PURCHASE AND SALE AGREEMENT{{PRIVATE}}
THIS AGREEMENT is made and entered into this 20th day of August, 1996,
by and between National Property Investors II, Ltd., a California limited
partnership (hereinafter called "Seller") and General Capital Corporation, a
Tennessee corporation, as Trustee (hereinafter called "Buyer").
W I T N E S S E T H :
1. Agreement to Sell and Purchase. For and in consideration of the
Earnest Money, hereinafter defined, in hand paid by Buyer to the Nashville,
Tennessee, office of Lawyers Title Insurance Corporation ("Escrow Agent"), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and take from Seller, subject to and in accordance with all of the
terms and conditions of this agreement, the following:
(a) All that certain lot, tract or parcel of improved real
estate, known as Sugar Mill Apartments, located at 3151 South Babcock Street,
Melbourne, Brevard County, Florida, as more particularly described on Exhibit
"A" attached hereto, together with all plants, shrubs and trees located thereon,
and together with all rights, ways and easements appurtenant thereto, including,
without limitation, all of Seller's right, title and interest in and to the land
underlying and the air space overlying any public or private ways or streets
crossing or abutting said real estate (collectively, the "Land");
(b) All buildings, structures and other improvements of any and
every nature located on the Land and all fixtures attached or affixed to the
Land or to any such buildings, structures or other improvements (collectively,
the "Improvements");
(c) All goods, equipment, machinery, apparatus, fittings,
furniture, furnishings, supplies, spare parts, appliances, tools and other
personal property of every kind located on the Land or within the Improvements
and used in connection with the operation, management or maintenance of the Land
or the Improvements, excluding any such items owned by tenants of the Land or
the Improvements and excluding Seller's computer equipment and software, but
specifically including, without limitation, the property described on Exhibit
"B" attached hereto (collectively, the "Personalty");
(d) All of the right, title and interest of the Seller as
"lessor" or "landlord" in, to and under all leases and other agreements for the
use, occupancy or possession of all or any part of the Land or the Improvements,
including, without limitation, (i) all the tenant leases scheduled and
identified on Exhibit "C" attached hereto (the "Existing Leases"), and (ii) all
new tenant leases or other agreements for use, occupancy or possession of all or
any part of the Land or the Improvements entered into between the date hereof
and the Closing Date, hereinafter defined, in accordance with the terms and
conditions of this agreement (the "New Leases"); and
(e) All of the right, title and interest accruing to the owner
of the Land and the Improvements, to the extent transferable, in, to and under:
(i) those management, service and other contracts and agreements, if any,
scheduled and identified on Exhibit "D" attached hereto (the "Service
Agreements"); (ii) the name "Sugar Mill Apartments" (the "Tradename"); and (iii)
all warranties, guaranties, certificates, licenses, permits, authorizations,
consents and approvals (to the extent the same are assignable) with respect to
the use, occupancy, possession, condition, and operation of the Land and the
Improvements (the "Permits").
The Land, the Improvements and the Personalty are hereinafter sometimes
collectively called the "Project"; and all the foregoing are hereinafter
sometimes collectively called the "Property".
2. Purchase Price; Method of Payment. (a) The purchase price for
the Property (the "Purchase Price") shall be Five Million Two Hundred Forty-
Seven Thousand and No/100 Dollars ($5,247,000.00). The Purchase Price shall be
paid on the Closing Date by wire delivery of funds through the Federal Reserve
System to an account designated in writing by Seller.
(b) Notwithstanding the foregoing, in the event that Seller is a
"Foreign Person" (as defined in Section 1445 of the Internal Revenue Code of
1986, as amended, and regulations promulgated thereunder (the "Code")), or in
the event that Seller fails or refuses to deliver the certificate and affidavit
of non-foreign status described in paragraph 9(a) of this agreement, or in the
event that Buyer receives notice from any Seller-transferor's agent or Buyer-
transferee's agent (as each of such terms are defined in the Code) that, or
Buyer has actual knowledge that, such certificate and affidavit is false, Buyer
shall deduct and withhold from the cash portion of the Purchase Price a tax
equal to ten (10%) percent of the Purchase Price, as required by Section 1445 of
the Code. Buyer shall remit such amount to, and file the required form with,
the Internal Revenue Service, and Buyer shall receive a credit against the cash
portion of the Purchase Price for the amount so withheld.
3. Earnest Money. Contemporaneously with Buyer's execution of this
agreement, Buyer shall deliver to Escrow Agent the sum of Twenty-Five Thousand
and No/100 Dollars ($25,000.00) (the "Initial Earnest Money"). The Initial
Earnest Money and the hereinafter defined Final Earnest Money, together with all
interest actually earned thereon during the term of this agreement, shall herein
be referred to collectively as the "Earnest Money". During the term of this
agreement, Escrow Agent shall hold the Earnest Money in an interest bearing
vehicle reasonably satisfactory to Buyer and Seller. On the Closing Date, the
Earnest Money shall be applied as part payment of the Purchase Price. The
rights, duties and obligations of Seller, Buyer and Escrow Agent with respect to
the escrow created hereby shall be governed by the provisions of an escrow
agreement in form attached hereto as Exhibit "E."
4. Closing. The closing of the purchase and sale of the Property,
hereinafter called "Closing", shall be accomplished by United States mail or
recognized overnight courier after having been held at the office of Buyer's
counsel in Nashville, Tennessee at such time and on such date (the "Closing
Date") as may be agreed upon by Buyer and Seller; provided, however, that the
Closing Date shall be on or before the date sixty (60) days after the
satisfaction or waiver by Buyer of the contingencies contemplated within
paragraph 5(d) below.
5. Access and Inspection; Delivery of Documents and Information by
Seller; Examination by Buyer; No Reliance. (a) Between the date of this
agreement and the Closing Date, Buyer and Buyer's agents and designees shall
have the right, upon not less than twenty-four (24) hours prior notice, to enter
the Project for the purposes of inspecting the Property, copying (at Buyer's
expense) on-site records which directly relate to the operation of the Project,
and making any other investigations and inspections as Buyer may reasonably
require to assess the condition of the Property; provided, however, that such
activities by or on behalf of Buyer on the Project shall not materially damage
the Project. Buyer further agrees to indemnify and hold Seller harmless from and
against any and all claims, causes of action, damages, costs, injuries and
liabilities directly resulting from the activities of Buyer and/or Buyer's
agents or designees at or on the Project. Notwithstanding anything to the
contrary contained elsewhere in this agreement, the provisions of this paragraph
5(a) shall survive both Closing and termination of this agreement.
(b) On or before the date ten (10) days after the date of this
agreement, Seller shall deliver to Buyer, if not previously delivered, or will
make available to Buyer for inspection and copying by Buyer either at the
address of the Property or at the address for Seller shown below Seller's
execution of this agreement, the following documents and information with
respect to the Property (collectively, the "Submission Material"):
(i) A current rent schedule of the Existing Leases listing
each apartment unit rented in the project by number or other appropriate
designation and setting forth, as of the date thereof, the name(s) of each
tenant, the rent payable for the use of the respective apartment unit, the
status of rent payable, the of any security or other deposit with respect to
such space, and the lease expiration date;
(ii) Photocopies of all real property and other ad valorem
tax bills for the two (2) year period preceding the date of this agreement, if
in Seller's possession;
(iii) Operating statements covering the operation of the
Project for calendar years 1994, 1995 and year-to-date 1996, to the extent they
are in Seller's possession; and
(iv) Copies of the Service Agreements;
(c) Upon the full execution of this agreement by Seller and
Buyer (with all exhibits attached hereto), Seller shall deliver to Buyer the
following documents (the "Due Diligence Material"):
(i) Copy of Seller's owners title insurance policy insuring
Seller's title to the Land and Improvements, if in Seller's possession;
(ii) Copy of the most recent survey of the Land and
Improvements if in Seller's possession; and
(iii) Copies of environmental site assessments (if any) which
relate to the Project to the extent such assessments are in Seller's possession.
(d) Buyer shall have until the date no later than thirty (30)
days from the date of this agreement (the "Inspection Period"), within which to
examine the Property and to conduct title examinations, soil tests, lead paint
and environmental surveys and/or audits, mechanical, and structural studies and
analyses, make surveys, and conduct all other investigations of the Property as
Buyer deems necessary to determine whether the Property is suitable and
satisfactory to Buyer. During the Inspection Period, Seller shall make
available to Buyer, for inspection and copying, all environmental and
engineering studies, surveys, title insurance policies, and other documents and
records in its possession that Buyer may reasonably request in the course of
performing its inspection activities. Notwithstanding anything to the contrary
set forth in this agreement, this agreement shall terminate on the date, not
later than the thirtieth (30th) day after the date of this agreement, upon which
Buyer shall have given written notice to Seller that the results of its
examinations and investigations undertaken during the Inspection Period are
unsatisfactory to Buyer. If Buyer fails to give this notice within the time
period provided in this paragraph 5(d), then this agreement shall continue in
full force and effect in accordance with, and subject to, all the terms and
conditions hereof, so long as Buyer shall have delivered to Escrow Agent the sum
of Twenty-Five Thousand and No/100 Dollars ($25,000.00) (the "Final Earnest
Money") not later than the thirty-fifth (35th) day after the date of this
agreement. In the event Buyer fails to so deliver the Final Earnest Money,
Seller may terminate this agreement by giving written notice to Buyer of
Seller's election to terminate. Buyer shall have the right to determine, in
Buyer's sole and absolute judgment and discretion, whether or not the results of
its inspection activities are satisfactory.
(e) Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information (excluding, however, the Submission Material or
Due Diligence Material dated after January 1, 1996) delivered to Buyer in
connection with the transaction contemplated hereby. Buyer acknowledges and
agrees that all materials, data and information (excluding, however, the
Submission Material or Due Diligence Material dated after January 1, 1996)
delivered to Buyer in connection with the transaction contemplated hereby are
provided to Buyer as a convenience only and that any reliance on or use of such
materials, data or information by Buyer shall be at the sole risk of Buyer.
Notwithstanding the foregoing, Seller has no reason to believe that any such
material as is provided to Buyer is false in any material respect.
(f) If this agreement is terminated by Buyer or Seller pursuant
to paragraph 5(d) then One Hundred and No/100 ($100.00) Dollars of the Earnest
Money shall be delivered to Seller as consideration for Seller's execution of
and entry into this agreement, the balance of the Earnest Money shall be
refunded to Buyer immediately upon request, all rights and obligations of the
parties under this agreement shall expire (except as otherwise expressly
provided herein), and this agreement shall become null and void. Seller
acknowledges that Buyer will expend time, money and other resources in
connection with the examination and investigation of the Property hereinabove
described, and that, notwithstanding the fact that this agreement may terminate
pursuant to this paragraph, such time, money and other resources expended,
together with the payment of the portion of the Earnest Money hereinabove
described to be paid to Seller in the event this agreement so terminates,
constitutes good, valuable, sufficient and adequate consideration for Seller's
execution of and entry into this agreement.
6. Prorations and Adjustments to Purchase Price. The following
prorations and adjustments shall be made between Buyer and Seller at Closing, or
thereafter if Buyer and Seller shall agree:
(a) All city, state and county ad valorem taxes and similar
impositions levied or imposed upon or assessed against the Property (the
"Taxes") for the year in which Closing occurs shall be prorated as of the
Closing Date. Seller shall pay all back taxes. In the event the Taxes are not
determinable at the time of Closing, the Taxes shall be prorated on the basis of
the best available information. In the event any of the Taxes are due and
payable at the time of Closing, the same shall be paid at Closing. If the Taxes
are not paid at Closing, Seller shall deliver to Buyer the bills for the Taxes
promptly upon receipt thereof and Buyer shall thereupon be responsible for the
payment in full of the Taxes within the time fixed for payment thereof and
before the same shall become delinquent;
(b) All utility charges for the Project (including, without
limitation, telephone, water, storm and sanitary sewer, electricity, gas,
garbage and waste removal) shall be prorated as of the Closing Date, transfer
fees required with respect to any such utility shall be paid by or charged to
Buyer, and Seller shall be credited with any deposits transferred to the account
of Buyer;
(c) All paid rents, together with any other sums paid by
tenants, under the Existing Leases and the New Leases, shall be prorated as of
the Closing Date. In the event that, at the time of Closing, there are any past
due or delinquent rents owing by any tenants of the Project, Buyer shall have
the exclusive right to collect such past due or delinquent rents and shall remit
to Seller its pro-rata share thereof, to the extent, and only to the extent,
that the aggregate rents received by Buyer from each such tenant owing past due
or delinquent rents exceed the sum of (i) the aggregate rents and other sums
payable by such tenant for periods from and after the Closing Date, and (ii) any
reasonable and necessary amounts expended by Buyer to collect such past due or
delinquent rents. Buyer shall have no obligation to collect or enforce
collection of any such past due or delinquent rents from or against any tenant.
In the event that, after Closing, Seller receives any payments of rent or other
sums due from tenants under Existing Leases or New Leases which relate to
periods from and after Closing, Seller shall promptly forward to Buyer its
portion of such payments;
(d) Buyer shall receive a credit against the Purchase Price in
the amount of all security deposits which are required to be held by Seller with
respect to tenants of the Project, and interest accrued thereon contingently
payable to the tenants for whose account they are maintained, and Seller shall
retain such funds free and clear of any and all claims on the part of tenants.
Buyer shall be responsible for maintaining as security deposits the aggregate
amount so credited to Buyer in accordance with applicable law and the provisions
of the Existing Leases and the New Leases relevant thereto;
(e) All amounts payable under any of the Service Agreements
shall be prorated as of the Closing Date; and
(f) All other items of expense and income regarding the
operation and ownership of the Property shall be prorated as of the Closing
Date.
In the event that any of the prorations or adjustments described in this
paragraph are based upon estimated or erroneous information, then the parties
shall make between themselves any equitable adjustment required by reason of any
difference between such estimated or erroneous amounts and the actual amounts of
such sums. In making the prorations required by this paragraph, the economic
burdens and benefits of ownership of the Property for the Closing Date shall be
allocated to Seller.
7. Title. (a) For the purposes of this agreement, "good and
marketable fee simple title" shall mean fee simple ownership which is: (i) free
of all claims, liens and encumbrances of any kind or nature whatsoever other
than the Permitted Exceptions, hereinafter defined; and (ii) insurable by a
title insurance company reasonably acceptable to Buyer, at the then current
standard rates under the standard Florida form of ALTA Form-B owner's policy of
title insurance, with the standard printed exceptions therein deleted, and
without exception other than for the Permitted Exceptions. For the purposes of
this agreement, the term "Permitted Exceptions" shall mean: (i) current city,
state and county ad valorem taxes not yet due and payable; (ii) easements for
the installation or maintenance of public utilities serving only the Project
with no encroachments thereon; (iii) the rights of tenants, as tenants only,
under the Existing Leases and the New Leases; and (iv) such other matters, if
any, as may be specified on Exhibit "F" attached hereto.
(b) As soon as practicable, but in any case no later than
fifteen (15) days from the date of this agreement, Seller shall obtain and
deliver to Buyer a title insurance commitment from Lawyers Title Insurance
Corporation (the "Title Insuror") which discloses the status of title to the
Project. Any delay in delivering such title insurance commitment, together with
legible copies of all exceptions shown thereon shall automatically extend the
Inspection Period on a day for day basis until such title insurance commitment
is supplied to Buyer. During the Inspection Period Buyer shall examine title to
the Project and give Seller written notice of objections which render Seller's
title less than good and marketable fee simple title. Buyer shall be permitted
to given Seller written notice of such additional objections to title as are
disclosed by the Survey within ten (10) days of Buyer's receipt of the Survey to
be obtained in accordance with paragraph 8 hereof. Thereafter, Buyer shall have
until the Closing Date in which to reexamine title to the Project and in which
to give Seller written notice of any additional objections for matters not
existing during the Inspection Period and disclosed by such reexamination.
