deg. 35
min. 01 sec. and a length of 40.00 feet to a PCC;
THENCE on a curve to the left whose radius is 1793.00 feet, delta of 02 deg. 57
min. 41 sec. and length of 92.67 feet to a PRC;
THENCE on a curve to the right whose radius is 25.00 feet, delta of 88 deg. 49
min. 05 sec. and a length of 38.75 feet to the POINT OF BEGINNING and containing
0.599 acres (26,091 square feet) of land more or less.
32
EXHIBIT D 3
-----------
Form of Special Warranty Deed
-----------------------------
WHEN RECORDED, RETURN TO: CERTIFIED TO BE A TRUE
- ------------------------
COPY
OF DOCUMENT RECORDED
12/23/97
David Eby IN BOOK___SERIES
D197235435
CAPTEC Financial Group, Inc. OF OFFICIAL RECORDS.
24 Frank Lloyd Wright Drive CHICAGO TITLE INSURANCE
CO.
Lobby L - 4th floor BY /s/
Ann Arbor, MI 48106-0544 ---
- -------------------------------------------
SPECIAL WARRANTY DEED
---------------------
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by CAPTEC NET LEASE REALY,
INC. (herein called "Grantee", whether one or more), the receipt and sufficiency
of which are hereby acknowledged, has GRANTED, SOLD and CONVEYED and by these
presents does hereby GRANT, SELL and CONVEY unto Grantee the real property in
Tarrant County, Texas, together with all rights and appurtenances thereto (the
"Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL
CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
33
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF HAZARDOUS
MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY OR SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS ASSIGNS
FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT,
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
Grantee, by acceptance hereof, does hereby assume and agree to pay all ad
valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 16th day of December,1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
THE STATE OF California
----------
COUNTY OF San Francisco
-------------
This instrument was acknowledged before me on the 16th day of December,
1997, by Kevin M. Howley, the President of MR, Inc., a California corporation,
on behalf of said corporation.
/s/ Tana Laura
--------------
Notary Public
TANA J. LAURA
Comm. #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan 15, 2001
34
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Fort Worth, County of
Tarrant, State of Texas, described as follows:
Being all of Lot 1, Block 200 , Wedgwood Addition to the City of Fort Worth,
Tarrant County, Texas according to the plat recorded in Volume 388-45, Page 73
Plat Records, Tarrant County, Texas, and being more particularly described as
follows:
BEGINNING at a "Y" cut in concrete walk in the North right-of-way line of Alta
Mesa Boulevard and in the East right-of-way line of Woodway Drive, for the
Southwest corner of said Lot 1;
THENCE North 00 deg. 01 min. West, along the west line of said Lot and the said
East right-of-way line, a distance of 150.00 feet to a "+" found in concrete
walk for the Northwest corner of said Lot 1, and being the most Westerly
Southwest corner of Lot 2 of said Block 200, as recorded in Volume 388-48, page
617 of said Deed Records;
THENCE South 83 deg. 52 min. East, along the North line of said Lot 1 and a
South line of said Lot 2, a distance of 175.0 feet to a "+" cut in the concrete
for the Northeast corner of said Lot 1, a "Y" cut in concrete curb bears South
83 deg. 52 min. East, 2.56 feet;
THENCE South 00 deg. 01 min. East, along the East line of said Lot 1 and a West
line of said Lot 2, a distance of 150.00 feet to a "+" found in concrete walk in
the North right-of-way line of said Alta Mesa Boulevard, for the Southeast
corner of said Lot 1;
THENCE North 83 deg. 52 min. West, along the South line of said Lot 1 and the
said North right-of-way line, a distance of 175.0 feet to the POINT OF BEGINNING
and containing 26,099 square feet or land.
35
EXHIBIT D 4
-----------
Form of Special Warranty Deed
-----------------------------
WHEN RECORDED, RETURN TO: CERTIFIED TO BE A TRUE
- ------------------------
COPY
OF DOCUMENT RECORDED
12/23/97
David Eby IN BOOK___SERIE
D197235428
CAPTEC Financial Group, Inc. OF OFFICIAL RECORDS.
24 Frank Lloyd Wright Drive CHICAGO TITLE INSURANCE
CO.
Lobby L - 4th floor BY /s/
Ann Arbor, MI 48106-0544 ---
- ------------------------------------------
SPECIAL WARRANTY DEED
---------------------
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by CAPTEC NET LEASE REALY,
INC. (herein called "Grantee", whether one or more), the receipt and sufficiency
of which are hereby acknowledged, has GRANTED, SOLD and CONVEYED and by these
presents does hereby GRANT, SELL and CONVEY unto Grantee the real property in
Tarrant County, Texas, together with all rights and appurtenances thereto (the
"Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL
CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
36
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF HAZARDOUS
MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY OR SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS ASSIGNS
FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT,
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
Grantee, by acceptance hereof, does hereby assume and agree to pay all ad
valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 16th day of December,1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
THE STATE OF California
----------
COUNTY OF San Francisco
-------------
This instrument was acknowledged before me on the 16th day of December,
1997, by Kevin M. Howley, the President of MR, Inc., a California corporation,
on behalf of said corporation.
/s/ Tana Laura
--------------
Notary Public
TANA J. LAURA
Comm. #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan 15, 2001
37
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Grand Prairie, County of
Tarrant, State of Texas, Described as follows:
Description of a 30,622 square foot (0.7030 acre) tract of land in the City of
Grand Prairie, Tarrant County, Texas and being all of Lot 1, Block "A" of the
Houseman/NCS Addition, an Addition to the City of Grand Prairie, Tarrant County,
Texas, according to the plat thereof recorded in Volume 388-102, Page 43 of the
Plat Records of Tarrant County, Texas. (P.R.T.C.T.) and being more particularly
described by metes and bounds as follows (with bearings referenced to the plat
of said Houseman/NCS Addition):
BEGINNING at a 5/8 inch iron rod set at the Intersection of the east
right-of-way (R.O.W) line of Duncan Perry Road (a 70 foot R.O.W.) and the south
R.O.W. line of Tarrant Road ( 100 foot R.O.W.) marking th northwest corner of
Lot 1, Block "A" of said Houseman/NCS Addition, from which a 1/2 inch iron rod
found bears South 15 deg. 52 min. West, 0.9 feet;
THENCE North 89 deg. 27 min. 47 sec. East, along the common north line of said
Lot 1 and the South R.O.W. line of said Tarrant Road, a distance of 175.00 feet
to a 5/8 inch iron rod found for the common northeast corner of said Lot 1 and
the most northerly northwest corner of Lot 2, Block "A" of said Houseman/NCS
Addition;
THENCE South 00 deg. 12 min. 07 sec. West, departing the south R.O.W. line of
said Tarrant Road and along the common east line of said Lot 1 and a west line
of said Lot 2, a distance of 175.00 feet to a 5/8 inch iron rod found for the
common southeast corner of said Lot 1 and an interior corner of said Lot 2;
THENCE South 89 deg. 27 min. 47 sec. West, along the common south line of said
Lot 1 and a north line of said Lot 2, a distance of 175.00 feet to a 5/8 inch
iron rod found in the east R.O.W. line of Duncan Perry Road marking the common
southwest corner of said Lot 1 and the most westerly northwest corner of said
Lot 2;
THENCE North 00 deg. 12 min. 07 sec. East, along the common west line of said
Lot 1 and the east R.O.W line of said Duncan Perry Road, a distance of 175.00
feet to the POINT OF BEGINNING of the herein described tract containing within
the metes recited 30,622 square feet (0.7030 acre) of land, more or less.
38
EXHIBIT D 5
-----------
Form of Special Warranty Deed
-----------------------------
WHEN RECORDED, RETURN TO: CERTIFIED TO BE A TRUE
- ------------------------
COPY
OF DOCUMENT RECORDED
12/23/97
David Eby IN BOOK___SERIES
D197235431
CAPTEC Financial Group, Inc. OF OFFICIAL RECORDS.
24 Frank Lloyd Wright Drive CHICAGO TITLE INSURANCE
CO.
Lobby L - 4th floor BY /s/
Ann Arbor, MI 48106-0544 ---
- -------------------------------------------
SPECIAL WARRANTY DEED
---------------------
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by CAPTEC NET LEASE REALY,
INC. (herein called "Grantee", whether one or more), the receipt and sufficiency
of which are hereby acknowledged, has GRANTED, SOLD and CONVEYED and by these
presents does hereby GRANT, SELL and CONVEY unto Grantee the real property in
Tarrant County, Texas, together with all rights and appurtenances thereto (the
"Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL
CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
39
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF HAZARDOUS
MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY OR SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS ASSIGNS
FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT,
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
Grantee, by acceptance hereof, does hereby assume and agree to pay all ad
valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 16th day of December,1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
THE STATE OF California
----------
COUNTY OF San Francisco
-------------
This instrument was acknowledged before me on the 16th day of December
1997, by Kevin M. Howley, the President of MR, Inc., a California corporation,
on behalf of said corporation.
/s/ Tana Laura
--------------
Notary Public
TANA J. LAURA
Comm. #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan 15, 2001
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Kennedale, County of
Tarrant, State of Texas, described as follows:
Lot Two (2), Block One (1) of NCS Subdivision, an addition to the City of
Kennedale, Tarrant County, Texas, according to the map or plat thereof, recorded
in Volume 388-188, Page 82, Deed Records of Tarrant County, Texas;
Together with that certain pedestrian and vehicular access easement granted in
deed dated March 29, 1985 from Harvey Properties Co. to National Convenience
Stores Incorporated, recorded in Volume 8149, Page 235, Deed Records of Tarrant
County, Texas; and
Together with that certain access easement dated July 10, 1990 granted by
National Convenience Stores Incorporated to Metric Real Estate, L.P., recorded
in Volume 9998, Page 1388 and refiled in Volume 10084, Page 228, Deed Records of
Tarrant County, Texas.
40
EXHIBIT E 1
-----------
Form of General Assignment
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor"), hereby assigns, transfers and conveys to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Assignee"), all of Assignor's
right, title and interest in and to the Intangible Property with respect to the
Location described on Schedule 1 attached hereto and incorporated herein by this
reference. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in that certain Agreement for Purchase and Sale of
Real Property (the "Agreement") dated October 31, 1997 entered into by and
between Assignor, as Seller, and Assignee, as Buyer.
This General Assignment is given pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of December 16, 1997.
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
Lot Forty-nine (49), New City Block 12858, Grandys Subdivision, an addition to
the City of San Antonio, Bexar County, Texas, according to the map or plat
thereof, recorded in Volume 9508, Page 133, Deed and Plat Records of Bexar
County, Texas
41
EXHIBIT E 2
-----------
Form of General Assignment
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor"), hereby assigns, transfers and conveys to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Assignee"), all of Assignor's
right, title and interest in and to the Intangible Property with respect to the
Location described on Schedule 1 attached hereto and incorporated herein by this
reference. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in that certain Agreement for Purchase and Sale of
Real Property (the "Agreement") dated October 31, 1997 entered into by and
between Assignor, as Seller, and Assignee, as Buyer.
This General Assignment is given pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of December 16, 1997.
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
A 0.599 acre (26,091 square feet) tract known as Lot Two (2), Block Ten (10),
NCB 17488, Northgate Stop N Go Subdivision, as recorded in Volume 9508, Page 189
of the Deed and Plat Records of Bexar County, Texas and more particularly
described as follows:
BEGINNING at a point on the West right-of-way line of Babcock Road, said point
being South 40 deg. 13 min. 31 sec. East, a distance of 24.49 feet from the
point of intersection with the South right-of-way line of Eckhert Road and the
POINT OF BEGINNING;
THENCE along the West right-of-way line of Babcok Road, South 40 deg. 13 min. 31
sec. East, a distance of 145.06 feet to a point, said point being the Southeast
corner of this 0.599 acre tract;
42
THENCE departing the West right-of-way line of Babcock Road, South 53 deg. 29
min. 05 sec. West, a distance of 168.02 feet to a point, said point being the
Southwest corner of this 0.599 acre tract;
THENCE North 36 deg. 30 min. 55 sec. West, a distance of 168.33 feet to a point
on the South right-of-way line of Eckhert Road, said point being the Northwest
corner of this 0.599 acre tract;
THENCE on a curve to the left whose radius is 500.00 feet, delta of 04 deg. 35
min. 01 sec. and a length of 40.00 feet to a PCC;
THENCE on a curve to the left whose radius is 1793.00 feet, delta of 02 deg. 57
min. 41 sec. and length of 92.67 feet to a PRC;
THENCE on a curve to the right whose radius is 25.00 feet, delta of 88 deg. 49
min. 05 sec. and a length of 38.75 feet to the POINT OF BEGINNING and containing
0.599 acres (26,091 square feet) of land more or less.
EXHIBIT E 3
-----------
Form of General Assignment
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor"), hereby assigns, transfers and conveys to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Assignee"), all of Assignor's
right, title and interest in and to the Intangible Property with respect to the
Location described on Schedule 1 attached hereto and incorporated herein by this
reference. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in that certain Agreement for Purchase and Sale of
Real Property (the "Agreement") dated October 31, 1997 entered into by and
between Assignor, as Seller, and Assignee, as Buyer.
This General Assignment is given pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of December 16, 1997.
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin Howley
----------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
43
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Fort Worth, County of
Tarrant, State of Texas, described as follows:
Being all of Lot 1, Block 200 , Wedgwood Addition to the City of Fort Worth,
Tarrant County, Texas according to the plat recorded in Volume 388-45, Page 73
Plat Records, Tarrant County, Texas, and being more particularly described as
follows:
BEGINNING at a "Y" cut in concrete walk in the North right-of-way line of Alta
Mesa Boulevard and in the East right-of-way line of Woodway Drive, for the
Southwest corner of said Lot 1;
THENCE North 00 deg. 01 min. West, along the west line of said Lot and the said
East right-of-way line, a distance of 150.00 feet to a "+" found in concrete
walk for the Northwest corner of said Lot 1, and being the most Westerly
Southwest corner of Lot 2 of said Block 200, as recorded in Volume 388-48, page
617 of said Deed Records;
THENCE South 83 deg. 52 min. East, along the North line of said Lot 1 and a
South line of said Lot 2, a distance of 175.0 feet to a "+" cut in the concrete
for the Northeast corner of said Lot 1, a "Y" cut in concrete curb bears South
83 deg. 52 min. East, 2.56 feet;
THENCE South 00 deg. 01 min. East, along the East line of said Lot 1 and a West
line of said Lot 2, a distance of 150.00 feet to a "+" found in concrete walk in
the North right-of-way line of said Alta Mesa Boulevard, for the Southeast
corner of said Lot 1;
THENCE North 83 deg. 52 min. West, along the South line of said Lot 1 and the
said North right-of-way line, a distance of 175.0 feet to the POINT OF BEGINNING
and containing 26,099 square feet or land.
EXHIBIT E 4
-----------
Form of General Assignment
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor"), hereby assigns, transfers and conveys to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Assignee"), all of Assignor's
right, title and interest in and to the Intangible Property with respect to the
Location described on Schedule 1 attached hereto and incorporated herein by this
reference. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in that certain Agreement for Purchase and Sale of
Real Property (the "Agreement") dated October 31, 1997 entered into by and
between Assignor, as Seller, and Assignee, as Buyer.
This General Assignment is given pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of December 16, 1997.
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
------------------
Its: President
---------
44
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Grand Prairie, County of
Tarrant, State of Texas, Described as follows:
Description of a 30,622 square foot (0.7030 acre) tract of land in the City of
Grand Prairie, Tarrant County, Texas and being all of Lot 1, Block "A" of the
Houseman/NCS Addition, an Addition to the City of Grand Prairie, Tarrant County,
Texas, according to the plat thereof recorded in Volume 388-102, Page 43 of the
Plat Records of Tarrant County, Texas. (P.R.T.C.T.) and being more particularly
described by metes and bounds as follows (with bearings referenced to the plat
of said Houseman/NCS Addition):
BEGINNING at a 5/8 inch iron rod set at the Intersection of the east
right-of-way (R.O.W) line of Duncan Perry Road (a 70 foot R.O.W.) and the south
R.O.W. line of Tarrant Road ( 100 foot R.O.W.) marking th northwest corner of
Lot 1, Block "A" of said Houseman/NCS Addition, from which a 1/2 inch iron rod
found bears South 15 deg. 52 min. West, 0.9 feet;
THENCE North 89 deg. 27 min. 47 sec. East, along the common north line of said
Lot 1 and the South R.O.W. line of said Tarrant Road, a distance of 175.00 feet
to a 5/8 inch iron rod found for the common northeast corner of said Lot 1 and
the most northerly northwest corner of Lot 2, Block "A" of said Houseman/NCS
Addition;
THENCE South 00 deg. 12 min. 07 sec. West, departing the south R.O.W. line of
said Tarrant Road and along the common east line of said Lot 1 and a west line
of said Lot 2, a distance of 175.00 feet to a 5/8 inch iron rod found for the
common southeast corner of said Lot 1 and an interior corner of said Lot 2;
THENCE South 89 deg. 27 min. 47 sec. West, along the common south line of said
Lot 1 and a north line of said Lot 2, a distance of 175.00 feet to a 5/8 inch
iron rod found in the east R.O.W. line of Duncan Perry Road marking the common
southwest corner of said Lot 1 and the most westerly northwest corner of said
Lot 2;
THENCE North 00 deg. 12 min. 07 sec. East, along the common west line of said
Lot 1 and the east R.O.W line of said Duncan Perry Road, a distance of 175.00
feet to the POINT OF BEGINNING of the herein described tract containing within
the metes recited 30,622 square feet (0.7030 acre) of land, more or less.
45
EXHIBIT E 5
-----------
Form of General Assignment
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor"), hereby assigns, transfers and conveys to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Assignee"), all of Assignor's
right, title and interest in and to the Intangible Property with respect to the
Location described on Schedule 1 attached hereto and incorporated herein by this
reference. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in that certain Agreement for Purchase and Sale of
Real Property (the "Agreement") dated October 31, 1997 entered into by and
between Assignor, as Seller, and Assignee, as Buyer.
This General Assignment is given pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of December 16, 1997.
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Kennedale, County of
Tarrant, State of Texas, described as follows:
Lot Two (2), Block One (1) of NCS Subdivision, an addition to the City of
Kennedale, Tarrant County, Texas, according to the map or plat thereof, recorded
in Volume 388-188, Page 82, Deed Records of Tarrant County, Texas;
Together with that certain pedestrian and vehicular access easement granted in
deed dated March 29, 1985 from Harvey Properties Co. to National Convenience
Stores Incorporated, recorded in Volume 8149, Page 235, Deed Records of Tarrant
County, Texas; and
Together with that certain access easement dated July 10, 1990 granted by
National Convenience Stores Incorporated to Metric Real Estate, L.P., recorded
in Volume 9998, Page 1388 and refiled in Volume 10084, Page 228, Deed Records of
Tarrant County, Texas.
46
EXHIBIT F 1
-----------
Form of Bill of Sale
--------------------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC REAL
ESTATE, L.P., a California limited partnership, ("Seller"), grants, sells,
transfers and assigns to CAPTEC NET LEASE REALTY, INC., a Delaware corporation
("Buyer"), all of Seller's right, title and interest in and to the Personal
Property described in Schedule 2 attached hereto and by this reference
incorporated herein, located at or used in connection with the Location
described in Schedule 1 attached hereto and incorporated herein by this
reference. 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 October 31, 1997 between Seller and Buyer (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 16 day of
December, 1997.
SELLER:
-------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
Lot Forty-nine (49), New City Block 12858, Grandys Subdivision, an addition to
the City of San Antonio, Bexar County, Texas, according to the map or plat
thereof, recorded in Volume 9508, Page 133, Deed and Plat Records of Bexar
County, Texas
SCHEDULE 2
----------
Schedule of Personal Property
[NONE]
47
EXHIBIT F 2
-----------
Form of Bill of Sale
--------------------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC REAL
ESTATE, L.P., a California limited partnership, ("Seller"), grants, sells,
transfers and assigns to CAPTEC NET LEASE REALTY, INC., a Delaware corporation
("Buyer"), all of Seller's right, title and interest in and to the Personal
Property described in Schedule 2 attached hereto and by this reference
incorporated herein, located at or used in connection with the Location
described in Schedule 1 attached hereto and incorporated herein by this
reference. 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 October 31, 1997 between Seller and Buyer (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 16 day of
December, 1997.
SELLER:
-------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
A 0.599 acre (26,091 square feet) tract known as Lot Two (2), Block Ten (10),
NCB 17488, Northgate Stop N Go Subdivision, as recorded in Volume 9508, Page 189
of the Deed and Plat Records of Bexar County, Texas and more particularly
described as follows:
BEGINNING at a point on the West right-of-way line of Babcock Road, said point
being South 40 deg. 13 min. 31 sec. East, a distance of 24.49 feet from the
point of intersection with the South right-of-way line of Eckhert Road and the
POINT OF BEGINNING;
THENCE along the West right-of-way line of Babcok Road, South 40 deg. 13 min. 31
sec. East, a distance of 145.06 feet to a point, said point being the Southeast
corner of this 0.599 acre tract;
THENCE departing the West right-of-way line of Babcock Road, South 53 deg. 29
min. 05 sec. West, a distance of 168.02 feet to a point, said point being the
Southwest corner of this 0.599 acre tract;
THENCE North 36 deg. 30 min. 55 sec. West, a distance of 168.33 feet to a point
on the South right-of-way line of Eckhert Road, said point being the Northwest
corner of this 0.599 acre tract;
48
THENCE on a curve to the left whose radius is 500.00 feet, delta of 04 deg. 35
min. 01 sec. and a length of 40.00 feet to a PCC;
THENCE on a curve to the left whose radius is 1793.00 feet, delta of 02 deg. 57
min. 41 sec. and length of 92.67 feet to a PRC;
THENCE on a curve to the right whose radius is 25.00 feet, delta of 88 deg. 49
min. 05 sec. and a length of 38.75 feet to the POINT OF BEGINNING and containing
0.599 acres (26,091 square feet) of land more or less.
SCHEDULE 2
----------
Schedule of Personal Property
[NONE]
EXHIBIT F 3
-----------
Form of Bill of Sale
--------------------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC REAL
ESTATE, L.P., a California limited partnership, ("Seller"), grants, sells,
transfers and assigns to CAPTEC NET LEASE REALTY, INC., a Delaware corporation
("Buyer"), all of Seller's right, title and interest in and to the Personal
Property described in Schedule 2 attached hereto and by this reference
incorporated herein, located at or used in connection with the Location
described in Schedule 1 attached hereto and incorporated herein by this
reference. 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 October 31, 1997 between Seller and Buyer (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 16 day of
December, 1997.
SELLER:
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
49
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Fort Worth, County of
Tarrant, State of Texas, described as follows:
Being all of Lot 1, Block 200 , Wedgwood Addition to the City of Fort Worth,
Tarrant County, Texas according to the plat recorded in Volume 388-45, Page 73
Plat Records, Tarrant County, Texas, and being more particularly described as
follows:
BEGINNING at a "Y" cut in concrete walk in the North right-of-way line of Alta
Mesa Boulevard and in the East right-of-way line of Woodway Drive, for the
Southwest corner of said Lot 1;
THENCE North 00 deg. 01 min. West, along the west line of said Lot and the said
East right-of-way line, a distance of 150.00 feet to a "+" found in concrete
walk for the Northwest corner of said Lot 1, and being the most Westerly
Southwest corner of Lot 2 of said Block 200, as recorded in Volume 388-48, page
617 of said Deed Records;
THENCE South 83 deg. 52 min. East, along the North line of said Lot 1 and a
South line of said Lot 2, a distance of 175.0 feet to a "+" cut in the concrete
for the Northeast corner of said Lot 1, a "Y" cut in concrete curb bears South
83 deg. 52 min. East, 2.56 feet;
THENCE South 00 deg. 01 min. East, along the East line of said Lot 1 and a West
line of said Lot 2, a distance of 150.00 feet to a "+" found in concrete walk in
the North right-of-way line of said Alta Mesa Boulevard, for the Southeast
corner of said Lot 1;
THENCE North 83 deg. 52 min. West, along the South line of said Lot 1 and the
said North right-of-way line, a distance of 175.0 feet to the POINT OF BEGINNING
and containing 26,099 square feet or land.
SCHEDULE 2
----------
Schedule of Personal Property
[NONE]
50
EXHIBIT F 4
Form of Bill of Sale
--------------------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC REAL
ESTATE, L.P., a California limited partnership, ("Seller"), grants, sells,
transfers and assigns to CAPTEC NET LEASE REALTY, INC., a Delaware corporation
("Buyer"), all of Seller's right, title and interest in and to the Personal
Property described in Schedule 2 attached hereto and by this reference
incorporated herein, located at or used in connection with the Location
described in Schedule 1 attached hereto and incorporated herein by this
reference. 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 October 31, 1997 between Seller and Buyer (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 16 day of
December, 1997.
SELLER:
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Grand Prairie, County of
Tarrant, State of Texas, Described as follows:
Description of a 30,622 square foot (0.7030 acre) tract of land in the City of
Grand Prairie, Tarrant County, Texas and being all of Lot 1, Block "A" of the
Houseman/NCS Addition, an Addition to the City of Grand Prairie, Tarrant County,
Texas, according to the plat thereof recorded in Volume 388-102, Page 43 of the
Plat Records of Tarrant County, Texas. (P.R.T.C.T.) and being more particularly
described by metes and bounds as follows (with bearings referenced to the plat
of said Houseman/NCS Addition):
BEGINNING at a 5/8 inch iron rod set at the Intersection of the east
right-of-way (R.O.W) line of Duncan Perry Road (a 70 foot R.O.W.) and the south
R.O.W. line of Tarrant Road ( 100 foot R.O.W.) marking th northwest corner of
Lot 1, Block "A" of said Houseman/NCS Addition, from which a 1/2 inch iron rod
found bears South 15 deg. 52 min.
West, 0.9 feet;
THENCE North 89 deg. 27 min. 47 sec. East, along the common north line of said
Lot 1 and the South R.O.W. line of said Tarrant Road, a distance of 175.00 feet
to a 5/8 inch iron rod found for the common northeast corner of said Lot 1 and
the most northerly northwest corner of Lot 2, Block "A" of said Houseman/NCS
Addition;
51
THENCE South 00 deg. 12 min. 07 sec. West, departing the south R.O.W. line of
said Tarrant Road and along the common east line of said Lot 1 and a west line
of said Lot 2, a distance of 175.00 feet to a 5/8 inch iron rod found for the
common southeast corner of said Lot 1 and an interior corner of said Lot 2;
THENCE South 89 deg. 27 min. 47 sec. West, along the common south line of said
Lot 1 and a north line of said Lot 2, a distance of 175.00 feet to a 5/8 inch
iron rod found in the East R.O.W. line of Duncan Perry Road marking the common
southwest corner of said Lot 1 and the most westerly northwest corner of said
Lot 2;
THENCE North 00 deg. 12 min. 07 sec. East, along the common west line of said
Lot 1 and the east R.O.W line of said Duncan Perry Road, a distance of 175.00
feet to the POINT OF BEGINNING of the herein described tract containing within
the metes recited 30,622 square feet (0.7030 acre) of land, more or less.
SCHEDULE 2
----------
Schedule of Personal Property
[NONE]
EXHIBIT F 5
-----------
Form of Bill of Sale
--------------------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC REAL
ESTATE, L.P., a California limited partnership, ("Seller"), grants, sells,
transfers and assigns to CAPTEC NET LEASE REALTY, INC., a Delaware corporation
("Buyer"), all of Seller's right, title and interest in and to the Personal
Property described in Schedule 2 attached hereto and by this reference
incorporated herein, located at or used in connection with the Location
described in Schedule 1 attached hereto and incorporated herein by this
reference. 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 October 31, 1997 between Seller and Buyer (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 16 day of
December, 1997.
SELLER:
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
52
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Kennedale, County of
Tarrant, State of Texas, described as follows:
Lot Two (2), Block One (1) of NCS Subdivision, an addition to the City of
Kennedale, Tarrant County, Texas, according to the map or plat thereof, recorded
in Volume 388-188, Page 82, Deed Records of Tarrant County, Texas;
Together with that certain pedestrian and vehicular access easement granted in
deed dated March 29, 1985 from Harvey Properties Co. to National Convenience
Stores Incorporated, recorded in Volume 8149, Page 235, Deed Records of Tarrant
County, Texas; and
Together with that certain access easement dated July 10, 1990 granted by
National Convenience Stores Incorporated to Metric Real Estate, L.P., recorded
in Volume 9998, Page 1388 and refiled in Volume 10084, Page 228, Deed Records of
Tarrant County, Texas.
SCHEDULE 2
----------
Schedule of Personal Property
[NONE]
53
EXHIBIT G 1
-----------
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December 1997, by and
between METRIC REAL ESTATE, L.P., a California limited partnership ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease dated November 30, 1989 by and
between Metric Income Trust Series, Inc., a California corporation d/b/a MITS
Inc., in Texas ("MITS") and National Convenience Stores Incorporated, a Delaware
corporation ("Lessee") as amended by that certain lease amendment dated October
14, 1992 by and between MITS and Lessee (collectively, the "Lease") relating to
that certain real property described in Schedule 1 attached hereto and commonly
known as 8620 Fredericksburg Road, City of San Antonio, Texas (the "Property")
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of October 31, 1997 pursuant to which Assignor has agreed to
sell and Assignee has agreed to purchase the Property and Assignor has agreed to
assign and Assignee has agreed to assume the 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.
54
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
Lot Forty-nine (49), New City Block 12858, Grandys Subdivision, an addition to
the City of San Antonio, Bexar County, Texas, according to the map or plat
thereof, recorded in Volume 9508, Page 133, Deed and Plat Records of Bexar
County, Texas
55
EXHIBIT G 2
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC REAL ESTATE, L.P., a California limited partnership ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease dated November 30, 1989 by and
between Metric Income Trust Series, Inc., a California corporation d/b/a MITS
Inc., in Texas ("MITS") and National Convenience Stores Incorporated, a Delaware
Corporation ("Lessee") as amended by that certain lease amendment dated October
14, 1992 by and between MITS and Lessee (collectively, the "Lease") relating to
that certain real property described in Schedule 1 attached hereto and commonly
known as 5494 Babcock Road, City of San Antonio, Texas (the "Property")
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of October 31, 1997 pursuant to which Assignor has agreed to
sell and Assignee has agreed to purchase the Property and Assignor has agreed to
assign and Assignee has agreed to assume the 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.
56
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
SCHELDULE 1
-----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of San Antonio, County of
Bexar, State of Texas, described as follows:
A 0.599 acre (26,091 square feet) tract known as Lot Two (2), Block Ten (10),
NCB 17488, Northgate Stop N Go Subdivision, as recorded in Volume 9508, Page 189
of the Deed and Plat Records of Bexar County, Texas and more particularly
described as follows:
BEGINNING at a point on the West right-of-way line of Babcock Road, said point
being South 40 deg. 13 min. 31 sec. East, a distance of 24.49 feet from the
point of intersection with the South right-of-way line of Eckhert Road and the
POINT OF BEGINNING;
THENCE along the West right-of-way line of Babcok Road, South 40 deg. 13 min. 31
sec. East, a distance of 145.06 feet to a point, said point being the Southeast
corner of this 0.599 acre tract;
THENCE departing the West right-of-way line of Babcock Road, South 53 deg. 29
min. 05 sec. West, a distance of 168.02 feet to a point, said point being the
Southwest corner of this 0.599 acre tract;
THENCE North 36 deg. 30 min. 55 sec. West, a distance of 168.33 feet to a point
on the South right-of-way line of Eckhert Road, said point being the Northwest
corner of this 0.599 acre tract;
THENCE on a curve to the left whose radius is 500.00 feet, delta of 04 deg. 35
min. 01 sec. and a length of 40.00 feet to a PCC;
THENCE on a curve to the left whose radius is 1793.00 feet, delta of 02 deg. 57
min. 41 sec. and length of 92.67 feet to a PRC;
THENCE on a curve to the right whose radius is 25.00 feet, delta of 88 deg. 49
min. 05 sec. and a length of 38.75 feet to the POINT OF BEGINNING and containing
0.599 acres (26,091 square feet) of land more or less.
57
EXHIBIT G 3
-----------
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC REAL ESTATE, L.P., a California limited partnership ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease dated November 30, 1989 by and
between Metric Income Trust Series, Inc., a California corporation d/b/a MITS
Inc., in Texas ("MITS") and National Convenience Stores Incorporated, a Delaware
Corporation ("Lessee") as amended by that certain lease amendment dated October
14, 1992 by and between MITS and Lessee (collectively, the "Lease") relating to
that certain real property described in Schedule 1 attached hereto and commonly
known as 3850 Alta Mesa Blvd., City of Fort Worth, Texas (the "Property").
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of October 31, 1997 pursuant to which Assignor has agreed to
sell and Assignee has agreed to purchase the Property and Assignor has agreed to
assign and Assignee has agreed to assume the 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.
58
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Fort Worth, County of
Tarrant, State of Texas, described as follows:
Being all of Lot 1, Block 200 , Wedgwood Addition to the City of Fort Worth,
Tarrant County, Texas according to the plat recorded in Volume 388-45, Page 73
Plat Records, Tarrant County, Texas, and being more particularly described as
follows:
BEGINNING at a "Y" cut in concrete walk in the North right-of-way line of Alta
Mesa Boulevard and in the East right-of-way line of Woodway Drive, for the
Southwest corner of said Lot 1;
THENCE North 00 deg. 01 min. West, along the west line of said Lot and the said
East right-of-way line, a distance of 150.00 feet to a "+" found in concrete
walk for the Northwest corner of said Lot 1, and being the most Westerly
Southwest corner of Lot 2 of said block 200, as recorded in Volume 388-48, page
617 of said Deed Records;
THENCE South 83 deg. 52 min. East, along the North line of said Lot 1 and a
South line of said Lot 2, a distance of 175.0 feet to a "+" cut in the concrete
for the Northeast corner of said Lot 1, a "Y" cut in concrete curb bears South
83 deg. 52 min. East, 2.56 feet;
THENCE South 00 deg. 01 min. East, along the East line of said Lot 1 and a West
line of said Lot 2, a distance of 150.00 feet to a "+" found in concrete walk in
the North right-of-way line of said Alta Mesa Boulevard, for the Southeast
corner of said Lot 1;
THENCE North 83 deg. 52 min. West, along the South line of said Lot 1 and the
said North right-of-way line, a distance of 175.0 feet to the POINT OF BEGINNING
and containing 26,099 square feet or land.
59
EXHIBIT G 4
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC REAL ESTATE, L.P., a California limited partnership ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease dated November 30, 1989 by and
between Metric Income Trust Series, Inc., a California corporation d/b/a MITS
Inc., in Texas ("MITS") and National Convenience Stores Incorporated, a Delaware
Corporation ("Lessee") as amended by that certain lease amendment dated October
14, 1992 by and between MITS and Lessee (collectively, the "Lease") relating to
that certain real property described in Schedule 1 attached hereto and commonly
known as 2485 W. Tarrant Road, City of Grand Prairie, Texas (the "Property").
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of October 31, 1997 pursuant to which Assignor has agreed to
sell and Assignee has agreed to purchase the Property and Assignor has agreed to
assign and Assignee has agreed to assume the 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.
60
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Grand Prairie, County of
Tarrant, State of Texas, Described as follows:
Description of a 30,622 square foot (0.7030 acre) tract of land in the City of
Grand Prairie, Tarrant County, Texas and being all of Lot 1, Block "A" of the
Houseman/NCS Addition, an Addition to the City of Grand Prairie, Tarrant County,
Texas, according to the plat thereof recorded in Volume 388-102, Page 43 of the
Plat Records of Tarrant County, Texas. (P.R.T.C.T.) and being more particularly
described by metes and bounds as follows (with bearings referenced to the plat
of said Houseman/NCS Addition):
BEGINNING at a 5/8 inch iron rod set at the Intersection of the east
right-of-way (R.O.W) line of Duncan Perry Road (a 70 foot R.O.W.) and the south
R.O.W. line of Tarrant Road ( 100 foot R.O.W.) marking the northwest corner of
Lot 1, Block "A" of said Houseman/NCS Addition, from which a 1/2 inch iron rod
found bears South 15 deg. 52 min. West, 0.9 feet;
THENCE North 89 deg. 27 min. 47 sec. East, along the common north line of said
Lot 1 and the South R.O.W. line of said Tarrant Road, a distance of 175.00 feet
to a 5/8 inch iron rod found for the common northeast corner of said Lot 1 and
the most northerly northwest corner of Lot 2, Block "A" of said Houseman/NCS
Addition;
THENCE South 00 deg. 12 min. 07 sec. West, departing the south R.O.W. line of
said Tarrant Road and along the common east line of said Lot 1 and a west line
of said Lot 2, a distance of 175.00 feet to a 5/8 inch iron rod found for the
common southeast corner of said Lot 1 and an interior corner of said Lot 2;
THENCE South 89 deg. 27 min. 47 sec. West, along the common south line of said
Lot 1 and a north line of said Lot 2, a distance of 175.00 feet to a 5/8 inch
iron rod found in the East R.O.W. line of Duncan Perry Road marking the common
southwest corner of said Lot 1 and the most westerly northwest corner of said
Lot 2;
THENCE North 00 deg. 12 min. 07 sec. East, along the common west line of said
Lot 1 and the east R.O.W line of said Duncan Perry Road, a distance of 175.00
feet to the POINT OF BEGINNING of the herein described tract containing within
the metes recited 30,622 square feet (0.7030 acre) of land, more or less.
61
EXHIBIT G 5
-----------
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC REAL ESTATE, L.P., a California limited partnership ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease dated November 30, 1989 by and
between Metric Income Trust Series, Inc., a California corporation d/b/a MITS
Inc., in Texas ("MITS") and National Convenience Stores Incorporated, a Delaware
Corporation ("Lessee") as amended by that certain lease amendment dated October
14, 1992 by and between MITS and Lessee (collectively, the "Lease") relating to
that certain real property described in Schedule 1 attached hereto and commonly
known as 1201 N. Little School Road, City of Kennedale, Texas (the "Property").
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of October 31, 1997 pursuant to which Assignor has agreed to
sell and Assignee has agreed to purchase the Property and Assignor has agreed to
assign and Assignee has agreed to assume the 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.
62
ASSIGNOR:
---------
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice - President
----------------
SCHEDULE 1
----------
Legal Description of Property.
- ------------------------------
All that certain real property situated in the City of Kennedale, County of
Tarrant, State of Texas, described as follows:
Lot Two (2), Block One (1) of NCS Subdivision, an addition to the City of
Kennedale, Tarrant County, Texas, according to the map or plat thereof, recorded
in Volume 388-188, Page 82, Deed Records of Tarrant County, Texas;
Together with that certain pedestrian and vehicular access easement granted in
deed dated March 29, 1985 from Harvey Properties Co. to National Convenience
Stores Incorporated, recorded in Volume 8149, Page 235, Deed Records of Tarrant
County, Texas; and
Together with that certain access easement dated July 10, 1990 granted by
National Convenience Stores Incorporated to Metric Real Estate, L.P., recorded
in Volume 9998, Page 1388 and refiled in Volume 10084, Page 228, Deed Records of
Tarrant County, Texas.
63
EXHIBIT H
---------
Subordination, Non-Disturbance, and Attornment Agreement
--------------------------------------------------------
Form of Subordination, non-Disturbance, and Attornment Agreement is not filed
with this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Subordination,
Non-Disturbance, and Attornment Agreement upon request.
64
EXHIBIT I-1
-----------
Form of FIRPTA Certificate
--------------------------
To inform CAPTEC NET LEASE REALTY, INC., a Delaware 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 REAL ESTATE, L.P., a
California limited partnership ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is as
follows: 94-3113449.
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
1 California Street, Suite 1400
San Francisco, CA 94111-5414
Transferror understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Transferror.
Date: December 16, 1997
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
65
EXHIBIT I-2
-----------
Form of FIRPTA Certificate
--------------------------
To inform CAPTEC NET LEASE REALTY, INC., a Delaware 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 REAL ESTATE, L.P., a
California limited partnership ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is as
follows: 94-3113449.
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
1 California Street, Suite 1400
San Francisco, CA 94111-5414
Transferror understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Transferror.
Date: December 16, 1997
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
66
EXHIBIT I-3
-----------
Form of FIRPTA Certificate
--------------------------
To inform CAPTEC NET LEASE REALTY, INC., a Delaware 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 REAL ESTATE, L.P., a
California limited partnership ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is as
follows: 94-3113449.
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
1 California Street, Suite 1400
San Francisco, CA 94111-5414
Transferror understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Transferror.
Date: December 16, 1997
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
67
EXHIBIT I-4
-----------
Form of FIRPTA Certificate
--------------------------
To inform CAPTEC NET LEASE REALTY, INC., a Delaware 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 REAL ESTATE, L.P., a
California limited partnership ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is as
follows: 94-3113449.
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
1 California Street, Suite 1400
San Francisco, CA 94111-5414
Transferror understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Transferror.
Date: December 16, 1997
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
68
EXHIBIT I-5
-----------
Form of FIRPTA Certificate
--------------------------
To inform CAPTEC NET LEASE REALTY, INC., a Delaware 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 REAL ESTATE, L.P., a
California limited partnership ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is as
follows: 94-3113449.
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
1 California Street, Suite 1400
San Francisco, CA 94111-5414
Transferror understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Transferror.
Date: December 16, 1997
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
Its: General Partner
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
69
EXHIBIT K 1
Form of Tenant Notice
---------------------
December 16, 1997
Ultramar Diamond Shamrock Corporation
PO Box 69600
San Antonio, TX 78269-6000
Attn: Debbi Dirks
RE: NCS Store located at 8620 Fredericksburg Road, San Antonio, TX
--------------------------------------------------------------
This is to notify you that Metric Real Estate, L.P., a California limited
partnership ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to Captec Net Lease Realty, Inc., a Delaware corporation ("Buyer").
You are further notified that any security deposits or any prepaid rents
under your lease have been transferred to Buyer.
You are further notified that the project will be managed by:
Captec Net Lease Realty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, Michigan 48106
Attention: David Eby
Telephone No. (313) 944-5505
You are further notified that commencing as of the date hereof, all rental
payments under your lease shall be paid to Buyer. Please make your rent checks
payable to Buyer at the above address.
70
Any written notices you desire or are required to make to the landlord under
your lease should be sent to Buyer at the above address.
Very truly yours,
SELLER:
-------
Metric Real Estate, L.P.,
a California limited partnership
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY, INC.
a Delaware corporation
By: /s/
---
Its: Vice-President
--------------
71
EXHIBIT K 2
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Ultramar Diamond Shamrock Corporation
PO Box 69600
San Antonio, TX 78269-6000
Attn: Debbi Dirks
RE: NCS Store located at 5494 Babcock , San Antonio, TX
---------------------------------------------------
This is to notify you that Metric Real Estate, L.P., a California limited
partnership ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to Captec Net Lease Realty, Inc., a Delaware corporation ("Buyer").
You are further notified that any security deposits or any prepaid rents
under your lease have been transferred to Buyer.
You are further notified that the project will be managed by:
Captec Net Lease Realty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, Michigan 48106
Attention: David Eby
Telephone No. (313) 944-5505
You are further notified that commencing as of the date hereof, all rental
payments under your lease shall be paid to Buyer. Please make your rent checks
payable to Buyer at the above address.
72
Any written notices you desire or are required to make to the landlord under
your lease should be sent to Buyer at the above address.
