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) September 4, 1997
BALCOR/COLONIAL STORAGE INCOME FUND-85
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Exact Name of Registrant
Illinois 0-14340
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3338930
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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 2. ACQUISITION OR DISPOSITION OF ASSETS
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(a) Pursuant to an agreement fully executed on September 4, 1997, as amended
by amendment dated September 17, 1997, the Registrant has agreed to sell to
Value Storage, Ltd., a Texas limited partnership (the "Purchaser") all of the
assets of the Registrant, consisting of 69 mini-warehouse facilities (the
"Facilities"). The purchase price (the "Purchase Price") for the Facilities is
$59,750,000 (less a $255,000 credit relating to certain title issues), plus or
minus commissions, prorations and other credits, if any. The Purchase Price
will be paid by the Purchaser at the closing, which is currently scheduled to
occur seven business days after the date all conditions precedent to
consummation of the transaction have been satisfied or waived (the "Closing").
The Purchase Price includes a sales commission of $750,000 that will be paid to
the Purchaser or an affiliate of the Purchaser at the Closing. The Purchase
Price was the result of arm's-length negotiations between the Registrant and
the Purchaser.
As previously reported, the Registrant also entered into an Agreement dated as
of June 16, 1997, as amended August 1997, to sell the Facilities to
Acquiport/Amsdell I Limited Partnership, a Delaware limited partnership
("Amsdell") for a purchase price of $56 million plus or minus prorations and
credits, if any. On September 18, 1997, Registrant terminated the Amsdell
contract in accordance with the terms thereof.
The sale of the Facilities to Purchaser is subject to the satisfaction of
certain terms and conditions, including the receipt of appropriate closing
documentation and the non-occurrence of certain events which could give rise
to termination of the sale of the Facilities prior to the Closing.
Consummation of the transaction is also subject to approval by the holders of
a majority of the outstanding limited partnership interests of the Registrant.
There can be no assurance that all terms and conditions will be satisfied or
that the necessary approval will be obtained and, therefore, it is possible
that the Registrant will not sell the Facilities.
As soon as practicable after the Closing, the General Partners intend to
liquidate and dissolve the Registrant and distribute the net proceeds from the
sale of the Facilities in the manner set forth in the Registrant's Amended and
Restated Agreement and Certificate of Limited Partnership.
It is contemplated that if the sale of the Facilities to Purchaser is
consummated, an affiliate of one of the General Partners may be retained by
Purchaser to render property management services to the Facilities. There
presently exists no other material relationship between the Registrant and the
Purchaser, or between any affiliates of such entities.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(A) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) (i) Agreement of Sale by and between Value Storage, Ltd., and
Balcor/Colonial Storage Income Fund-85, dated as of
September 4, 1997.
(ii) First Amendment to Agreement of Sale by and between Value
Storage, Ltd., and Balcor/Colonial Storage Income Fund-85,
dated as of September 17, 1997.
No information is required under Items 1, 3, 4, 5, 6 and 8 and these items
have, therefore, been omitted.
Signatures
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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/COLONIAL STORAGE INCOME FUND-85
By: Balcor Storage Partners-85, an Illinois general
partnership, a General Partner
By: The Balcor Company, a Delaware corporation
Its: General Partner
By: /s/ Jerry M. Ogle
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Its: Managing Director, General
Counsel and Secretary
By: Colonial Storage 85, Inc., a Texas corporation,
a General Partner
By: /s/ James R. Pruett
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Its: President
Dated: September 19, 1997
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<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 3rd
th day of September, 1997, by and between VALUE STORAGE, LTD., a Texas limited
partnership ("Purchaser"), and BALCOR/COLONIAL STORAGE INCOME FUND - 85, an
Illinois limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE.
1.1. Purchaser agrees to purchase and Seller agrees to sell at the price
of Fifty-Nine Million Seven Hundred Fifty Thousand and No/100 Dollars
($59,750,000.00) (the "Purchase Price"), those certain sixty-nine (69)
mini-warehouse facilities commonly described in Exhibit A attached hereto and
legally described in Exhibit B attached hereto (collectively, the "Real
Properties" and individually a "Real Property") and the "Personal Property"
(hereinafter defined), together with the personal property located on the Real
Properties. Each Real Property shall include all of Seller's right, title and
interest in and to all of the following:
a. all easements, covenants and other rights appurtenant, and all
right, title and interest of Seller, if any, in and to any land lying in the
bed of any street, road, avenue or alley, open or closed, in front of or
adjoining the Real Property;
b. to the extent they may be transferred under applicable law, all
licenses, permits and authorizations presently issued in connection with the
Real Property;
c. all leases, prepaid rents and security deposits, if any, in
respect of any Real Property in which Seller holds an interest as a landlord
for the use and occupancy of all or any part of the Real Property ("Leases");
d. all "Service Contracts" (as hereinafter defined); and
e. all engineering reports, surveys and architectural plans, if any.
1.2. Included in the Purchase Price are all signs, signage, gates,
fences, alarms, other security devices, machinery, equipment, desks, chairs,
office furniture, furnishings, computers, books, records (other than computer
software), computer data bases, phone numbers, appliances, utility deposits,
tools, lawn mowers, personal property warranties and other personalty located
on each Real Property and used or useable in the operation and maintenance of
the Property which is now owned or which is hereafter acquired by the Seller
between the date of the execution of this Agreement and the Closing Date (the
"Personal Property"). Seller shall deliver to Purchaser within twenty (20)
days after the date hereof a schedule of the Personal Property on a per
Property basis. Each Real Property and the Personal Property located at such
Real Property shall be referred to individually as a "Property" and all of such
real property and personal property shall be collectively referred to as the
"Properties".
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2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. On or before the "Title Waiver Date" (as hereinafter defined) the sum
of Three Hundred Seventy-Five Thousand and No/100 Dollars ($375,000.00) (the
"Original Earnest Money") to be held in escrow in accordance with the
provisions of the Escrow Agreement ("Earnest Money Escrow Agreement") attached
hereto as Exhibit C.
2.2. On or before November 1, 1997, the sum of One Hundred Twenty-Five
Thousand and No/100 Dollars ($125,000.00) (the "Additional Earnest Money"; the
Original Earnest Money, together with the Additional Earnest Money, if any,
shall hereinafter be referred to as the "Earnest Money") to be held in escrow
in accordance with the provisions of the Earnest Money Escrow Agreement.
2.3. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 11:00 a.m Chicago time.
2.4. Within thirty (30) days after the date hereof, Purchaser and Seller
shall agree upon an allocation of the Purchase Price among each Property (the
"Schedule Price") and an allocation of the Schedule Price for each Property
among the following categories: (i) land, (ii) improvements, (iii) Personal
Property, (iv) intangibles and (v) Leases and plans and specifications (the
"Property Breakdown Schedule"). The parties agree not to take an income tax
reporting position inconsistent with the Schedule Price and Property Breakdown
Schedule and such covenant shall survive the Closing and recording of the
Deeds. The parties to this Agreement further acknowledge that the Schedule
Price of each Property shall be used for determining any transfer, filing,
deed, stamp, documentary and other such fees and taxes.
3. TITLE COMMITMENT AND SURVEY.
3.1. Seller has delivered an ALTA or comparable title commitment for an
owner's standard title insurance policy issued by Near North National Title
Corporation (the "Initial Title Insurer"), as agent for First American Title
Insurance Company for each Real Property (the "Title Commitments"), and copies
of all documents of record creating exceptions to coverage ("Documents of
Record"). At the request of Purchaser, the Title Commitments are being
purchased and assumed by American Title Corporation (the "Title Insurer"), a
subsidiary and agent for Lawyers Title Insurance Company. For purposes of this
Agreement, "Permitted Exceptions" as to each of the Real Properties shall mean:
(a) general real estate taxes, association assessments, special district taxes
and related charges not yet due and payable (which shall be prorated as
hereinafter specified); (b) matters caused by the actions of Purchaser; (c) the
Leases; and (d) those matters affecting title to the Real Properties which are
not established as "Unpermitted Exceptions" (as hereinafter defined) by
Purchaser pursuant to Paragraph 5.2 herein. The Title Commitments shall be
conclusive evidence of good title as therein shown as to all matters to be
insured by the title policy for the respective Real Property, subject only to
the exceptions therein stated. On the Closing Date, Title Insurer shall
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deliver to Purchaser an ALTA or comparable title policy for the Real Properties
in amounts equal to the Schedule Price of each Real Property in conformance
with the Title Commitments, subject to Permitted Exceptions and Unpermitted
Exceptions waived by Purchaser (the "Title Policy"). Seller shall pay for
costs of the Title Commitments, Title Policies, and extended coverage on the
Title Policies which would have been charged by Initial Title Insurer, and
Purchaser shall pay for the cost of any additional endorsements to, or extended
coverage on, the Title Policies, and any costs of the Title Commitments, Title
Policies and extended coverage on the Title Policies which exceed the costs
that would have been charged by Initial Title Insurer, and a cancellation fee
to Initial Title Insurer equal to $150.00 per Property plus reasonable
expenses.
3.2. Purchaser has received a current survey of all the Real Properties
(the "Updated Surveys"). Seller will cause the surveyors to recertify the
Updated Surveys to Purchaser and Purchaser's lender prior to Closing. Seller
shall pay for the costs of preparing the Updated Surveys.
4. PAYMENT OF CLOSING COSTS.
In addition to the costs set forth in Paragraphs 3.1 and 3.2, Seller shall
pay for the costs of the documentary or transfer stamps to be paid with
reference to the "Deeds" (hereinafter defined), the recording costs, and all
other stamps, intangible, transfer, documentary, recording, sales tax, personal
property tax and surtax imposed by any governmental authority with reference to
any other sale documents delivered in connection with the sale of the
Properties to Purchaser or otherwise imposed in connection with the sale of the
Properties to Purchaser (other than any such costs in connection with any
financing utilized by Purchaser).
5. CONDITION OF TITLE.
5.1. Subject to the terms of Paragraphs 5.2, 5.3, 5.4 and 5.5, Seller
agrees to convey to Purchaser marketable fee simple title to each Real Property
without defect and free and clear of all liens, encumbrances, easements,
tenancies, covenants, restrictions, reservations, conditions and other
exceptions to title by a special warranty deed (individually a "Deed" and
collectively the "Deeds") in recordable form (and in the form set forth in
Exhibit E attached hereto except for those modifications necessary for
compliance with state requirements), subject to the respective Permitted
Exceptions and Unpermitted Exceptions waived or accepted by Purchaser in
accordance with the terms hereof.
5.2. Purchaser shall have until 5:00 p.m. Chicago time on September 12,
1997 to examine the Title Commitments, Updated Surveys and the Documents of
Record (the "Title Review Period"). Purchaser shall notify Seller
("Unpermitted Exception Notice") in writing no later than 5:00 p.m. Chicago
time on the last day of the Title Review Period whether any "Unpermitted
Exceptions" (as hereinafter defined) are disclosed in the Title Commitments or
<PAGE>
Updated Surveys as determined by Purchaser in its commercially reasonable
discretion. Failure to raise any Unpermitted Exceptions on or before 5:00 p.m.
Chicago time on the last day of the Title Review Period shall be deemed a
waiver of any such matter by Purchaser. As used herein, the term "Unpermitted
Exception" shall mean with respect to any Real Property (provided the same is
not caused by the actions of Purchaser):
(a) Any building encroachment or sign encroachment (i) on real estate not
owned by Seller, (ii) on a setback line, (iii) in violation of a binding
easement burdening the Real Property, or (iv) by a structure not owned by
Seller onto the Real Property;
(b) Any defect in the Seller's chain of title which prevents Seller from
being able to convey marketable title to any Real Property in fee simple at
Closing under the laws of the state in which the Real Property is located;
(c) Any easement which burdens a Real Property such that access or use is
materially compromised (for example, easement under a structure);
(d) Any lack of access or easements necessary to operate a Real Property
as a self-storage facility in the manner in which said Real Property has been
operated by Seller prior to Closing;
(e) Any liens for the payment of money other than those matters set forth
in Paragraph 3.1(a) herein; provided, however, mortgages and deeds-of-trust
shall not be the subject of Paragraph 5.3 but shall be addressed in Paragraph
5.4 herein;
(f) Lack of contiguity of any parcels constituting a Real Property; and
(g) (i) the failure to be in conformance with the then applicable local
zoning codes, (ii) the failure to be a nonconforming use or have the status
equivalent to a "non-conforming use" and (iii) the existence of an order by the
applicable local jurisdiction which would cause a material interference with
its existing use (other than disclosed in Paragraph 18 herein).
5.3. If Purchaser establishes any Unpermitted Exception in accordance with
the terms set forth in Paragraph 5.2 herein, Seller and Purchaser shall use
good faith efforts to mutually resolve all such Unpermitted Exceptions on or
before September 17, 1997 (the "Title Waiver Date"). During such period, the
parties shall ascertain the "Title Costs" (hereinafter defined). If the Title
Insurer is willing to insure over the Unpermitted Exceptions or if the
Unpermitted Exceptions can be cured with the payment of money, then the amount
required to cure or remove the Unpermitted Exceptions or to cause the Title
Insurer to insure over the Unpermitted Exceptions shall be referred to as the
"Title Costs". Seller agrees to bear the responsibility for such Title Costs
which do not exceed $100,000.00 in the aggregate. If the Title Costs exceed
$100,000.00 in the aggregate, then Seller shall have the right (but not the
obligation) to give Purchaser a credit, at Closing, against the Purchase Price
equal to the Title Costs. To the extent the parties are unable to reach a
mutually satisfactory resolution as to all Unpermitted Exceptions, either party
may terminate this Agreement by written notice to the other party on or before
<PAGE>
the Title Waiver Date (a "Title Termination Notice"). Notwithstanding the
foregoing, if all Unpermitted Exceptions are addressed through a credit against
the Purchase Price in the amount of the Title Costs (requiring written notice
from Seller on or before the Title Waiver Date accepting such liability), then
neither party shall have the right to terminate this Agreement. In the event
either party elects to terminate this Agreement pursuant to the Title
Termination Notice, neither party shall have any rights against the other or
any further liability to the other, except for Purchaser's obligations pursuant
to Paragraph 7.1 hereof and as otherwise specifically set forth in this
Agreement. In the absence of a Title Termination Notice on or before the Title
Waiver Date or a written agreement between the parties as to the resolution of
all Unpermitted Exceptions, the parties waive their right to terminate this
Agreement pursuant to this Paragraph 5.3 and Purchaser shall accept title
subject the Unpermitted Exceptions, receiving a credit against the Purchase
Price for the Title Costs up to $100,000.00 in the aggregate (or any higher
amount established pursuant to a written notice from Seller if the Title Costs
exceed $100,000.00).
5.4. Notwithstanding anything contained in this Agreement to the contrary,
Seller agrees to cause any mortgages or deeds-of-trust securing an obligation
for the payment of money set forth in the Title Commitments to be released from
the Real Properties at or prior to the Closing at Seller's own cost and expense
and Purchaser agrees that the proceeds of the Purchase Price may be used at the
Closing for such purpose. With respect to any liens evidencing an obligation
for the payment of money placed against a Real Property after the effective
date of its respective Title Commitment (other than those set forth in
Paragraph 3.1(b)) ("New Monetary Lien"), Seller shall not be obligated to
convey title free and clear of such New Monetary Liens and close the
transaction set forth herein, unless such New Monetary Liens were placed on the
Real Property by reason of Seller's affirmative act (e.g., failure to pay just
debts or obligations when due). If Seller elects not to remove such New
Monetary Liens that are not required to be removed, Purchaser shall have the
right to elect to terminate this Agreement by written notice to Seller within
five (5) business days after receipt of Seller's determination respecting said
New Monetary Lien. If Purchaser delivers written notice to Seller of its
election to terminate in accordance with the preceding sentence, then this
Agreement shall terminate and the Earnest Money, together with all interest
earned thereon shall be immediately returned to Purchaser and thereupon neither
party shall have any rights against the other or any further liability to the
other, except for Purchaser's obligations pursuant to Paragraph 7.1 and as
otherwise specifically set forth in this Agreement. If Purchaser fails to
deliver written notice of its election to terminate on or before the expiration
of the aforesaid five (5) business day period, Purchaser shall be obligated to
consummate the transaction contemplated herein and take title to the Properties
subject to the New Monetary Liens Seller was not required to remove without a
reduction in the Purchase Price.
5.5. If, prior to Closing, a date-down to the Title Commitment discloses
any new Unpermitted Exception resulting from actions or documents dated after
the date of each respective Title Commitment or resulting from actions or
documents dated on or before the date of each Title Commitment which Initial
<PAGE>
Title Insurer rightfully could have raised as a exception to title on the
date-down to such Title Commitment, Seller shall have the right, but not the
obligation, within thirty (30) days from the date of the date-down to the Title
Commitment and at Seller's expense, to bond over (in a manner acceptable to
Purchaser), cure and/or have any new Unpermitted Exceptions removed from the
Title Commitment or to have the Title Insurer commit to insure against loss or
damage that may be occasioned by such Unpermitted Exceptions. In such event,
the time of Closing shall be delayed, if necessary, to give effect to said
aforementioned time periods. If Seller fails to cure or have said new
Unpermitted Exception removed or have the Title Insurer commit to insure as
specified above within said thirty (30) day period or if Seller elects not to
exercise its rights under the preceding sentence, Purchaser may terminate this
Agreement upon notice to Seller within five (5) days after the earlier of (a)
the expiration of said thirty (30) day period and (b) notice from Seller that
Seller has waived its right to cure the new Unpermitted Exception; provided,
however, and notwithstanding anything contained herein to the contrary, if the
new Unpermitted Exception which gives rise to Purchaser's right to terminate
was recorded against the Property as a result of the affirmative, willful
action of Seller (and not by any unrelated third party), then Purchaser shall
have the additional rights contained in Paragraph 12 hereof. Absent notice
from Purchaser to Seller in accordance with the preceding sentence, Purchaser
shall be deemed to have elected to take title subject to said new Unpermitted
Exception. If Purchaser terminates this Agreement in accordance with the terms
of this Paragraph 5.5, this Agreement shall become null and void without
further action of the parties and all Earnest Money theretofore deposited into
the escrow by Purchaser together with any interest accrued thereon, shall be
returned to Purchaser, and neither party shall have any further liability to
the other, except for Purchaser's obligation to indemnify Seller and restore
the Property, as more fully set forth in Paragraph 7. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 5.5 shall not
apply to New Monetary Liens, which are governed by the terms of Paragraph 5.4.
5.6. Purchaser acknowledges that Seller has entered into that certain
Agreement of Sale (the "Amsdell Agreement") by and between Seller and
Acquiport/Amsdell I Limited Partnership, a Delaware limited partnership
("Amsdell"), dated June 16, 1997, as amended by that certain First Amendment to
Agreement of Sale and Escrow Agreement dated August 6, 1997, whereby Seller
agrees to sell the Real Properties to Amsdell, subject to the terms contained
therein. Paragraph 8.2.1 of the Amsdell Agreement provides that if Balcor
Storage Partners-85, an Illinois general partnership ("Balcor"), and Colonial
Storage 85, Inc., a Texas corporation ("Colonial"), the general partners of
Seller, determine in good faith that the recommendation to the limited partners
of Seller of a competing offer to purchase the Real Properties is necessary to
comply with their fiduciary duties to the limited partners of Seller, then
Seller shall have the right to terminate the Amsdell Agreement. Purchaser
acknowledges that Balcor did not solicit from Purchaser the offer to purchase
the Real Properties. Balcor and Colonial have determined in good faith that if
this Agreement has not been terminated on or before the Title Waiver Date, then
Seller shall deliver notice to Amsdell terminating the Amsdell Agreement.
<PAGE>
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to any
Property by fire or other casualty prior to the Closing Date, Purchaser shall
not have the right to terminate its obligations under this Agreement by reason
thereof, but Seller shall have the right to elect to either repair and restore
the Property prior to the Closing Date or to assign and transfer to Purchaser
on the Closing Date all of Seller's right, title and interest in and to all
insurance proceeds paid or payable to Seller on account of such fire or
casualty together with a credit for any deductible applicable to the claim
relating to such insurance proceeds. Seller covenants to maintain at all times
full replacement cost, all risk casualty insurance covering each of the Real
Properties.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated or threatened which
might result in the taking of any part of any Property or the taking or closing
of any right of access to any Property, Seller shall immediately notify
Purchaser of such occurrence. If between the date of this Agreement and the
Closing Date, any condemnation or eminent domain proceedings are initiated,
Purchaser shall be required to proceed with the Closing, in which event Seller
shall assign to Purchaser all of Seller's right, title and interest in and to
any award made in connection with such condemnation or eminent domain
proceedings. Notwithstanding anything contained herein to the contrary, if
Seller delivers notice of condemnation or eminent domain proceedings which are
initiated or threatened between the date of this Agreement and the Closing
Date, Purchaser shall have the right to participate in all settlement
discussions and other conferences relating thereto involving the Seller.
