COMFORT SUM ESCROW AGREEMENT
THIS COMFORT SUM ESCROW AGREEMENT (this "Escrow Agreement") made this 6th
day of September, 1995, by and among NEW PLAN REALTY TRUST, a Massachusetts
business trust (the "Purchaser"); HARBOR LANDING AP XI, L.P., a South Carolina
limited partnership (the "Seller"); and COASTAL ABSTRACT SERVICE, INC. (the
"Escrow Agent").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller have entered into a Contract to Purchase
and Sell Property dated July 26, 1995 (the "Purchase Agreement") regarding the
purchase and sale of Harbour Landing Apartments, located in Richland County,
South Carolina (the "Property"); and
WHEREAS, Seller has this date conveyed the Property to Purchaser; and
WHEREAS, the Purchase Agreement provides for Escrow Agent to retain
$75,000 (the "Comfort Sum") of the Purchase Prince in escrow, and
WHEREAS, Purchaser and Seller are willing to have such earnest monies held
by Escrow Agent on the terms set forth herein, and Escrow Agent is willing to do
so.
NOW, THEREFORE, the parties agree as follows:
1. Defined Terms: All capitalized terms used in and not defined in
this Escrow Agreement shall have the same meaning as defined in the Purchase
Agreement.
2. Escrowed Funds:
(a) Escrow Agent shall hold the Comfort Sum in accordance with the
Purchase Agreement (together with any interest accrued thereon, the "Escrowed
Funds") in an interest-bearing account at a federally-insured institution and
shall pay over or apply the Escrowed Funds in accordance with the terms of the
Purchase Agreement.
(b) In the event of a dispute over the Escrowed Funds, Escrow
Agent shall have the right to deposit the Escrowed Funds with the Clerk of a
court of competent jurisdiction. Escrow Agent shall give written notice of such
deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be
relived and discharged of all further obligations and responsibilities
hereunder.
(c) Except as provided in Paragraph 2(d) below, Escrow Agent shall
not transfer the Escrowed Funds to Seller unless Purchaser and Seller both
authorize such transfer in writing.
(d) If by September 6, 1996, Escrow Agent has received no notice
from Purchaser that Purchaser has a claim pending against Seller, pursuant to
the terms of the Agreement, then Escrow Agent shall release the Escrowed Funds
to Seller and this Escrow Agreement shall be deemed terminated.
(e) Escrow Agent may continue to hold the interest accrued on the
Earnest Money Deposit in accordance with the terms of this Escrow Agreement,
until the party entitled to receive such interest has provided Escrow Agent with
an executed Internal Revenue Service Form W-9.
3. Exculpation of Escrow Agent: Purchaser and Seller acknowledge that
Escrow Agent is acting solely as a stakeholder at their request and for their
convenience, that Escrow Agent shall not be deemed to be the agent of either of
them, and that Escrow Agent shall not be liable to either of them for any act
or comission on its part unless take or suffered in bad faith, in willful
disregard of this Agreement or involving gross negligence.
4. Expenses Incurred in Disputes: All reasonable expenses,
disbursements and advances, including reasonable attorney's fees, incurred or
made by Escrow Agent in connection with a dispute involving the Escrowed Funds
and its obligations hereunder shall be paid by the losing party. There are no
fees or other amounts payable to Escrow Agent for or in respect of its services
or other duties under or in respect of this Escrow Agreement.
5. Exculpatory Provision: This Escrow Agreement and all documents,
agreements, understandings and arrangements relating to this transaction have
been negotiated, executed and delivered on behalf of Purchaser by the trustees
or officers thereof in their representative capacity under the Declaration of
Trust of New Plan Realty Trust dated as of July 31, 1972 as amended, and not
individually, or on behalf of Purchaser by its attorneys in their representative
capacity, and not individually, and bind only the trust estate of Purchaser,
and no trustee, officer, employee, agent or shareholder of Purchaser and no
attorney for Purchaser shall be bound or held to any personal liability or
responsibility in connection with the agreements, obligations and undertakings
of Purchaser thereunder, and any person or entity dealing with Purchaser in
connection therewith shall look solely to the trust estate for the payment of
any claim or for the performance of any agreement, obligation or undertaking
thereunder. Seller and Escrow Agent acknowledge and agree that each agreement
and other document executed by Purchaser in accordance with or in respect of
this transaction shall be deemed and treated to include in all respects and for
all purposes the foregoing exculpatory provision.
6. Additional Conditions and Stipulation:
(a) Escrow Agent shall not be responsible for any loss or delay
occasioned by the closure or insolvency of the financial institution into which
Escrow Agent deposited the Escrowed Funds.
(b) Escrow Agent shall not be responsible for the dishonor of any
check, money order, draft, negotiable instrument, or other financial document,
received as Escrowed funds by Escrow Agent under this Escrow Agreement.
(c) It is expressly agreed that this Escrow Agreement is for the
sole benefit of the parties hereto and shall not be construed or deemed to be
made for the benefit of any other parties.
(d) This Escrow Agreement and the obligations of the parties
hereunder shall be interpreted, construed and enforced in accordance with the
laws of the State of South Carolina.
(e) Escrow Agent is not responsible for maintaining the value of
any investment or providing investment counseling.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the date first above written.
NEW PLAN REALTY TRUST, a
Massachusetts business trust
By:
Name:
Title:
HARBOUR LANDING AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partner XI GP Limited
Partnership, a South Carolina limited
partnership, in its capacity as
general partner and to confirm its
primary, joint and several liability
By: Angeles Realty Corporation II, a
California corporation, in it's
capacity as general partner and to
confirm its primary, joint and
several liability
By:/s/Robert D. Long, Jr.
Name: Robert D. Long, Jr.
Title: Chief Accounting
Officer and Controller
COSTAL ABSTRACT SERVICE, INC.
By:
Name:
Title: