Fill and Sign the Escrow Agreement Company Form

FORM OF ESCROW AGREEMENT THIS ESCROW AGREEMENT ("Escrow Agreement") made this ____ day of ________, 1999, by and among JOHNSTOWN/CONSOLIDATED INCOME PARTNERS, a California limited partnership, ("Seller");THE CADLE COMPANY, an Ohio corporation ("Purchaser"); and FIDELITY NATIONAL TITLE INSURANCE CO. ("Escrow Agent"); WITNESSETH: Whereas Purchaser and Seller are parties to a certain Purchase and Sale Contract (the "Purchase Contract") made and dated as of the ______ day of _________, 1999; and Whereas, the Purchase Contract requires that Purchaser provide a Deposit in the amount of Fifty Thousand Dollars ($50,000.00) in cash to be held pursuant to an escrow agreement approved by Purchaser and Seller. Now, therefore, the parties agree to the following: 1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty Thousand Dollars ($50,000.00) in cash (the "Escrow Fund"), to be deposited, held, invested, and disbursed for the benefit of Seller and Purchaser and their respective successors and assigns, as provided herein and as provided in the Purchase Contract. 2. Investment of Escrow Fund. All funds received by Escrow Agent shall be held in insured accounts and invested in such short-term, high-grade securities, money market funds or accounts, interest bearing bank accounts, bank certificates of deposit or bank repurchase agreements as Escrow Agent, in its discretion, deems suitable (provided that Escrow Agent shall invest the Escrow Fund as jointly directed by Seller and Purchaser should Seller and Purchaser each in their respective sole discretion determine to issue such joint investment instructions to the Escrow Agent) and all interest and income thereon shall become part of the Escrow Fund and shall be remitted to the party entitled to the Escrow Fund, as set forth below. 3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as provided above. If the sale of the Property is closed by the closing date as defined in the Purchase Contract fixed therefore (or any extension date provided for by mutual written consent of the parties hereto, given or withheld in their respective sole discretion), Escrow Agent shall deliver the Escrow Fund to Seller in immediately available funds by wire transfer in accordance with the instructions of Seller on the Closing Date as set forth in the Purchase Contract. If the sale of the Property is not closed by the date fixed therefor (or any such extension date) owing to failure of satisfaction of a condition precedent to Purchaser's obligations, the Escrow Agent shall return and refund the Escrow Fund to Purchaser. If the sale of the Property is not closed by the date fixed therefor (or any such extension date) owing to failure of performance by Seller, Purchaser shall give Notice to the Escrow Agent and Seller and in such Notice shall state whether it elects as its remedy return of the Escrow Fund or specific performance of the Purchase Contract, if Purchaser elects return of the Escrow Fund, Escrow Agent shall return and refund the Escrow Fund to Purchaser. If the sale of the Property is not closed by the date fixed therefor (or any such extension date) owing to failure of performance by Purchaser, Escrow Agent shall forthwith deliver to Seller the Escrow Fund in immediately available funds by wire transfer in accordance with the instructions of Seller. If Purchaser shall have canceled the Purchase Contract on or before the expiration of the Feasibility Period (as defined in the Purchase Contract), the Escrow Agent shall return and refund the Escrow Fund to Purchaser. If on or prior to the termination of the Escrow Agreement, a party claims to be entitled to payment of the Escrow Fund under the provisions referred to, such party shall give Notice to the Escrow Agent and the other party of the claim in writing, describing in such Notice the nature of the claim, and the provisions of the Purchase Contract on which the claim is based. Unless the other party sends the Escrow Agent a written objection to the claim, with a copy concurrently to the claiming party, within Ten (10) days after delivery of the Notice of claim, the claim shall be conclusively presumed to have been approved. In such case, or in the event of mutual written consent of the parties hereto, given or withheld in their respective sole discretion, Escrow Agent shall, within Two (2) business days thereafter, pay the claim as demanded. Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to Seller forthwith upon Closing in accordance with the terms of subpart (a) of the immediately preceding paragraph. When all monies held by Escrow Agent have been finally distributed in accordance herewith, this Escrow Agreement shall terminate. 4. Liability. Escrow Agent will be obligated to perform only the duties that are expressly set forth herein. In case of conflicting demands upon Escrow Agent, it may (i) refuse to comply therewith as long as such disagreement continues and make no delivery or other disposition of any funds or property then held (and Escrow Agent shall not be or become liable in any way for such failure or refusal to comply with such conflicting or adverse claims or demands, except for its failure to exercise due care, willful breach and willful misconduct); and (ii) continue to so refrain and so refuse to act until all differences have been adjusted by agreement and Escrow Agent has been notified thereof in writing signed jointly by Seller and Purchaser or (iii) interplead the portion of Escrow Fund in dispute. 5. No Obligation to Take Legal Action. Escrow Agent shall not be under any obligation to take any legal action in connection with this Escrow Agreement or for its enforcement, or to appear in, prosecute, or defend any action or legal proceeding which, in its opinion, would or might involve it in any costs, expense, loss or liability, unless and as often as required by it, it is furnished with satisfactory security and indemnity against all such costs, expenses, losses or liabilities. 