FIRST AMENDMENT TO ESCROW AGREEMENT
THIS FIRST AMENDMENT TO ESCROW AGREEMENT is made and entered into on this
6th day of December, 1996, by and among Roclab-C Investors ("Seller"), CMD
Realty Investment Fund II, L.P. ("Purchaser") and Charter Title Company
("Escrow Agent").
RECITALS
A. Seller and Purchaser have entered into that certain Agreement of Sale
dated December 2, 1996 ("Agreement"), providing for the sale by Seller of
property commonly known as Park Center in Maitland, Florida ("Property").
Terms not defined herein shall have the meanings provided in the Agreement.
B. The parties wish to enter into this First Amendment to Escrow
Agreement to provide an escrow holdback of a certain portion of the Purchase
Price, to be held by Escrow Agent and disbursed in accordance with the terms
hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. On the Closing Date, out of the net proceeds of sale, Purchaser and
Seller shall deposit with Escrow Agent the sum of $200,000 ("Indemnity
Deposit"). The Indemnity Deposit may be invested by Escrow Agent in a Fidelity
Money Market Account or such other investment as may be acceptable to Seller
and Purchaser. All earnings on the Indemnity Deposit shall be deemed a part of
the Indemnity Deposit.
2. Upon receipt by Purchaser of written acknowledgment from Orix
irrevocably and unconditionally waiving the Orix Claim and if Purchaser has no
outstanding claims under the Indemnity Agreement (the "Indemnity Agreement") of
even date herewith between Seller and Purchaser (collectively, the "Orix
Condition"), Purchaser shall promptly provide written notice to Escrow Agent
that the Orix Condition has been satisfied. If Escrow Agent receives such
notice from Purchaser prior to June 6, 1997, the Indemnity Deposit shall be
disbursed to Seller pursuant to the wire transfer instructions shown on
Exhibit A hereto on June 6, 1997 without notice to or consent from Purchaser,
unless Purchaser has made a claim against Seller in accordance with Paragraph
17.10 of the Agreement and so notifies Escrow Agent of such claim in writing on
or before 5:00 p.m. Central Time on June 5, 1997. If Escrow Agent receives
timely written notice of a claim by Purchaser as provided in the immediately
preceding sentence or under the Indemnity Agreement, Escrow Agent shall notify
Seller by telephone and in writing at the address provided in the Escrow
Agreement, with a copy of such notice to Seller's attorney as shown in the
Escrow Agreement. Seller shall, within 10 days after receipt of such notice,
either authorize Escrow Agent in writing (with a copy of such authorization
being sent to Purchaser) to disburse the amount stated in Purchaser's claim, or
provide a written objection to Purchaser and Escrow Agent stating why Purchaser
may not draw the amount stated in its claim. If Seller fails to provide such
notice within such 10-day period, Escrow Agent shall continue to hold the
Indemnity Deposit until receipt of further written instructions jointly
provided by Seller and Purchaser. If the Orix Condition is satisfied after
June 5, 1997, and Purchaser has not notified Escrow Agent of a claim against
Seller in accordance with Paragraph 17.10 of the Agreement on or before 5:00
p.m. Central Time on June 4, 1997, then the Indemnity Deposit shall be
disbursed to Seller immediately upon Escrow Agent's receipt from Purchaser of
written notice that the Orix Condition has been satisfied.
3. Escrow Agent is hereby expressly authorized to disregard in its sole
discretion any and all conflicting notices or warnings given by any of the
parties hereto or by any other person or corporation. Escrow Agent is hereby
expressly authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any court with jurisdiction over the
subject matter hereof, and in case Escrow Agent obeys or complies with any such
order, judgment or decree of any court it shall not be liable to any of the
parties hereto or any other person, firm or corporation by reason of such
compliance.
4. Except as amended hereby, the terms of the Escrow Agreement shall
remain unchanged and in full force and effect.
5. Any notices required hereunder may be sent by facsimile and shall be
effective upon receipt of electronic confirmation.
6. This First Amendment to Escrow Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
7. If either party institutes a legal action against the other relating
to this Agreement or any default hereunder, the unsuccessful party to such
action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation, attorneys
fees and disbursements and court costs.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed the day and year first above written.
SELLER:
ROCLAB-C INVESTORS, an Illinois limited partnership
By: Balcor Equity Partners-I, an Illinois general partnership, its general
partner
By: The Balcor Company, a Delaware corporation, general partner
By: /s/Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Its: Senior Vice President
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PURCHASER:
CMD REALTY INVESTMENT FUND II, L.P.
By: CMD XXXX II, Inc., its general partner
By: /s/Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Its: Vice President
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ESCROW AGENT:
CHARTER TITLE COMPANY
By:
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Name:
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Its: Authorized Agent