7. INSPECTION AND AS-IS CONDITION.
7.1. Purchaser and the agents, engineers, employees, contractors and
surveyors retained by Purchaser may enter upon each of the Properties, at any
reasonable time and upon reasonable prior notice to Seller, to inspect the
Properties, including a review of Leases located at each of the Properties, and
to conduct and prepare such studies (including, without limitation, the
"Environmental Reports" [hereinafter defined]), tests and surveys (the
"Investigations") as Purchaser may deem reasonably necessary and appropriate.
Since Purchaser has conducted certain of its investigations and tests prior to
the execution of this Agreement, the definition of "Investigations" includes,
without limitation, any and all tests and studies conducted by Purchaser or
Purchaser's agents, architects, engineers, employees, contractors or surveyors
prior to the execution of this Agreement at the Property. Seller has
delivered, or shall deliver, as applicable, to Purchaser (a) unaudited year end
1995 and 1996 and year-to-date income statements for the Properties, (b) a rent
roll for all Leases as described in Exhibit M, (c) a representative sample of
the Leases (including all form exhibits, addenda, or attachments thereto, all
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form amendments thereof, all form guarantees thereof, (d) all utility bills for
the twelve (12) months preceding this Agreement, if available, (e) tax bills
and insurance bills from the Properties for 1996, (f) the standard form lease
utilized by Seller at the Properties, (g) copies of all licenses and permits in
Seller's possession relating to the Properties, (h) reports setting forth the
dimensions of the units at each Property, to the extent in Seller's possession,
and (i) plans and specifications for the Properties, to the extent in Seller's
possession.
All of the foregoing tests, investigations and studies to be conducted
under Paragraphs 7.1 and 7.2 by Purchaser shall be at Purchaser's sole cost and
expense, except as set forth herein to the contrary with respect to the
Environmental Reports and Purchaser shall restore the Properties to the
condition existing prior to the performance of such tests or investigations by
or on behalf of Purchaser. Purchaser shall defend, indemnify and hold Seller
and any affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's affiliate or parent (hereinafter
collectively referred to as "Affiliate of Seller") harmless from any and all
liability, cost and expense (including without limitation, reasonable
attorney's fees, court costs and costs of appeal) suffered or incurred by
Seller or Affiliates of Seller for injury to persons or property caused by
Purchaser's investigations and inspection of the Properties. Purchaser shall
undertake its obligation to defend set forth in the preceding sentence using
attorneys selected by Seller, in Seller's sole discretion.
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing comprehensive
general public liability insurance insuring the person, firm or entity
performing such tests, studies and investigations and listing Seller and
Purchaser as additional insureds thereunder.
Although Seller is permitting Purchaser to perform the Investigations,
under no circumstances whatsoever shall Purchaser have any right to terminate
this Agreement or seek any adjustment in the Purchase Price or vary any terms
of this Agreement based upon the findings of the Investigations, except solely
as contained in Paragraphs 7.3 and 7.4.
7.2. Seller has caused to be ordered a Phase I Environmental Report for
each Property from ATC Associates, Inc. (the "Environmental Reports") and
Seller shall provide to Purchaser such Environmental Reports to Purchaser no
later than September 15, 1997. Seller agrees to pay for the costs of the Phase
I Environmental Reports when such costs come due. If the Environmental Report
recommends obtaining a Phase II Environmental Site Assessment (a "Phase II"),
Seller shall pay for the cost of such Phase II, provided such Phase II is
reasonably necessary and Seller approves the cost of such Phase II in its
reasonable discretion. Seller makes no representation or warranty concerning
the accuracy or completeness of the Environmental Reports. Purchaser hereby
releases Seller and the Affiliates of Seller from any liability whatsoever with
respect to the Environmental Reports, or, including, without limitation, the
matters set forth in the Environmental Reports, and the accuracy and/or
completeness of the Environmental Reports. Furthermore, Purchaser acknowledges
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that it will be purchasing the Properties with all faults disclosed in the
Environmental Reports. In the event this Agreement is terminated for any
reason, Purchaser shall promptly deliver to Seller copies of all studies,
reports and investigations obtained by Purchaser in connection with its due
diligence of the Properties, including, without limitation, the Environmental
Reports. Notwithstanding anything contained herein to the contrary,
Purchaser's obligations, as more fully set forth in this Paragraph 7.2 shall
survive the Closing and the delivery of the Deeds and termination of this
Agreement.
7.3. Based on Purchaser's review of the Environmental Reports, if on or
prior to October 15, 1997, Purchaser delivers to Seller the Notice (hereinafter
defined) establishing, in accordance with Paragraph 7.5, any Environmental
Material Defects (hereinafter defined) and the Aggregate Cost (hereinafter
defined) of remedying the Environmental Material Defects is less than or equal
to $500,000.00, then, at Closing, Seller shall deposit into an account with
Title Insurer (the "Environmental Escrow"), in accordance with an escrow
agreement among Seller, Purchaser and Title Insurer (the "Environmental Escrow
Agreement") in the form of Exhibit O attached hereto, an amount equal to the
Aggregate Costs.
7.4. If on or prior to October 15, 1997, Purchaser delivers to Seller the
Notice establishing, in accordance with Paragraph 7.5, the Aggregate Cost of
remedying the Environmental Material Defects is greater than $500,000.00, then
Seller shall have the right to elect, by written notice within twenty (20) days
after receipt of the Notice, to either (a) terminate this Agreement (the
"Termination Notice") in which case the Earnest Money deposited by Purchaser
shall be immediately returned to Purchaser together with all interest earned
thereon and thereupon neither party shall have any rights against the other or
any further liability to the other, except for Purchaser's obligations pursuant
to Paragraph 7.1 and as otherwise specifically set forth in this Agreement, or
(b) agree to deposit into the Environmental Escrow, at Closing, an amount equal
to the Aggregate Cost for the Environmental Material Defects (the "Credit
Notice") and Purchaser shall purchase the Properties subject to all the
Environmental Material Defects. Failure of Seller to deliver a Termination
Notice to Purchaser within the time period above provided shall be deemed
delivery of a Termination Notice as of the last day of the aforesaid twenty
(20) day period. If Seller delivers or is deemed to deliver the Termination
Notice, then Purchaser shall have the right to negate the Termination Notice
(in which case the Termination Notice shall be null and void and this Agreement
shall remain in full force and effect), by delivering to Seller, on or before
five (5) days after receipt of the Termination Notice or deemed receipt of the
Termination Notice, a statement agreeing to purchase the Property with a
$500,000.00 deposit into the Environmental Escrow for all the Environmental
Material Defects and Purchaser shall purchase the Property subject to all
Environmental Material Defects. For example, assuming for illustrative
purposes only, the Aggregate Cost of the Environmental Material Defects is
$800,000.00, and Seller elects not to terminate this Agreement, Seller shall
deposit into the Environmental Escrow at the Closing an amount equal to
$800,000.00. If in the example contained in the preceding sentence, Seller
delivered a Termination Notice and Purchaser elected to negate it, Seller would
deposit into the Environmental Escrow at Closing an amount equal to
$500,000.00.
<PAGE>
Notwithstanding the foregoing paragraph, if the Aggregate Cost of the
Environmental Material Defects exceeds $2,500,000.00 and Seller has elected to
deposit such amount in the Environmental Escrow, Purchaser may terminate this
Agreement within twenty (20) days after Purchaser's delivery of the Notice
establishing the Aggregate Cost to Seller. If Purchaser delivers such
termination notice then the Earnest Money deposited by Purchaser shall be
immediately returned to Purchaser together with all interest earned thereon and
thereupon neither party shall have any rights against the other or any further
liability to the other, except for Purchaser's obligations pursuant to
Paragraph 7.1 and as otherwise specifically set forth in this Agreement.
7.5. In order to establish an Environmental Material Defect, Purchaser
shall be required to deliver to Seller on or before October 15, 1997: as to
each Real Property a written proposal from a responsible licensed contractor
selected by Purchaser setting forth the cost of remedying the Environmental
Material Defect disclosed in the respective Environmental Reports (the "Real
Property Cost") reflected in the Environmental Report (the "Purchaser
Estimate"). If the Purchaser Estimate or "Seller Estimate" (hereinafter
defined) includes a cost range for remedying the particular Environmental
Material Defect, the Real Property Cost shall be the lowest cost set forth in
the estimate for the particular Environmental Material Defect. "Aggregate
Cost" shall mean the aggregate of all Real Property Costs. The Environmental
Report and the Purchaser Estimate shall be referred to collectively hereinafter
as the "Notice". If Seller agrees with the Purchaser Estimate then the Real
Property Cost shall equal the amount of the Purchaser Estimate. If Seller does
not agree with the Purchaser Estimate, then Seller shall deliver to Purchaser,
within fifteen (15) days after receipt of the Notice, a written proposal from a
responsible licensed contractor selected by Seller setting forth the costs such
contractor will charge for remedying the applicable defect (the "Seller
Estimate"), and the Real Property Cost shall equal the average of the Purchaser
Estimate and the Seller Estimate.
7.6. The term "Environmental Material Defect" shall mean "Hazardous
Materials" (hereinafter defined) located in, on or under the Real Property in
violation of any Environmental Laws (hereinafter defined).
7.7. If this Agreement is terminated in accordance with Paragraph 7.4,
the Earnest Money together with all interest earned thereon shall be
immediately returned to Purchaser and thereupon neither party shall have any
rights against the other or any further liability to the other, except for
Purchaser's obligations pursuant to Paragraph 7.1 and except as otherwise
specifically set forth in this Agreement. Notwithstanding anything contained
herein to the contrary, Purchaser's obligation to indemnify Seller and restore
the Properties, as more fully set forth in Paragraphs 7.1, shall survive the
termination of this Agreement and the Closing and the delivery of the Deeds.
7.8. To the extent there exists an Environmental Material Defect for which
a third party (other than Purchaser or Seller) is liable, Purchaser and Seller
shall jointly pursue a claim against such liable third party to receive
compensation for any damages suffered by each party hereto as a result thereof.
<PAGE>
In the event either party hereto declines by notice to the other to participate
in the joint claim, then the non-declining party shall have the right to pursue
a separate claim against the liable third party to receive compensation
suffered by the non-declining party. Notwithstanding anything contained in
this Paragraph 7 to the contrary, in the event that the Environmental Report,
with respect to any Property, reveals a potential Environmental Material Defect
for which additional testing is required to determine whether an actual
Environmental Material Defect exists and such additional testing cannot be
completed on or before October 15, 1997 or the Environmental Report reveals an
Environmental Material Defect but Purchaser is unable to determine the
magnitude of the Real Property Cost associated with such Environmental Material
Defect and such information is not available and additional testing cannot be
accomplished on or before October 15, 1997, then Seller shall deposit into an
escrow established at Title Insurer to be held pursuant to an escrow agreement
in form mutually acceptable to Seller and Purchaser, an amount equal to
$500,000.00 less that portion of the Aggregate Costs for which Seller has
deposited into the Environmental Escrow at Closing pursuant to Paragraph 7.3.
In no event shall Seller be required to deposit into said escrow an amount in
excess of $500,000 in the aggregate. Purchaser shall determine the Real
Property Cost with respect to the proposed or actual Environmental Material
Defect which is the subject of the escrow as soon as commercially reasonable,
but in no event later than ninety (90) days after the Closing. In the event
that Purchaser does not determine such Real Property Cost on or before the end
of such ninety (90) day period, then all amounts held in such escrow shall be
returned to Seller including all interest earned thereon and Seller shall have
no further liability for such potential or actual Environmental Material
Defect. Upon delivery of the Purchaser Estimate, Seller shall have the right
to submit a Seller Estimate and the last two (2) sentences of Paragraph 7.5
shall apply. Purchaser grants Seller a license to enter the applicable
Property to determine Seller's Estimate. At such time as the Real Property
Cost with respect to the proposed or actual Environmental Material Defect which
is the subject of the escrow is determined, Title Issuer shall deposit into the
Environmental Escrow to Purchaser an amount equal to the additional deposit
Purchaser would have been entitled to had such Real Property Costs been
included in the Aggregate Costs prior to Closing (not to exceed the amount of
the escrowed funds) and any remaining balance shall be disbursed to Seller. In
no event shall Seller be liable for any costs related to such potential or
actual Environmental Material Defects which are the subject of the escrow in
excess of the amounts deposited in such escrow. In all events, Seller shall
receive any interest earned on the escrowed funds and such interest shall be
disbursed upon the closing of such escrow.
7.9. Seller makes no representations or warranties relating to the
condition of the Properties other than expressly set forth herein. Purchaser
acknowledges and agrees that it will be purchasing the Properties based solely
upon its inspections and investigations of the Properties, and that Purchaser
will be purchasing the Properties "AS IS" and "WITH ALL FAULTS", based upon the
condition of the Properties as of the date of this Agreement, subject to the
disclosures contained in Exhibit F attached hereto ("Liabilities"), wear and
tear and loss by fire or other casualty or condemnation excepted. Without
limiting the foregoing, Purchaser acknowledges that, except as may otherwise be
<PAGE>
specifically set forth elsewhere in this Agreement, neither Seller nor its
consultants, brokers or agents have made any representations or warranties of
any kind upon which Purchaser is relying as to any matters concerning the
Properties, including, but not limited to, the condition of the land or any
improvements comprising the Properties, the existence or non-existence of
Hazardous Materials, economic projections or market studies concerning the
Properties, any development rights, taxes, bonds, covenants, conditions and
restrictions affecting the Properties, water or water rights, topography,
drainage, soil, subsoil of the Properties, the utilities serving the Properties
or any zoning or building laws, rules or regulations or Environmental Laws
affecting the Properties. Seller makes no representation or warranty that the
Properties comply with Title III of the Americans with Disabilities Act or any
fire code or building code. Purchaser agrees to indemnify and hold Seller and
the Affiliates of Seller harmless from any and all loss, cost and expense
arising out of or in any way related to the Liabilities. Purchaser hereby
releases Seller and the Affiliates of Seller from any and all liability in
connection with any claims which Purchaser may have against Seller or the
Affiliates of Seller, including in connection with the Liabilities, and
Purchaser hereby agrees not to assert any claims for contribution, cost
recovery or otherwise, against Seller or the Affiliates of Seller, relating
directly or indirectly to the existence of asbestos or Hazardous Materials on,
or environmental conditions of, the Properties, whether known or unknown. As
used herein, "Environmental Laws" means all federal, state and local statutes,
codes, regulations, rules, ordinances, orders, standards, permits, licenses,
policies and requirements (including consent decrees, judicial decisions and
administrative orders) relating to the protection, preservation, remediation or
conservation of the environment or worker health or safety, all as amended or
reauthorized, or as hereafter amended or reauthorized, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. e 9601 et seq., the Resource Conservation
and Recovery Act of 1976 ("RCRA"), 42 U.S.C. e 6901 et seq., the Emergency
Planning and Community Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C.
e 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C. e 7401 et seq., the
Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. e 1251 et
seq., the Toxic Substances Control Act ("TSCA"), 15 U.S.C. e 2601 et seq., the
Safe Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. e 300f et seq.,
the Atomic Energy Act ("AEA"), 42 U.S.C. e 2011 et seq., the Occupational
Safety and Health Act ("OSHA"), 29 U.S.C. e 651 et seq., and the Hazardous
Materials Transportation Act (the "Transportation Act"), 49 U.S.C. e 1802 et
seq. As used herein, "Hazardous Materials" means: (1) "hazardous substances,"
as defined by CERCLA; (2) "hazardous wastes," as defined by RCRA; (3) any
radioactive material including, without limitation, any source, special nuclear
or by-product material, as defined by AEA; (4) asbestos in any form or
condition; (5) polychlorinated biphenyls; and (6) any other material, substance
or waste to which liability or standards of conduct may be imposed under any
Environmental Laws. Notwithstanding anything contained herein to the contrary,
Purchaser's obligations, as more fully set forth in this Paragraph 7.9 shall
survive the Closing and the delivery of the Deed and termination of this
Agreement.
<PAGE>
7.10. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Properties 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 solely as illustrative material. 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 Properties, it being acknowledged by Purchaser that Seller's operation of
the Properties 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 mini-warehouse
facilities and further that Purchaser has relied upon its own investigation and
inquiry with respect to the operation of the Properties and releases Seller and
the Affiliates of Seller from any liability with respect to such historical
information. Notwithstanding anything contained herein to the contrary,
Purchaser's obligations, as more fully set forth in this Paragraph 7.10 shall
survive the Closing and the delivery of the Deeds and termination of this
Agreement.
8. CONDITIONS PRECEDENT; ACQUISITION PROPOSALS.
8.1. Conditions Precedent. Seller's obligation to consummate the
transaction set forth herein shall be conditioned upon the satisfaction of the
following (the "Condition Precedent"):
(i) on or before one hundred twenty (120) days immediately following
the Title Waiver Date, obtaining the consent to the transaction set forth in
this Agreement from the limited partners of Seller in accordance with the terms
of the Amended and Restated Agreement and Certificate of Limited Partnership of
Balcor/Colonial Storage Income Fund-85 ("Partnership Agreement").
Notwithstanding anything contained herein to the contrary, Seller shall have
the right to extend the date for satisfaction of the Condition Precedent set
forth in Paragraph 8.1(i) for sixty (60) days following the last date for
satisfaction of such Condition Precedent, by giving prior written notice to
Purchaser on or before the date two (2) days prior to the last date for
satisfaction of such Condition Precedent. Seller agrees to use reasonably
diligent efforts to file its proxy solicitation for review by the Securities
and Exchange Commission on a timely basis. In the event that the Condition
Precedent is not satisfied on or before 5:00 p.m. of the last date for
satisfaction (including any extensions of such date in accordance with the
preceding sentence) (the "Condition Satisfaction Date"), this Agreement shall
automatically terminate and shall be null and void and the Earnest Money, shall
be immediately returned to Purchaser together with all interest earned thereon
and thereupon neither party shall have any rights against the other or any
further liability to the other, except for Purchaser's obligations pursuant to
Paragraph 7.1 hereof and as otherwise specifically set forth herein. In
addition, if (a) Purchaser has waived all of Purchaser's rights to terminate
this Agreement pursuant to Article 5 of this Agreement, (b) this Agreement has
not been terminated for any other cause or reason set forth in this Agreement,
<PAGE>
and (c) this Agreement is terminated because the Condition Precedent set forth
in Paragraph 8.1(i) is not satisfied on or before the Condition Satisfaction
Date, then Purchaser shall receive from Seller an amount equal to $300,000.00
to reimburse Purchaser for its costs and expenses incurred in connection with
the negotiation, execution and performance of its due diligence hereunder.
8.2. Acquisition Proposals.
8.2.1. Notwithstanding anything contained herein to the contrary, if
Seller receives an "Acquisition Proposal" (hereinafter defined) prior to the
satisfaction of the Conditions Precedent and Seller, after consultation with
and based upon the advice of Katten Muchin & Zavis or another nationally
recognized law firm selected by Seller, have determined in good faith that the
recommendation of the Acquisition Proposal to the limited partners of Seller is
necessary by Seller to comply with the fiduciary duties of the general partners
of Seller to their limited partners under applicable law, then Seller shall
have the right to terminate this Agreement upon written notice to Purchaser,
and Seller shall deliver such written notice to Purchaser within seven (7) days
after such determination. An "Acquisition Proposal" shall mean any offer with
respect to a merger, acquisition, tender offer (provided such tender offer is
offered to seventy-five (75%) or more of the outstanding limited partnership
interests), exchange offer, consolidation or similar transaction involving, or
any purchase of the Properties or any equity securities or partnership
interests of, Seller, other than the transaction contemplated by this
Agreement. Seller agrees not to solicit an Acquisition Proposal; provided,
however, nothing contained herein shall prohibit Seller from furnishing
information to or entering into discussions or negotiations with, any person or
entity that makes a bona fide Acquisition Proposal unsolicited by Seller, if
Seller, after consultation with and based upon the advice of Katten Muchin &
Zavis, or another nationally recognized law firm selected by Seller, determines
in good faith that such action is required for Seller to comply with the
fiduciary duties of the general partners of Seller to their limited partners
under applicable law. In the event this Agreement is terminated by Seller
pursuant to this Paragraph 8.2 herein, this Agreement shall be null and void
and the Earnest Money, shall be immediately returned to Purchaser together with
all interest earned thereon and thereupon neither party shall have any rights
against the other or have any further liability to the other, except as
specifically set forth herein.
8.2.2. (a) If Seller terminates this Agreement pursuant to
Paragraph 8.2.1 above, and within 270 days of such termination Seller
consummates a transaction which was the subject of an Acquisition Proposal or
enters into a definitive agreement with respect to a transaction which was the
subject of an Acquisition Proposal, upon consummation of such transaction, and
provided the purchase price for such transaction is greater than the Purchase
Price set forth herein, Seller shall pay Purchaser an amount (the "Termination
Amount") in cash equal to the remainder of (a) three percent (3%) of the
Purchase Price less (b) $300,000.00.
(b) In addition, if Seller terminates this Agreement pursuant to
Paragraph 8.2.1 above, Seller shall pay Purchaser $300,000.00 upon such
termination to reimburse Purchaser for its costs and expenses incurred in
connection with the negotiation, execution and performance of its due diligence
hereunder.
<PAGE>
(c) For purposes of this Section 8.2.2, an Acquisition Proposal that is
in the form of a tender offer shall be deemed to be consummated only if such
tender offer is accepted by fifty-one percent (51%) or more of the outstanding
limited partnership interests.
(d) If this Agreement terminates as a result of Section 8.2.1, at any
time prior to or within 270 days after termination of this Agreement, Seller
shall not enter into any agreement relating to an Acquisition Proposal which
provides for a purchase price greater than the Purchase Price set forth herein
with a person other than Purchaser unless such agreement provides such person
shall be obligated to pay any Termination Amount due Purchaser under this
Section 8.2.2.
(e) The parties acknowledge and agree that the provisions for payment of
the Termination Amount are included herein in order to induce Purchaser to
enter into this Agreement and to reimburse Purchaser for incurring costs and
expenses related to entering into this Agreement and consummating the
transactions contemplated by this Agreement.
8.2.3. Subject to the provisions of Paragraph 5.6 and Paragraph
8.2.1, Balcor shall recommend that the limited partners of Seller approve this
Agreement and the transactions contemplated hereby and Colonial shall either
maintain a neutral position or recommend that the limited partners of Seller
approve this Agreement and the transactions contemplated hereby.
9. CLOSING. The closing of this transaction (the "Closing") shall occur on
the date which is seven (7) business days after the satisfaction of the
Conditions Precedent (the "Closing Date"), at the office of Purchaser's
counsel, Dallas, Texas, at which time Seller shall deliver possession of the
Properties to Purchaser. This transaction shall be closed in accordance with
the escrow instructions attached hereto as Exhibit G (the "Closing Escrow
Instructions"). The Purchase Price shall be paid and all documents necessary
for the consummation of this transaction shall be delivered through escrow on
or prior to the Closing Date. The Closing Escrow Instructions shall provide
that the parties shall close on the Closing Date and Seller shall receive the
sale proceeds and Purchaser shall receive marked-up Title Commitments, and
Seller agrees to execute a gap undertaking as required by the Title Insurer.
The escrow costs and fees, including the fees for the New York style closing,
shall be equally shared by Seller and Purchaser.
10. CLOSING DOCUMENTS.
10.1. On the Closing Date, Seller and Purchaser shall execute and deliver
to one another a joint closing statement for each Property. In addition,
Purchaser shall deliver to Seller the balance of the Purchase Price, an
assumption of the documents set forth in Paragraph 10.2.3 and 10.2.4, an
opinion of Purchaser's counsel in form satisfactory to Seller stating that the
transaction contemplated by this Agreement is not subject to filing or
notification requirements of the Hart-Scott-Rodino Anti-Trust Improvements Act
of 1976, as amended ("HSR Act"), 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.
<PAGE>
10.2. On the Closing Date, Seller shall deliver to Purchaser the
following:
10.2.1. the Deeds, subject to Permitted Exceptions and those Unpermitted
Exceptions waived by Purchaser;
10.2.2. a special warranty bill of sale for each Property conveying
the Personal Property (in the form of Exhibit H attached hereto);
10.2.3. assignment and assumption of intangible property for each
Property (in the form attached hereto as Exhibit I), including, without
limitation, the Service Contracts, licenses, permits and business licenses;
10.2.4. an assignment and assumption of leases and security deposits
for each Property (in the form attached hereto as Exhibit J);
10.2.5. non-foreign affidavit (in the form of Exhibit K attached
hereto);
10.2.6. original, and/or copies of, the Leases in Seller's
possession (which deliveries may be made at the respective Properties);
10.2.7. all documents and instruments reasonably required by the
Title Insurer to issue the Title Policies, including owner's affidavits to
remove the standard printed exceptions;
10.2.8. possession of the Properties to Purchaser subject to the
terms of the Leases;
10.2.9. evidence of the termination of the management agreement for
each Property;
10.2.10. notice to the tenants of each Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the Leases
and the obligation to refund the security deposits (in the form of Exhibit L);
and
10.2.11. an updated rent roll for each Property.
11. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED OR REQUIRED TO BE
DEPOSITED INTO THE ESCROW IS TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF
ITS OBLIGATIONS AND UNDERTAKINGS UNDER THIS AGREEMENT. IN THE EVENT OF A
DEFAULT OF THE PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT, SELLER SHALL
RETAIN ALL OF THE EARNEST MONEY AND HAVE THE RIGHT TO RECEIVE ALL EARNEST MONEY
REQUIRED TO BE DEPOSITED (IF NOT SO DEPOSITED) AND THE INTEREST THEREON AS
SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY, EXCEPT FOR PURCHASER'S
OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH IN
PARAGRAPH 7.1 HEREOF. 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, IF ANY, HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
<PAGE>
12. 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 THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN
PARAGRAPH 7. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, (A) IF
SELLER'S DEFAULT IS ITS (AND NOT AN UNRELATED THIRD PARTY'S) AFFIRMATIVE,
WILLFUL ACTION OR WILLFUL OMISSION WHICH OCCURS AFTER THE DATE HEREOF WHICH
RESULTS IN THE RECORDING OF AN ENCUMBRANCE OR LIEN AGAINST THE PROPERTY WHICH
GIVES RISE TO PURCHASER'S RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO
PARAGRAPH 5 HEREOF, THEN PURCHASER WILL BE ENTITLED TO SUE FOR ITS ACTUAL
DAMAGES SUFFERED AS A RESULT OF SUCH A DEFAULT BY SELLER IN AN AGGREGATE AMOUNT
NOT TO EXCEED $750,000.00, AND (B) IF SELLER'S DEFAULT IS ITS WILLFUL REFUSAL
TO DELIVER THE DEEDS, THEN PURCHASER WILL BE ENTITLED TO EITHER (1) SUE FOR
SPECIFIC PERFORMANCE OR (2) SUE FOR ITS ACTUAL DAMAGES SUFFERED AS A RESULT OF
SUCH A DEFAULT BY SELLER IN AN AGGREGATE AMOUNT NOT TO EXCEED $750,000.00.
13. PRORATIONS.
13.1. Rents (exclusive of delinquent rents, but including prepaid rents);
prepaid associations dues, refundable security deposits (which will be assigned
to and assumed by Purchaser and credited to Purchaser at Closing); fuels;
prepaid operating expenses; real and personal property taxes prorated on a
"net" basis (i.e. adjusted for all tenants' liability, if any, for such items);
operating expenses which are reimbursable by the tenants for the period prior
to the Closing Date less any amount previously paid by the tenants shall be
credited to Seller; and other similar items shall be adjusted ratably as of
11:59 p.m. on the Closing Date, and credited to the balance of the cash due at
Closing. Utilities, including water, sewer, electric, and gas shall be
prorated at Closing based on the most recent ascertainable data. Seller shall
pay at Closing the bills therefor for the period to and including the Closing,
and the Purchaser shall pay the utility bills therefor for all periods
subsequent thereto. If the utility company will not issue separate bills, the
Purchaser shall receive a credit against the Purchase Price for Seller's
portion and shall pay the entire utility bill after Closing. If Seller has
pre-paid any such utilities (so long as no more than thirty (30) days in
advance in the ordinary course of business), then Purchaser shall be charged
its portion of such payment at Closing. No proration shall be made for utility
expenses that are separately metered to and paid directly by tenants and for
which Seller has no obligation to pay. Furthermore, the Purchaser and the
Seller may accomplish the transfer of utility accounts by arranging for a
change of address on utility billing accounts to the Purchaser's address, if
such a procedure is possible and convenient and mutually acceptable to
Purchaser and Seller. Seller shall be reimbursed at Closing for any utility
deposits which the Seller has deposited with any utility company and which will
be assigned to the Purchaser at Closing. Assessments payable in installments
which are due subsequent to the Closing Date shall be paid by Purchaser. If
the amount of any of the items to be prorated is not then ascertainable, the
adjustments thereof shall be on the basis of the most recent ascertainable
data. The Purchaser shall assume Seller's obligations under the Seller's
existing real estate tax consulting agreements with respect to the Properties,
<PAGE>
i.e., those agreements which Seller has entered into with firms who are
entitled to a commission based on services rendered and the extent to which
they are able to achieve a reduction in the real estate taxes otherwise payable
with respect to the Properties. Seller shall deliver to Purchaser all such
real estate tax consulting contracts within fifteen (15) days of the date
hereof. The fees or commissions payable to said consultants (if any) shall be
treated as a portion of the real estate tax liability to be pro-rated as of the
Closing Date. All costs associated with telephone directory listings and any
other prepaid advertisements shall be prorated as of the Closing Date so that
Seller shall be responsible for any costs associated therewith prior to the
Closing Date and Purchaser shall be responsible for any costs associated
therewith arising from and after the Closing Date. All prorations described in
this Agreement shall be deemed final as prorated on the Closing Date, except as
to delinquent rent referred to in Paragraph 13.2 below.
13.2. For a period of ninety (90) days following the Closing Date, all
basic rent paid following the Closing Date by any tenant of the Properties who
is indebted under a Lease for basic rent for any period prior to and including
the Closing Date after the payment to Purchaser of all current basic rent shall
be deemed a "Post-Closing Receipt" until such time as all such indebtedness is
paid in full. On the last business day of each month following each receipt by
Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing
Receipt to Seller. Purchaser shall use its best efforts to collect all amounts
which, upon collection, would constitute Post-Closing Receipts hereunder.
Within 120 days after the Closing Date, Purchaser shall deliver to Seller a
reconciliation statement of Post-Closing Receipts through the first 90 days
after the Closing Date. Upon the delivery of the Post-Closing Receipts
reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts
owing to Seller and not previously delivered to Seller in accordance with the
terms hereof. Seller retains the right to conduct an audit, at reasonable
times and upon reasonable notice, of Purchaser's books and records to verify
the accuracy of the Post-Closing Receipts reconciliation statement and upon the
verification of additional funds owing to Seller, Purchaser shall pay to Seller
said additional Post-Closing Receipts and, if the amount owing Seller is
greater than $5,000.00 for any one Real Property, the cost of performing
Seller's audit. After the Closing, in no event shall Seller attempt to evict a
tenant through any manner. Paragraph 13.2 of this Agreement shall survive the
Closing and the delivery and recording of the deed.
13.3. To the extent it is reasonably possible for the Seller to do so,
the Seller shall grant (or shall arrange for the owner thereof to grant) to
Purchaser at Closing a temporary license and right to use the logos currently
used by the Property which are the property of an Affiliate of Seller, in place
advertising, telephone directory listings and advertisements, and telephone
numbers, at each of the Properties pursuant to the following terms and
conditions:
(a) The temporary license granted by this paragraph shall commence on the
Closing Date and shall expire on the day which is one hundred eighty (180) days
subsequent to the date when the public telephone directory pertaining to each
Property is published subsequent to the Closing Date. During such period,
<PAGE>
Purchaser shall have the right to use the existing logos, in place advertising,
telephone directory listings and advertisements, and telephone numbers, with
respect to each Property without additional compensation to the Seller except
as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing
logos or trade name on stationery, business cards, contracts or other
documents, and shall not use the existing trade name in responding to oral
inquiries regarding the Properties except to identify a Property as formerly
owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration
for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone
companies so that all existing telephone directory listings and advertisements
and signs can be replaced in due course and within the license period specified
above. In the event that the publication close date for any publication in
which Seller currently has a telephone directory listing and/or advertisement
occurs after the date hereof but before the Closing Date, Purchaser shall have
the right to place a listing and/or advertisement in such publication at
Purchaser's sole cost and expense. Such listing and/or advertisement may list
the Purchaser's name and telephone number. Seller may also place a listing
and/or advertisement in such publication, and in the event that Seller decides
to place such a listing and/or advertisement, Seller shall be entitled to a
pro-rata credit for such portion of the cost of such listing and/or
advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard
company) makes a separate charge for the use of such listings or advertising
subsequent to the Closing Date, then Purchaser shall be responsible to pay same
subsequent to the Closing Date (but no such payment shall accrue to the benefit
of the Seller or constitute a credit against a debt otherwise owed by the
Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall
expire on the date(s) set forth above. If Purchaser continues to use the name
currently being used by the Property subsequent to the expiration date of this
temporary license set forth above, then Purchaser shall be liable for and shall
pay to the owner of said rights a license fee equal to One Hundred Dollars
($100.00) for each day after the permitted date set forth above for each
Property for which Purchaser continues to use the existing trade name. In no
event, however, shall such extended license period exceed ninety (90)
additional days.
(f) If Purchaser continues to use said logos or trade names beyond the
period allowed above for which a temporary license has been granted, then
Seller (or the owner of said rights) shall have all legal and equitable
remedies authorized by federal law or the laws of the state where such Property
is located to prevent such unauthorized use or to recover any damages
authorized by such laws.
<PAGE>
14. SERVICE CONTRACTS. Within thirty (30) days after the date hereof, Seller
shall deliver to Purchaser a copy of all service contracts and advertising
agreements affecting the Properties (the "Delivered Contracts"). Any and all
Delivered Contracts terminable upon thirty (30) days notice without a
termination fee, all advertisement agreements and all other Delivered Contracts
which have not been objected to by Purchaser within twenty (20) days after
Purchaser's receipt thereof shall be deemed "Service Contracts." Seller shall
assign the Service Contracts to Purchaser at Closing, and Purchaser shall
assume responsibility and obligations under the Service Contracts. Seller
agrees to terminate any and all management agreements affecting the Properties
as of the Closing Date. Notwithstanding anything contained herein to the
contrary, (a) to the extent any of the Service Contracts are not assignable and
with respect to Delivered Contracts which are not Service Contracts, Seller
shall terminate said agreements as of the Closing Date and Seller shall pay any
and all termination fees required as a result thereof (except to the extent
such termination fee is payable to an Affiliate of Seller) and (b) to the
extent any of the Service Contract requires the consent of the service supplier
or product supplier and, if Seller is unable to obtain such consent, Seller
shall terminate such agreement as of the Closing Date and Seller shall pay any
termination fee required as a result thereof. Seller shall not be required to
pay any fees in connection with obtaining consents for the assignment of a
Service Contract.
15. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 11 hereof.
16. 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 11 hereof. Notwithstanding the
foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to any entity in which Jim Sowell owns a controlling
interest, and Purchaser shall be released (except as set forth below in this
Paragraph 16) provided that the assignee assumes the obligations of Purchaser
hereunder and that Purchaser's assignee delivers to Seller the certificate of
insurance required pursuant to Paragraph 7.1 hereof. If any assignee of
Purchaser under this Agreement petitions or applies for relief in bankruptcy or
Assignee is adjudicated as a bankrupt or insolvent, or Assignee files any
petition, application for relief or answer-seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future federal,
state or other statute, law, code or regulation relating to bankruptcy,
insolvency, or other relief for debtors (collectively, a "Bankruptcy Filing")
on or before the Closing Date, said Bankruptcy Filing shall be a default under
this Agreement and Purchaser shall indemnify Seller for all costs, attorneys'
fees and expenses of Seller resulting from Seller's efforts to obtain the
Earnest Money as liquidated damages and to clear title to the Property from any
encumbrance resulting from the Bankruptcy Filing.
<PAGE>
17. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Insignia Mortgage & Investment Company (to be paid by Balcor) and
to Steven A. Smathers in the amount of Seven Hundred Fifty Thousand and No/100
Dollars ($750,000.00) (to be paid by Seller). Balcor's commission to Insignia
Mortgage & Investment Company and Seller's commission to Steven A. Smathers
shall only be payable in the event the transaction set forth herein closes.
Purchaser and Seller shall each indemnify, defend and hold the other party
hereto harmless from any claim whatsoever (including without limitation,
reasonable attorney's fees, court costs and costs of appeal) from anyone
claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to Insignia Mortgage & Investment Company and Steven A.
Smathers. The indemnifying party shall undertake its obligations set forth in
this Paragraph 17 using attorneys selected by the indemnifying party and
reasonably acceptable to the indemnified party. The provisions of this
Paragraph 17 will survive the Closing and delivery of the Deed.
18. REPRESENTATIONS AND WARRANTIES.
18.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such knowledge or notice that has actually been
received by Marty Dempski (referred to as the "Seller's Representative"), and
any representation or warranty of the Seller is based upon those matters of
which the Seller's Representative 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, the general partner or limited partners of
Seller, the subpartners of the general partner or limited partners of Seller or
Seller's Representative.
18.2. Subject to the limitations set forth in Paragraph 18.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge and which shall
be remade at Closing and shall not survive the Closing: (i) except as
described on Exhibit F attached hereto, Seller has no knowledge of any pending
or threatened litigation, claim, cause of action or administrative proceeding
concerning the Property, including any action for eminent domain or
condemnation; (ii) the rent rolls which Seller has submitted to the Purchaser
as described in Exhibit M attached hereto and updated as of the Closing Date
are accurate as of the date set forth thereon; (iii) Seller has not received
any notice from any governmental authority having jurisdiction over the
Properties of any uncured violation of any Environmental Law with respect to
the Properties; (iv) subject to the satisfaction of the conditions set forth in
Section 8 of this Agreement, Seller is duly organized, validly existing,
qualified and empowered to conduct its business and has full power and
authority to perform and comply with the terms of this Agreement; (v) subject
to the satisfaction of the conditions set forth in Section 8 of this Agreement
and the terms of Paragraph 5.6 of this Agreement, neither the execution and
delivery of this Agreement nor its performance will conflict with or result in
a breach of any contract or agreement to which Seller is a party or by which
<PAGE>
Seller is bound; (vi) subject to the satisfaction of the conditions set forth
in Section 8 of this Agreement, this Agreement is valid and enforceable against
Seller in accordance with its terms; (vii) Seller has not received any written
notice from any applicable governmental authority having jurisdiction over the
Properties regarding the violation of or failure to comply with any term or
requirement of any law, regulation, order, decree, injunction, judgment,
ruling, assessment, determination, decision, opinion or award affecting the
Properties; (viii) Seller has received no notice from any applicable
governmental authority of any condemnation proceeding affecting any Property;
and (ix) attached hereto as Exhibit N is a list of all insurance claims
affecting the Properties.
18.3. Purchaser hereby represents and warrants to Seller that
(i) Purchaser has the full right, power and authority to execute this Agreement
and consummate the transactions contemplated herein, (ii) neither Purchaser nor
any of Purchaser's affiliates is a "party in interest" (as defined in Section
406 of the Employee Retirement Income Security Act of 1974, as amended and
supplemented) to Seller or any general partner or limited partner of Seller,
and (iii) the transaction contemplated in this Agreement is not subject to any
filing notification requirements of the HSR Act.
18.4. If at any time after the execution of this Agreement, either
Purchaser or Seller become aware of information (a "Change") which makes a
representation and warranty contained in this Agreement to become untrue in any
material respect, said party shall promptly disclose said information to the
other party hereto. Provided the party making the representation or warranty
did not take any deliberate actions to cause the representation or warranty in
question to become untrue in any material respect and did not make a material
false representation or warranty, said party shall not be in default under this
Agreement and the sole remedy of the other party shall be to terminate this
Agreement, in which case Purchaser will receive a refund of the Earnest Money
with any accrued interest thereon and neither party will have any further
liability under this Agreement except to the extent it specifically survives
the termination hereof. Purchaser, provided that it notifies Seller within ten
(10) days after receiving notice from Seller of a Change, may elect to close
subject to such Change and then both parties hereto will be deemed to have
waived their right to terminate this Agreement with respect to such Change.
Notwithstanding anything contained herein to the contrary, if the status of any
of the tenancies changes from the date of the rent roll attached hereto and the
date of the rent roll delivered at Closing, then Purchaser shall not have the
right to terminate this Agreement as a result thereof or make any claim for a
breach of a representation or warranty hereunder involving the rent roll or
tenancies thereunder. Purchaser and Seller are prohibited from making any
claims against the other party hereto after the Closing with respect to any
breaches of the other party's representations and warranties contained in this
Agreement that the claiming party has actual knowledge of prior to the Closing.
19. LIMITATION OF LIABILITY. Neither Seller, nor any Affiliate of Seller, nor
any of their respective beneficiaries, shareholders, partners, officers,
directors, agents or employees, heirs, successors or assigns shall have any
<PAGE>
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.
20. TIME OF ESSENCE. Time is of the essence of this Agreement. If the final
day of any period which is set forth in this Agreement falls on a Saturday,
Sunday, or legal holiday under the laws of the United States or the State of
Illinois, then in such event, the duration of such period shall be extended to
the next day which is not a Saturday, Sunday, or other legal holiday. Any
reference to a time of day (e.g., 12:00 noon) shall refer to Chicago, Illinois
time.
21. RADON GAS. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT
HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH
RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED
FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM
YOUR COUNTY PUBLIC HEALTH UNIT. THIS PARAGRAPH IS PROVIDED FOR INFORMATIONAL
PURPOSES PURSUANT TO SECTION 404.056(8), FLORIDA STATUTES, (1988).
22. CONSIDERATION. On or before the execution of this Agreement, Purchaser
shall deliver to Seller One Hundred And No/100 Dollars ($100.00) cash (the
"Independent Contract Consideration"), which amount has been bargained for and
agreed to as consideration for Purchaser's right to purchase the Properties
pursuant to this Agreement and for Seller's execution and delivery of this
Agreement. The Independent Contract Consideration is in addition to and
independent of all other consideration provided in this Agreement, and is
nonrefundable in all events.
23. WAIVER OF DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT. Purchaser
waives its rights under the Texas Deceptive Trade Practices-Consumer Protection
Act ("TDTPA"), Section 17.41 et seq., Business & Commerce Code, a law that
gives consumers special rights and protections. After consultation with an
attorney/legal counsel of Purchaser's own selection, Purchaser voluntarily
consents to this waiver. Purchaser covenants, represents and warrants that
such attorney/legal counsel was not directly or indirectly identified,
suggested, or selected by Seller or an agent of Seller.
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, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
<PAGE>
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
(847) 317-4462 (FAX)
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Jerry Ogle
(847) 317-4380
(847) 317-4462 (FAX)
and to: Colonial Storage 85, Inc.
4381 Green Oaks Boulevard West
Suite 100
Arlington, Texas 76016-4468
Attention: James R. Pruett
(817) 561-1000
(817) 561-3036 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
and to: Novakov, Davidson & Flynn
750 North St. Paul
Suite 2000
Dallas, Texas 75201
Attention: Steven D. Davidson, Esq.
(214) 922-9221
(214) 969-7557 (FAX)
TO PURCHASER: VALSTOR, INC.
3131 McKinney Avenue
Ste. 200
Dallas, TX 75204
Attention: James Sowell
(214) 871-3320
( ) -
<PAGE>
and one copy to: Steven E. Smathers
Attorney at Law
3131 McKinney Avenue
Dallas, TX 75204
(214) 871-7227
(214) 871-1620 (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 the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time 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, by overnight courier or by facsimile transmission 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 served upon the Escrow Agent.
25. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Earnest Money Escrow
Agreement and forward them to Seller for execution, accompanied with the
Earnest Money, if any, payable to the Escrow Agent set forth in the Earnest
Money Escrow Agreement. Seller will forward one (1) copy of the executed
Agreement to Purchaser and will forward the following to the Escrow Agent:
(A) Earnest Money, if any;
(B) One (1) fully executed copy of this Agreement; and
(C) Three (3) copies of the Earnest Money 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 each of the Purchaser and the Seller.
26. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, AND THE RIGHTS AND
OBLIGATIONS OF SELLER AND PURCHASER HEREUNDER DETERMINED, IN ACCORDANCE WITH
THE SUBSTANTIVE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES.
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. To facilitate the execution of this Agreement, Seller
and Purchaser may execute and exchange by telephone facsimile counterparts the
signature pages, with each facsimile being deemed an "original" for all
purposes.
<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. WRITTEN AMENDMENTS ONLY. All amendments to this Agreement must be in
writing and executed by Purchaser and Seller to be enforceable.
[SIGNATURE PAGE TO FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
VALUE STORAGE, LTD., a Texas limited partnership
By: VALSTOR, INC., a Texas corporation,
its general partner
By: /s/ Keith Martin
----------------------------------
Name:
----------------------------------
Its:
----------------------------------
SELLER:
BALCOR/COLONIAL STORAGE INCOME FUND - 85,
an Illinois limited partnership
By: Balcor Storage Partners - 85, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
corporation, its general partner
By: /s/ Jerry M. Ogle
--------------------------------------
Name: Jerry M. Ogle
--------------------------------------
Its: Managing Director and Secretary
--------------------------------------
By: COLONIAL STORAGE 85, INC., a Texas corporation,
a general partner
By: /s/ James Pruett
---------------------------------
Name: James Pruett
---------------------------------
Its: President
---------------------------------
DATE OF SELLER'S ACCEPTANCE:
SEPTEMBER 4, 1997
<PAGE>
ACKNOWLEDGMENT OF COUNSEL FOR PURCHASER
The undersigned has represented Purchaser in connection with the
transaction contemplated by this Agreement and executes this Agreement for the
sole purpose of complying with Section 17.42(a)(3) of the TDTPA, as same
applies to the waiver and release contained in this Agreement.
/s/ Steven E. Smathers
-----------------------------------
<PAGE>
[Colonial 85]
of Insignia Mortgage & Investment Company ("Seller's Broker")
executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Balcor as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated , 199 between Seller and Seller's Broker (the "Listing
Agreement"). Seller's Broker also acknowledges that payment of the aforesaid
fee or commission is conditioned upon the Closing and the receipt of the
Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt to
the Seller at the Closing for the fee or commission due Seller's Broker and a
release, in the appropriate form, stating that no other fees or commissions are
due to it from Seller or Purchaser.
Insignia Mortgage & Investment Company
By:
------------------------------------
Steven A. Smathers ("Purchaser's Broker") executed this Agreement in its
capacity as a real estate broker and acknowledges that a fee or commission is
due it from Seller as a result of the transaction described in this Agreement
in the amount of our Seven Hundred Fifty Thousand and No/100 Dollars
($750,000.00). Purchaser's Broker also acknowledges that payment of the
aforesaid fee or commission is conditioned upon the Closing and the receipt of
the Purchase Price by the Seller. Purchaser's Broker agrees to deliver a
receipt to the Seller at the Closing for the fee or commission due Purchaser's
Broker and a release, in the appropriate form, stating that no other fees or
commissions are due to it from Seller or Purchaser.
By: /s/ Steven E. Smathers
-------------------------------------
<PAGE>
Exhibits
A - Common Description of Real Property
B - Legal Description of Real Property
C - Earnest Money Escrow Agreement
D - Intentionally Omitted
E - Deed
F - Pending or Threatened Claims
G - Closing Escrow Instructions
H - Bill of Sale
I - Assignment and Assumption of Intangible Property
J - Assignment and Assumption of Leases and Security Deposits
K - Non-Foreign Affidavit
L - Notice to Tenants
M - Master Rent Roll
N - Insurance Claims
O - Environmental Escrow Agreement
<PAGE>
FIRST AMENDMENT TO AGREEMENT OF SALE
THIS FIRST AMENDMENT (this "Amendment") is made and entered into on this
17th day of September, 1997 by and between BALCOR/COLONIAL STORAGE INCOME
FUND-85, an Illinois limited partnership ("Seller") and VALUE STORAGE, LTD, a
Texas limited partnership ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Agreement of Sale
dated September 3, 1997 (the "Agreement") pursuant to which Seller agreed to
sell and Purchaser agreed to purchase sixty-nine (69) separate self-storage
properties located in the states of North Carolina, South Carolina, Georgia,
Mississippi, Missouri, New Mexico, Arkansas, Texas and Oklahoma, which
properties are legally described in Exhibit B of the Agreement (collectively,
the "Real Properties" and individually a "Real Property");
WHEREAS, pursuant to the Agreement, Purchaser and Seller agreed to attempt
to find a mutually satisfactory resolution to any "Unpermitted Exceptions"
established by Purchaser in accordance with the terms of the Agreement;
WHEREAS, Seller and Purchaser desire to enter into this Amendment to
provide for the resolution of the Unpermitted Exceptions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. All capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the Agreement.
2. Title Review. Purchaser hereby acknowledges that Purchaser has
reviewed the title commitments issued by American Title Company (the "Title
Insurer") as agent for Lawyers Title Insurance Company listed on Exhibit A
attached hereto (the "Title Commitments"), the Documents of Record, and the
Updated Surveys. Purchaser has delivered to Seller a list of Unpermitted
Exceptions as called for in Paragraph 3 of the Agreement, including exceptions
regarding the flood zone status of the properties (collectively, the
"Unpermitted Exceptions" and individually, an "Unpermitted Exception"), which
list of Unpermitted Exceptions is based upon Purchaser's review of the Title
Commitments, Documents of Record, and Updated Surveys. Notwithstanding
anything contained in the Agreement to the contrary, Purchaser hereby agrees to
take title to the Properties subject to the Unpermitted Exceptions, except
those Unpermitted Exceptions relating to the payment of any mortgages and
current real estate taxes, and waives any rights for claims arising out of the
Unpermitted Exceptions. Seller agrees to pay for any additional survey work
which may be required in the course of resolving Purchaser's title objections.
3. Capital Improvements Reserve. At Closing, Seller shall fund
$100,000.00 from the sale proceeds into Purchaser's Capital Improvements
Reserve between Purchaser and Purchaser's lender to compensate Purchaser for
assuming those Unpermitted Exceptions not otherwise cured or removed by
<PAGE>
Purchaser prior to Closing. In addition, Purchaser shall receive a credit from
Seller in the amount of $55,000.00 against the Purchase Price to compensate
Purchaser for Purchaser's attorneys' fees and other costs incurred in
connection with resolving the Unpermitted Exceptions.
