Exhibit b)
AGREEMENT FOR PURCHASE AND SALE
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OF
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REAL PROPERTY
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By and Between
METRIC INCOME TRUST SERIES, INC.
as Seller,
and
CAPTEC NET LEASE REALTY, INC.
as Buyer.
October 31, 1997
1
TABLE OF CONTENTS
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ARTICLE PAGE
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1
BASIC DEFINITIONS......................................................... 2
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Section 1.1 Closing Date........................................ 2
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Section 1.2 Contract Period..................................... 2
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Section 1.3 Inspection Period................................... 2
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Section 1.4 Intangible Property................................. 2
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Section 1.5 Leases.............................................. 3
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Section 1.6 Personal Property................................... 3
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Section 1.7 Property............................................ 3
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Section 1.8 Real Property....................................... 3
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Section 1.9 Title Company....................................... 3
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Section 1.10 Title Report........................................ 3
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2
PURCHASE AND SALE......................................................... 4
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Section 2.1 Purchase and Sale................................... 4
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Section 2.2 Purchase Price...................................... 4
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Section 2.3 Buyer's Review and Seller's Disclaimer.............. 4
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3
CONDITIONS PRECEDENT...................................................... 8
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Section 3.1 Conditions.......................................... 8
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Section 3.2 Failure or Waiver of Conditions Precedent........... 9
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4
COVENANTS, WARRANTIES AND REPRESENTATIONS................................. 9
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Section 4.1 Seller's Warranties and Representations............. 9
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Section 4.2 [Omitted Intentionally]............................. 10
Section 4.3 Buyer's Warranties and Representations.............. 10
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Section 4.4 Buyer's Covenants................................... 11
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5
ESCROW AND CLOSING........................................................ 11
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Section 5.1 Escrow Arrangements................................. 11
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Section 5.2 Title Company's Duties and Closing.................. 13
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Section 5.3 Closing Costs....................................... 14
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Section 5.4 Prorations.......................................... 14
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Section 5.5 Closing Date........................................ 15
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Section 5.6 Insurance........................................... 15
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Section 5.7 Tenant Estoppels/Tenant Notice...................... 15
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Section 5.8 Delivery of Original Documents...................... 15
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Section 5.9 Filing of Reports................................... 15
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DEPOSIT................................................................... 16
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7
MISCELLANEOUS............................................................. 18
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Section 7.1 Damage or Destruction............................... 18
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Section 7.2 Brokerage Commissions and Finder's Fees............. 19
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Section 7.3 Leasing Commissions................................. 19
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Section 7.4 Successors and Assigns.............................. 20
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Section 7.5 Notices............................................. 20
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Section 7.6 Time................................................ 21
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Section 7.7 Possession.......................................... 21
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Section 7.8 Incorporation by Reference.......................... 21
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Section 7.9 No Deductions or Off-Sets........................... 21
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Section 7.10 Attorneys' Fees..................................... 21
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Section 7.11 Construction........................................ 21
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Section 7.12 Governing Law....................................... 22
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Section 7.13 Disclosure of Information........................... 22
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Section 7.14 Damages............................................. 23
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Section 7.15 Termination without Breach.......................... 24
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Section 7.16 Counterparts........................................ 24
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Section 7.17 Entire Agreement.................................... 24
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EXHIBITS
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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 Buyer's Affidavit (Georgia)
Exhibit E - Form of Grant Deed
Exhibit F - Form of Limited Warranty Deed
Exhibit G - Form of General Assignment
Exhibit H - Form of Bill of Sale
Exhibit I - Form of Assignment of Lease
Exhibit J - Subordination, Attornment and
Non-Disturbance Agreement
Exhibit K - Form of FIRPTA Certificate
Exhibit L - Form of Tenant Estoppel
Exhibit M - Form of Tenant Notice
SCHEDULES
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Schedule 1 - Listing of Leases
Schedule 2 - Delivery Items Per Letter of Intent
3
AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
(California and Georgia
NCS Store Locations)
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY is made and
entered into as of October __, 1997 by and between METRIC INCOME TRUST SERIES,
INC. a California corporation ("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 1-3
respectively attached hereto and incorporated herein by this reference (each a
4
"Location") located in the states of California and Georgia (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.
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. 19194
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. 6055463, 006021551, and 96R309, 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 Sixty-One Thousand Two
Hundred Sixty-Five and No/100 Dollars ($4,061,265.00) 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 the applicable 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 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
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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
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 Sections 2.3(a) and (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 (i) 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;
(ii) 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; (iii) 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; (iv) 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 (v) 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.
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(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
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.
(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.
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.
7
(iii) The willingness of Title Company or some other reputable
title insurer to issue its California and Georgia (as appropriate) 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 Real Estate, L.P. and Buyer
with respect to certain real property located in Texas 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 Real Estate, L.P. and Buyer with respect
to certain real property located in Texas 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.
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:s
(a) This Agreement has been approved by the Seller's Board of
Directors. Seller has full power and lawful authority to enter into and carry
out the terms and provisions of this Agreement and to execute and deliver all
documents which are contemplated by this Agreement and all actions of Seller
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
8
(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
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 Convenants. 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.
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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) (iii) below, duly executed
by Buyer;
(iii) with respect to each Location, a counterpart Assignment
of Lease (as defined in subparagraph (b)(v) below), duly executed and
acknowledged by Buyer;
(iv) with respect to the Georgia Location, a duly executed
affidavit in the form of Exhibit D attached to this Agreement; and
(v) 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 grant deed to each of
the California Locations each, respectively, in the form attached to
this Agreement as Exhibit E (each a "Grant Deed" and collectively, the
"Grant Deeds");
(ii) a duly executed and acknowledged limited warranty deed
to the Georgia Location substantially in the form attached hereto as
Exhibit F (the "Limited Warranty Deed" and together with the Grant
Deeds, collectively, the Deeds);
(iii) 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 G (the "General Assignment");
(iv) with respect to each Location, a duly executed bill of
sale in the form attached to this Agreement as Exhibit H (the "Bill of
Sale");
(v) 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 I (the "Assignment of Lease"), duly executed and
acknowledged by Seller;
(vi) with respect to each Location, a Subordination,
Attornment and Non-Disturbance Agreement in the form attached hereto as
Exhibit J , executed by the tenant at such Location (the "SNDA").
(vii) 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
10
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 K (the "FIRPTA Certificate");
(viii) with respect to each Location, the duly executed
estoppel certificate required pursuant to Section 5.7 below; and
(ix) 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, ALTA title coverage or 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 L 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 M
(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
-------
Buyer shall within two (2) days of the mutual execution of this
Agreement deposit in the escrow established with Title Company for this
transaction cash in the amount of $30,000.00. Within two (2) working days
following expiration of the Inspection Period, Buyer shall deposit in escrow the
additional sum of $60,000.00 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.
13
BUYER ( /s/ ) AND SELLER ( /s/ ) AGREE.
In the event that this transaction is consummated as contemplated by
this Agreement, then the entire amount of the Deposit 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 hereunder 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").
14
(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,
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. Brokers, Metric Property Management, Inc. and each of them, hereby agree
to execute (with respect to the Georgia Location) an Unconditional Waiver and
Release of Commercial Real Estate Broker's Lien at closing as a condition
precedent to receipt by each of them of their respective Real Estate
Compensation in connection with the Georgia Location.
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
15
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
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 (and with respect to the
Georgia Location, not the attorneys' fees statutorily defined in O.C.G.A. Sec.
13-1-11.
16
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
(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 directors, officers,
shareholders, employees or agents of Seller. Buyer specifically waives any right
to seek specific performance of Seller's obligations under this Agreement and
17
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.
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 INCOME TRUST SERIES, INC., a
California corporation
By: Kevin M. Howley
---------------
Its: President
---------
BUYER:
- ------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice President
--------------
18
SELLER'S BROKERS:
- -----------------
DAMON RAIKE & COMPANY
By: /s/
---
Its: Broker
------
State/License No. 00404237
ARROYO & COATES:
- ----------------
By: /s/
---
Its: CEO
---
State/License No. 00559912
Receipt of $___________ as the deposit
is acknowledged in the form of
- ----------------------------------
TITLE COMPANY:
- --------------
CHICAGO TITLE COMPANY
By: /s/
---
Its: Coordinator
-----------
19
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 INCOME TRUST SERIES, INC. ("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)(vi) 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 J 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 J to the Original Agreement is hereby deleted in its
entirety and a new Exhibit J 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.
20
8. This Amendment shall be governed by and construed in accordance with
the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
SELLER:
-------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice President
--------------
21
EXHIBIT A 1
-----------
Legal Description of Property:
- ------------------------------
That certain real property situated in the County of San Bernardino, State of
California described as follows:
THE WEST 3.05 ACRES OF THE NORTH 12.28 ACRES OF FARM LOT 622, SEMI-TROPIC LAND
AND WATER COMPANY, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 11 PAGE 12 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTH 119 FEET OF THE EAST 1 ACRE THEREOF.
ALSO EXCEPTING THEREFROM THE SOUTH 175 FEET THEREOF.
AREAS AND DISTANCES ARE COMPUTED TO THE STREET CENTERS AS SHOWN ON THE RECORDED
MAP OF SAID SUBDIVISION.
EXCEPTING THEREFROM THE INTEREST CONVEYED TO THE CITY OF FONTANA, A MUNICIPAL
CORPORATION BY DEED RECORDED MAY 4, 1987 AS INSTRUMENT NO. 87-147027 OF OFFICIAL
RECORDS.
EXHIBIT A 2
-----------
Legal Description of Property:
- ------------------------------
That certain real property situated in the County of Orange, State of California
described as follows:
PARCEL 1 OF PARCEL MAP NO. 87-339, IN THE CITY OF PLACENTIA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 234, PAGES 24 AND 25 INCLUSIVE OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A 3
-----------
Legal Description of Property:
- ------------------------------
That certain real property situated in the County of Cobb, State of Georgia,
Described as follows:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 708 of the 17th
District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
BEGINNING at the intersection of the west line of Land Lot 708 and the
northwesterly right of way of Windy Hill Road, running thence northeasterly
along the northwesterly right of way of Windy Hill Road a distance of 421.79' to
an iron pin and the TRUE POINT OF BEGINNING; running thence N 44(Degree) 56' 55"
W a distance of 197.50' to an iron pin; running thence N 46(Degree) 54' 00" E a
distance of 200.00' to an iron pin; running thence along the right of way of a
private drive S 45(Degree) 06' 00" E a distance of 182.50' to an iron pin;
running thence along the intersection of said private drive and Windy Hill Road
s 01(Degree) 54' 00" W a distance of 21.21' to an iron pin on the right of way
of Windy Hill Road; running thence along the right of way of Windy Hill Road S
46(Degree) 54' 00" W a distance of 185.00'to an iron pin and THE TRUE PINT FO
BEGINNING.
22
Said tract of land contains 0.904 acres as shown on Plat by D.W. Lynah Surveyors
dated June 24, 1997.
TOGETHER WITH THOSE CERTAIN EASEMENTS DESCRIBED AS FOLLOWS:
That certain drive easement described in that certain Declaration of Easements,
dated November 25, 1986, recorded in Deed Book 4227, Page 177, Cobb County,
Georgia records, as amended by first Amendment to Declaration of Easement dated
February 11, 1988, recorded in Deed Book 4865, Page 16, Records of Cobb County,
Georgia
Those easements, appurtenant to the above-described property contained in that
certain Declaration of Reciprocal Easements, dated March 31, 1988, recorded in
Deed Book 4865, Page 47, aforesaid records, as amended by First Amendment to
Declaration of Reciprocal Easement dated May 9, 1988, recorded in Deed Book
4917, Page 399, aforesaid records.
EXHIBIT B
---------
Street Addresses and Purchase Price Allocations
-----------------------------------------------
STREET ADDRESS ALLOCATED PURCHASE PRICE
- -------------- ------------------------
16125 Base Line
Fontana, CA $1,416,987
1801 Orangethorpe
Placentia, CA $1,416,641
2001 Windy Hill Rd.
Marietta, GA $1,227,637
23
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.
Cynthia Halicky, Director of Property Sales Closing File
Operations
FROM: Minton Newell
DATE: October 27, 1997
RE: Internal Due Diligence
3 NCS Stores
Fontana, Placentia, CA
Marietta, GA
Metric Income Trust Series, Inc.
RESPONSE MANDATORY
------------------
================================================================================
Pursuant to the proposed Agreement for Purchase and Sale of Real Property by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Seller"),
and CAPTEC NET LEASE REALTY, INC. ("Buyer"), a Delaware corporation, we are
required to provide a certification to the Buyer relative to our knowledge of
certain conditions which may affect the property.
Please carefully read and review the attached. They are the pages from the
contract which outline the warranties and representations we will be making as
of the signing date. If you currently have knowledge of any facts which would
make these representations untrue or incorrect, please immediately advise Tana
Laura. If you have no such knowledge, please advise accordingly. Please send
your signed copy of this statement to Tana Laura. We must have your response by
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.
24
I have no knowledge of any facts which would make the attached representations
untrue as of this date 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
- -------- -------- --------
25
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 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.
EXHIBIT C-1
-----------
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
------------------------------
[NONE]
26
EXHIBIT D
---------
AFFIDAVIT
---------
Form of Buyer's Affidavit is not filed with this Amendment, as it was not
executed. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Buyer's Affidavit upon request.
27
EXHIBIT E 1
-----------
Form of Grant Deed
------------------
RECORDING REQUESTED BY AND CERTIFIED TO BE A TRUE COPY
WHEN RECORDED MAIL TO AND OF DOCUMENT RECORDED 12/24/97
MAIL TAX STATEMENTS TO: IN BOOK___ SERIES 97-472076
David Eby OF OFFICIAL RECORDS.
CAPTEC Financial Group, Inc. CHICAGO TITLE INSURANCE CO.
24 Frank Lloyd Wright Drive BY: /s/
Lobby L, 4th Floor
Ann Arbor, MI 48106-0544
- -----------------------------------
GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of the transfer tax which is due by a
separate statement which is not being recorded with this Grant Deed.
THIS GRANT DEED is made as of this 16th day of December, 1997 by METRIC
INCOME TRUST SERIES, INC., a California corporation, ("Grantor") to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Grantee").
W I T N E S S E T H:
- - - - - - - - - -
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Grantor hereby GRANTS to Grantee that certain real
property located in the County of San Bernardino, State of California, being
more particularly described on Schedule 1 attached hereto and incorporated
herein by this reference (the "Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the day
and year first set forth above.
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
28
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
SCHEDULE 1
----------
To
--
Grant Deed
----------
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
That certain real property situated in the County of San Bernardino, State of
California described as follows:
THE WEST 3.05 ACRES OF THE NORTH 12.28 ACRES OF FARM LOT 622, SEMI-TROPIC LAND
AND WATER COMPANY, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 11 PAGE 12 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTH 119 FEET OF THE EAST 1 ACRE THEREOF.
ALSO EXCEPTING THEREFROM THE SOUTH 175 FEET THEREOF.
AREAS AND DISTANCES ARE COMPUTED TO THE STREET CENTERS AS SHOWN ON THE RECORDED
MAP OF SAID SUBDIVISION.
EXCEPTING THEREFROM THE INTEREST CONVEYED TO THE CITY OF FONTANA, A MUNICIPAL
CORPORATION BY DEED RECORDED MAY 4, 1987 AS INSTRUMENT NO. 87-147027 OF OFFICIAL
RECORDS.
29
EXHIBIT E 2
-----------
RECORDING REQUESTED BY AND CERTIFIED TO BE A TRUE COPY
WHEN RECORDED MAIL TO AND OF DOCUMENT RECORDED 12/24/97
MAIL TAX STATEMENTS TO: IN BOOK___ SERIES 97-472076
David Eby OF OFFICIAL RECORDS.
CAPTEC Financial Group, Inc. CHICAGO TITLE INSURANCE CO.
24 Frank Lloyd Wright Drive BY: /s/
Lobby L, 4th Floor
Ann Arbor, MI 48106-0544
- ---------------------------------
GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of the transfer tax which is due by a
separate statement which is not being recorded with this Grant Deed.
THIS GRANT DEED is made as of this 16th day of December, 1997 by METRIC
INCOME TRUST SERIES, INC., a California corporation, ("Grantor") to CAPTEC NET
LEASE REALTY, INC., a Delaware corporation ("Grantee").
W I T N E S S E T H:
- - - - - - - - - -
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Grantor hereby GRANTS to Grantee that certain real
property located in the County of San Bernardino, State of California, being
more particularly described on Schedule 1 attached hereto and incorporated
herein by this reference (the "Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the day
and year first set forth above.
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
30
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
SCHEDULE 1
----------
To
--
Grant Deed
----------
LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
That certain real property situated in the County of Orange, State of California
described as follows:
PARCEL 1 OF PARCEL MAP NO. 87-339, IN THE CITY OF PLACENTIA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 234, PAGES 24 AND 25 INCLUSIVE OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
31
EXHIBIT F
---------
After recording, return to:
Beth Bailey Gates
Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, California 94111
- -------------------------------------
LIMITED WARRANTY DEED - GEORGIA
THIS INDENTURE, Made the 16th day of December, 1997, between METRIC
INCOME TRUST SERIES, INC., a California corporation, as party of the first
party, hereinafter called Grantee (the words "Grantor" and "Grantee" include all
genders, plural and singular, and their respective heirs, successors and assigns
where the context requires or permits).
WITNESSETH that: Grantor, for and in consideration of the sum of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration, in hand paid
at and before the sealing and delivery of these presents, the receipt whereof is
hereby acknowledged, has granted, bargained, sold, aliened, conveyed and
confirmed, and by these presents does grant, bargain, sell, alien, convey and
confirm unto the said Grantee, all that tract of land in Cobb County, Georgia,
described on Schedule 1 attached hereto and made a part hereof.
TO HAVE AND TO HOLD the said tract or parcel of land, with all and
singular rights, member and appurtenances thereof, to the same being, belonging,
or in anywise appertaining, to the only proper use, benefit and behalf of the
said Grantee forever in FEE SIMPLE.
AND THE SAID Grantor will warrant and forever defend the right and title
to the above described property unto the said Grantee against the claims of all
persons owning, holding or claiming by, through or under the said Grantor, but
not otherwise, and subject to the matters set forth on Schedule 2 attached
hereto and made a part hereof.
IN WITNESS WHEREOF, the Grantor caused this Limited Warranty Deed to be
signed, sealed and delivered, the day and year first above written.
Signed, sealed and delivered METRIC INCOME TRUST SERIES, INC.,
in the presence of: a California corporation
/s/ Craig Fawcett By: Kevin M. Howley
- ----------------- ---------------
Unofficial Witness Its: President
---------
32
/s/Tana J. Laura
- ----------------
Notary Public
(NOTARY SEAL) CERTIFIED TO BE A TRUE COPY
OF DOCUMENT RECORDED 12/23/97
IN BOOK 10888, PAGE 188
My Commission Expires: Jan. 15, 2001 OF OFFICIAL RECORDS.
CHICAGO TITLE INSURANCE CO.
TANA J. LAURA BY: /s/
Comm #1122580
NOTARY PUBLIC CALIFORNIA
City & County of San Francisco
Comm. Exp. Jan. 15, 2001
EXHIBIT A
---------
LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
That certain real property situated in the County of Cobb, State of Georgia,
Described as follows:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 708 of the 17th
District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
BEGINNING at the intersection of the west line of Land Lot 708 and the
northwesterly right of way of Windy Hill Road, running thence northeasterly
along the northwesterly right of way of Windy Hill Road a distance of 421.79' to
an iron pin and the TRUE POINT OF BEGINNING; running thence N 44(Degree) 56' 55"
W a distance of 197.50' to an iron pin; running thence N 46(Degree) 54' 00" E a
distance of 200.00' to an iron pin; running thence along the right of way of a
private drive S 45(Degree) 06' 00" E a distance of 182.50' to an iron pin;
running thence along the intersection of said private drive and Windy Hill Road
01(Degree) 54' 00" W a distance of 21.21' to an iron pin on the right of way of
Windy Hill Road; running thence along the right of way of Windy Hill Road S
46(Degree) 54' 00" W a distance of 185.00'to an iron pin and THE TRUE PINT FO
BEGINNING
Said tract of land contains 0.904 acres as shown on Plat by D.W. Lynah Surveyors
dated June 24, 1997.
TOGETHER WITH THOSE CERTAIN EASEMENTS DESCRIBED AS FOLLOWS:
That certain drive easement described in that certain Declaration of Easements,
dated November 25, 1986, recorded in Deed Book 4227, Page 177, Cobb County,
Georgia records, as amended by first Amendment to Declaration of Easement dated
February 11, 1988, recorded in Deed Book 4865, Page 16, Records of Cobb County,
Georgia
Those easements, appurtenant to the above-described property contained in that
certain Declaration of Reciprocal Easements, dated March 31, 1988, recorded in
Deed Book 4865, Page 47, aforesaid records, as amended by First Amendment to
Declaration of Reciprocal Easement dated May 9, 1988, recorded in Deed Book
4917, Page 399, aforesaid records.
33
EXHIBIT G 1
-----------
Form of General Assignment
--------------------------
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC INCOME TRUST SERIES, INC., a California
corporation ("Assignor"), hereby assigns, transfers and conveys to 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 INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
IN WITNESS WHEREOF, Assignor and Assignee have executed this General Assignment
as of December 22, 1997.
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
--------------
34
SCHEDULE 1
----------
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
That certain real property situated in the County of San Bernardino, State of
California described as follows:
THE WEST 3.05 ACRES OF THE NORTH 12.28 ACRES OF FARM LOT 622, SEMI-TROPIC LAND
AND WATER COMPANY, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 11 PAGE 12 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTH 119 FEET OF THE EAST 1 ACRE THEREOF.
ALSO EXCEPTING THEREFROM THE SOUTH 175 FEET THEREOF.
AREAS AND DISTANCES ARE COMPUTED TO THE STREET CENTERS AS SHOWN ON THE RECORDED
MAP OF SAID SUBDIVISION.
EXCEPTING THEREFROM THE INTEREST CONVEYED TO THE CITY OF FONTANA, A MUNICIPAL
CORPORATION BY DEED RECORDED MAY 4, 1987 AS INSTRUMENT NO. 87-147027 OF OFFICIAL
RECORDS.
35
EXHIBIT G 2
-----------
Form of General Assignment
--------------------------
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC INCOME TRUST SERIES, INC., a California
corporation ("Assignor"), hereby assigns, transfers and conveys to 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 INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
IN WITNESS WHEREOF, Assignor and Assignee have executed this General Assignment
as of December 22, 1997.
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
--------------
SCHEDULE 1
----------
LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
That certain real property situated in the County of Orange, State of California
described as follows:
PARCEL 1 OF PARCEL MAP NO. 87-339, IN THE CITY OF PLACENTIA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 234, PAGES 24 AND 25 INCLUSIVE OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
36
EXHIBIT G 3
-----------
Form of General Assignment
--------------------------
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC INCOME TRUST SERIES, INC., a California
corporation ("Assignor"), hereby assigns, transfers and conveys to 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 INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
IN WITNESS WHEREOF, Assignor and Assignee have executed this General Assignment
as of December 22, 1997.
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC., a
Delaware corporation
By: /s/
---
Its: Vice President
--------------
37
SCHEDULE 1
----------
LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
That certain real property situated in the County of Cobb, State of Georgia,
Described as follows:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 708 of the 17th
District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
BEGINNING at the intersection of the west line of Land Lot 708 and the
northwesterly right of way of Windy Hill Road, running thence northeasterly
along the northwesterly right of way of Windy Hill Road a distance of 421.79' to
an iron pin and the TRUE POINT OF BEGINNING; running thence N 44(Degree) 56' 55"
W a distance of 197.50' to an iron pin; running thence N 46(Degree) 54' 00" E a
distance of 200.00' to an iron pin; running thence along the right of way of a
private drive S 45(Degree) 06' 00" E a distance of 182.50' to an iron pin;
running thence along the intersection of said private drive and Windy Hill Road
01(Degree) 54' 00" W a distance of 21.21' to an iron pin on the right of way of
Windy Hill Road; running thence along the right of way of Windy Hill Road S
46(Degree) 54' 00" W a distance of 185.00'to an iron pin and THE TRUE PINT FO
BEGINNING
Said tract of land contains 0.904 acres as shown on Plat by D.W. Lynah Surveyors
dated June 24, 1997.
TOGETHER WITH THOSE CERTAIN EASEMENTS DESCRIBED AS FOLLOWS:
That certain drive easement described in that certain Declaration of Easements,
dated November 25, 1986, recorded in Deed Book 4227, Page 177, Cobb County,
Georgia records, as amended by first Amendment to Declaration of Easement dated
February 11, 1988, recorded in Deed Book 4865, Page 16, Records of Cobb County,
Georgia
Those easements, appurtenant to the above-described property contained in that
certain Declaration of Reciprocal Easements, dated March 31, 1988, recorded in
Deed Book 4865, Page 47, aforesaid records, as amended by First Amendment to
Declaration of Reciprocal Easement dated May 9, 1988, recorded in Deed Book
4917, Page 399, aforesaid records.
38
EXHIBIT H 1
-----------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC
INCOME TRUST SERIES, INC., a California corporation, ("Seller"), grants, sells,
transfers and assigns to 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 16th day
of December, 1997.
SELLER:
-------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
SCHEDULE 1
----------
Legal Description of Property:
- ------------------------------
That certain real property situated in the County of San Bernardino, State of
California described as follows:
THE WEST 3.05 ACRES OF THE NORTH 12.28 ACRES OF FARM LOT 622, SEMI-TROPIC LAND
AND WATER COMPANY, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 11 PAGE 12 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTH 119 FEET OF THE EAST 1 ACRE THEREOF.
ALSO EXCEPTING THEREFROM THE SOUTH 175 FEET THEREOF.
AREAS AND DISTANCES ARE COMPUTED TO THE STREET CENTERS AS SHOWN ON THE RECORDED
MAP OF SAID SUBDIVISION.
EXCEPTING THEREFROM THE INTEREST CONVEYED TO THE CITY OF FONTANA, A MUNICIPAL
CORPORATION BY DEED RECORDED MAY 4, 1987 AS INSTUMENT NO. 87-147027 OF OFFICIAL
RECORDS.
SCHEDULE 2
----------
Schedule of Personal Property
[NONE]
39
EXHIBIT H 2
-----------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC
INCOME TRUST SERIES, INC., a California corporation, ("Seller"), grants, sells,
transfers and assigns to 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 16th day
of December, 1997.
SELLER:
-------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
SCHEDULE 1
----------
LEGAL DESCRIPTION OF PROPERTY:
- ------------------------------
That certain real property situated in the County of Orange, State of California
described as follows:
PARCEL 1 OF PARCEL MAP NO. 87-399, IN THE CITY OF PLACENTIA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 234, PAGES 24 AND 25 INCLUSIVE OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
SCHEDULE 2
----------
Schedule of personal property
[NONE]
40
EXHIBIT H 3
-----------
Form of Bill of Sale
--------------------
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC
INCOME TRUST SERIES, INC., a California corporation, ("Seller"), grants, sells,
transfers and assigns to 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 16th day
of December, 1997.
SELLER:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
SCHEDULE 1
----------
Legal Description of Property:
- ------------------------------
That certain real property situated in the County of Cobb, State of Georgia,
Described as follows:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 708 of the 17th
District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
BEGINNING at the intersection of the west line of Land Lot 708 and the
northwesterly right of way of Windy Hill Road, running thence northeasterly
along the northwesterly right of way of Windy Hill Road a distance of 421.79' to
an iron pin and the TRUE POINT OF BEGINNING; running thence N 44(Degree) 56' 55"
W a distance of 197.50' to an iron pin; running thence N 46(Degree) 54' 00" E a
distance of 200.00' to an iron pin; running thence along the right of way of a
private drive S 45(Degree) 06' 00" E a distance of 182.50' to an iron pin;
running thence along the intersection of said private drive and Windy Hill Road
s 01(Degree) 54' 00" W a distance of 21.21' to an iron pin on the right of way
of Windy Hill Road; running thence along the right of way of Windy Hill Road S
46(Degree) 54' 00" W a distance of 185.00'to an iron pin and THE TRUE PINT FO
BEGINNING.
Said tract of land contains 0.904 acres as shown on Plat by D.W. Lynah Surveyors
dated June 24, 1997.
TOGETHER WITH THOSE CERTAIN EASEMENTS DESCRIBED AS FOLLOWS:
41
That certain drive easement described in that certain Declaration of Easements,
dated November 25, 1986, recorded in Deed Book 4227, Page 177, Cobb County,
Georgia records, as amended by first Amendment to Declaration of Easement dated
February 11, 1988, recorded in Deed Book 4865, Page 16, Records of Cobb County,
Georgia
Those easements, appurtenant to the above-described property contained in that
certain Declaration of Reciprocal Easements, dated March 31, 1988, recorded in
Deed Book 4865, Page 47, aforesaid records, as amended by First Amendment to
Declaration of Reciprocal Easement dated May 9, 1988, recorded in Deed Book
4917, Page 399, aforesaid records.
SCHEDULE 2
----------
Schedule of personal Property
[NONE]
42
EXHIBIT I 1
-----------
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor, as lessor, has heretofore entered into that certain lease
(the "Lease") dated November 30, 1989 by and between Assignor d/b/a MITS Inc.,
in Texas and National Convenience Stores Incorporated, a Delaware corporation
("Lessee") relating to that certain real property described in Schedule 1
attached hereto and commonly known as 16125 Baseline Road, City of Fontana,
California (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.
7. This Assignment may be executed in multiple counterparts, each of
which shall be deemed an original and all of which, taken
together, shall constitute but one and the same instrument.
43
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first hereinabove written.
ASSIGNOR:
---------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
ASSIGNEE:
---------
CAPTEC NET LEASE REALTY, INC.,
a Delaware corporation
By: /s/
---
Its: Vice President
--------------
SCHEDULE 1
----------
LEGAL DESCRIPTION OF THE PROPERTY
- ---------------------------------
That certain real property situated in the County of San Bernardino, State of
California described as follows:
THE WEST 3.05 ACRES OF THE NORTH 12.28 ACRES OF FARM LOT 622, SEMI-TROPIC LAND
AND WATER COMPANY, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 11 PAGE 12 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTH 119 FEET OF THE EAST 1 ACRE THEREOF.
ALSO EXCEPTING THEREFROM THE SOUTH 175 FEET THEREOF.
AREAS AND DISTANCES ARE COMPUTED TO THE STREET CENTERS AS SHOWN ON THE RECORDED
MAP OF SAID SUBDIVISION.
EXCEPTING THEREFROM THE INTEREST CONVEYED TO THE CITY OF FONTANA, A MUNICIPAL
CORPORATION BY DEED RECORDED MAY 4, 1987 AS INSTRUMENT NO. 87-147027 OF OFFICIAL
RECORDS.
44
EXHIBIT I 2
-----------
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor, as lessor, has heretofore entered into that certain lease
(the "Lease") dated November 30, 1989 by and between Assignor d/b/a MITS Inc.,
in Texas and National Convenience Stores Incorporated, a Delaware corporation
("Lessee") relating to that certain real property described in Schedule 1
attached hereto and commonly known as 1801 E. Orangethorpe, City of Placentia,
California (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.
7. This Assignment may be executed in multiple counterparts, each of
which shall be deemed an original and all of which, taken together,
shall constitute but one and the same instrument.
45
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first hereinabove written.
ASSIGNOR:
---------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: 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:
- ------------------------------
That certain real property situated in the County of Orange, State of California
described as follows:
PARCEL 1 OF PARCEL MAP NO. 87-339, IN THE CITY OF PLACENTIA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 234, PAGES 24 AND 25 INCLUSIVE OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
46
EXHIBIT I 3
-----------
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 16th day of December, 1997, by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Assignor"),
and CAPTEC NET LEASE REALTY, INC., a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor, as lessor, has heretofore entered into that certain lease
(the "lease") dated November 30, 1989 by and between Assignor d/b/a MITS Inc.,
in Texas and National Convenience Stores Incorporated, a Delaware corporation
("Lessee") as amended by that certain lease amendment dated October 14, 1992 by
and between Assignor and Lessee (Collectively, the "Lease") relating to that
certain real property described in Schedule 1 attached hereto and commonly known
as 2001 Windy Hill Road, City of Marietta, Georgia (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.
7. This Assignment may be executed in multiple counterparts, each of
which shall be deemed an original and all of which, taken together,
shall constitute but one and the same instrument.
47
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first hereinabove written.
ASSIGNOR:
---------
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: 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:
- ------------------------------
That certain real property situated in the County of Cobb, State of Georgia,
Described as follows:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 708 of the 17th
District, 2nd Section, Cobb County, Georgia, and being more particularly
described as follows:
BEGINNING at the intersection of the west line of Land Lot 708 and the
northwesterly right of way of Windy Hill Road, running thence northeasterly
along the northwesterly right of way of Windy Hill Road a distance of 421.79' to
an iron pin and the TRUE POINT OF BEGINNING; running thence N 44(Degree) 56' 55"
W a distance of 197.50' to an iron pin; running thence N 46(Degree) 54' 00" E a
distance of 200.00' to an iron pin; running thence along the right of way of a
private drive S 45(Degree) 06' 00" E a distance of 182.50' to an iron pin;
running thence along the intersection of said private drive and Windy Hill Road
s 01(Degree) 54' 00" W a distance of 21.21' to an iron pin on the right of way
of Windy Hill Road; running thence along the right of way of Windy Hill Road S
46(Degree) 54' 00" W a distance of 185.00'to an iron pin and THE TRUE PINT FO
BEGINNING.
Said tract of land contains 0.904 acres as shown on Plat by D.W. Lynah Surveyors
dated June 24, 1997.
TOGETHER WITH THOSE CERTAIN EASEMENTS DESCRIBED AS FOLLOWS:
That certain drive easement described in that certain Declaration of Easements,
dated November 25, 1986, recorded in Deed Book 4227, Page 177, Cobb County,
Georgia records, as amended by first Amendment to Declaration of Easement dated
February 11, 1988, recorded in Deed Book 4865, Page 16, Records of Cobb County,
Georgia
Those easements, appurtenant to the above-described property contained in that
certain Declaration of Reciprocal Easements, dated March 31, 1988, recorded in
Deed Book 4865, Page 47, aforesaid records, as amended by First Amendment to
Declaration of Reciprocal Easement dated May 9, 1988, recorded in Deed Book
4917, Page 399, aforesaid records.
48
EXHIBIT J
---------
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 Aggrement upon request.
49
EXHIBIT K 1
-----------
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 INCOME TRUST SERIES,
INC., a California corporation ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is
as follows: 94-3087630
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
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 INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
50
EXHIBIT K 2
-----------
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 INCOME TRUST SERIES,
INC., a California corporation ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is
as follows: 94-3087630
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
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 INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
51
EXHIBIT K 3
-----------
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 INCOME TRUST SERIES,
INC., a California corporation ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferror's U.S. employer identification/social security number is
as follows: 94-3087630
3. Transferror's office address is as follows:
c/o SSR Realty Advisors
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 INCOME TRUST SERIES, INC.,
a California corporation
By: Kevin M. Howley
---------------
Its: President
---------
52
EXHIBIT L 1
-----------
ESTOPPEL CERTIFICATE
--------------------
Captec Net Lease Relty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive, Lobby L, 4th Floor
Ann Arbor, MI 48106
Attention: David Eby
Credit Suisse First Boston Mortgage Capital, L.L.C.
Eleven Madison Avenue
New York, NY 10010-3629
RE: Landlord's Estoppel
Circle K Store NO. 5244, Fontana, California
Dear Sirs:
Pursuant to your request Metric Income Trust Series, Inc., a California
corporation (hereinafter "Landlord"), hereby advises based exclusively upon the
tenant estoppel certificate executed by Circle K Stores, Inc., attached hereto
as Exhibit A (the "Tenant Estoppel"), as of the date hereof, as follows:
1. Circle K Stores Inc. ("Tenant") is the current tenant of the premises
(the "Premises") more particularly described in that certain lease (the "Lease")
dated November 30, 1989, by and between Landlord and National Convenience Stores
Incorporated, Tenant's predecessor in interest.
2. A complete copy of the Lease is attached to the Tenant Estoppel.
3. The term of the Lease commenced on about November 30, 1989, and will
expire on or about November 30, 2009, unless sooner terminated or later extended
in accordance with the terms of the Lease.
4. Tenant has neither given nor received any notices of default with
respect to the Lease, other than those notices, if any, listed on Exhibit "B" to
the Tenant Estoppel with copies of such notices appended thereto..
5. Tenant does not currently have any claims, offsets or defenses against
Landlord, other than the following: None.
53
6. The last payment of rent under the Lease made by Tenant and the amount
thereof, was:
Amount Approximate Date Paid
$12,341,73 November 1, 1997
7. Tenant has not paid rent more than one month in advance.
Very truly yours,
METRIC INCOME TRUST SERIES
INC., a California corporation
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
EXHIBITS TO ESTOPPEL CERTIFICATE
--------------------------------
Exhibits to Estoppel Certificate, in the form of a letter from tenant to Metric
Income Trust Series, Inc., Dated November 30, 1989, is not filed with this
Amendment, as it was not executed. Metric Income Trust Series, Inc. agrees to
provide the Securities and Exchange Commission copies of Said Exhibit to
Estoppel Certificate upon request
54
EXHIBIT L 2
-----------
ESTOPPEL CERTIFICATE
--------------------
Captec Net Lease Relty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive, Lobby L, 4th Floor
Ann Arbor, MI 48106
Attention: David Eby
Credit Suisse First Boston Mortgage Capital, L.L.C.
Eleven Madison Avenue
New York, NY 10010-3629
Attention: Christopher La Valee
RE: Landlord's Estoppel
Circle K Store NO. 5251, Placentia, California
Dear Sirs:
Pursuant to your request Metric Income Trust Series, Inc., a California
corporation (hereinafter "Landlord"), hereby advises based exclusively upon the
tenant estoppel certificate executed by Circle K Stores, Inc., attached hereto
as Exhibit A (the "Tenant Estoppel"), as of the date hereof, as follows:
1. Circle K Stores Inc. ("Tenant") is the current tenant of the premises
(the "Premises") more particularly described in that certain lease (the "Lease")
dated November 30, 1989, by and between Landlord and National Convenience Stores
Incorporated, Tenant's predecessor in interest.
2. A complete copy of the Lease is attached to the Tenant Estoppel.
3. The term of the Lease commenced on about November 30, 1989, and will
expire on or about November 30, 2009, unless sooner terminated or later extended
in accordance with the terms of the Lease.
4. Tenant has neither given nor received any notices of default with
respect to the Lease, other than those notices, if any, listed on Exhibit "B" to
the Tenant Estoppel with copies of such notices appended thereto.
5. Tenant does not currently have any claims, offsets or defenses
against Landlord, other than the following: None.
55
6. The last payment of rent under the Lease made by Tenant and the amount
thereof, was:
Amount Approximate Date Paid
$12,338.71 November 1, 1997
7. Tenant has not paid rent more than one month in advance.
Very truly yours,
METRIC INCOME TRUST SERIES
INC., a California corporation
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
EXHIBITS TO ESTOPPEL CERTIFICATE
--------------------------------
Exhibits to Estoppel Certificate, in the form of a letter from tenant to Metric
Income Trust Series, Inc., Dated November 30, 1989, is not filed with this
Amendment, as it was not executed. Metric Income Trust Series, Inc. agrees to
provide the Securities and Exchange Commission copies of Said Exhibit to
Estoppel Certificate upon request
56
EXHIBIT L 3
-----------
ESTOPPEL CERTIFICATE
--------------------
Captec Net Lease Relty, Inc.
c/o Captec Financial Group
24 Frank Lloyd Wright Drive, Lobby L, 4th Floor
Ann Arbor, MI 48106
Attention: David Eby
Credit Suisse First Boston Mortgage Capital, L.L.C.
Eleven Madison Avenue
New York, NY 10010-3629
RE: Landlord's Estoppel
Circle K Store NO. 5278, Marietta, Georgia
Dear Sirs:
Pursuant to your request Metric Income Trust Series, Inc., a California
corporation (hereinafter "Landlord"), hereby advises based exclusively upon the
tenant estoppel certificate executed by Circle K Stores, Inc., attached hereto
as Exhibit A (the "Tenant Estoppel"), as of the date hereof, as follows:
1. Circle K Stores Inc. ("Tenant") is the current tenant of the premises
(the "Premises") more particularly described in that certain lease (the "Lease")
dated November 30, 1989, by and between Landlord and National Convenience Stores
Incorporated, Tenant's predecessor in interest.
2. A complete copy of the Lease is attached to the Tenant Estoppel.
3. The term of the Lease commenced on about November 30, 1989, and will
expire on or about November 30, 2009, unless sooner terminated or later extended
in accordance with the terms of the Lease.
4. Tenant has neither given nor received any notices of default with
respect to the Lease, other than those notices, if any, listed on Exhibit "B" to
the Tenant Estoppel with copies of such notices appended thereto.
5. Tenant does not currently have any claims, offsets or defenses
against Landlord, other than the following: None.
57
6. The last payment of rent under the Lease made by Tenant and the
amount thereof, was:
Amount Approximate Date Paid
$11,222.44 November 1, 1997
7. Tenant has not paid rent more than one month in advance.
Very truly yours,
METRIC INCOME TRUST SERIES
INC., a California corporation
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
EXHIBITS TO ESTOPPEL CERTIFICATE
--------------------------------
Exhibits to Estoppel Certificate, in the form of a letter from tenant to Metric
Income Trust Series, Inc., Dated November 30, 1989, is not filed with this
Amendment, as it was not executed. Metric Income Trust Series, Inc. agrees to
provide the Securities and Exchange Commission copies of Said Exhibit to
Estoppel Certificate upon request
58
EXHIBIT M 1
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Circle K Stores, Inc.
3550 N. Central Avenue, 4th Floor
Phoenix, AZ 85012
Attn: Real Estate Administration
RE: Circle K Store Located at 16125 Base Line, Fontana, CA
------------------------------------------------------
This is to notify you that Metric Income Trust Series, Inc., a California
corporation ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to 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) 994-5505
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.
59
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 INCOME TRUST SERIES, INC.,
a California Limited Partnership
By: Kevin M. Howley
---------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY. INC.,
a Delaware Corporation
By: /s/
---
Its: Vice President
--------------
60
EXHIBIT M 2
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Circle K Stores, Inc.
3550 N. Central Avenue, 4th Floor
Phoenix, AZ 85012
Attn: Real Estate Administration
RE: Circle K Store Located at 1801 Orangethorpe, Placentia, CA
----------------------------------------------------------
This is to notify you that Metric Income Trust Series, Inc., a California
corporation ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to 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) 994-5505
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.
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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 INCOME TRUST SERIES, INC.,
a California Limited Partnership
By: Kevin M. Howley
---------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY. INC.,
a Delaware Corporation
By: /s/
---
Its: Vice President
--------------
62
EXHIBIT M 3
-----------
Form of Tenant Notice
---------------------
December 16, 1997
Circle K Stores, Inc.
3550 N. Central Avenue, 4th Floor
Phoenix, AZ 85012
Attn: Real Estate Administration
RE: Circle K Store Located at 2001 Windy Hill Rd., Marietta, GA
-----------------------------------------------------------
This is to notify you that Metric Income Trust Series, Inc., a California
corporation ("Seller"), has sold its fee interest in the property described
above and in connection therewith has assigned its interest as landlord under
your lease to 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) 994-5505
63
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.
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 INCOME TRUST SERIES, INC.,
a California Limited Partnership
By: Kevin M. Howley
---------------
Its: President
---------
BUYER:
------
CAPTEC NET LEASE REALTY. INC.,
a Delaware Corporation
By: /s/
---
Its: Vice President
--------------
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SCHEDULE 1
----------
Schedule of Leases
1. Fontana, California:
--------------------
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.
2. Placentia, California:
----------------------
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. Marietta, Georgia:
------------------
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 study in Seller's possession; and
4. A survey of each Location.
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Unconditional Waivers and Release of Commercial Real Estate Broker's
---------------------------------------------------------------------
Lien (Damon Raike & Company)
- ----------------------------
Unconditional Waivers and Release of Commercial Real Estate Broker's Lien (Damon
Raike & Company) dated December 16, 1997, not filed with this amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Unconditional Waivers and Release of Commercial Real
Estate Broker's Lien (Damon Raike & Company) upon request.
Unconditional Waivers and Release of Commercial Real Estate Broker's
------------------------------------------------------------------------
Lien (Arroyo & Coates)
- ----------------------
Unconditional Waivers and Release of Commercial Real Estate Broker's Lien
(Arroyo & Coates) dated December 16, 1997, not filed with this amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Unconditional Waivers and Release of Commercial Real
Estate Broker's Lien (Arroyo & Coates) upon request.
Unconditional Waivers and Release of Commercial Real Estate Broker's
------------------------------------------------------------------------
Lien (The Royston Group)
- ------------------------
Unconditional Waivers and Release of Commercial Real Estate Broker's Lien (The
Royston Group) dated December 16, 1997, not filed with this amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Unconditional Waivers and Release of Commercial Real
Estate Broker's Lien (The Royston Group) upon request.
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 Seller's
Letter of Instruction to Title Company upon request.
66