EXHIBIT 3.0
XXXXXXX MONEY CONTRACT - COMMERCIAL IMPROVED PROPERTY
THIS CONTRACT FORM HAS BEEN PREPARED AND APPROVED FOR USE IN A TRANSACTION
INVOLVING THE SALE OF IMPROVED COMMERCIAL PROPERTY. SUCH APPROVAL RELATES TO
THIS CONTRACT FORM ONLY. THIS FORM HAS NOT BEEN DRAFTED FOR A SPECIFIC
TRANSACTION AND NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY
OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. TERMS AND PROVISIONS THAT ARE NOT
APPLICABLE SHOULD BE STRICKEN BY THE PARTIES. THE PARTIES ARE ADVISED TO CONSULT
THEIR ATTORNEYS BEFORE SIGNING.
1. PARTIES: METRIC REAL ESTATE, L.P., a California limited partnership
("Seller"), agrees to sell and convey to XXXXXXX XXXXXXXXXX, an
individual ("Buyer"), and Buyer agrees to buy from Seller, the
following property for the consideration and upon and subject to the
terms, provisions, and conditions hereinafter set forth.
2. PROPERTY: A parcel of land located at 0000 Xxxxxxxxx Xxxxxxx, xx xxx
Xxxx xx Xxxxxx, Xxxxxx of Dallas, State of Texas and more particularly
described as set forth on Exhibit A attached hereto and incorporated
herein ("Land"); together with all buildings, improvements, fixtures,
and all property of every kind and character and description owned by
Seller located on or attached to the Land ("Improvements"); all
privileges, and appurtenances pertaining thereto including any right,
title and interest of Seller in and to adjacent streets, alleys, or
rights-of-way; Seller's interest in and to all licenses and permits
with respect to the Property, Seller's interest in all leases, service,
maintenance, management or other contracts relating to the ownership or
operation of the Property; Seller's interest in all warranties or
guaranties relating to thereto or to any tangible personal property and
fixtures located on or attached to the Land or Improvements; all of the
above hereinafter collectively called "Property".
3. CONTRACT SALES PRICE:
A. Cash payable at closing (inclusive of
Deposit described in Paragraph 5) $1,392,420
B. Amount of Third Party Financing
(see Paragraph 4) $0.00
C. Total Sales Price (Sum of A and B) $1,392,420
4. THIRD PARTY FINANCING: If Paragraph 3B is applicable, Buyer's
obligation to purchase the Property pursuant to this Contract is
subject to approval of a loan to Buyer by a third party in the minimum
amount specified in Paragraph 3B above at an interest rate and upon
terms reasonably acceptable to Buyer. Buyer shall use reasonable
efforts to obtain loan approval. This loan approval contingency shall
be satisfied or waived in writing by Buyer on or before the end of the
Inspection Period (as defined below). This Contract shall automatically
terminate upon close of business on the Loan Approval Date unless Buyer
has in writing acknowledged receipt of loan approval or waived this
loan approval contingency. All fees and costs relating to such loan
shall be paid by Buyer.
5. XXXXXXX MONEY: As a condition precedent to the validity of this
Contract, Buyer tenders herewith the sum of $50,000 to be deposited as
xxxxxxx money in escrow with Chicago Title Insurance Company, 000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx, Attn: Xxxx
Xxxxxx-Xxxxx ("Title Company"), and placed in an interest bearing
account, upon execution of the Contract by both parties. The amount so
deposited and any interest earned thereon is hereinafter referred to as
the "Deposit". Upon expiration of the Inspection Period (as defined
below), except as expressly provided to the contrary in this Contract,
the Deposit shall become non-refundable to Buyer except in the event of
Seller's default in the performance of its obligations under this
Contract.
6. CLOSING: The closing of the sale ("Closing") shall take place at the
Title Company on or before 5 p.m., on March 28, 1997 ("Closing Date"),
unless such date is changed in writing by Seller and Buyer, or
otherwise extended as herein provided.
A. At the Closing, Seller shall deliver to escrow, at Seller's
sole cost and expense, the following:
(1) A duly executed and acknowledged Special Warranty
Deed conveying good and indefeasible title in fee
simple to all of the Land and Improvements, subject
to the Approved Title Matters (as such term is
defined in Paragraph 12 hereof) and/or as otherwise
approved by Buyer in writing;
(2) A Xxxx of Sale conveying title, free and clear of all
liens, to any personal property specified herein and
to the extent assignable, licenses and permits,
maintenance, management or other contracts,
warranties or guaranties if any, duly executed by
Seller;
(3) Evidence of its capacity and authority for the
Closing of this transaction;
(4) Original (or copy if the original is unavailable) of
that certain lease dated November 30, 1989 by and
between Seller and National Convenience Stores
Incorporated ("Tenant"), as amended (the "Lease");
(5) Certification of Seller's non-foreign status;
(6) A tenant notice letter advising Tenant of the
transfer of the Property and the disposition of its
security deposit ("Tenant Notice");
(7) An Assignment of Lease in the form provided by Seller
to Buyer ("Lease Assignment"); and
(8) All other necessary documents to close this
transaction as may be reasonably requested by Title
Company.
B. At the Closing, Buyer shall deliver to escrow, at Buyer's sole
cost and expense, the following:
(1) The total Sales Price;
(2) Evidence of its capacity and authority for the
Closing of this transaction;
(3) Tenant Notice;
(4) Lease Assignment; and
(5) All other necessary documents to close this
transaction as may be reasonably requested by Title
Company.
C. At the Closing, Title Company shall issue to Buyer its Owner's
Standard Coverage Policy of title insurance ("Title Policy")
in the full amount of the Sales Price, dated as of the Closing
Date, insuring Buyer's fee simple title to the Land and
Improvements subject only to the standard printed exceptions
contained in the usual form of Title Policy, non-delinquent
real property taxes and assessments, Approved Title Matters
and such other matters as Buyer may approve in writing;
provided, however, that Buyer shall be solely responsible for
the cost of any coverage in excess of that afforded by the
standard form of Title Policy.
7. FEASIBILITY STUDY AND INSPECTION: Buyer is granted the right to conduct
an engineering, and/or market and economic feasibility studies of the
Property, and a physical inspection of all improvements, fixtures,
mechanical equipment, and personal property being sold hereby
(collectively, "Inspections"). Buyer shall have from the Effective Date
through 5 P.M. on February 28, 1997 ("Inspection Period") to perform
such Inspections and in this regard, Buyer or his designated agents may
enter upon the Property upon reasonable notice at reasonable times for
purposes of such analysis, tests and inspections which may be deemed
necessary by Buyer. If Buyer determines, in his sole judgment, that the
Property is not suitable for any reason for Buyer's intended use or
purpose, or is not in satisfactory condition, then Buyer may, by
written notice to Seller ("Disapproval Notice") on or before the end of
the Inspection Period, terminate this Contract for all purposes (except
as provided herein) and the Deposit shall be returned to Buyer, less
(i) the sum of $100 to be delivered to and retained by Seller as
consideration for this Contract, which consideration is deemed earned
as of the date of this Contract, and (ii) any escrow or title
cancellation fees or charges of Title Company. If Buyer does not give
the Disapproval Notice prior to expiration of the Inspection Period,
any and all objections with respect to the Inspections and to the
condition and suitability of the Property shall be deemed to have been
waived by Buyer for all purposes. In the event the transaction
contemplated in this Contract shall not close, through no fault of
Seller, Buyer shall restore the Property to its original condition, if
changed due to the tests and inspections performed by Buyer, and shall
provide Seller with a copy of the results of any tests and inspections
made by Buyer, excluding any market and economic feasibility studies.
All Inspections shall be at Buyer's expense and Buyer shall indemnify,
protect, defend and hold Seller harmless from and against any damages,
liabilities, claims, demands, costs or expenses arising therefrom
(Buyer's obligations pursuant to this sentence shall survive Closing or
termination of this Contract).
BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT THE ATTACHED ADDENDUM IS A
PART OF THIS CONTRACT AND SHALL BE APPLICABLE TO THE TRANSACTION
CONTEMPLATED HEREIN.
8. BROKER'S FEE: Xxxxxx & Xxxxxx, as broker ("Broker") is appropriately
licensed as a real estate broker as required by law has negotiated the
transaction contemplated in this Contract. Seller agrees to pay Broker
its fee in accordance with Seller's separate agreement with Broker.
Each of the parties represents to the other that it has not incurred
any liability for brokerage fees or commission in connection with this
transaction other than the liability of Seller as set forth above. Each
party indemnifies and agrees to hold the other party harmless from any
and all claims and/or expense resulting to the other party by reason of
a breach of the representation made by such party herein.
9. POSSESSION: The possession of the Property shall be delivered to Buyer
at Closing in its present "as-is" condition, ordinary wear and tear
excepted, subject to the rights of the tenant therein.
10. SALES EXPENSES TO BE PAID IN CASH AT OR PRIOR TO CLOSING: The following
items will paid as follows:
Item Seller Buyer Split 50/50
---- ------ ----- -----------
Escrow fees ___ ___ _X_
Recording fees _X_ ___ ___
Transfer taxes _X_ ___ ___
Title Policy (standard) _X_ ___ ___
Survey fees _X_ ___ ___
Doc. Prep. fees ___ ___ _X_
Phase I Report _X_ ___ ___
Deletion of Standard Survey Exception _X_ ___ ___
____________________ ___ ___ ___
____________________ ___ ___ ___
Each party shall be solely responsible for its own attorneys' fees in
connection with this transaction; provided, however, that Buyer shall
pay any and all of Seller's reasonable attorneys' fees, if any,
attributable to any Exchange (as defined in the Addendum).
11. PRORATIONS: Rents, assessments, current taxes, utility charges and
maintenance fees and all other ordinary operating items of income and
expense relating to the Property shall be prorated at the date of
Closing with the day of Closing being for the account of the Buyer. If
ad valorem taxes for the year in which the sale is closed are not
available on the Closing Date, proration of taxes shall be made on the
basis of taxes assessed in the previous year, with a subsequent cash
adjustment of such proration to be made between Seller and Buyer, if
necessary, when actual tax figures are available.
12. TITLE APPROVAL: Within ten (10) days of the Effective Date of this
Contract, Seller shall deliver to Buyer a Commitment for Title
Insurance or Preliminary Title Report, as applicable, issued by Title
Company (the "Commitment") and, to the extent available, legible copies
of all recorded instruments noted as exceptions in the Commitment, (and
a survey of the Land and Improvements). If Buyer has an objection to
items disclosed in such Commitment or shown on the survey, Buyer shall
have until the end of the Inspection Period to make written objections
to Seller. Any items disclosed in such Commitment or shown on the
survey if not timely objected to by Buyer shall be deemed approved
("Approved Title Matters").
If Buyer makes such written objections, Seller shall have thirty (30)
days from the date of such written notice to cure the same. If
required, the Closing Date shall be extended to allow such cure;
provided, however, that the Closing Date shall not be extended beyond
the aforementioned 30-day cure period unless otherwise agreed by Buyer
and Seller. Closing to cure the same. Seller agrees to utilize
reasonable efforts and reasonable diligence to cure such objections, if
any, provided that Seller shall not be required to expend more than
$1,000 to do so. If the objections are not cured within such time
period, Buyer may (i) terminate this Contract upon written notice to
Seller in which event the Deposit shall be returned to Buyer and
neither party shall have any further rights or obligations pursuant to
this Contract except as otherwise provided above, or (ii) waive the
unsatisfied objections and close the transaction and the Sales Price
shall not be reduced.
13. DEFAULT: If Buyer fails to perform its obligations under this Contract,
Seller may, at its option, terminate this Contract and receive and
retain the Deposit as liquidated damages. If Seller fails to perform
its obligations under this Contract, Buyer may terminate this Contract
and the Deposit shall be returned to Buyer and Buyer shall be entitled
to recover from Seller as liquidated damages Buyer's reasonable out of
pocket costs and expenses incurred in connection with the transaction
contemplated herein up to a maximum of $2,000. Buyer and Seller
acknowledge and agree that the damages sustained by either party in the
event of default by the other party hereto would be difficult and
impractical to determine and the amounts specified above have been
agreed upon by Buyer and Seller, after negotiation, as their best
reasonable estimate as of the date of this Contract of the amount of
such damages as would be sustained by the non-defaulting party under
such circumstances. Specific performance is waived by both parties
hereto.
Buyer (/s/ FC) and Seller (/s/ RZ) agree to the above.
14. ATTORNEYS' FEES: The prevailing party in any legal proceeding against
any other party hereto brought under or with relation to the Contract
or transaction shall be entitled to recover court costs and reasonable
attorneys' fees from the non-prevailing party.
15. ADDITIONAL DOCUMENTS TO BE PROVIDED BY SELLER: At the times set forth
in the attached Addendum, Seller shall deliver to Buyer copies of
certain additional documents and information relating to the Property.
16. COVENANTS OF SELLER: From the Effective Date of this Contract until the
Closing Date or earlier termination of this Contract, Seller shall: (i)
operate the Property in the customary and ordinary course of its
business and will use its reasonable efforts to reasonably preserve for
Buyer the relationships of Seller and its suppliers, tenants and others
with respect to the Property; (ii) without the prior written consent of
Buyer (which consent will not be unreasonably withheld), not enter into
any written or oral service contract or other agreement with respect to
the Property that will not be fully performed by Seller on or before
the Closing Date, or that will not be cancelable by Buyer without
liability within thirty (30) days after the Closing Date; (iii) without
the prior written consent of Buyer (which consent will not be
unreasonably withheld), not enter into, or alter, amend or otherwise
modify, or supplement any lease; (iv) advise Buyer promptly of any
litigation, arbitration, administrative hearing, or legislation before
any governmental body or agency of which Seller receives written
notice, concerning or affecting the Property which is instituted or
threatened after the date hereof; and (v) make commercially reasonable
efforts to obtain from each tenant at the Property an estoppel
certificate confirming the status and terms of such tenant's lease.
17. CONDEMNATION: If prior to Closing Date condemnation proceedings are
commenced against any material portion of the Property, Buyer may, at
its option, terminate this Contract by written notice to Seller within
ten (10) days after Buyer is advised of the commencement of
condemnation proceedings and the Deposit shall be refunded to Buyer.
Alternatively, Buyer shall have the right to appear and defend in such
condemnation proceedings, and any award in condemnation shall, at the
Buyer's election made prior to Closing, become the property of Seller
and reduce the Sales Price by the same amount or shall become the
property of Buyer and the Sales Price shall not be reduced.
18. CASUALTY LOSS: Except as specifically provided herein, this Contract
shall remain in full force and effect notwithstanding the occurrence of
any damage or destruction of the Property prior to closing. In the
event of any damage or destruction for which the tenant under the
existing lease is not obligated under the lease to repair or restore
the Property, Seller shall promptly provide Buyer with written notice
of whether or not Seller, in its sole and absolute discretion, elects
to cause such damage or destruction to be repaired prior to closing
("Seller's Notice"). If Seller so elects to repair such damage or
destruction, the closing shall be delayed for such reasonable period as
may be required to allow Seller to complete such repairs at which time
the transaction will close and the Sales Price shall not be reduced. If
Seller elects not to repair such damage or destruction, Buyer, at its
option may either (i) terminate this Contract upon written notice to
Seller within ten (10) days after Buyer receives Seller's Notice in
which event the Deposit shall be returned to Buyer and neither party
shall have any further rights or obligations pursuant to this Contract
except as otherwise provided above, or (ii) elect to close the
transaction, in which event Seller's right to all insurance proceeds
resulting from such damage or destruction shall be assigned in writing
by Seller to Buyer and the Sales Price shall not be reduced.
19. MISCELLANEOUS:
A. Any notice required or permitted to be delivered hereunder
shall be deemed received when personally delivered or one (1)
business day after being sent by Federal Express or other
nationally recognized overnight delivery service, charges
prepaid, or three (3) business days after being sent by United
States mail, postage prepaid, certified mail, return receipt
requested, in each case addressed to Seller or Buyer, as the
case may be, at the address set forth below the signature of
such party hereto.
B. This Contract shall be construed under and in accordance with
the laws of the state in which the Property is located.
C. This Contract shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors,
administrators, legal representatives,successors, and assigns.
D. In case any one or more the provisions contained in the
Contract shall for any reason be held to be invalid, illegal,
and unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision
hereof, and this Contract shall be construed as if such
invalid, illegal, or unenforceable provision had never been
contained herein.
E. This Contract constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the
within subject matter and cannot be changed except by their
written consent.
F. Time is of the essence of this Contract.
G. Words of any gender used in this Contract shall be held and
construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice
versa, unless the context requires otherwise.
20. ASSIGNMENT: Buyer may not assign this Contract without the prior
written consent of Seller which Seller may grant or withhold in its
sole and absolute discretion.
21. CONSULT YOUR ATTORNEY: THIS IS INTENDED TO BE A LEGALLY BINDING
CONTRACT. READ IT CAREFULLY. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY ANY BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE
TRANSACTION RELATING THERETO. THESE ARE QUESTIONS FOR YOUR ATTORNEY.
CONSULT YOUR ATTORNEY BEFORE SIGNING.
EXECUTED in multiple originals as of the 7th day of February, 1997 (the
"Effective Date"). (Fill in date Seller signs.)
BROKER: SELLER:
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XXXXXX & XXXXXX, METRIC REAL ESTATE, L.P.,
a_____________________________________ a California limited partnership
By: MR, Inc., a California corporation
By: /s/ Its: General Partner
----------------------------------
Its: CFO
----------------------------------
State/License No. 00995512 By: /s/ Xxxxxx X. Xxxxxx
--------------------- -------------------------------
Its: Xxxxxx X. Xxxxxx
-------------------------------
Executive Vice President
BUYER:
------
/s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
XXXXXXX XXXXXXXXXX
Receipt of $50,000 as the Deposit
is acknowledged in the form
of____________________________________.
Contract only Received by:
TITLE COMPANY:
--------------
CHICAGO TITLE INSURANCE COMPANY
By: /s/ XX Xxxxxx-Xxxxx
----------------------------------
Its: Sr. Escrow Officer
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EXHIBIT 3.1
ADDENDUM
TO
XXXXXXX MONEY CONTRACT-COMMERCIAL IMPROVEMENT PROPERTY
This Addendum To Xxxxxxx Money Contract - Commercial Improved Property (this
"Addendum") is made concurrently with and forms a part of that certain Xxxxxxx
Money Contract - Commercial Improved Property (the "Contract") executed this
date between METRIC REAL ESTATE, L.P., a California limited partnership
("Seller"), and XXXXXXX XXXXXXXXXX, an individual ("Buyer"). In addition to and
notwithstanding anything to the contrary contained in the Contract, Seller and
Buyer further agree as follows:
1. Except as otherwise expressly provided in the Contract or this
Addendum, Seller disclaims the making of any representations or
warranties, express or implied, regarding the Property or its value,
condition of title, physical condition (including, without limitation,
pest control, hazardous substances or environmental matters),
compliance with laws (including, without limitation, the Americans With
Disabilities Act of 1990 or other laws respecting building, zoning or
land use matters) the Lease, the financial condition of Tenant or any
other matters or information with respect to the Property.
Notwithstanding the foregoing, Seller hereby represents and warrants to
Buyer that Xxxxxx X. Xxxxxx, the authorized agent of Seller, based
solely upon inquiry, by means of the Inquiry Memorandum attached hereto
as Exhibit B (the "Inquiry Memorandum"), of the individuals listed
thereon, each of whom by virtue of their positions with the advisor are
likely to have relevant knowledge about the Property and each of whom
responded to such Inquiry Memorandum, and without any independent
investigation or further inquiry, has no actual knowledge, as of the
date hereof, except as specifically set forth in Exhibit B-1 attached
hereto and incorporated herein by reference, that:
a. Seller has received any written notice from any governmental
authorities that eminent domain proceedings for the
condemnation of the Real Property are pending;
b. Seller has received any written notice of any threatened or
pending litigation against Seller which would materially and
adversely effect to the Real Property;
c. Seller has received any written notice from any governmental
authority that the Improvements located on the Land are
presently in violation of any applicable building codes; and
d. Seller has received any written notice from any governmental
authority that Seller's use of the Property is presently in
violation of any applicable zoning, land use, environmental or
other law, order, ordinance, rule or regulation affecting the
Property.
e. During the time that Seller has owned the Property, Seller has
used, or Seller has received any written notice from any
government authority that any third party has used, generated,
manufactured, produced, stored or disposed of on, under or
about the Property, any hazardous materials as defined by
applicable state or federal laws, in violation of any of those
laws.
f. Seller has received any written notice from any governmental
authority with respect to any proceedings or inquiries by any
such governmental authority with respect to the presence of
hazardous materials on the Property.
2. In addition to the materials to be provided by Seller as provided in
the Contract, Buyer acknowledges that Seller has delivered to Buyer, or
shall within five (5) days hereafter (or at such other time specified
below) deliver to Buyer, a copy of each of the following items:
Items Already Delivered by Seller
a. NCS Store Lease
b. Commitment for title insurance dated September 17, 1996
prepared by Chicago Title Insurance Company
c. Phase I Environmental Site Assessment and Limited Asbestos
Survey dated October 25, 1996 prepared by Law Engineering; and
d. Assignment and Assumption Agreement dated December 15, 1989
between Metric Income Trust Services, Inc. and Metric Real
Estate L.P.
Additional Items to be Delivered by Seller
a. A survey of the Property (sufficient to enable the Title
Company to issue Buyer an ALTA Owner's policy of title
insurance or its equivalent) within three (3) business days of
Seller's receipt of the same;
3. Buyer acknowledges and agrees that (i) Buyer has made or has had, or
will have, an adequate opportunity to make such inquiries, inspections,
tests and evaluations of the Property (including, without limitation,
its value, condition of title, physical condition, environmental
condition and compliance with laws) as Buyer has deemed necessary or
advisable, (ii) Buyer is not relying and will not rely upon any
representations or warranties respecting the Property (other than
those, if any, specifically provided in the Contract) made by or on
behalf of Seller, (iii) Buyer is assuming and shall assume the risk
that adverse conditions relating to the Property may not have been or
may not be revealed by Buyer's investigation of the Property, and (iv)
Buyer is purchasing and shall purchase the Property in its "AS-IS"
condition and WITH ALL FAULTS on the Closing Date.
BUYER REPRESENTS TO SELLER THAT BUYER SHALL CONDUCT ALL INSPECTIONS
BUYER DEEMS NECESSARY, UNDERSTANDING THAT THE CONVEYANCE OF THE
PROPERTY SHALL BE "AS-IS", "WHERE-IS", "WITH ALL FAULTS", AND THAT
SELLER IS RELYING UPON THE FACT THAT BUYER WILL CONDUCT SUCH
INSPECTIONS (INCLUDING WITHOUT LIMITATION SOIL TESTS, ASBESTOS TESTS,
HAZARDOUS WASTE ANALYSES, AND ANY OTHER ENVIRONMENTAL INVESTIGATIONS)
AS BUYER DEEMS NECESSARY. BUYER WARRANTS THAT BUYER HAS EXPERIENCE IN
SUCH MATTERS AND THAT BUYER WILL EXERCISE DUE DILIGENCE AND GOOD FAITH
IN MAKING A FULL AND COMPLETE INSPECTION, INVESTIGATION AND REVIEW AS
AFORESAID. IT IS UNDERSTOOD THAT THE SALES PRICE REFLECTS THAT THE
PROPERTY IS BEING SOLD BY SELLER AND THAT BUYER IS ACQUIRING THE
PROPERTY "AS IS" AND "WHERE IS" AND "WITH ALL FAULTS" AND THAT SELLER
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION,
EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS
REGARDING DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE
OF ANY HAZARDOUS MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR
ANY OTHER MATTER OR THING AFFECTING OR RELATED TO THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF HABITABILITY OR
SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF FITNESS FOR A
PARTICULAR PURPOSE),WHICH MIGHT BE PERTINENT IN CONSIDERING THE MAKING
OF THE PURCHASE OF THE PROPERTY, AND BUYER, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE SELLER AND SELLER'S SUCCESSORS AND
ASSIGNS FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER
BASED IN TORT, CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN
PART, TO ANY SUCH REPRESENTATION AND/OR ALLEGED REPRESENTATION.
4. Buyer further acknowledges and agrees that except for any claims
arising out of breach of the specific provisions of the Contract,
Seller's intentional misrepresentations, or fraud, Buyer expressly,
irrevocably and unconditionally waives, releases and discharges Seller,
its agents, partners, advisors, affiliates, successors and assigns,
from any and all rights, claims, damages and causes of action, whether
at law or in equity, whether or not known or unknown as of the date
hereof and/or as of the Closing Date, which Buyer may have or become
entitled to assert arising out of Buyer's purchase of the Property or
its value, condition or title, physical condition, environmental
condition, compliance with laws, or other matters respecting the
Property.
5. Buyer agrees that, unless Buyer has obtained the prior written consent
of Seller, Buyer shall not directly or indirectly release, publish or
otherwise distribute any report, prospectus, advertisement, circular or
other document which names or refers in any manner directly or
indirectly to Seller, Metric Realty or any of their respective agents,
advisors or affiliates.
6. Seller agrees that Buyer may consummate the purchase of the Property as
part of a so-called like kind exchange (the "Exchange") pursuant to
Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), provided that: (i) the closing shall not be delayed or
affected by reason of the Exchange nor shall the consummation or
accomplishment of the Exchange be a condition precedent or condition
subsequent to Buyer's obligations under this Agreement; (ii) the
Exchange shall be consummated or accomplished through a qualified
intermediary; and (iii) Seller shall not be required to take an
assignment of the sale and purchase agreement for the exchange property
for purposes of consummating or accomplishing the Exchange. Buyer shall
pay all Seller's costs associated with such Exchange. Neither party
shall by this Agreement or acquiescence to the Exchange (1) have its
rights, duties, obligations or liabilities under this Agreement
affected or diminished in any manner, or (2) be responsible for
compliance with or be deemed to have warranted to the other party that
the Exchange in fact complies with Section 1031 of the Code.
7. Seller shall use commercially reasonable efforts to obtain an estoppel
certificate from Tenant in a form reasonably satisfactory to Buyer on
or before the end of the Inspection Period provided, however, that
Seller's delivery of an estoppel certificate from Tenant shall not be a
condition to Buyer's obligation to close the sale and purchase of the
Property. If Seller is unable to obtain the estoppel certificate from
Tenant on or before the end of the Inspection Period, then Buyer shall
accept Seller's estoppel certificate in the form attached hereto as
Exhibit C in lieu thereof and shall close the purchase and sale of the
Property on the basis thereof. In the event that Seller is subsequently
able to obtain an estoppel certificate from Tenant (without in any way
implying any duty of Seller to do so), and delivers same to Buyer, then
from and after the date of such delivery, Seller's estoppel certificate
shall be of no further force or effect. The provision of this paragraph
7 shall survive the close of escrow.
BUYER (/s/ FC) AND SELLER (/s/ RZ) AGREE TO THE FOREGOING.
EXHIBIT 3.1a
LEGAL DESCRIPTION
BEING a tract of land situated in the City of Dallas, Dallas County, Texas, in
the X. Xxxxxx Survey, Abstract No. 1113, and being all of Lot 1-A, Block A/5785
of NCS Northwest Highway Addition, an addition to the City of Dallas, Dallas
County, Texas, according to the plat recorded in Volume 86042, Page 4245, Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod set in the Northeast line of Northwest Highway,
said point being North 45 deg. 56 min. 28 sec. West, a distance of 14.72 feet
from the intersection of the Northeast line of Northwest Highway (100 foot
R.O.W.) and the Northwest line of Xxxx Chapel Extension (100 foot R.O.W.);
THENCE along the Northeast line of Xxxxxxxxx Xxxxxxx Xxxxx 00 deg. 56 min. 28
sec. West, a distance of 138.68 feet to an "X" in concrete found for corner,
said point being the most Westerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northwest line of said Xxx 0-X, Xxxxx X/0000, Xxxxx 00 xxx. 07
min. 40 sec. East, a distance of 169.0 feet to a PK nail found for corner, said
point being the most Northerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northeast line of said Xxx 0-X, Xxxxx X/0000 Xxxxx 00 xxx. 52
min. 20 sec. East, a distance of 153.64 feet to an "X" in concrete found for
corner lying in the Northwest line of Xxxx Chapel Extension, said point also
lying at the beginning of a curve to the left having a central angle of 00 deg.
57 min. 03 sec., a radius of 1950.0 feet, and a tangent bearing of South 46 deg.
04 min. 43 sec. West;
THENCE along the Northwest line of Xxxx Chapel Extension along said curve to the
left an arc distance of 32.36 feet to a 1/2 inch iron rod set for corner;
THENCE South 45 deg. 07 min. 40 sec. West, a distance of 119.06 feet to the
beginning of a tangent curve to the right having a central angle of 88 deg. 55
min. 52 sec., a chord bearing of South 89 deg. 35 min. 37 sec. West, a chord
bearing of South 89 deg. 35 min. 37 sec. West, and a chord distance of 21.01
feet, and a radius of 15.0 feet;
THENCE along said curve to the right an arc distance of 23.28 feet to THE POINT
OF BEGINNING AND CONTAINING 25,657.79 square feet or 0.5890 acres of land, more
or less.
EXHIBIT 3.1b
Inquiry Memorandum
To: LEGAL PORTFOLIO CLIENT SERVICES
----- -------------------------
Xxxx Xxxxxxxx, EVP, Xxxxxxx Xxxxxxx, VP, Operations/
General Counsel Investor Services
PORTFOLIO MANAGEMENT PORTFOLIO ACCOUNTING
-------------------- --------------------
Xxxxxx Xxxxxx, EVP, CIO Chui-San Lok, Asst. Controller -
Xxxxxx Xxxxxxx, SVP, Portfolio
Dir. of Portfolio Mgmnt.
Xxxxxxx Xxxxx, Portfolio Manager cc: Xxxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxxxx, Asst. Property Sales Closing File
Portfolio Manager
RISK MANAGEMENT
---------------
Xxxxxx Xxxxxxxxx,
Risk Manager
FROM: Xxxxxx Xxxxxx
DATE: February 7, 1997
SUBJECT: Internal Due Diligence
NCS Store (Stop N Go)
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx
Metric Real Estate, L.P.
RESPONSE MANDATORY
------------------------------------------------------------------------------
Pursuant to the proposed Xxxxxxx Money Contract - Commercial Improved Property
by and between METRIC REAL ESTATE, L.P., a California limited partnership
("Seller"), and Xxxxxxx Xxxxxxxxxx, an individual ("Buyer"), we are required to
provide a certification to the Buyer relative to our knowledge of certain
conditions which may affect the property.
Please carefully read and review the attached. They are the pages from the
contract which outline the warranties and representations we will be making as
of the signing date. If you currently have knowledge of any facts which would
make these representations untrue or incorrect, please immediately advise Xxxx
Xxxxx. If you have no such knowledge, please advise accordingly. Please send
your signed copy of this statement to Xxxx Xxxxx. We must have your response
immediately, as the contract is scheduled to be executed today.
Should you become aware of any fact which would make these representations
untrue prior to the closing date, please contact me immediately.
I have no knowledge of any facts which would make the attached representations
untrue as of this date as noted below.
EXCEPTIONS:
None
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx
--------------------- -------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ X.X. Xxxxxxxx \s\ Xxxxxx X. Xxxxxx \s\Xxxxxx X. Xxxxxxxxx
--------------------- -------------------- ----------------------
Signature Signature Signature
02-07-97 02-07-97 02-11-97
--------------------- -------------------- ----------------------
Date Date Date
Xxxxxx Xxxxxxx Xxxxxxx Xxxxx Chui-San Lok
--------------------- -------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ Xxxxxx Xxxxxxx \s\ Xxxxxxx Xxxxx \s\ Chui-San Lok
--------------------- -------------------- ----------------------
Signature Signature Signature
02-07-97 02-07-97 02-07-97
--------------------- -------------------- ----------------------
Date Date Date
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxx
--------------------- --------------------
Printed Name Printed Name
\s\ Xxxxxxx X. Xxxxxxx \s\ Xxxxx Xxxxxxx
--------------------- --------------------
02-06-97 02-07-97
--------------------- --------------------
Date Date
EXHIBIT 3.1b
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
[to be attached]
EXHIBIT 3.2
WHEN RECORDED, RETURN TO: -CH97-194460
77-$19.00
Xxxxxxx Xxxxxxxxxx
c/o The Xxxxxxxxxx Company
000 X Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
SPECIAL WARRANTY DEED
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by XXXXXXX XXXXXXXXXX, whose
mailing address is c/o The Xxxxxxxxxx Company 000 X Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000 (herein called "Grantee", whether one or more), the receipt and
sufficiency of which are hereby acknowledged, has, GRANTED, SOLD and CONVEYED
and by these presents does hereby GRANT, SELL and CONVEY unto Grantee the real
property in Dallas County, Texas, together with all rights and appurtenances
thereto (the "Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALITY, PHYSICAL
CONDITION, EXPENSES, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE
WITH AMERICANS WITH DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF HAZARDOUS
MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY OR SUITABILITY OR WARRANTIES OF MERCHANTABILITY AND/OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS ASSIGNS
FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT,
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
Grantee, by acceptance hereof, does hereby assume and agree to pay all
ad valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 24th day of February, 1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Its: Xxxxxx X. Xxxxxxxx
-----------------------
President
THE STATE OF California
COUNTY OF San Francisco
This instrument was acknowledged before me on the 24th day of February,
1997, by Xxxxxx X. Xxxxxxxx, the President of M.R., Inc., a California
corporation, on behalf of said limited partnership.
/s/ Xxxx X. Xxxxx
-----------------------
Notary Public
EXHIBIT 3.2a
DESCRIPTION
BEING a tract of land situated in the City of Dallas, Dallas County, Texas, in
the X. Xxxxxx Survey, Abstract No. 1113, and being all of Lot 1-A, Block A/5785
of NCS Northwest Highway Addition, an addition to the City of Dallas, Dallas
County, Texas, according to the plat recorded in Volume 86042, Page 4245, Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod set in the Northeast line of Northwest Highway,
said point being North 45 deg. 56 min. 28 sec. West, a distance of 14.72 feet
from the intersection of the Northeast line of Northwest Highway (100 foot
R.O.W.) and the Northwest line of Xxxx Chapel Extension (100 foot R.O.W.);
THENCE along the Northeast line of Xxxxxxxxx Xxxxxxx Xxxxx 00 deg. 56 min. 28
sec. West, a distance of 138.68 feet to an "X" in concrete found for corner,
said point being the most Westerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northwest line of said Xxx 0-X, Xxxxx X/0000, Xxxxx 00 xxx. 07
min. 40 sec. East, a distance of 169.0 feet to a PK nail found for corner, said
point being the most Northerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northeast line of said Xxx 0-X, Xxxxx X/0000 Xxxxx 00 xxx. 52
min. 20 sec. East, a distance of 153.64 feet to an "X" in concrete found for
corner lying in the Northwest line of Xxxx Chapel Extension, said point also
lying at the beginning of a curve to the left having a central angle of 00 deg.
57 min. 03 sec., a radius of 1950.0 feet, and a tangent bearing of South 46 deg.
04 min. 43 sec. West;
THENCE along the Northwest line of Xxxx Chapel Extension along said curve to the
left an arc distance of 32.36 feet to a 1/2 inch iron rod set for corner;
THENCE South 45 deg. 07 min. 40 sec. West, a distance of 119.06 feet to the
beginning of a tangent curve to the right having a central angle of 88 deg. 55
min. 52 sec., a chord bearing of South 89 deg. 35 min. 37 sec. West, a chord
bearing of South 89 deg. 35 min. 37 sec. West, and a chord distance of 21.01
feet, and a radius of 15.0 feet;
THENCE along said curve to the right an arc distance of 23.28 feet to THE POINT
OF BEGINNING AND CONTAINING 25,657.79 square feet or 0.5890 acres of land, more
or less.
ALSO KNOWN AS See Exhibit A1 attached and made a part hereof
EXHIBIT 3.2b
EXHIBIT A1
BEING a 25,658 square foot (0.5890 acre) tract of land situated in the X. Xxxxxx
Survey, Abstract Number 1113 in the City of Dallas, Dallas County, Texas and
being all of Lot 1-A, Block A/5785 of NCS Northwest Highway Addition, an
Addition to the City of Dallas, Dallas County, Texas, according to the Plat
thereof recorded in Volume 86042, Page 4245, of the Deed Records of Dallas
County, Texas and being all the certain tract of land conveyed to Metric Real
Estate, L.P., as evidenced by warranty deed recorded in Volume 90030, Page 0012,
of the Deed Records of Dallas, Dallas County, Texas, being more particularly
described by metes and bounds as follows:
BEGINNING at a chiseled "X" in concrete found for the common most westerly
corner of said Lot 1-A and the most southerly southwest corner of Lot 1-B, of
said Block A/5785 in said NCS Northwest Highway Addition and being in the
northeast right-of-way line of W. Northwest Highway (having a 100 foot
right-of-way);
THENCE North 45 degrees 07 minutes 40 seconds East, departing the northeast
right-of-way of said W. Northwest Highway and with the common northwest line of
said Lot 1-A and the most westerly southeast line of said Lot 1-B, a distance of
169.00 feet to a "PK" nail in concrete found for the most northerly corner of
said Lot 1-A;
THENCE South 44 degrees 52 minutes 20 seconds East, with the northeast line of
said Lot 1-A and the most easterly southwest line of said Lot 1-B, a distance of
153.64 feet to a chiseled "X" in concrete found for the common most easterly
corner of said Lot 1-A and the most southerly southeast corner of said Lot 1-B
and being in the northwest right-of-way line of Xxxx Chapel Extension (having a
right-of-way of 100 foot) and in the arc of a curve to the left having a radius
of 1950.00 feet;
THENCE with the arc of said curve to the left having a central angle of 00
degrees 57 minutes 03 seconds, a radius of 1950.00 feet, an arc length of 32.36
feet, whose chord bears South 45 degrees 36 minutes 11 seconds West, with the
common southeast line of said Lot 1-A and the northwest right-of-way line of
said Xxxx Chapel Extension, a chord distance of 32.36 feet to a 1/2 inch iron
rod found for a point of tangency;
THENCE South 45 degrees 07 minutes 40 seconds West, continuing with the common
southeast line of said Lot 1-A and the northwest right-of-way line of said Xxxx
Chapel Extension, a distance of 119.06 feet to a 5/8 inch iron rod set for
corner in the arc of a curve to the right having a radius of 15.00 feet;
THENCE with the arc of said curve to the right having a central angle of 88
degrees 55 minutes 52 seconds, a radius of 15.00 feet, an arc length of 23.28
feet, whose chord bears South 89 degrees 35 minutes 36 seconds West, with the
south line of said Lot 1-A and with the north right-of-way line of said Xxxx
Chapel Extension, a chord distance of 21.01 feet to a 1/2 inch iron rod found
for a point of tangency in the common southwest line of said lot 1-A and the
northeast right-of-way line of said W. Northwest Highway;
THENCE North 45 degrees 56 minutes 28 seconds West, with the common southwest
line of said Lot 1-A and the northeast right-of-way line of W. Northwest
Highway, a distance of 138.68 feet to the POINT OF BEGINNING of herein described
tract containing within the metes recited 25,658 square feet (0.5890 acre) of
land, more or less.
EXHIBIT 3.3
XXXX OF SALE
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS
By a Special Warranty Deed (the "Deed") of even date herewith Metric
Real Estate, L.P., a California limited partnership ("Seller") conveyed to
XXXXXXX XXXXXXXXXX, an individual ("Purchaser"), certain real property (the
"Property"), described on Exhibit "A" attached hereto and made a part hereof for
all purposes.
As consideration for (a) the conveyance of the Property, and (b) the
conveyance of the personal property hereinafter described, the Purchaser paid
the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly confessed and acknowledged:
1. The Seller has GRANTED, SOLD and CONVEYED, and by these presents
does hereby GRANT, SELL and CONVEY unto the Purchaser, all of Seller's right,
title, and interest in and to (i) all items of personal property located in or
about the Property (hereafter the "Personal Property"), (ii) all intangible
property named by Seller and used in connection with the ownership, operation
and maintenance of the Property, and (iii) all warranties and guaranties
relating to the Property or Personal Property; to have and to hold, all of
Seller's right, title, and interest in and to the Personal Property and other
rights and property conveyed hereby unto the Purchaser forever, and Seller does
hereby bind Seller and Seller's heirs, personal representatives, and successors,
to warrant and forever defend all and singular the Personal Property and other
rights and property conveyed hereby, subject, however, as aforesaid, unto
Purchaser, Purchaser's heirs, personal representative, successors and assigns,
against every person whomsoever lawfully claiming, or to claim the same, or any
part thereof.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT PURCHASER IS ACQUIRING THE PERSONAL PROPERTY "AS IS"
AND "WHERE IS" AND "WITH ALL FAULTS" AND THAT, SELLER HAS NOT MADE AND DOES NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO
THE QUALITY, PHYSICAL CONDITION, EXPENSES, VALUE OF THE PERSONAL PROPERTY OR ANY
OTHER MATTER OR THING AFFECTING OR RELATED TO THE PERSONAL PROPERTY (INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF SUITABILITY OR WARRANTIES OF MERCHANTABILITY
AND/OR OF FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN
CONSIDERING THE MAKING OF THE PURCHASE OF THE PERSONAL PROPERTY, AND PURCHASER,
BY ACCEPTANCE HEREOF, DOES HEREBY RELEASE AND FOREVER DISCHARGE SELLER AND
SELLER'S SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS, OBLIGATIONS AND
LIABILITIES (WHETHER BASED IN TORT, CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN
WHOLE OR IN PART, TO ANY SUCH REPRESENTATION AND/OR ALLEGED REPRESENTATION.
3. This Xxxx of Sale is made subject to all matters to which the Deed
was made subject.
4. This Xxxx of Sale constitutes the entire agreement between the
Seller and the Purchaser pertaining to the Personal Property and other
properties or rights assigned herein and supersedes all prior and
contemporaneous agreements and understandings of the Seller and the Purchaser in
connection therewith. No covenant, representation or condition not expressed
herein shall be binding upon the Seller or the Purchaser or shall affect or be
effective to interpret, change or restrict the provisions of this Xxxx of Sale.
5. This Xxxx of Sale and the provisions herein contained shall be
binding upon and inure to the benefit of the Purchaser and the Seller and their
respective heirs, legal representatives, successors and assigns.
6. This Xxxx of Sale may be executed in multiple counterparts, each of
which shall be deemed an original, but together shall be construed as one
document.
EXECUTED as of the 24 day of February, 1997.
SELLER:
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Its: Xxxxxx X. Xxxxxxxx
----------------------------
President
EXECUTED as of the 12 day of March, 1997
PURCHASER:
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
XXXXXXX XXXXXXXXXX
EXHIBIT 3.3a
DESCRIPTION
BEING a tract of land situated in the City of Dallas, Dallas County, Texas, in
the X. Xxxxxx Survey, Abstract No. 1113, and being all of Lot 1-A, Block A/5785
of NCS Northwest Highway Addition, an addition to the City of Dallas, Dallas
County, Texas, according to the plat recorded in Volume 86042, Page 4245, Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod set in the Northeast line of Northwest Highway,
said point being North 45 deg. 56 min. 28 sec. West, a distance of 14.72 feet
from the intersection of the Northeast line of Northwest Highway (100 foot
R.O.W.) and the Northwest line of Xxxx Chapel Extension (100 foot R.O.W.);
THENCE along the Northeast line of Xxxxxxxxx Xxxxxxx Xxxxx 00 deg. 56 min. 28
sec. West, a distance of 138.68 feet to an "X" in concrete found for corner,
said point being the most Westerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northwest line of said Xxx 0-X, Xxxxx X/0000, Xxxxx 00 xxx. 07
min. 40 sec. East, a distance of 169.0 feet to a PK nail found for corner, said
point being the most Northerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northeast line of said Xxx 0-X, Xxxxx X/0000 Xxxxx 00 xxx. 52
min. 20 sec. East, a distance of 153.64 feet to an "X" in concrete found for
corner lying in the Northwest line of Xxxx Chapel Extension, said point also
lying at the beginning of a curve to the left having a central angle of 00 deg.
57 min. 03 sec., a radius of 1950.0 feet, and a tangent bearing of South 46 deg.
04 min. 43 sec. West;
THENCE along the Northwest line of Xxxx Chapel Extension along said curve to the
left an arc distance of 32.36 feet to a 1/2 inch iron rod set for corner;
THENCE South 45 deg. 07 min. 40 sec. West, a distance of 119.06 feet to the
beginning of a tangent curve to the right having a central angle of 88 deg. 55
min. 52 sec., a chord bearing of South 89 deg. 35 min. 37 sec. West, a chord
bearing of South 89 deg. 35 min. 37 sec. West, and a chord distance of 21.01
feet, and a radius of 15.0 feet;
THENCE along said curve to the right an arc distance of 23.28 feet to THE POINT
OF BEGINNING AND CONTAINING 25,657.79 square feet or 0.5890 acres of land, more
or less.
EXHIBIT 3.4
ASSIGNMENT OF LEASE
STATE OF TEXAS )
)
COUNTY OF DALLAS )
THIS ASSIGNMENT OF LEASE (this "Assignment"), dated as of the 12th day
of March, 1997, is by and between METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor") and XXXXXXX XXXXXXXXXX, an individual (hereinafter
referred to as "Assignee").
WITNESSETH:
WHEREAS, Assignor has this day by Special Warranty Deed (the "Deed")
conveyed that certain real property described in Exhibit "A" attached hereto to
Assignee (such real property being hereinafter referred to as the "Premises").
WHEREAS, Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease (the "Original 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 ("Lessee") as assigned by that certain
Assignment and Assumption Agreement dated December 15, 1989 by and between
Metric Income Trust Services, Inc. and Assignor (together with the Original
Lease, the "Lease").
WHEREAS, Assignor desires to assign to Assignee all of Assignor's
right, title and interest in and to the Lease (and all security and other
deposits for such Leases, if any, in Assignor's possession).
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) cash and other goods and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Assignor does hereby ASSIGN,
TRANSFER, SET OVER and DELIVER unto Assignee, its successors and assigns, all of
the Assignor's right, title and interest in and to the Lease (and said security
and other deposits, if any, in Assignor's possession).
The Assignment made hereinabove is subject to the liens, encumbrances,
conditions and matters to which the Deed is made subject.
By its acceptance hereof, Assignee hereby assumes and agrees to perform
all of the terms, covenants and conditions of the Lease herein assigned on the
part of the Assignor therein required to be performed, after the date hereof and
during the period of Assignee's ownership of the Premises, including without
limitation, the obligation to repay, in accordance with the terms of the Lease,
to the Lessee, all security and other deposits, if any, received hereunder and
required by the terms thereof.
By its acceptance hereof, Assignee covenants and agrees to promptly
discharge any and all obligations of the Assignor under the Lease herein
assigned to the extent the same arise after the date hereof and during the
period of Assignee's ownership of the Premises.
All of the covenants, terms and conditions set forth herein shall be
binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns.
This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, but together shall be construed as one document.
"ASSIGNOR"
METRIC REAL ESTATE, L.P. a California
limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Its: Xxxxxx X. Xxxxxxxx
------------------------
President
"ASSIGNEE"
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------
XXXXXXX XXXXXXXXXX
EXHIBIT 3.4a
DESCRIPTION
BEING a tract of land situated in the City of Dallas, Dallas County, Texas, in
the X. Xxxxxx Survey, Abstract No. 1113, and being all of Lot 1-A, Block A/5785
of NCS Northwest Highway Addition, an addition to the City of Dallas, Dallas
County, Texas, according to the plat recorded in Volume 86042, Page 4245, Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod set in the Northeast line of Northwest Highway,
said point being North 45 deg. 56 min. 28 sec. West, a distance of 14.72 feet
from the intersection of the Northeast line of Northwest Highway (100 foot
R.O.W.) and the Northwest line of Xxxx Chapel Extension (100 foot R.O.W.);
THENCE along the Northeast line of Xxxxxxxxx Xxxxxxx Xxxxx 00 deg. 56 min. 28
sec. West, a distance of 138.68 feet to an "X" in concrete found for corner,
said point being the most Westerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northwest line of said Xxx 0-X, Xxxxx X/0000, Xxxxx 00 xxx. 07
min. 40 sec. East, a distance of 169.0 feet to a PK nail found for corner, said
point being the most Northerly corner of said Xxx 0-X, Xxxxx X/0000;
THENCE along the Northeast line of said Xxx 0-X, Xxxxx X/0000 Xxxxx 00 xxx. 52
min. 20 sec. East, a distance of 153.64 feet to an "X" in concrete found for
corner lying in the Northwest line of Xxxx Chapel Extension, said point also
lying at the beginning of a curve to the left having a central angle of 00 deg.
57 min. 03 sec., a radius of 1950.0 feet, and a tangent bearing of South 46 deg.
04 min. 43 sec. West;
THENCE along the Northwest line of Xxxx Chapel Extension along said curve to the
left an arc distance of 32.36 feet to a 1/2 inch iron rod set for corner;
THENCE South 45 deg. 07 min. 40 sec. West, a distance of 119.06 feet to the
beginning of a tangent curve to the right having a central angle of 88 deg. 55
min. 52 sec., a chord bearing of South 89 deg. 35 min. 37 sec. West, a chord
bearing of South 89 deg. 35 min. 37 sec. West, and a chord distance of 21.01
feet, and a radius of 15.0 feet;
THENCE along said curve to the right an arc distance of 23.28 feet to THE POINT
OF BEGINNING AND CONTAINING 25,657.79 square feet or 0.5890 acres of land, more
or less.
EXHIBIT 3.5
FIRPTA CERTIFICATE
To inform XXXXXXX XXXXXXXXXX ("Transferee"), that withholding of tax
under Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code"), will not be required upon transfer of certain real property to
Transferee by METRIC REAL ESTATE, L.P., a California limited partnership
("Transferror"), the undersigned hereby certifies the following on behalf of
Transferror:
1. Transferror is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder).
2. Transferror's U.S. employer identification/social security number is
00-0000000.
3. Transferror's office address is as follows:
c/o Metric Realty
0 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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: February 24, 1997
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Its: Xxxxxx X. Xxxxxxxx
----------------------
President
EXHIBIT 3.6
Form of Survey
Land survey dated January 20, 1997 not included with this Amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said survey upon request.
EXHIBIT 3.7
Form of Letter Re: Surveyor's Legal Description
Letter dated March 12, 1997 from Chicago Title Insurance Company to Seller
regarding the surveyor's legal description not included with this Amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said letter upon request.
EXHIBIT 3.8
Form of Seller's Escrow Instructions
Seller's Escrow Instructions, dated February 25, 1997, not included with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Seller's Escrow Instructions upon request.
EXHIBIT 3.9
Form of Seller's Final Closing Statement
Seller's Final Closing Statement, dated March 12, 1997, not included with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Seller's Final Closing Statement upon
request.
EXHIBIT 3.10
Form of Tenant Notice
Tenant Notice, executed by Buyer and Seller, dated March 12, 1997, not included
with this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Tenant Notice upon request.
EXHIBIT 3.11
Form of Tenant Estoppel Certificate
Tenant Estoppel Certificate, dated February 24, 1997, not included with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Tenant Estoppel Certificate upon request.