6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a depository only, and shall not be responsible or liable (except for its failure to exercise due care, willful breach or willful misconduct) for the sufficiency or correctness as to form, manner of execution, or validity of any instrument deposited pursuant to this Escrow Agreement, nor as to the identity, authority, or rights of any person executing the same. Escrow Agent's duties hereunder shall be limited to the safekeeping and investment of money, instruments, and securities received by it as Escrow Agent and for their disbursement in accordance with the written escrow instructions given it in accordance with this Escrow Agreement. 7. Written Instructions of Parties. Notwithstanding any contrary provision contained herein, Escrow Agent shall, at all times, have full right and authority and the duty and obligation to pay over and disburse the principal and interest of the Escrow Fund in accordance with the joint written instructions signed by Seller and Purchaser. 8. Notices. Any required or permitted Notice or other communication under this Escrow Agreement ("Notice") shall be given as follows. All Notices, requests, demands and other communications hereunder shall be deemed to have been duly given if the same shall be in writing and shall be delivered personally or sent by federal express or other recognized national overnight courier service maintaining records of delivery, or sent by registered or certified mail, postage pre-paid, and addressed as set forth below: (a) If to Seller: Johnstown/Consolidated Income Partners c/o AIMCO 1873 South Bellaire Street Suite 1700 Denver, CO 80222 Attention: Tim Works, Harry Alcock, Martha Carlin Phone: 303-691-4357 Fax: 303-504-4889 With a copy to: -------------- Argent Real Estate 1401 Brickell Avenue, Suite 520 Miami, FL 33131 Attention: David Marquette Phone: 305-371-9299 Fax: 305-371-6898 And with a copy to: ------------------ Alan H. Weinberg, Esq. WELTMAN, WEINBERG & REIS CO., L.P.A. 323 W.Lakeside Avenue/Suite 200 Cleveland, OH 44113-1099 Phone: 216-363-4001, Ext. 201 Fax: 216-363-6913 (b) If to Purchaser: The Cadle Company 100 North Center Street Newton Falls, Ohio 44444 Attention: Daniel C. Cadle, President Phone: 330-872-0918, Ext. 3101 Fax: 330-872-5367 (c) If to Escrow Agent: Fidelity National Title Insurance Co. Bank of America Center 700 Louisiana, Suite 2600 Houston, TX 77002 Attention: Lolly Avant Phone: 713-228-3009 Fax: 713-228-9180 Any party may change the address to which Notices are to be addressed by giving the other parties Notice in the manner herein set forth. All such Notices, requests, demands and other communications shall be deemed to have been delivered (i) as of the day of receipt, in the case of personal delivery, or (ii) as of the day of receipt or attempted delivery date in the case of delivery by air courier, or (iii) as of the date of receipt or first attempted delivery, as evidenced by the return receipt card, in the case of mailing by certified or registered United States mail. 9. Fee. Escrow Agent shall receive a fee of Three Hundred Dollars ($300.00) for its services hereunder, and be paid or reimbursed for all expenses, disbursements and advances, including reasonable attorney's fees, incurred or paid in connection with carrying out its duties hereunder, all amounts to be payable in accordance with Section 7.1.5. Non-payment of such fee shall not entitle Escrow Agent to refuse or fail to act as required by this Escrow Agreement. 10. Titles and Section Headings. Titles of sections and subsections --------------------------- contained in this Escrow Agreement are inserted for convenience of reference only, and neither form a part of this Escrow Agreement or are to be used in its construction or interpretation. 11. Counterparts. This Escrow Agreement may be executed in any number of ------------ counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 12. Non-Waiver. No waiver by either party of any breach of any term or condition of this Escrow Agreement shall operate as a waiver of any other breach of such term or condition or of any other term or condition. No failure to enforce such provision shall operate as a waiver of such provision or of any other provision hereof, or constitute or be deemed a waiver or release of any other party for anything arising out of, connected with, or based upon this Escrow Agreement. 13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective transferees, successors, and assigns. The parties recognize and acknowledge that the powers and authority granted Escrow Agent herein are each irrevocable and coupled with an interest. Escrow Agent shall have no liability to any Seller for any mistakes in judgment in the performance of any function hereunder, except for failure to exercise due care, willful breach and willful misconduct. 14. Nonlimitation of Liability. Nothing contained herein shall in any way -------------------------- limit the liabilities, obligations and remedies of Seller and Purchaser as set forth in the Purchase Contract. 15. Governing Law. This Escrow Agreement shall be governed by and ------------- construed in accordance with the laws of the State of Georgia. 16. Time of Essence. Time is of the essence of this Escrow Agreement. --------------- 17. Entire Agreement; Modification. This Escrow Agreement supersedes all ------------------------------ prior agreements and constitutes the entire agreement with respect to the subject matter hereof. It may be altered or modified only with the written consent of all parties. In witness whereof each of the parties hereto has caused this Escrow Agreement to be executed on its behalf by duly authorized persons, all as of the day and year first above written. THE CADLE COMPANY, an Ohio corporation By: Name: Title: JOHNSTOWN/CONSOLIDATED INCOME PARTNERS., a California limited partnership By: Concap Equities, Inc., a Delaware Corporation Its: General Partner By:_________________________________ Title:_______________________________ FIDELITY NATIONAL TITLE INSURANCE CO. By: Name: Its: