AGREEMENT FOR DEED-IN-LIEU-OF-FORECLOSURE
Parties: Angeles Partners XV, a California limited partnership ("Borrower");
and Angeles Mortgage Investment Trust, a California business trust
("Lender")
Property: Property in Cuyahoga County, Ohio. The property is legally described
in Schedule 1 attached hereto.
Date: July 28, 1998
R E C I T A L S
A. Borrower is the owner of fee simple title to the Property. Lender
is the owner of a judgment lien in Cuyahoga County Common Pleas Court Case No.
278338 in the original amount of $2,724,991.06 with 12.5% interest from January
18, 1995 and costs in the amount of $25.00, filed January 18, 1995 at 4:29 p.m.
as Cuyahoga County Common Pleas Judgment No. JL000738 (the "Judgment Lien").
B. As reflected in that certain Assignment of Mortgage dated as of
March 31, 1998 recorded in Volume 98-03753, Page 21 of the Cuyahoga County
Records, and that certain Assignment of Mortgage dated March 31, 1998 and
recorded in Volume 98-03753, Page 24 of the Cuyahoga County Records, Lender is
the holder of one first mortgage on the portion of the Property located in
Strongsville, Ohio, namely that certain Mortgage and Security Agreement dated
August 31, 1988 made by Angeles Partners XV, recorded in Volume 88-4558, Page 68
of the Cuyahoga County Records (the "Strongsville Mortgage"), and one first
mortgage on the portion of the Property located in Solon, Ohio, namely that
Mortgage and Security Agreement dated August 31, 1988 made by Angeles Partners
XV, recorded in Volume 88-4558, Page 26 of the Cuyahoga County Records (the
"Solon Mortgage," together with the Strongsville Mortgage, the "Mortgages"), as
well as the notes secured thereby (collectively, the "Notes").
C. The Property presently is the subject of a foreclosure action
styled Angeles Mortgage Investment Trust v. Angeles Partners XV, et al., No.
311749, pending in the Court of Common Pleas of Cuyahoga County, Ohio (the
"Action"), in which Lender has sought to foreclose the Judgment Lien and the
Mortgages. A receiver (the "Receiver") has been appointed in the Action to
preserve and maintain the Property and to collect all rents and income (the
"Income") from same. Final judgment has been entered in the Action, in the form
of that certain Magistrate's Decision, filed as of December 31, 1997 and adopted
by the Court as of January 23, 1998 (the "Magistrate's Decision").
D. As determined in the Magistrate's Decision, the amount owed by
Borrower as of August 19, 1997 on the debt secured by the Judgment Lien is
$2,224,991.06 plus interest. As of July 1, 1998, the amount owed with interest
is $3,477,622.77. As further determined in the Magistrate's Decision, the
amount owed by Borrower as of August 19, 1997 on the note secured by the
Strongsville Mortgage is $2,090,000 plus interest. As further determined in the
Magistrate's Decision, the amount owed by Borrower as of August 19, 1997 on the
note secured by the Solon Mortgage is $1,775,000, plus interest.
E. By side letter agreement (the "Letter Agreement") dated the date
hereof, Lender, upon the terms stated in the Letter Agreement, has agreed to
provide Borrower with a Credit (as that term is defined in the Letter Agreement)
upon the consummation of this agreement by the filing of the deeds (as defined
below) for record.
F. Lender, in its sole discretion, may elect to assign some or all
of its rights under this Agreement and/or direct that conveyance of the Property
be made to a purchaser designated by Lender.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
provisions and covenants made herein, and the receipt of other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged,
Borrower and Lender hereby agree that:
AGREEMENTS
1. Consideration. The consideration for the conveyance of the
Property to Lender by Borrower shall be the Credit. It is the intention of the
parties hereto that the delivery of the Deeds (as defined below) and the Credit
shall constitute a final and complete settlement of all obligations between them
arising from, related to or connected with the Property.
2. Conveyance. The Property shall be conveyed by Borrower to
Lender, or at Lender's option, to Lender's designee, in lieu of Lender
foreclosing upon the Judgment Lien and the Mortgages by a good and sufficient
limited warranty deed for each parcel of the Property (the "Deeds"), each
warranting the Property to be free and clear of liens and encumbrances by, from,
through, or under the Borrower except matters of record, including without
limitation, (a) liens and encumbrances of record, (b) zoning ordinances, (c)
easements and rights of way of record, (d) conditions, limitations, and
restrictions of record, and (e) the Mortgages.
3. Title Exceptions. Borrower and Lender have been furnished with a
Preliminary Judicial Report and a Final Judicial Report ("Judicial Reports")
issued by the Xxxxxxx Title Guaranty Company, Order No. ST 18846, showing title
to the Property to be subject to (a) taxes and assessments for the first half of
1998, (b) the Mortgages, (c) the Judgment Lien, (d) easement for sanitary sewer
from National Engineering and Constructing Company to the City of Strongsville,
dated August 4, 1964, filed for record September 8, 1964 and recorded in Volume
11186, Page 351 of Cuyahoga County Records, (e) easement for underground
utilities from National Engineering and Contracting Company to The Cleveland
Electric Illuminating Company and the Ohio Xxxx Telephone Company dated April
27, 1967, filed for record May 1, 1967 and recorded in Volume 12113, Page 753 of
Cuyahoga County Records (f) appurtenant easement for gas storage and
transmission system from Xxxxxxx X. Xxxxxxx to Xxxxx X. Haedinges, dated
November 13, 1975, filed for record November 25, 1975, and recorded in Volume
13895, Page 105 of Cuyahoga County Records, (g) easement for underground
utilities from Virginia Holding Corporation to the Cleveland Electric
Illuminating Company and The Ohio Xxxx Telephone Company dated June 29, 1970,
filed for record July 7, 1970 and recorded in Volume 12722, page 57 of Cuyahoga
County Records, (h) memorandum of lease agreement by and between Angeles
Partners XV and X. X. Penney Company, Inc., dated September 30, 1994 filed for
record January 18, 1995 and recorded in Volume 95-00348, Page 2 of Cuyahoga
County Records.
4. Representations and Warranties. Lender represents and warrants
that it has the power and authority to perform this Agreement, and that the
officer signing this Agreement on its behalf, is duly authorized.
5. Escrow. As promptly as possible, an in any event on or before
July 31, 1998, Lender shall deposit in escrow with the Squire, Xxxxxxx & Xxxxxxx
L.L.P. the Letter Agreement reflecting the Credit. As promptly as possible, and
in any event, on or before July 31, 1998, Borrower shall deposit in escrow with
Squire, Xxxxxxx & Xxxxxxx L.L.P., the Deeds. As promptly after the foregoing
items are deposited in escrow as is possible, and in any event within three (3)
business days after such items are deposited, Squire, Xxxxxxx & Xxxxxxx L.L.P.
shall consummate the transaction provided for herein by (a) filing the Deeds for
record and (b) delivery of the Letter Agreement to Borrower.
6. Casualty and Condemnation. (a) In the case of damage or
destruction to the property before the Deeds are filed for record, Lender may at
its option terminate this agreement without further obligation under this
Agreement, or if Lender shall elect not to terminate this Agreement, the parties
to this Agreement shall close the transaction as contemplated in accordance with
the terms of this Agreement and Borrower shall assign to Lender or Lender's
designee all insurance proceeds, including rental loss insurance proceeds, if
any, for the period from and after the Deeds are filed until Property is fully
restored, for such damage or destruction.
(b) If before the Deeds are filed, any action, suit, or
proceeding to condemn or take all or any part of the Property under the powers
of eminent domain, is commenced, Lender shall have the right to terminate its
obligations under this Agreement by notice in writing to Borrower given before
the Deeds are filed. If the Lender shall elect not to terminate its obligations
under this Agreement, Lender shall receive an absolute assignment on the date
the relevant Deed is filed of the entire proceeds of or right to the
condemnation award. Borrower shall convey the Property less that part so taken
or subject to the condemnation proceeding, as the case may be.
7. Prorations. Taxes and assessments, tenant rents and utility
costs, shall not be prorated.
8. Expenses. Lender or Lender's designee shall pay the cost of
filing the Deed for record, and the title examination charges and related costs
of obtaining the Judicial Report.
9. Dismissal of Action. Upon execution of this Agreement and
receipt by Squire, Xxxxxxx & Xxxxxxx L.L.P. in escrow of the Deeds and Letter
Agreement, Lender shall file a Motion to Dismiss with regard to the Action in
the form attached hereto as Exhibit A.
10. Income Upon termination of the Receivership and discharge
of the Receiver, Lender shall be entitled to receive any income from the
Property in the possession of the Receiver following termination and approval of
the Receiver's final report. To this effect, Borrower shall execute the Agreed
Motion to Terminate Receivership attached hereto as Exhibit B.
11. Broker. Borrower represents that the Property is not listed
for sale with a real estate broker or agent, and Borrower and Lender agree that
upon the filing of the Deed for record, no commission or other payment shall be
due or payable to any entity or person.
12. Failure of Title. If for any reason whatsoever, the status
of the title changes between the date hereof and the date of closing, then at
the option of the Lender, this Agreement shall terminate, and Borrower and
Lender shall be released of all liabilities and obligations hereunder; provided,
however, that (a) the Lender may waive any title exception or defect which is
not among Title Exceptions, and (b) Borrower shall have thirty (30) days after
the change of status of title in which to cure the same unless the change is
acceptable to Lender. The parties acknowledge that the Property is subject to
an unrecorded Agreement of Lease by and between Xxxxx Corp. (predecessor in
interest to Borrower) and Westpark packaging, inc. ("Westpark"), dated March 29,
1983 as amended by Amendment of Lease Agreement dated August 24, 1984, First
Addendum to Lease dated August 30, 1988, Second Addendum to Lease dated March
21, 1991, Third Amendment of Lease dated October 23, 0000, Xxxxxx Xxxxxxxxx of
Lease dated January 27, 1994 and Fifth Amendment to Lease Agreement dated
January 30, 1997 (collectively, the "Lease"). Pursuant to the Lease, Westpark
may have a right of first refusal with respect to some portion of the Property.
13. Restoration of Rights and Remedies. If for any reason
whatsoever this Agreement shall terminate and not be consummated in accordance
with its terms and conditions, the Lender shall be fully restored to all rights
and remedies which it has at law or in equity or pursuant to the Judgment Lien
or Mortgages, and Borrower shall not be entitled to, and shall not raise the
existence or termination of this Agreement as a defense to any action which
Lender may institute against Borrower pursuant to the Judgment Lien or
Mortgages.
14. Notices. All notices, demands and requests given or
required or desired to be given hereunder shall be in writing and shall be
delivered in person or by overnight express delivery or by United States
certified mail, return receipt requested, postage prepaid, as follows:
To Borrower: Angeles Partners XV
c/o Insignia Properties Trust
One Insignia Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx XxXxxx
To Lender Angeles Mortgage Investment Trust
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
with a copy to: Squire, Xxxxxxx & Xxxxxxx
0000 Xxx Xxxxx, 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall, for all purposes, be deemed an original. All
of such counterparts, taken together, shall constitute one and the same
agreement.
16. No Merger. It is the express intention of the Borrower and
the Lender that the mortgage estate created by the Judgment Lien, the Mortgages,
and fee ownership are not intended to merge as a result of the conveyances
contemplated hereby, but shall remain separate.
17. Entire Agreement. This Agreement, the Deeds, the Letter
Agreement and any other instrument delivered hereunder, constitutes the entire
agreement of the parties hereto as to the subject matter hereof, and there are
no agreements, representations, warranties or promises as to the subject matter
hereof which are not set forth herein.
18. Successors and Assigns. This Agreement shall be binding on
and inure to the benefit of Borrower and Lender, their respective successors,
assigns, grantees, and legal representatives.
Borrower and Lender have executed this Agreement by and through
their respective duly authorized officers and partners as of the date set forth
above.
ANGELES PARTNERS XV,
a California limited partnership
By: Angeles Realty Corporation II
a California Corporation
Its General Partner
By: /s/ Xxxxxx X. Xxxx, Xx.
Xxxxxx X. Xxxx, Xx.
Its Vice President
ANGELES MORTGAGE INVESTMENT TRUST
a California business trust
By: /s/ Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Its Vice President