4. Insurance Reserve. At Closing, Seller shall fund into Purchaser's
Insurance Reserve between Purchaser and Purchaser's lender the amount of
$100,000.00 to compensate Purchaser for the cost of obtaining flood insurance
covering those Properties with improvements located within the 100-year flood
plain.
5. Amsdell Lis Pendens. If (a) Amsdell, or an affiliate, files a lis
pendens against any of the Real Properties before the Closing resulting in a
new Unpermitted Exception, (b) Seller is not able to either bond over (in a
manner acceptable to Purchaser), cure and/or have any such new Unpermitted
Exception removed from the Title Commitment or to have Title Insurer commit to
insure against loss or damage that may be occasioned by such Unpermitted
Exception within ninety (90) days after the otherwise scheduled Closing Date,
and (c) the Agreement is terminated as a result thereof, then Purchaser shall
receive from Seller an amount equal to $300,000.00 to reimburse Purchaser for
its costs and expenses incurred in connection with the negotiations, execution
and performance of its due diligence hereunder. In such event, the time of
Closing shall be delayed, if necessary, to give affect to said aforementioned
time periods. The parties agree that Purchaser shall have the right to
terminate the Agreement upon written notice to Seller in the event clauses 5(a)
and (b) above have occurred.
6. Environmental Escrow. Seller and Purchaser hereby agree that those
funds which would otherwise be deposited into the Environmental Escrow pursuant
to the terms of the Agreement (the "Environmental Costs") shall not be
deposited into such Environmental Escrow, but shall instead be deposited into
Purchaser's Environmental Reserve between Purchaser and Purchaser's lender at
Closing. If Purchaser's lender shall refund any portion of the Environmental
Costs to Purchaser after Closing on or before October 31, 1998, Purchaser shall
pay such amount to Seller.
7. Review of Environmental Reports. Purchaser acknowledges that the
outside date for delivery of the Environmental Reports shall be extended until
September 30, 1997. Purchaser shall have until the date thirty (30) days after
the date of Purchaser's receipt of the last Environmental Report from Seller to
deliver to Seller the Real Property Cost and the Purchaser Estimate for each of
the Environmental Material Defects.
8. Escrow Agreement. Purchaser and Seller hereby agree that the Earnest
Money shall not be delivered to Seller until the Closing Date, notwithstanding
any contradictory terms contained in that certain Earnest Money Escrow by and
among Purchaser, Seller and Title Insurer.
9. Transfer of Contributions and Credits. Purchaser shall have the right
to increase or decrease, at Purchaser's discretion, the amount of the Seller's
(i) contribution to the Capital Improvements Reserve, (ii) contribution to the
Insurance Reserve or (iii) credit against the Purchase
<PAGE>
Price for legal fees, so long as the total contribution, plus credits made to
Purchaser pursuant to Paragraphs 3 and 4 hereof, does not exceed $255,000.00.
10. Full Force and Effect and Counterparts. Except as amended hereby,
the Agreement shall be and remain unchanged and in full force and effect in
accordance with its terms. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which, when taken
together shall constitute one and the same instrument. To facilitate the
execution of this Amendment, Seller and Purchaser may execute and exchange by
telephone facsimile counterparts of the signature pages, with each facsimile
being deemed an "original" for all purposes.
[EXECUTION PAGE TO FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
VALUE STORAGE, LTD., a Texas limited partnership
By: VALSTOR, Inc., a Texas corporation,
its general partner
By: /s/ Steven E. Smathers
------------------------------------
Name: Counsel for Valstor
------------------------------------
Its:
------------------------------------
/s/ James E. Sowell, President
by Steven E. Smathers
by Power of Attorney
SELLER:
BALCOR/COLONIAL STORAGE INCOME FUND - 85,
an Illinois limited partnership
By: Balcor Storage Partners - 85, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
corporation, its general partner
By: /s/ Beth Goldstein
--------------------------------
Name: Beth Goldstein
--------------------------------
Its: Authorized Representative
--------------------------------
By: COLONIAL STORAGE 85, INC., a Texas
corporation, a general partner
By: /s/ Scottie Pruett
---------------------------------
Name: Scottie Pruett
---------------------------------
Its: Vice President
---------------------------------
<PAGE>
EXHIBIT A
TITLE COMMITMENTS
INDEX OF PROPERTIES IN BALCOR/COLONIAL STORAGE INCOME FUND-85
Commitment Effective
Address City State Reference Date
- ------- ---- ----- ---------- ---------
5808 Highway 271 South Fort Smith AR 97-14134 8-19-97
4011 Midland Blvd. Fort Smith AR 97-14133 8-19-97
2990 Pio Nono Ave. Macon GA Case No. 8-18-97
Balcor-Bibb
218 Eisenhower Drive Savannah GA 4-035862-P 4-18-97
9303 Abercorn Extension Savannah GA 4-035861-P 4-18-97
7469 Tara Blvd. Jonesboro GA 1299.1-O 4-14-97
2960 South Cobb Dr. Smyrna GA 1299.4-O 4-14-97
4141 Snapfinger Woods Dr. Decatur GA 1299.8-O 4-7-97
3751 Longmire Way Doraville GA 1299.7-O 4-7-97
1440 N. Hairston Rd. Stone Mountain GA 1299.3-O 4-7-97
1604 Camp Lane Albany GA 3049637 9-5-97
8457 Roswell Rd. Dunwoody GA 1299.6-O 3-24-97
6046 Financial Dr. Norcross GA 1299.5-O 4-14-97
95 Green Street Warner Robins GA Balcor-Houston 8-18-97
4155 Milgen Rd. Columbus GA 3049639 9-8-97
1881 Gordon Highway Augusta GA 3049640 8-29-97
3121 Washington Rd. Augusta GA 3049641 8-29-97
3194 South Campbell Ave. Springfield MO 971372 8-18-97
2316 Highway 19 North Meridian MS Case No. 9-5-97
79700702
3513 Highway 45 North Meridian MS Case No. 9-5-97
79700702
<PAGE>
Commitment Effective
Address City State Reference Date
- ------- ---- ----- ---------- ---------
5502 Chapel Hill Blvd. Chapel Hill NC RA126121-00 4-25-97
3472 Hillsboro Rd. Durham NC RA126125-00 4-25-97
5311 Apex Highway Durham NC RA126124-00 4-25-97
2115 Silas Creek Pkwy. Winston-Salem NC W97001014-00 9-5-97
3125 Cherry Street Winston-Salem NC W97001012-00 9-5-97
3730 West Wendover Greensboro NC G97002041-00 9-8-97
426 S. College Dr. Wilmington NC M97001181-00 9-5-97
4615 West Beryl Rd. Raleigh NC RA126123-00 4-17-97
7012 Glenwood Raleigh NC RA126120-00 4-17-97
1510 West 7th Street Clovis NM 10135 9-5-97
2305 East Lohman Ave. Las Cruces NM 26834 9-5-97
5604 Tinker Diagonal Oklahoma City OK Case No. 4-15-97
9709-7637
7800 N. Broadway Oklahoma City OK Case No. 4-15-97
9709-7637
1412 Poinsett Hwy. Greenville SC 2021-7A 9-8-97
2815 White Horse Rd. Greenville SC 2021-7B 9-8-97
1513 Denman St. Lufkin TX GF No. 25389 9-4-97
1808 Hampton Rd. Texarkana TX 97348COO 8-28-97
3107 S. Lake Drive Texarkana TX 97349COO 8-28-97
2000 Country Club Dr. Carrollton TX Case No. 4-9-97
97MN449981-S
914 N.E. 8th Street Grand Prairie TX Case No. 4-9-97
97MN449988-Z
3229 Highway 80 Mesquite TX Case No. 4-9-97
97MN449987-Y
1301 S. Stemmons Lewisville TX Case No. 4-8-97
97MN449979-P
3233 E. Highway 80 Odessa TX G.F. No. 3-27-97
LT97040532
<PAGE>
Commitment Effective
Address City State Reference Date
- ------- ---- ----- ---------- ---------
4701 Osborne Dr. El Paso TX 12833 9-1-97
5717 Will Ruth Ave. El Paso TX 12849 9-1-97
1005 W. Cotton Longview TX G.F. No. 7-15-97
JL-970669
1311 Northwest Loop 281 Longview TX G.F. No. 7-15-97
JL-9700669
132 Slaton Highway Lubbock TX 003685 9-5-97
1010 Holiday Hill Drive Midland TX 00068488 9-2-97
North
5121 North Street Nacogdoches TX Case No. 5-2-97
97MN450178-F
871 North Forest Amarillo TX 97-19308 9-3-97
4000 I-40 East Amarillo TX 97-19305 9-3-97
6715 Wolfin Rd. Amarillo TX 97-19307 9-3-97
8400 Canyon Dr. Amarillo TX 97-19306 9-3-97
2215 West Southwest Tyler TX 97-1168 7-16-97
Loop 323
2306 N. Collins Blvd. Arlington TX Case No. 7-25-97
97MN4499-77
2331 South Collins Blvd. Arlington TX Case No. 7-25-97
97MN449982-T
3016 S. Cooper Arlington TX Case No. 7-25-97
97MN449980-R
3208 East Park Row Arlington TX Case No. 7-25-97
97MN449985-W
3654 West Pioneer Pkwy. Arlington TX Case No. 4-4-97
97MN44986-X
1320 Norwood Drive Bedford TX Case No. 7-25-97
97MN44978-N
4917 California Parkway Fort Worth TX Case No. 7-25-97
97MN449984-V
<PAGE>
Commitment Effective
Address City State Reference Date
- ------- ---- ----- ---------- ---------
5313 East Lancaster Ft Worth TX Case No. 7-25-97
97MN449983-U
818 South Clack St. Abilene TX File No. 8-8-97
GF21361
1850 North Clack St. Abilene TX File No. 8-8-97
GF21361
2826 South Clack St. Abilene TX File No. 8-8-97
GF21361
2302 Parkview Dr. San Angelo TX G.F. File No. 4-29-97
9705026
3120 Knickerbocker Rd. San Angelo TX G.F. File No. 4-29-97
9705015
1515 Mt. Zion Road Morrow GA 1299.2-O 4-14-97
