SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) April 16, 1996
BALCOR REALTY INVESTORS 84-SERIES II,
A REAL ESTATE LIMITED PARTNERSHIP
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Exact Name of Registrant
Maryland 0-13334
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3223939
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Address of principal I.R.S. Employer
executive offices Identification
Number
60015
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Zip Code
Registrant's telephone number, including area code:
(847) 267-1600
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ITEM 5. OTHER INFORMATION
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La Contenta Apartments
In 1983, the Partnership acquired the La Contenta Apartments, Tempe, Arizona,
utilizing approximately $4,700,000 of offering proceeds. The property was
acquired subject to first mortgage financing in the amount of $6,703,000. The
mortgage was repaid in 1986. The new permanent first mortgage loan was
obtained in September 1988 in the amount of $7,360,000. The Partnership
received excess refinancing proceeds of approximately $487,000.
On April 16, 1996, the Partnership sold the property for a sale price of
$11,300,000 to an unaffiliated party, ADL-Tempe, L.L.C., an Arizona limited
liability company. From the proceeds of the sale, the Partnership paid the
outstanding balance of the first mortgage loan of $6,970,559, a brokerage
commission of $226,000 to an unaffiliated party, $10,400 in other costs and
received the remaining $4,093,041 in proceeds. Of the proceeds, $250,000 will
be retained and not available to the Partnership until 90 days after the
closing. In lieu of a commission, the General Partner will be reimbursed by
the Partnership for its actual expenses incurred in connection with the sale.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(a) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(99) Agreement of Sale and attachment thereto relating
to the sale of the La Contenta apartment complex.
No information is required under Items 1, 2, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
<PAGE>
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR REALTY INVESTORS 84 - SERIES II,
A REAL ESTATE LIMITED PARTNERSHIP
By: Balcor Partners-84 II, Inc., a Delaware
corporation, its general
partner
By: /s/Jerry M. Ogle
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Jerry M. Ogle, Vice President
and Secretary
Dated: April 22, 1996
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<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 3 day of April, 1996, by and
between ADL - TEMPE, L.L.C., an Arizona limited liability company ("Purchaser")
and EL POSADO VILLAGE INVESTORS, an Illinois Limited Partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price (the "Purchase Price") of Eleven Million Three Hundred Thousand
and No/100 Dollars ($11,300,000.00), all of the following property
(collectively, the "Property"):
a. That certain parcel of real property located in Tempe Arizona, more
particularly described on Exhibit A attached hereto (the "Land");
b. The personal property set forth on Exhibit B, which shall be
transferred to Purchaser at Closing (as hereinafter defined) by a Bill of Sale;
c. All rights and appurtenances pertaining to the Land, including,
without limitation, any and all assignable rights of Seller if any in and to
all air and development rights, all mineral and water rights, roads, alleys,
easements, streets and ways adjacent to the Land, rights of ingress and egress
thereto, any strips and gores within or bounding the Land and in the profits or
rights or other appurtenances connected with the beneficial use or enjoyment of
the Land;
d. Those certain apartment buildings containing approximately 274
apartment units, and all of Seller's right, title and interest in the other
improvements, structures and fixtures placed, constructed or installed on the
Land (collectively, the "Improvements");
e. All of Seller's right, title and interest in all leases, licenses and
concession agreements (collectively, the "Leases") covering space situate at or
within the Land and Improvements under any existing Lease occupied by tenants
(collectively, the "Tenants") and all security and other deposits paid or
deposited by Tenants in respect of the Leases;
f. All of Seller's rights in and to contractual rights and intangibles
with respect to the operation, maintenance, repair and improvement of the Land
and the Improvements, including all service contracts (collectively, the
"Service Contracts"); assignable governmental permits, licenses, certificates
and approvals in connection with the ownership of the Property which are in
Seller's possession (collectively, the "Licenses") and warranties of any
contractor, manufacturer or materialman which are in Seller's possession and
are assignable;
g. Seller's right, if any, to the use of the trade name "La Contenta
Apartments" (the "Trade Name") in connection with the Property and all
marketing rights relating thereto, if same are assignable;
h. The right, if assignable, to the use of all telephone numbers used by
Seller at the Property.
<PAGE>
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Within one (1) banking day after the execution of this Agreement,
Purchaser shall deposit with the Escrow Agent (as that term is defined in the
Escrow Agreement), the sum of $500,000.00 ("Earnest Money") to be held in
escrow by the Escrow Agent, by and in accordance with the provisions of the
Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit C. The
failure of Purchaser to so deposit the Earnest Money with the Escrow Agent
within such time period will render this Agreement null and void with no
continuing force, effect or liability upon either party;
b. On the Closing Date (as hereinafter defined), $11,300,000.00
(inclusive of all Earnest Money) adjusted in accordance with the prorations by
federally wired "immediately available" funds delivered to the Escrow Agent no
later than 1:00 P.M. on the Closing Date. If the funds are not received by
1:00 P.M. (Arizona time), then, on the Closing Date, Purchaser shall pay an
amount equal to any additional mortgage per diem interest costs incurred by
Seller not to exceed $2,000.00.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit D is a title commitment dated March 21,
1996 as the same may be amended ("Title Commitment") for an owner's ALTA
standard coverage title insurance policy ("Title Policy") issued by First
American Title Insurance Company ("Title Insurer"). The owner's Title Policy
issued at Closing will be in the amount of the Purchase Price subject only to
real estate taxes not yet due and payable, the general printed exceptions
contained in the policy and the special title exceptions set forth in
Schedule B-Part 2, Numbers 1 through 23 and 25 of the Title Commitment. All of
the above are herein referred to as the "Permitted Exceptions". On the Closing
Date, Seller shall cause the Title Insurer to issue or irrevocably and
unconditionally commit in writing to issue in due course but not to exceed 20
days, the Title Policy or a "marked up" commitment in conformity with the Title
Commitment. Purchaser shall pay the costs of the Title Policy, including the
costs of "extended coverage" or any special endorsements which Purchaser
requires.
b. Purchaser has obtained a current ALTA Survey (the "Survey") of the
Property dated March 15, 1996, prepared by Rick Engineering Company. Purchaser
has approved the Survey.
4. CONDITION OF TITLE/CONVEYANCE.
a. Seller agrees to convey good and indefeasible fee simple title to the
Property by Special Warranty Deed ("Deed") in recordable form and in form
attached hereto as Exhibit E subject only to the Permitted Exceptions. If
Seller is unable to convey title to the Property subject only to the Permitted
Exceptions because of the existence of an additional title exception
("Unpermitted Exception"), then Purchaser can elect to take title to the
Property subject to the Unpermitted Exception or terminate this Agreement. If
Purchaser elects to terminate this Agreement, then the Earnest Money plus all
accrued interest shall be delivered to the Purchaser.
<PAGE>
b. Service Contracts. On or before the Closing Date, Seller will
terminate all service contracts, except for the American Cable Television, Inc.
contract dated January 4, 1991 ("ACT Contract") and the Web Service Company,
Inc. contract dated February 13, 1992 ("Web Contract"). In addition to
assuming the ACT Contract and the Web Contract, Purchaser shall assume the
liability for payment of all of the terminated service contracts from the
Closing Date until the dates the terminations go into effect, but in no event
for a period longer than sixty (60) days.
5. PAYMENT OF CLOSING COSTS. Purchaser shall pay the cost to record the
Deed.
6. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior to
the Closing Date and can be repaired or restored in the case of real property
for $100,000 or less, or in the case of Personal Property, for $10,000 or less,
then Seller shall commence the repair or restoration in an expeditious manner,
in which event the Closing Date will be extended for not more than 60 days to
complete the repair or restoration. Seller shall retain all insurance
proceeds. If the cost of repair or restoration exceeds that amount, then
Seller can elect to either: (a) repair and restore same, in which event the
Closing Date will be extended for not more than 60 days to complete the repair
or restoration; or (b) terminate this Agreement upon notice to Purchaser served
within twenty (20) days of such casualty. If completion of the restoration
takes or would take longer than 60 days, then Purchaser shall be entitled to
terminate this Agreement. If Seller elects to terminate this Agreement
pursuant to this Paragraph, then Purchaser will have the option to accept the
Property in its damaged condition together with an assignment from Seller of
all insurance proceeds and receive a credit at Closing in the amount of the
deductible, provided Purchaser notifies Seller by notice served within
twenty (20) days after receipt of Seller's notice of election to terminate in
which case this Agreement will not terminate.
b. If condemnation proceedings ("Proceedings") are instituted against
the Property and the parties reasonably believe that such Proceedings will
result in an award in excess of $100,000.00, then Purchaser can elect to either
take the Property subject to the Proceedings and an assignment of Seller's
interest in the Proceedings and any awards relating to any taking or terminate
this Agreement. If Purchaser elects to terminate this Agreement, it shall be
by notice to the Seller within five (5) business days after Seller notifies
Purchaser of the casualty or Proceedings.
c. If the Agreement is terminated pursuant to this Paragraph, then the
Earnest Money plus all accrued interest shall be delivered to the Purchaser.
7. AS-IS CONDITION.
a. Except as may be specifically set forth elsewhere in this Agreement
and in the Deed, Purchaser acknowledges and agrees that it will be purchasing
the Property based solely upon its inspection and investigations of the
Property and that Purchaser will be purchasing the Property "AS IS" and "WITH
ALL FAULTS" based upon the condition of the Property as of the date of this
Agreement, subject to reasonable wear and tear and loss by fire or other
casualty or condemnation from the date of this Agreement until the Closing
Date. Without limiting the foregoing, Purchaser acknowledges that, except as
may otherwise be specifically set forth elsewhere in this Agreement, neither
<PAGE>
Seller nor its consultants, brokers or agents have made any other
representations or warranties of any kind upon which Purchaser is relying as to
any matters concerning the Property, including, but not limited to, the
condition of the land or any improvements, the existence or nonexistence of
asbestos, lead in water, lead in paint, radon, underground or above ground
storage tanks, petroleum, toxic waste or any Hazardous Materials or Hazardous
Substances (as such terms are defined below), the tenants of the Property or
the leases affecting the Property, economic projections or market studies
concerning the Property, any development rights, taxes, bonds, covenants,
conditions and restrictions affecting the Property, water or water rights,
topography, drainage, soil, subsoil of the Property, the utilities serving the
Property or any zoning, environmental or building laws, rules or regulations
affecting the Property. Seller makes no representation that the Property
complies with Title III of the Americans With Disabilities Act or any fire
codes or building codes. Except as may be specifically set forth elsewhere in
this Agreement, Purchaser hereby releases Seller from any and all liability in
connection with any claims which Purchaser may have against Seller, and
Purchaser hereby agrees not to assert any claims, for damage, loss,
compensation, contribution, cost recovery or otherwise, against Seller, whether
in tort, contract, or otherwise, relating directly or indirectly to the
existence of asbestos or Hazardous Materials or Hazardous Substances on, or
environmental conditions of, the Property, or arising under the Environmental
Laws (as such term is hereinafter defined), or relating in any way to the
quality of the indoor or outdoor environment at the Property. This release
shall survive the Closing. It is not the intention of the parties hereto that
Seller has transferred to Purchaser any obligations or liabilities that Seller
may have to any governmental authority relating to the violation by Seller of
any Environmental Laws. As used herein, the term "Hazardous Materials" or
"Hazardous Substances" means (i) hazardous wastes, hazardous materials,
hazardous substances, hazardous constituents, toxic substances or related
materials, whether solids, liquids or gases, including but not limited to
substances defined as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. e 9601 et seq.; the
Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Section 1101 et seq.; the
Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum,
(B) refined petroleum products, (C) waste oil, (D) waste aviation or motor
vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon,
(H) Polychlorinated Biphenyls (PCB's) and (I) ureaformaldehyde.
<PAGE>
b. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request. Except as may be specifically set forth elsewhere in this Agreement,
Seller makes no representation or warranty that such material is complete or
accurate or that Purchaser will achieve similar financial or other results with
respect to the operations of the Property, it being acknowledged by Purchaser
that Seller's operation of the Property and allocations of revenues or expenses
may be vastly different than Purchaser may be able to attain. Purchaser
acknowledges that it is a sophisticated and experienced purchaser of real
estate and further that Purchaser has relied upon its own investigation and
inquiry with respect to the operation of the Property and releases Seller from
any liability with respect to such historical information.
8. CLOSING. The closing ("Closing") of this transaction shall be on
April 16, 1996 ("Closing Date"), at the office of the Escrow Agent, at which
time Seller shall deliver possession of the Property to Purchaser, subject to
the Permitted Exceptions.
9. CLOSING DOCUMENTS.
a. On the Closing Date, and provided Purchaser has not previously
terminated this Agreement in accordance with the terms hereof, Purchaser shall
deliver to Escrow Agent an executed closing statement approved by Purchaser
prior to the release of any funds from the escrow, the balance of the Purchase
Price, and such other documents as may be reasonably required by the Title
Insurer in order to consummate the transaction as set forth in this Agreement.
b. On the Closing Date, Seller shall deliver to Purchaser possession of
the Property; the Deed (in the form of Exhibit E attached hereto) subject to
the Permitted Exceptions and those Unpermitted Exceptions waived by Purchaser;
an inventory of the Personal Property and a Bill of Sale for the same (in the
form of Exhibit F attached hereto); an executed closing statement; an executed
assignment and assumption of the ACT Contract and the Web Contract and the
assumption of the liability for payment of all of the terminated service
contracts from the Closing Date until the dates the terminations go into effect
(in the form of Exhibit G attached hereto); an executed assignment and
assumption of all leases and security deposits (in the form of Exhibit H
attached hereto); an executed assignment of the Intangible Property in the form
attached hereto as Exhibit M; certified updated rent roll; a notice to the
tenants of the transfer of title and the assumption by Purchaser of the
landlord's obligations under the leases and the obligation to refund the
security deposits (in the form of Exhibit I attached hereto); a non-foreign
affidavit (in the form of Exhibit J attached hereto); an Affidavit of Property
Value (in the form of Exhibit N attached hereto); an executed termination of
the Lease Memorandum dated July 31, 1995 and the underlying Lease referred to
in such Lease Memorandum between Web Service Company Inc. and El Posado Village
Investors which was recorded on October 19, 1995 in 95-0640881 of Official
Records of Maricopa County; certificates of good standing with respect to taxes
from the City of Tempe and the State of Arizona; and such other documents as
may be reasonably required by the Title Insurer in order to consummate the
transaction as set forth in this Agreement. Notwithstanding anything contained
in this paragraph to the contrary, all documents that are to be recorded shall
be delivered to the Title Insurer.
<PAGE>
10. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF ANY MATERIAL DEFAULT OF THE PURCHASER
UNDER THE PROVISIONS OF THIS AGREEMENT, SELLER SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO PURCHASER AND TO
RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST THEREON AS SELLER'S SOLE
REMEDY, AND UPON SUCH TERMINATION, NEITHER SELLER NOR PURCHASER SHALL HAVE ANY
FURTHER RIGHT, OBLIGATION OR LIABILITY UNDER THIS AGREEMENT AT LAW OR IN
EQUITY, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. THE PARTIES HAVE
AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER,
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY
PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY
HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL TERMINATE
AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT LAW OR IN
EQUITY. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S
DEFAULT IS ITS REFUSAL TO DELIVER THE DEED, AND THE OTHER DOCUMENTS REQUIRED TO
BE DELIVERED AT THE CLOSING, THEN PURCHASER WILL BE ENTITLED TO SUE FOR
SPECIFIC PERFORMANCE.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); refundable security deposits (which will be assigned to and
assumed by Purchaser and credited to Purchaser at Closing); water and other
utility charges; fuels; prepaid operating expenses in an amount not to exceed
$5,000.00; real and personal property taxes; and other similar items shall be
adjusted ratably as of 11:59 P.M. on the Closing Date ("Proration Date"), and
credited or debited to the balance of the cash due at Closing, and such
prorations shall be based upon the most recently available information prior to
or at the Closing and with regard to taxes, the proration shall be based upon
the latest tax bills available. If special assessments have been levied
against the Property for completed improvements, then the amount of same shall
be paid by the Seller in full at or prior to Closing; and the amount of any
special assessments levied after the Closing Date shall be paid by the
Purchaser. If, as of the Closing Date, there are any special assessments
against the Property, Purchaser shall have the right to terminate this
Agreement. In the event of such termination, all Earnest Money plus all
accrued interest shall be delivered to the Purchaser.
b. DELINQUENT RENTS. If, as of the Closing Date, any rent is in arrears
("Delinquent Rent") for the calendar month in which the Closing occurs, then
any such Delinquent Rent collected by Purchaser will be delivered to Seller,
provided that all collections by Purchaser shall be first applied to current
accrued rent. If Delinquent Rent is in arrears for a period prior to the
calendar month in which the Closing occurs, then rents collected by Purchaser
shall first be applied to current accrued rent and then to Delinquent Rent.
Purchaser shall deliver Seller's pro rata share within 10 business days of
Purchaser's receipt of any Delinquent Rent. This subparagraph of this
Agreement shall survive the Closing and the delivery and recording of the Deed.
13. RECORDING. This Agreement shall not be recorded and the act of recording
by Purchaser shall be an act of default hereunder by Purchaser and shall be
subject to the provisions of Paragraph.
<PAGE>
14. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller. Any
assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph . Notwithstanding the foregoing,
Seller hereby consents to an assignment to an entity, the ownership and control
of which is held by the same persons owning and controlling Purchaser, provided
such assignment is effected prior to the expiration of the Approval Period.
However, Purchaser shall remain liable for all of the Purchaser's obligations
and undertakings set forth in this Agreement and the exhibits attached hereto.
15. BROKER. The parties hereto acknowledge that Pinnacle Realty Management
Company ("Broker") is the only real estate broker involved in this transaction.
Seller agrees to pay Broker at Closing a commission or fee ("Fee") pursuant to
a listing agreement between Seller and Broker. However, this Fee is due and
payable only from the proceeds of the Purchase Price received by Seller.
Purchaser agrees to indemnify, defend and hold harmless the Seller and any
partner, affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's partner, parent or affiliate (each of the
above is individually referred to as a "Seller Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Seller Indemnitee as a result
of anyone other than Broker claiming by or through Purchaser any fee,
commission or compensation on account of this Agreement, its negotiation or the
sale hereby contemplated. Purchaser does now and shall at all times consent to
a Seller Indemnitee's selection of defense counsel. Seller agrees to
indemnify, defend and hold harmless the Purchaser and all shareholders,
employees, officers, members and directors of Purchaser or Purchaser's parent
or affiliate (each of the above is individually referred to as a "Purchaser
Indemnitee") from all claims, including attorneys' fees and costs incurred by a
Purchaser Indemnitee as a result of Broker's or anyone else's claiming by or
through Seller any fee, commission or compensation on account of this
Agreement, its negotiation or the sale hereby contemplated. Seller does now
and shall at all times consent to a Purchaser Indemnitee's selection of defense
counsel.
16. DOCUMENTS AND INSPECTION OF PROPERTY.
a. Seller has delivered to Purchaser, or will make available to
Purchaser at the Property, copies of the most recent available tax bills; rent
rolls; insurance premiums; service contracts; utility account numbers; survey;
Month by Month Financial Reports for 1995 and Year to Date 1996 Operating
Statements; Traffic Reports, Move In/Move Out Reports, Tenant Profiles, for all
of 1995 and year to date 1996, if available; all current leases at property
site; list of all personal property owned by Seller; copies of all governmental
licenses, occupancy permits or other governmental documents related to the
property which are in Seller's possession (collectively the "Documents").
Purchaser has approved the Property and the Documents.
b. Purchaser agrees to indemnify, defend and hold Seller harmless from
any injuries, damages or claims of any nature whatsoever which Purchaser's
servants, agents or employees may have as a result of Purchaser's inspection of
the Property. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
<PAGE>
17. SURVIVAL OF INDEMNITY. Notwithstanding anything in this Agreement to the
contrary, the parties' obligations to indemnify, defend and hold each other
harmless under various provisions of this Agreement shall survive the
termination of this Agreement or the Closing and delivery and recording of the
Deed for a period of two years.
18. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Any reference herein to Seller's knowledge, representation, warranty
or notice of any matter or thing, shall only mean such knowledge or notice that
has actually been received by Phillip Schechter and Mark Van De Hey, the asset
manager, and any representation or warranty of the Seller is based upon those
matters of which Phillip Schechter or Mark Van De Hey has actual knowledge.
Any knowledge or notice given, had or received by any of Seller's agents,
servants or employees shall not be imputed to Seller or the individual partners
or the general partner of Seller.
b. Subject to the limitations set forth in subparagraph a above, Seller
hereby makes the following representations, warranties and covenants, all of
which are made to the best of Seller's knowledge, all of which shall survive
the Closing and delivery of the Deed for a period of ninety (90) days:
i. The present use and occupancy of the Property conform with applicable
building and zoning laws and Seller has received no written notice that
any such laws, rules or regulations are being violated.
ii. The rent roll ("Rent Roll") attached hereto as Exhibit K which will
be updated as of the Closing Date is true and accurate.
iii. The financial information which Seller has provided to Purchaser is
the same information that Seller relies upon when it makes reports to its
investors and when it prepared its tax returns. Seller has no reason to
believe that the information is false or misleading in any material
manner.
iv. Seller has no employees at the Property.
v. Seller has no knowledge of any pending or threatened litigation,
claim, cause of action or administrative proceeding concerning the
Property.
vi. On the Closing Date, all utility payments and sales and rent taxes
have been paid in full or will be paid in full by Seller for the period
prior to the Closing Date.
vii. Seller has not received written notice from any governmental
authority as to the existence of any latent construction defects.
viii. All of Seller's obligations pertaining to service contracts
shall be paid in full as of the Closing Date or appropriate arrangements
will have been made prior to Closing to pay such amounts after Closing.
<PAGE>
c. Seller's Covenants. Seller hereby covenants that:
i. The management, operation, leasing and maintenance of the Property,
as presently conducted by the Seller, shall continue until the Closing
Date.
ii. On the Closing Date, Seller shall remove all liens affecting the
Property (other than the Permitted Exceptions) which are of a definite or
ascertainable amount. If there are liens which are not of a definite or
ascertainable amount, then either party can elect to terminate this
Agreement.
iii. From the date of this Agreement until Closing, Seller will not
further encumber nor permit any further encumbrances (other than leases to
third party tenants having a term of not greater than one year) to the
Property, including, but not limited to service agreements, without first
obtaining the written consent of Purchaser and during such period, Seller
further agrees not to modify, extend, renew or change any existing
encumbrance (other than leases to third party tenants having a term of not
greater than one year) against the Property prior to the earlier of
Closing or the expiration or termination of this Agreement without first
obtaining the written consent of Purchaser.
d. If on or prior to the Closing Date, either Purchaser or Seller
discovers that a representation or warranty of Seller is materially untrue,
then upon notice to the other party, Purchaser can elect to terminate this
Agreement or take title to the Property subject to the untrue representation or
warranty. In the event of any such termination, this Agreement shall be
terminated and the Earnest Money plus all accrued interest thereon shall be
returned to the Purchaser and neither party shall have any further liability
hereunder, except as may be otherwise expressly set forth in this Agreement.
19. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit L is a Phase
I Environmental Site Assessment dated October 17, 1991 prepared by
Environmental Technologies Inc. ("Report") of the Property, which Seller is
delivering to Purchaser, at Purchaser's request. Seller makes no
representation or warranty that the Report is accurate or complete. Purchaser
hereby releases Seller from any liability whatsoever with respect to the
Report, including, without limitation, the matters set forth in the Report or
the accuracy and/or completeness of the Report.
20. LIMITATION OF SELLER'S LIABILITY. No general or limited partner of
Seller, nor any of its respective beneficiaries, shareholders, partners,
officers, agents, employees, heirs, successors or assigns shall have any
personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to sue or recover on account of any such
alleged personal liability.
21. ORGANIZATIONAL DOCUMENTS. At least ten (10) days prior to the Closing
Date, Purchaser and Seller will provide each other's attorney with copies of
its organizational documents, including a certified copy of its filed limited
partnership and a true copy of its Partnership Agreement or a certified copy of
its Articles of Organization, corporate resolutions authorizing the
transaction, and an incumbency certificate, whichever is applicable.
<PAGE>
22. MISCELLANEOUS.
a. Purchaser shall receive a credit at Closing in the amount of
$2,500.00 because Seller has failed to provide 28 RV parking spaces on the
Property.
b. Purchaser shall receive a credit at Closing in the amount of
$4,600.00 to reimburse Purchaser for expenses that Purchaser may incur to
correct and cure any termite infestation in the Property.
c. Seller agrees to withhold $250,000.00 from its distribution of the
net proceeds of this sale to its partners for a period of ninety (90) days
after the Closing Date.
d. Prior to the Closing Date, Seller shall have obtained from the proper
governmental authorities evidence that the dry wells located at the Property
have been registered.
23. TIME OF ESSENCE. Time is of the essence of this Agreement.
24. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
with copies to: The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Al Lieberman
847/267-1600
847/317-4462 (FAX)
and
Morton M. Poznak
Schwartz & Freeman
Suite 1900
401 North Michigan Avenue
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
<PAGE>
TO PURCHASER: Jerry G. Banks
ADL Tempe, L.L.C.
c/o Lozier Investments
8336 Pershing Drive
Omaha, Nebraska 68110
402/457-8589
402/457-8579 (FAX)
with a copy to: Don Miner
Hienton, Miner, Fry & Kurtz
3636 N. Central
Suite 400
Phoenix, Arizona 85012
602/240-6420
602/240-6401 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before 4:00 P.M., Arizona
Time, or the next day if sent by facsimile after the close of business, or on
the 4th business day after the same is deposited in the United States Mail as
registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier or by
facsimile as aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given, delivered or
made. Copies of all notices shall be provided in due course to the Escrow
Agent (but not later than four business days thereafter).
25. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute three
(3) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied with the Earnest Money
payable to the Escrow Agent. Seller will forward one (1) copy of the executed
Agreement to Purchaser and will forward the following to the Escrow Agent:
a. Earnest Money;
b. One (1) fully executed copy of this Agreement; and
c. Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to the Purchaser and the Seller.
26. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of Arizona.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
28. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
<PAGE>
29. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
30. SEVERABILITY; MODIFICATIONS. Any portion of this Agreement which is
declared by a competent court of last resort to be illegal or unenforceable
shall be of no effect, but all the remaining provisions of this Agreement shall
remain in full force and affect. No waiver, modification, amendment, discharge
or change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is sought.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of the
date set forth above.
Executed by Purchaser on PURCHASER:
April 3, 1996.
ADL - TEMPE, L.L.C., an Arizona limited
liability company
By: /s/Sheri L Andrews
-------------------------------
Treasurer
Executed by Seller on SELLER:
April 4, 1996.
EL POSADO VILLAGE INVESTORS, an
Illinois limited partnership
By: Balcor Partners-84 II, Inc., a
Delaware corporation, the general
partner
By: /s/Philip Schechter
--------------------------------
Authorized Agent
<PAGE>
La Contenta
Pinnacle Realty Management Company ("Broker") executes this Agreement in its
capacity as a real estate broker and acknowledges that the fee or commission
("Fee") due to it as a result of the transaction described in this Agreement is
the amount as set forth in the listing agreement between Broker and Seller.
Broker also acknowledges that payment of the aforesaid Fee is conditioned upon
the Closing and the receipt of the Purchase Price by the Seller. Broker agrees
to deliver a receipt to the Seller at the Closing for the Fee and a release
stating that no other fees or commissions are due to Broker from Seller or
Purchaser.
PINNACLE REALTY MANAGEMENT
COMPANY
By: ___________________________________
<PAGE>
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Bill of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Non-Foreign Affidavit
K - Rent Roll
L - Report
M - Assignment of Intangibles
N - Affidavit of Property Value
