DRAFT 6/8/95
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT ("Amendment") is
made as of June 12, 1995, between ANGELES PARTNERSHIP 16, a
California limited partnership ("Seller") and NORTH PRIOR,
L.L.C., a Delaware limited liability company ("Buyer").
BACKGROUND:
A. Seller and North Prior Partnership ("NPP") entered into
a Purchase Agreement dated as of March 3, 1993, regarding the
sale and purchase of certain property known as The North Prior
Industrial Park, which is legally described on attached Exhibit A
(collectively, the "Property"). NPP has assigned its interest in
the Purchase Agreement to Buyer.
B. The Property has been contaminated by a petroleum spill
("Spill").
C. Seller and Buyer have agreed to amend the Purchase
Agreement as set forth below.
AGREEMENT:
For valuable consideration, Seller and Buyer agree to amend
the Purchase Agreement as follows:
1. Purchase Price Reduction. The purchase price for the
Property is reduced from $10,650,000 to $10,450,000.
2. Closing Date; Extension. The closing date ("Closing
Date") for the closing ("Closing") will be June 12, 1995;
provided, however, that either party may extend the Closing Date
to June 13, 1995 by giving written notice of such extension to
the other party not later than June 12, 1995.
3. Title. Buyer has obtained a title insurance commitment
(No. R-OR907111C) ("Commitment") from Old Republic National Title
Insurance Company ("Title") and shall obtain a survey for the
Property in the form required by Buyer's lender as soon as
reasonably possible. Buyer's obligation to close the purchase of
the Property shall be contingent upon resolution by Seller of any
title objections raised by Buyer or Buyer's lender on or before
the Closing Date and delivery by Title to Buyer and Buyer's
lender of marked-up owners and lenders title insurance
commitments at the Closing reflecting the title required by Buyer
and its lender. Buyer agrees that Buyer will not object to any
of the encumbrances listed as items 3 through 11 on Schedule B,
Section 2 of the Commitment ("Permitted Encumbrances").
4. Seller's Closing Documents. On the Closing Date,
Seller shall execute and/or deliver to Buyer the following, all
in form and content reasonably satisfactory to Buyer:
4.1.1 Deed. A limited warranty
deed, conveying the Property to Buyer, free and
clear of all encumbrances, except the Permitted
Encumbrances and any other encumbrances that are
acceptable to Buyer and its lender.
4.1.2 Assignment of Leases. An
assignment and assumption of leases, conveying all
leases of the Property ("Leases") and any security
deposits, prepaid rents or collections and
guarantees regarding the Leases to Buyer, free and
clear of all encumbrances.
4.1.3 Assignment of Contracts. An
assignment and assumption of contracts, conveying
the contracts for the Property to Buyer, free and
clear of all encumbrances, together with the
consent of all parties having a right to consent
to such assignment.
4.1.4 Assignment of Permits and
Warranties. An assignment of permits and
warranties, conveying all permits and warranties
regarding the Property to Buyer, free and clear of
all encumbrances, together with the consent of all
parties, if any, having a right to consent to such
assignment.
4.1.5 Certified Rent Roll. A rent
roll, certified to by the receiver for the
Property ("Receiver") and accurate as of the
Closing Date.
4.1.6 Termination of Receivership.
A termination, evidenced by documentation
reasonably satisfactory to Buyer, Buyer's lender
and Title, of the Receiver's receivership as to
possession and control of the Property, effective
on or before the Closing Date.
4.1.7 Notices to Tenants. Notices
to the tenants under the Leases, signed by the
Receiver, advising such tenants of the sale of the
Property and directing them to make future lease
payments to Buyer at the place designated by Buyer
and confirming the transfer of security deposits
and interest thereon.
4.1.8 Seller's Affidavit; Mechanics
Lien Escrow. An Affidavit of Title by Seller
indicating that on the Closing Date there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Seller or the
Property; that there has been no skill, labor or
material furnished to the Real Property for which
payment has not been made or for which mechanics'
liens could be filed, except as has been escrowed
for by Seller with Title; and that there are no
other unrecorded interests in the Real Property,
together with whatever standard owner's affidavit
and/or indemnity (and/or escrow agreement as may
be required by Title to issue owners and lenders
title insurance policies with the standard
exceptions waived.
4.9 Security Deposits and Prepaid Rents. All security
deposits and prepaid rents under the Leases,
including valid transfers of any noncash
securities or documents held for such purposes.
4.10 FIRPTA Affidavit. A non-foreign affidavit,
properly executed, containing such information as
is required by Internal Revenue Code Section
1445(b)(2) and its regulations.
4.11 IRS Form. If required by Title, a Designation
Agreement designating the "reporting person" for
purposes of completing Internal Revenue Form 1099
and, if applicable, Internal Revenue Form 8594.
4.12 Well Certificate. A Certificate signed by Seller
warranting that there are no "Wells" on the
Property within the meaning of Minn. Stat. (Section Mark) 103I,
or if there are "Wells", a Well Certificate in the
form required by law.
4.13 Storage Tanks. If the Property contains or
contained a storage tank, an affidavit with
respect thereto, as required by Minn. Stat. (Section Mark)
116.48.
4.14 Environmental Undertaking and Indemnity Agreement.
The Environmental Undertaking and Indemnity
Agreement attached to this Amendment as Exhibit B.
4.15 Escrow Agreement. The Escrow Agreement attached
to this Amendment as Exhibit C.
4.16 Other Documents. All other documents reasonably
determined by Buyer to be necessary to transfer
the Property to Buyer free and clear of all
encumbrances.
5. Buyer's Closing Documents. On the Closing Date, Buyer
will execute and/or deliver to Seller the following
(collectively, "Buyer's Closing Documents"):
5.1 Assumption Agreements. The assignment and
assumption agreements regarding the Leases and the
Contracts referred to in Sections 4.2.and 4.3
above.
5.2 Title Documents. Such affidavits, Certificates of
Real Estate Value or other documents as may be
reasonably required by the Title in order to
record the Seller's Closing Documents and issue
the title insurance policies required by this
Agreement.
5.3 IRS Form. If required by Title, a Designation
Agreement designating the "reporting person" for
purposes of completing Internal Revenue Form 1099
and, if applicable, Internal Revenue Form 8594.
6. Additional Prorations. Seller and Buyer agree to the
following additional prorations and allocations of costs
regarding the Purchase Agreement:
6.1 Title Insurance and Closing Fee. Buyer will pay
all title insurance costs. Seller and Buyer will
each pay one-half of any reasonable and customary
closing fee or charge imposed by Title.
6.2 Deed Tax. Seller shall pay all state deed tax
regarding the warranty deed to be delivered by
Seller under the Purchase Agreement. Buyer shall
pay all mortgage registry tax regarding any
mortgage given by Buyer.
6.3 Basic Rents. All basic rent and other charges
under the Leases will be prorated as of the
Closing Date. If at the Closing Date a tenant
under any of the Leases is delinquent in any
payments required of it, then to the extent Buyer
receives from such tenant amounts in excess of the
payments due Buyer pursuant to this Agreement,
Buyer will remit such amounts to Seller. However,
Buyer will have no obligation to seek or collect
any such payments and will only be obligated to
make such payment to Seller after Buyer is fully
paid for all amounts due it.
6.4 Additional Tenant Amounts. To the extent
operating expenses, including real estate taxes
and special assessments are chargeable to tenants
under the Leases, Buyer shall pay to Seller on the
Closing Date the amount of all such operating
expenses prepaid by Seller and which are
reimbursable but not yet billed to tenants and
Buyer shall thereafter collect and retain all
tenant reimbursements. Seller shall transfer to
Buyer at the Closing Date and without additional
charge all security deposits and interest thereon,
prepaid rents and all deposits or payments by
tenants with respect to operating expenses.
6.5 Recording Costs. Seller will pay the cost of
recording all documents necessary to place record
title in the condition required by the Purchase
Agreement. Buyer will pay the cost of recording
all other documents.
6.6 Other Costs. All other operating costs of the
Property, will be allocated between Seller and
Buyer as of the Closing Date, so that Seller pays
that part of such other operating costs payable
before the Closing Date, and Buyer pays that part
of such operating costs payable from and after the
Closing Date.
6.7 Attorney's Fees. Each of the parties will pay its
own attorneys fees.
7. Broker's Commission. If the Closing occurs, Seller
will pay a brokerage commission to Griffin Companies as the sole
real estate brokerage commission regarding this transaction.
Seller and Buyer represent and warrant to each other that they
have dealt with no other brokers, finders or the like in
connection with this transaction, and agree to indemnify each
other and to hold each other harmless against all claims,
damages, costs or expenses of or for any other such fees or
commissions resulting from their actions or agreements regarding
the execution or performance of the Purchase Agreement, and will
pay all costs of defending any action or lawsuit brought to
recover any such fees or commissions incurred by the other party,
including reasonable attorney's fees.
8. Counterparts; Facsimiled Signatures. This Agreement
may be executed in counterparts and/or by facsimiled signatures.
Except as above amended, the Purchase Agreement remains in full
force and effect.
EXECUTION:
Seller and Buyer have executed this Amendment as of the date
first stated above.
ANGELES PARTNERS 16, a
California limited partnership
By: Angeles Realty
Corporation II,
a California corporation,
General Partner
By /s/Robert D. Long Jr.
ItsCAO/Controller
NORTH PRIOR, L.L.C., a
Delaware limited liability
company
By North Prior Corporation, a
Minnesota corporation, Its
Chief Manager
By /s/Gerald L. Trooien,
President
Gerald L. Trooien,
President
EXHIBIT A
Tract One:
Lot 1, Block 1, KOSY'S CORNERS, according to the recorded plat
thereof.
Tract Two:
Easement contained in access and mutual driveway easement
agreement filed January 17, 1986, as Document No. 2297822 in the
office of the County Recorder, in and for Ramsey County,
Minnesota.
EXHIBIT B
ENVIRONMENTAL UNDERTAKING AND INDEMNITY AGREEMENT
THIS ENVIRONMENTAL UNDERTAKING AND INDEMNITY AGREEMENT
(this "Agreement") is made as of June , 1995, by ANGELES
PARTNERS 16, a California limited partnership ("Seller"), in
favor of NORTH PRIOR, L.L.C., a Delaware limited liability
company (the "Buyer"), together with its successors, assigns
(including, without limitation, Buyer's lender, AMRESCO Capital
Corporation, its successors and assigns), transferees,
affiliates, shareholders, directors, officers, agents and
employees (collectively, the "Indemnified Parties").
Reference is made to the following facts:
A. Buyer has agreed to purchase the North Prior Industrial
Park (the "Property"), and Seller has agreed to sell the
Property, which is more particularly described in Exhibit 1
attached to this Agreement, on the terms and conditions contained
in that certain Purchase Agreement between Seller and Buyer dated
March 3, 1993, as heretofore amended (the "Purchase Agreement");
B. The Property has been contaminated by a petroleum spill
("Spill"); and
C. As a condition to Buyer's purchasing the Property,
Buyer requires, and the Seller agrees, in accordance with the
terms of this Agreement, to complete or cause to be completed by
others the investigation and remediation of the Property and to
indemnify and hold harmless Buyer from any claims, liabilities or
costs associated with the Spill and addressed under this
Agreement, subject, however, to Section 15 of this Agreement.
NOW, THEREFORE, in consideration of the Buyer's
agreement to purchase the Property and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Seller agrees as follows:
1. Definitions. As used in this Agreement, the following
terms have the following meanings:
(a) "Environmental Laws" shall mean all federal, state, and
local environmental, health and safety laws, regulations,
ordinances, rules, orders, judicial determinations or rules of
equity or common law pertaining to the Spill.
(b) "Person" shall mean an individual, partnership,
corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental,
authority or other entity of whatever nature.
2. Environmental Undertaking. Seller, from and after
the date hereof, expressly and irrevocably covenants and
commits, for the benefit of all Indemnified Parties, at its sole
cost and expense, to clean up the Spill in accordance with all
requirements of the Minnesota Pollution Control Agency ("MPCA")
and to the reasonable satisfaction of Buyer and its first
mortgagee, AMRESCO Capital Corporation ("Mortgagee"), including
but not limited to (i) obtaining or causing to be obtained all
necessary permits, licenses or certificates required in
connection with the performance of any obligations hereunder;
(ii) repairing any damage to the Property caused by Seller (or
Seller's agents and representatives) occasioned by the
performance of any of its obligation hereunder; (iii) maintaining
reasonable insurance policies (with Buyer named as an additional
insured) with respect to the activities of Seller (or Seller's
agents and representatives) at any time on the Property (Seller
shall provide Buyer with copies of the insurance certificates
evidencing said coverage); (iv) taking all necessary and
appropriate precautions for the safety of the Indemnified Parties
in, on or about the Property (and their employees, guests, and
invitees) together with all persons furnishing services or
materials in connection with the performance of any obligations
hereunder; (v) submitting timely reports to Buyer, including all
materials submitted to the MPCA, regarding the progress and
performance of any obligations hereunder; and (vi) permitting no
mechanics', materialmen's, laborer's or other lien to be made or
imposed against the Property as a result of the performance by
Seller (or Seller's agents and representatives) of any if its
obligations hereunder. Seller and Buyer shall provide to the
other timely copies of all notices that may be received from any
regulatory agency involved in the regulation or control of the
Spill and any responses to such notices by either party to such
regulatory agencies.
Without limiting this Section 2, Seller hereby
expressly covenants, for the benefit of all Indemnified Parties,
as follows:
(a) Seller shall implement soil and/or groundwater cleanup
as and when required by the MPCA, consistent with applicable
Environmental Laws, and as is contained in the remedial action
plan as approved by the MPCA, which plan shall be reasonably
acceptable to Buyer.
(b) Seller's investigations and remediation at the Property
shall be accomplished in a good and workmanlike manner as
expeditiously as is consistent with professional skill, care,
health, and safety.
(c) In connection with the performance by Seller of its
obligations hereunder, Buyer shall provide Seller with reasonable
access to the Property, to the extent necessary, upon at least 24
hours prior written notice (or such shorter period as is
necessary in an emergency), to perform the obligations of Seller
hereunder, provided, however, that Seller and Seller's agents
shall meet the requirements as set forth in this Section 2. The
Seller's written notice shall state the purpose of the intended
entry onto the Property and whether any drilling, boring or other
similar activity is intended to be conducted, and whether any
equipment is intended to be brought upon the Property. Seller
shall conduct no borings or drilling operations or otherwise
disturb the Property in any manner without (i) first submitting
to Buyer written specifications and drawings, and (ii) receiving
express written approval for said specifications and drawings
from Buyer or Buyer's agent, which approval shall not be
unreasonably withheld, conditioned or delayed.
(d) Seller shall make all reasonable efforts to avoid any
interruption and minimize any disturbance or disruption in the
use of the Property by Buyer, or any tenants, occupants or
patrons, or to parking areas or traffic patterns in and around
the Property, including but not limited to, the scheduling of
work at reasonable times and the placement of any monitoring
wells or other sampling points at grade, all as reasonably
requested by Buyer. Seller shall maintain all of its work areas
on the Property in a clean and orderly condition and shall
restore the Property to substantially the same condition as
existed immediately prior to the performance of any work by
Seller or Seller's agents. Seller shall properly remove all
monitoring wells upon completion of its obligations under this
Agreement.
(e) Seller shall provide Buyer and Mortgagee with copies of
all correspondence received from the MPCA, including any closure
letter or certification by the MPCA.
3. Indemnification.
(a) The Seller hereby agrees to protect, defend (with
counsel reasonably acceptable to the Indemnified Parties),
indemnify, and hold harmless the Indemnified Parties from and
against, and shall reimburse the Indemnified Parties for, any and
all losses, claims, liabilities, damages, injunctive relief,
injuries to persons, property or natural resources, fines,
penalties, costs, expenses (including, without limitation,
attorneys' fees, consultants' fees, expenditures, expenses and
court costs incurred in connection with actions, administrative
investigations and/or proceedings), and sums paid in settlement
of litigation arising directly or indirectly, in whole or in
part, out of the Spill (collectively, "Costs and Liabilities").
Without limiting the foregoing, Costs and Liabilities shall
include (i) all costs of remediation, testing, monitoring and
restoration of any kind (including, if Seller is in default under
this Agreement, work performed by consultants and contractors
other than Seller's consultants and contractors, whether in
substitution for, or in addition to, work performed by Seller's
consultants and contractors), and any disposal, (ii) all costs
and liabilities associated with claims for, damages to, and
remedial action related to the Spill with respect to, persons,
property, or natural resources wherever located, (iii) all fines
and other penalties associated with claims of noncompliance with
any Environmental Laws which are related to the Spill, and (iv)
all consultants' and attorneys' fees and costs. The foregoing
indemnity shall survive delivery of any deed from Seller to Buyer
and any assignment or other transfer by any or all of the
Indemnified Parties of their respective interests in the
Property. It is understood that so long as Seller is defending
the Indemnified Parties and is not in default of its obligations
under this Agreement, no litigation for which indemnification is
sought (other than relating to governmental fines and penalties
or criminal actions) shall be settled without the consent of the
Seller. Before expending any funds or settling any claims for
which it expects to recover under this Agreement, Buyer shall so
notify the Seller in writing. Buyer shall promptly transmit to
the Seller copies of all claims or reports in Buyer's possession
relating to the Spill so as to provide the Seller opportunity to
perform appropriate remediation in a timely manner.
(b) In no event shall any provision of this Agreement be
deemed to be a waiver of or to be in lieu of any right or claim
(including without limitation any right of indemnification,
contribution, or other right of recovery) that any Indemnified
Party might otherwise have against the Seller under any
Environmental Laws or any other laws, rules or regulations, other
than with respect to the Spill.
(c) Any sums payable under this Agreement shall be based
upon Seller's obligations under Section 3 and shall not be deemed
to be based upon any diminution in or other impairment of the
value of the Property.
(d) In the event of any inconsistencies or conflicts
between the terms of this Agreement and the terms of the Purchase
Agreement (including any exculpatory language contained in the
Purchase Agreement), the terms of this Agreement shall control.
(e) The Seller's obligations under this Agreement shall in
no way be impaired, reduced or released by reason of: (i) an
Indemnified Party's omission or delay in exercising any right
described herein; or (ii) any act or omission of any Indemnified
Party in connection with any notice, demand, warning or claim
regarding violations or codes, laws or ordinances governing the
Property (provided, however, that this subsection (ii) shall not
apply to the extent that the Indemnified Party has failed to
timely provide a copy of such notice, demand, warning or claim to
Seller).
4. Interest on Unpaid Amounts. Any Costs and Liabilities
claimed under this Agreement by an Indemnified Party which are
not paid by Seller within forty-five (45) days after written
demand made by such Indemnified Party shall bear interest at the
per annum rate equal to the lesser of: (a) the Prime Rate (as
published by the "Wall Street Journal" from time to time as the
"Prime Rate") plus two percent (2%); or (b) the maximum rate
permitted by law. In the event the Prime Rate is no longer
published or announced or becomes unascertainable for any reason,
Buyer shall designate a comparable reference rate which shall be
deemed the Prime Rate under this Agreement.
5. Waiver. The Seller expressly waives and relinquishes
the following rights and remedies:
(a) All statutes of limitations as a defense to any action
or proceeding brought against the Seller by any Indemnified Party
with respect to this Agreement, to the fullest extent permitted
by law;
(b) Any right it may have to require any Indemnified Party
to (i) proceed against the Seller, (ii) proceed against or
exhaust any security held from Seller, (iii) proceed against any
other Person whatsoever, or (iv) pursue any other right or remedy
in such Indemnified Party's power to pursue pursuant to contract,
applicable law or otherwise;
(c) Any defense based on any legal disability of Seller,
any discharge or limitation of the liability of Seller to Buyer,
whether consensual or arising by operation of law or any
bankruptcy, reorganization, receivership, insolvency, or
debtor-relief proceeding, or from any other cause, or any claim
that Seller's obligations exceed or are more burdensome than
those of Indemnified Parties; and
(d) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of
dishonor, notices of acceptance of this Agreement and demands and
notices of every kind except for any demand or notice by any
Indemnified Party to Seller expressly provided for in this
Agreement.
6. Effect of Buyer's Forbearance. Buyer may, at any time
and from time to time without the consent of, or notice to, the
Seller, and without impairing or releasing any of the obligations
of Seller hereunder, upon or without any terms or conditions and
in whole or in part, consent to, or waive any breach of, or any
act, omission or default under this Agreement or the Purchase
Agreement.
7. Binding Effect of Liability. This Agreement shall be
absolute, unconditional, continuing, irrevocable and binding upon
the Seller and its successors and assigns (whether by merger,
consolidation or otherwise). This Agreement shall survive the
execution, delivery and recordation of a deed to the Property,
and the satisfaction of all obligations under the Purchase
Agreement.
8. Successive Actions. A separate right of action shall
arise under this Agreement each time an Indemnified Party
acquires knowledge of any matter described herein. Separate and
successive actions may be brought to enforce any of the
provisions of this Agreement at any time and from time to time.
No action hereunder shall preclude any subsequent action, and the
Seller hereby waives and covenants not to assert any defense in
the nature of splitting of causes of action or merger of
judgments.
9. Partial Invalidity. If any provision of this Agreement
shall be determined to be unenforceable in any circumstances by a
court of competent jurisdiction, then the balance of this
Agreement nevertheless shall be enforceable, and the subject
provision shall be enforceable in all other circumstances.
10. Attorneys' Fees. In any action or other proceeding
brought by any party to enforce any of its rights under this
Agreement or to interpret this Agreement, the prevailing party
shall be entitled to all reasonable attorneys' fees and all
costs, expenses and disbursements in connection with such action.
11. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be deemed to
have been properly given if hand delivered (effective upon
delivery) or if mailed by United States registered or certified
mail, postage prepaid, return receipt requested (effective three
business days after mailing), or if sent by Federal Express or
other reliable overnight courier (effective one business day
after sending), addressed as follows:
Seller:
Angeles Partners 16
One Insignia Plaza
P.O. Box 1089
Greenville, South Carolina
29602
Attention: John LeBeau
With a copy to:
Angeles Mortgage Investment
Trust
c/o Briggs & Morgan
(Attention: David G.Greening)
2200 First National Bank
Building
St. Paul, Minnesota 55101
Buyer:
North Prior, L.L.C.
c/o Gerald L. Trooien
739 Vandalia Avenue
St. Paul, Minnesota 55114
With a copy to:
AMRESCO Capital Corporation
1845 Woodall Rodgers Freeway
Suite 1700
Dallas, TX 75201
Attn: Loan Servicing
12. Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the internal laws of
the State of Minnesota (without regard to principles of conflicts
of law) and any applicable laws of the United States of America.
13. Multiple Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
14. Authority. Each individual signing this Agreement on
behalf of a party warrants and represents that such individual is
authorized to do so on behalf of such party.
15. Limitation of Liability. The obligations of Seller
under this Agreement are not personal and the Buyer's recourse
under this Agreement shall be limited to the amounts held in the
Escrow Account under that certain Escrow Agreement of even date
herewith between Buyer, Seller and First Trust National
Association, which Escrow Account secures the obligations of
Seller under this Agreement. Under no circumstances shall any of
the Indemnified Parties seek or be entitled to recover any
amounts from Seller pursuant to this Agreement apart from the
amounts in the Escrow Account.
16. Cure Rights. Buyer shall provide written notice to
Seller of any claimed defaults under this Agreement and Seller
shall cure such defaults within thirty days; provided that, if
the default cannot reasonably be cured within thirty days, the
Seller shall have reasonable time to cure such defaults, if and
so long as the Seller is diligently attempting to cure any
default.
17. Termination. This Agreement shall terminate when the
MPCA, or its successor, has issued a "Site Closure Letter" and
such Site Closure Letter has been received and accepted by Buyer
and Mortgagee (which acceptance shall not be unreasonably
withheld or delayed); provided, however, that, if at the time of
such issuance and acceptance Buyer or Mortgagee has been notified
of a claim by any party against the Property, Buyer or Mortgagee
with regard to the Spill, this Agreement shall remain in place
until such time as such claim has been fully waived (in a
document reasonably satisfactory to Buyer and Mortgagee) or has
been finally dismissed (without a right of appeal) in the
applicable jurisdiction(s). For purposes of this Agreement, the
term "Site Closure Letter" shall mean any letter or agreement
from the MPCA, or its successor, stating that all required
remedial investigation, corrective action, monitoring and/or
clean-up regarding the Spill has been completed, subject to the
MPCA's uniformly applied reservations language.
18. Assignment of Claims. To the extent necessary for
Seller to pursue its claims against third parties (including,
without limitation, Yocum Oil Company) regarding the Spill, Buyer
assigns to Seller Buyer's interests, if any, in such claims
(whether or not such claims run with the land under applicable
law), but only for so long as Seller shall not be in default
under this Agreement and the Escrow Agreement securing this
Agreement beyond the applicable grace periods. Buyer shall
promptly enter into such assignment documents as Seller shall
from time to time reasonably require in order to evidence such
assignment. Buyer agrees that, if it is appropriate, Seller may
bring any such claim in the name of Buyer; provided, however,
that in such event the Seller's agreement to indemnify Buyer and
hold Buyer harmless under Section 3 of this Agreement shall
extend to all costs and expenses incurred by Buyer (including the
costs of separate counsel and consultants if they must be engaged
by Buyer as a result of applicable laws or codes of professional
conduct) and all claims (including counterclaims) made against
Buyer in connection with the claim so made by Seller in Buyer's
name.
IN WITNESS WHEREOF, this Agreement is executed as of
the day and year first above written.
SELLER:
ANGELES PARTNERS 16, a
California
limited partnership
By: Angeles Realty
Corporation II,
a California corporation,
General Partner
By /s/ Robert D. Long, Jr.
Its CAO/Controller
BUYER:
NORTH PRIOR, L.L.C., a
Delaware limited liability
company
By North Prior Corporation, a
Minnesota corporation, Its
Chief Manager
By /s/ Gerald L. Trooien
Gerald L. Trooien,
President
Exhibit 1
Tract One:
Lot 1, Block 1, KOSY'S CORNERS, according to the recorded plat
thereof.
Tract Two:
Easement contained in access and mutual driveway easement agreement
filed January 17, 1986, as Document No. 2297822 in the office of
the County Recorder, in and for Ramsey County, Minnesota.
EXHIBIT C
ESCROW AGREEMENT
This Escrow Agreement is made as of June , 1995, by
and between NORTH PRIOR, L.L.C., a Delaware limited liability
company ("Buyer"), ANGELES PARTNERS 16, a California limited
partnership ("Seller") and FIRST TRUST NATIONAL ASSOCIATION, as
Escrow Agent ("Escrow Agent").
W I T N E S S E T H
Whereas, the Buyer and Seller have entered into a
Purchase Agreement dated March 3, 1993, as heretofore amended,
which is incorporated herein by reference (the "Agreement"),
which provides this Escrow Agreement shall be entered into.
Unless otherwise indicated, capitalized terms used herein shall
have the same meaning as in the Agreement.
Accordingly, the parties agree as follows:
1. Deposit. There shall be deducted from the Purchase
Price and deposited with the Escrow Agent, by wire transfer or
other acceptable deposit, the escrowed amount of $900,000. The
Escrow Agent hereby agrees to accept the escrowed funds and,
subject to Paragraph 6 hereof, agrees to establish and maintain a
single separate account therefor (the "Escrow Account").
2. Escrow Account. The Escrow Account shall be held by
the Escrow Agent for the purpose of securing Seller's obligations
under the Environmental Undertaking and Indemnity Agreement of
even date herewith (the "Undertaking Agreement") between Seller
and Buyer. All amounts required to fund such Seller's
obligations, including consultants' and attorneys' fees
reasonably incurred by Seller in connection with such Seller's
obligations, shall be hereinafter collectively referred to as
"Cleanup Costs."
3. Charges Against Escrow Account. Seller shall be
entitled to use funds deposited in the Escrow Account to pay
Cleanup Costs in accordance with this Paragraph 3. In the event
that, and from time to time as Seller in good faith determines
(but not more often than once per month), expenses have been
incurred by Seller for Cleanup Costs that are chargeable against
the Escrow Account (hereinafter a "Claim"), Seller shall notify
in writing the Escrow Agent and the Buyer of each such Claim
(identifying such Claim with reasonable specificity) against the
Escrow Account, and stating the amount thereof. Such notice
shall be accompanied by a current sworn cost statement executed
by Seller (and, if the sworn cost statement relates to work or
materials performed or supplied by a contractor, supplier or
consultant having lien rights, then also executed by such
contractor, supplier or consultant), together with copies of the
billing statement(s) received by Seller from the applicable
contractor, supplier, attorney or consultant. Upon receiving a
copy of such notice, the Buyer shall raise any objections within
twenty (20) business days by written notification to Seller and
the Escrow Agent. If Buyer does not object, the Escrow Agent
shall issue a disbursement check on the Claim jointly to Seller
and the applicable contractor, supplier, consultant or attorney
from the Escrow Account as soon as practicable and, promptly
after receipt of such check, Seller shall supply Buyer with an
unconditional lien waiver executed by the contractor, supplier or
consultant being paid from the disbursement (if such contractor,
supplier or consultant has lien rights) in the amount of the
disbursement. If a notice of objection shall be timely received
from Buyer, the parties will negotiate diligently and in good
faith to settle any dispute, consistent with the terms the
Undertaking Agreement. The Escrow Agent shall prepare and
furnish to Buyer and Seller a report on the disbursements and
balance of the Escrow Fund and interest thereto at least once
each calendar quarter.
4. Buyer's Rights. Buyer shall have superior and
non contingent rights (as to Seller and/or Seller's creditors) to
the Escrow Account to effect completion or payment of all of
Seller's obligations under the Undertaking Agreement, with any
remaining funds thereafter disbursed to Seller. Buyer's rights
under this Paragraph 4 may be exercised upon an event of default
by Seller under the terms of the Undertaking Agreement, but only
after Seller's receipt from Buyer of written notice of default
and Seller's failure to cure such default within the time limits
set forth in Paragraph 16 of the Undertaking Agreement. Buyer
shall provide written notice to Seller and the Escrow Agent as to
any demands by Buyer on the Escrow Account. Upon receiving a
copy of such demand, the Seller and/or Angeles Mortgage
Investment Trust ("AMIT") shall raise any objections within
twenty (20) business days by written notification to Buyer and
the Escrow Agent. If Seller and AMIT do not timely object, the
Escrow Agent shall issue a disbursement to the Buyer from the
Escrow Account. Any such disbursement shall be made as soon as
practicable. If a notice of objection shall be timely received,
the parties will negotiate diligently and in good faith to settle
any dispute, consistent with the terms of the Undertaking
Agreement.
5. Termination. The Escrow Account shall remain in
existence until the Undertaking Agreement has terminated. The
parties will negotiate diligently and in good faith to settle any
dispute regarding final termination of the Escrow Account. Upon
final termination, the Escrow Agent shall promptly remit all
amounts remaining in the Escrow Account to the Seller.
6. Investment of Funds. The Escrow Agent agrees to invest
and reinvest the funds in the Escrow Account in one or more of
the following investments from time to time (the "Investments")
as directed in writing by Seller and approved in writing by Buyer
(which approval shall not be unreasonably withheld or delayed, it
being understood that, in granting or withholding such approval,
Buyer may take into account the maturity dates of the Investments
as they relate to the timing of the anticipated Cleanup Costs):
(1) direct obligations of, or obligations the timely payment of
which is guaranteed by, the United States of America; (2) direct
obligations of, or obligations the timely payment of which is
guaranteed by, any agency or corporation which is or may
hereafter be created by or pursuant to an act of the Congress of
the United States as an agency or instrumentality thereof; (3)
public housing bonds, temporary notes, or preliminary loan notes,
fully secured by contracts with the United States of America; (4)
time deposits at, money market accounts of, or certificates of
deposit issued by, any bank or trust company including, but not
limited to,the Escrow Agent, which has, at the time of the
acquisition by the Escrow Agent of such investments, a capital
stock and surplus aggregating at least $50,000,000; (5) prime
commercial paper; or (6) such other investment vehicle as the
Buyer and Seller may agree upon from time to time; Buyer shall
not unreasonably withhold or delay its consent to an investment
proposal of Seller. Interest earned on any such investments
shall continue to be held under this Escrow Agreement and become
part of the Escrow Account until its termination, except as long
as Seller is not in default under the Undertaking Agreement,
earned interest shall be disbursed quarterly to Seller. Whenever
necessary to make a disbursement hereunder, the Escrow Agent
shall, in its discretion, liquidate such Investments as are
required to satisfy claims made hereunder. If the Escrow Agent
does not receive timely written instruction as contemplated
above, the Escrow Account shall be invested in short term
investment cash vehicles as indicated by Seller on the attached
Schedule.
7. The Escrow Agent. In consideration of the acceptance
by the Escrow Agent of its duties hereunder, it is agreed by all
parties hereto that:
7.1 The Escrow Agent's duties and responsibilities shall be
limited to those expressly set forth herein, provided,
however, that any amendment or modification which is
agreed to by the Buyer and the Seller in writing shall
be binding upon the Escrow Agent unless such amendment
or modification affects the duties and/or obligations
of the Escrow Agent hereunder, in which event the
Escrow Agent's consent shall be required.
7.2 The Escrow Agent is authorized, in its sole discretion,
to disregard any and all notices or instructions given
by any of the parties hereto or by any other person,
firm or corporation, except only (a) such notices or
instructions as are herein specifically provided for,
and (b) orders or process of any court entered or
issued with jurisdiction. If the Escrow Account
subject hereto is at any time attached, garnished or
levied upon, or a court orders the payment, assignment,
transfer or conveyance of the Escrow Account, or
delivery of the Escrow Account shall be stayed or
enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by any
court affecting the Escrow Account or any part thereof,
then, and in any of such events, the Escrow Agent is
authorized, in its sole discretion, to rely upon and
comply with any such order, writ, judgment or decree
which it is advised by legal counsel of its own
choosing is binding upon it.
7.3 Unless otherwise specifically provided herein, the
Escrow Agent shall proceed as soon as practicable to
collect any checks, notes or other collection items at
any time deposited hereunder. All such collections
shall be subject to the normal collection agreement in
banking institutions for deposit or collection. The
Escrow Agent shall not be required or have a duty to
notify anyone of any payment or maturity under the
terms of any instrument deposited hereunder, nor to
take any legal action to enforce payment of any check,
note or security deposited hereunder. The Escrow Agent
must provide in writing to the parties at least once
each calendar quarter a statement of all deposits,
disbursements and interest earned with regard to the
Escrow Account.
7.4 The Escrow Agent shall not be held liable for any
action taken or omitted hereunder if taken or omitted
by it in good faith and without negligence and in the
exercise of its own best judgment. It shall also be
fully protected in relying upon any written notice,
demand, certificate or document which it in good faith
believes to be genuine and consistent with this Escrow
Agreement.
7.5 The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution,
validity or genuineness of documents or securities now
or hereafter deposited hereunder, or of any endorsement
thereon, or for any lack of endorsement thereof, or for
any description therein, nor shall it be responsible or
liable in any respect on account of the identity,
authority or rights of the persons executing and
delivering or purporting to execute or deliver any such
document, security or endorsement. The Escrow Agent
shall not be liable for any depreciation or change in
the value of such documents or securities or any
property evidenced thereby.
7.6 Unless otherwise herein expressly provided, the Escrow
Agent shall:
(a) have no responsibility or liability for any
diminution which may result from any investments
or reinvestments made in accordance with any
provision which may be contained herein;
(b) be entitled to compensation for its services
hereunder in such amounts as set forth in the
attached Fee Schedule, as may be amended by the
Escrow Agent from time to time, and reimbursement
of its normal out of pocket expenses including,
but not by way of limitation, the reasonable fees
and costs of attorneys or agents which it may
find necessary to engage in performance of its
duties hereunder, all to be paid by Seller from
funds in the Escrow Account;
(c) be, and hereby is, jointly and severally
indemnified and saved harmless, by Seller, from
all losses, costs, expenses which may be incurred
by it as a result of its involvement in any
litigation arising from performance of its duties
hereunder, provided that such litigation shall not
result from any action taken or omitted by the
Escrow Agent and for which it shall have been
adjudged negligent; and, such indemnification
shall survive termination of this Agreement until
extinguished by any applicable statute of
limitations, provided however, in the event there
is litigation between Seller and Buyer in which
the Escrow Agent is made a party, the
non-prevailing party shall pay the reasonable
attorneys fees and expenses of the Escrow Agent
arising from the litigation.
8. Resignation or Removal of Escrow Agent. The Escrow
Agent may resign following the giving of thirty (30) days prior
written notice to the parties hereto. Similarly, the Escrow
Agent may be removed and replaced following the giving of thirty
(30) days prior written notice to the Escrow Agent by Seller and
Buyer. In either event, the duties of the Escrow Agent shall
terminate thirty (30) days after the date of such notice (or as
of such earlier date as may be mutually agreeable) and the Escrow
Agent shall then deliver the balance of the Escrow Account then
in its possession to a successor Escrow Agent as shall be
appointed by the Seller and Buyer hereto as evidenced by a
written notice presented by the parties to the Escrow Agent.
If the Seller and Buyer shall have failed to appoint a
successor prior to the expiration of thirty (30) days following
the date of the notice of resignation or removal, the then acting
Escrow Agent may petition any court of competent jurisdiction for
the appointment of a successor Escrow Agent or other appropriate
relief; and any such resulting appointment shall be binding.
Upon acknowledgment by any successor Escrow Agent of
the receipt of the then remaining balance of the Escrow Account,
the then acting Escrow Agent shall be fully released and relieved
of all duties, responsibilities and obligations under this
Agreement.
9. Notices. Any request, direction, notice or other
service required or permitted to be made or given by a party
hereto shall be in writing and shall be deemed sufficiently given
or served for all purposes if given by a recognized overnight
delivery service with proof of service and delivery (in which
case such notice shall be effective on the next business day) or
by mailing the same to the address indicated below (or to such
other address as party may substitute by written notification to
the other party), by certified mail, return receipt requested,
postage prepaid (in which case such notice shall be effective the
third business day after mailing):
If to Seller: Angeles Partners 16
One Insignia Plaza
P.O. Box 1089
Greenville, South Carolina 29602
Attention: John LeBeau
With a copy to:
Angeles Mortgage Investment Trust
c/o Briggs & Morgan (Attention:
David G. Greening)
2200 First National Bank Building
St. Paul, Minnesota 55101
If to Buyer: North Prior, L.L.C.
c/o Gerald L. Trooien
739 Vandalia Avenue
St. Paul, Minnesota 55114
With a copy to:
AMRESCO Capital Corporation
1845 Woodall Rodgers Freeway
Suite 1700
Dallas, TX 75201
Attn: Loan Servicing
If to Escrow
Agent: First Trust National Association
First Trust Center
2nd Floor
180 East 5th Street
St. Paul, Minnesota 55101
Attn: Mr. Thomas Gronlund
10. Governing Law. The provisions herein shall be
construed, enforced and administered in accordance with the laws
of the State of Minnesota and shall be binding upon and inure to
the benefit of the respective successors and assigns of the
parties hereto.
11. Successors and Assigns. This Escrow Agreement shall be
binding upon and inure to the benefit of the parties, their
successors and assigns (including, without limitation, Buyer's
lender, AMRESCO Capital Corporation, its successors and assigns).
The parties acknowledge that AMIT has received from Seller an
assignment of all of Seller's rights to receive payments under
this Agreement, including, without limitation, the quarterly
earned interest payments under Section 6 of this Escrow Agreement
and the remaining balance of the Escrow Account upon termination
of this Agreement (but AMIT has received no assignment of other
rights of Seller under this Agreement and has assumed no
obligations of Seller under this Agreement). Buyer and Escrow
Agent shall assume that such assignment of payments remains in
effect until they are otherwise notified in writing by AMIT.
12. Counterparts; Facsimiled Signatures. This Escrow
Agreement may be executed in counterparts and/or by facsimiled
signatures.
IN WITNESS WHEREOF, the parties hereto have executed
this Escrow Agreement as of the day and year first above written.
SELLER:
ANGELES PARTNERS 16, a
California
limited partnership
By: Angeles Realty
Corporation II,
a California corporation,
General Partner
By /s/ Robert D. Long, Jr.
Its CAO/Controller
BUYER:
NORTH PRIOR, L.L.C., a
Delaware limited liability
company
By North Prior Corporation, a
Minnesota corporation, Its
Chief Manager
By /s/ Gerald L. Trooien
Gerald L. Trooien,
President
ESCROW AGENT:
FIRST TRUST NATIONAL
ASSOCIATION
By
Its
[ATTACH INVESTMENT ELECTION SCHEDULE-SEE LAST SENTENCE OF SECTION
6]
[ATTACH ESCROW AGENT'S FEE SCHEDULE-SEE SECTION 7.6(b)]