Very truly yours,
SELLER:
-------
Metric Real Estate, L.P.,
a California limited partnership
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY, INC.
a Delaware corporation
By: /s/
---
Its: Vice-President
--------------
73
EXHIBIT K 3
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Ultramar Diamond Shamrock Corporation
PO Box 69600
San Antonio, TX 78269-6000
Attn: Debbi Dirks
RE: NCS Store located at 3850 Alta Mesa Blvd., Fort Worth, TX
---------------------------------------------------------
This is to notify you that Metric Real Estate, L.P., a California limited
partnership ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to Captec Net Lease Realty, Inc., a Delaware corporation ("Buyer").
You are further notified that any security deposits or any prepaid rents
under your lease have been transferred to Buyer.
You are further notified that the project will be managed by:
Captec Net Lease Realty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, Michigan 48106
Attention: David Eby
Telephone No. (313) 944-5505
You are further notified that commencing as of the date hereof, all rental
payments under your lease shall be paid to Buyer. Please make your rent checks
payable to Buyer at the above address.
74
Any written notices you desire or are required to make to the landlord under
your lease should be sent to Buyer at the above address.
Very truly yours,
SELLER:
-------
Metric Real Estate, L.P.,
a California limited partnership
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY, INC.
a Delaware corporation
By: /s/
---
Its: Vice-President
--------------
75
EXHIBIT K 4
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Ultramar Diamond Shamrock Corporation
PO Box 69600
San Antonio, TX 78269-6000
Attn: Debbi Dirks
RE: NCS Store located at 2485 W. Tarrant Rd., Grand Prairie, TX
-----------------------------------------------------------
This is to notify you that Metric Real Estate, L.P., a California limited
partnership ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to Capec Net Lease Realty, Inc., a Delaware corporation ("Buyer").
You are further notified that any security deposits or any prepaid rents
under your lease have been transferred to Buyer.
You are further notified that the project will be managed by:
Captec Net Lease Realty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, Michigan 48106
Attention: David Eby
Telephone No. (313) 944-5505
You are further notified that commencing as of the date hereof, all rental
payments under your lease shall be paid to Buyer. Please make your rent checks
payable to Buyer at the above address.
76
Any written notices you desire or are required to make to the landlord under
your lease should be sent to Buyer at the above address.
Very truly yours,
SELLER:
-------
Metric Real Estate, L.P.,
a California limited partnership
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY, INC.
a Delaware corporation
By: /s/
---
Its: Vice-President
--------------
77
EXHIBIT K 5
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Ultramar Diamond Shamrock Corporation
PO Box 69600
San Antonio, TX 78269-6000
Attn: Debbi Dirks
RE: NCS Store located at 1201 N. Little School Rd., Kennedale, TX
-------------------------------------------------------------
This is to notify you that Metric Real Estate, L.P., a California limited
partnership ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to Captec Net Lease Realty, Inc., a Delaware corporation ("Buyer").
You are further notified that any security deposits or any prepaid rents
under your lease have been transferred to Buyer.
You are further notified that the project will be managed by:
Captec Net Lease Realty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, Michigan 48106
Attention: David Eby
Telephone No. (313) 944-5505
You are further notified that commencing as of the date hereof, all rental
payments under your lease shall be paid to Buyer. Please make your rent checks
payable to Buyer at the above address.
78
Any written notices you desire or are required to make to the landlord under
your lease should be sent to Buyer at the above address.
Very truly yours,
SELLER:
-------
Metric Real Estate, L.P.,
a California limited partnership
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY, INC.
a Delaware corporation
By: /s/
---
Its: Vice-President
--------------
79
SCHEDULE 1
----------
Schedule of Leases
1. San Antonio, Texas:
-------------------
Lease dated November 30, 1989, by and between Metric Income Trust
Series, Inc., a California corporation d/b/a MITS Inc., in Texas and
National Convenience Stores Incorporated, a Delaware corporation.
Lease Amendment dated October 14, 1992, by and between Metric Income
Trust Series, Inc., a California corporation d/b/a MITS Inc., in Texas
and National Convenience Stores Incorporated, a Delaware corporation.
2. Kennedale, Texas:
-----------------
Lease dated November 30, 1989, by and between Metric Income Trust
Series, Inc., a California corporation d/b/a MITS Inc., in Texas and
National Convenience Stores Incorporated, a Delaware corporation.
3. Grand Prairie, Texas:
---------------------
Lease dated November 30, 1989, by and between Metric Income Trust
Series, Inc., a California corporation d/b/a MITS Inc., in Texas and
National Convenience Stores Incorporated, a Delaware corporation.
4. Fort Worth, Texas:
------------------
Lease dated November 30, 1989, by and between Metric Income Trust
Series, Inc., a California corporation d/b/a MITS Inc., in Texas and
National Convenience Stores Incorporated, a Delaware corporation.
Lease Amendment dated October 14, 1992, by and between Metric Income
Trust Series, Inc., a California corporation d/b/a MITS Inc., in Texas
and National Convenience Stores Incorporated, a Delaware corporation.
5. San Antonio, Texas (Fredericksburg):
------------------------------------
Lease dated November 30, 1989, by and between Metric Income Trust
Series, Inc., a California corporation d/b/a MITS Inc., in Texas and
National Convenience Stores Incorporated, a Delaware corporation.
Lease Amendment dated October 14, 1992, by and between Metric Income
Trust Series, Inc., a California corporation d/b/a MITS Inc., in Texas
and National Convenience Stores Incorporated, a Delaware corporation.
SCHEDULE 2
----------
Delivery Items Per Letter of Intent
-----------------------------------
1. The tenant lease with respect to each Location;
2. A current preliminary title report or title commitment with copies of
the exceptions;
3. A Phase I environmental Site Assessment; and
4. A survey of each Location.
80
Form of Seller's Final Closing Statement
----------------------------------------
Seller's Final Closing Statement, dated December 23, 1997, not filed 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.
Letter of Instruction to Title Company
--------------------------------------
Letter of Instruction to Title Company, dated December 17, 1997 (all
properties), not filed with this amendment. Metric Income Trust Series, Inc.
agrees to provide the Securities and Exchange Commission copies of said Letter
of Instruction to Title Company upon request.
Commission Release by Damon Raike & Company
-------------------------------------------
Commission Release by Damon Raike & Company, undated, not filed with this
amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Commission Release by Damon Raike & Company
upon request.
Commission Release by Arroyo & Coates
-------------------------------------
Commission Release by Arroyo & Coates, undated, not filed with this amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Commission Release by Arroyo & Coates upon request.
Commission Release by The Royston Group
---------------------------------------
Commission Release by The Royston Group, dated December 18, 1997, not filed with
this amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Commission Release by The
Royston Group upon request.
81