Seller shall have until ten (10) days prior to the Closing Date in which to
satisfy all objections specified in Buyer's initial notice of title objections
and those related to the Survey, and until the Closing Date in which to satisfy
the additional objections specified in the subsequent notice by Buyer of title
objections first disclosed during the re-examination provided for in the third
and fourth sentences of this paragraph 7(b). If Seller fails so to satisfy any
such objections, then, at the option of Buyer, Buyer may: (i) terminate this
agreement, in which event the Earnest Money shall be refunded to Buyer
immediately upon request, all rights and obligations of the parties under this
agreement shall expire, and this agreement shall become null and void; or (ii)
if, but only if, such objection is based upon either (A) a defect, claim, lien,
or encumbrance arising after the date hereof, or (B) a judgment, lien, mortgage
or other claim for a sum of money (excluding claims arising by, through or under
Buyer), satisfy the objections, after deducting from the cash portion of the
Purchase Price the cost of satisfying objections which can be satisfied by the
payment of money; or (iii) waive such satisfaction and performance and
consummate the purchase and sale of the Property. Seller shall make its best
effort to provide Buyer with a copy of all "pay off letters" for mortgages
affecting the Project at least two (2) days prior to Closing.
8. Survey. Buyer shall have the right to cause an ALTA as-built
survey of the Land and Improvements to be prepared by a surveyor registered and
licensed in the State of Florida and designated by Buyer (the "Survey"). Seller
and Buyer shall split, equally, the reasonable cost of the preparation of the
Survey up to a maximum expenditure of Two Thousand Five Hundred and No/100
Dollars ($2,500.00) by Seller. Buyer shall furnish Seller with a copy of the
Survey. If requested by Buyer, the Survey shall be used as the basis for the
preparation of a legal description to be included in a quitclaim deed to be
delivered by Seller to Buyer at Closing together with the limited warranty deed
described in paragraph 9(a)(i) below. In any event, the legal description
contained in the Survey must be the description insured by the Title Insuror.
9. Proceedings at Closing. On the Closing Date, the Closing shall
take place as follows:
(a) Seller shall deliver to Buyer the following documents and
instruments, duly executed by or on behalf of Seller: (i) a limited warranty
deed, in form acceptable to Buyer and Seller conveying the Land and the
Improvements utilizing the legal description set forth on Exhibit "A" hereto;
(ii) a bill of sale in form acceptable to Buyer and Seller conveying the
Personalty; (iii) an assignment of tenant leases in recordable form acceptable
to Buyer and Seller transferring and assigning the Existing Leases and the New
Leases and containing Buyer's assumption thereof; (iv) an assignment, in a form
acceptable to Buyer and Seller of all security deposits held by Seller, together
with a mutual indemnification between Seller and Buyer with respect to any
shortages thereof which may be claimed by any tenant or other third party; (v)
an assignment, in form acceptable to Buyer and Seller, transferring and
assigning the Service Agreements, the Permits and the Tradename and containing
Buyer's assumption thereof; (vi) a certificate and affidavit of non-foreign
status; (vii) a completed 1099-S request for taxpayer identification number and
certification and acknowledgement; (viii) an affidavit reasonably required by
Buyer's title insurer which will enable Buyer to obtain title insurance coverage
free of any exception for either mechanic's or materialmen's liens, or parties
in possession (other than tenants, as tenants only, under unrecorded leases),
and which will induce such title insurer to "insure the gap;" and (ix) such
other documents or instruments as are reasonably required by Buyer in order to
consummate the transactions contemplated by this agreement.
(b) Seller shall deliver to Buyer the following, if the same
have not been theretofore delivered by Seller to Buyer:
(i) Evidence in form and substance reasonably satisfactory
to Buyer that Seller has the power and authority to execute and enter into this
agreement and to consummate the purchase and sale of the Property, and that any
and all actions required to authorize and approve the execution of and entry
into this agreement by Seller, the performance by Seller of all of Seller's
duties and obligations under this agreement, and the execution and delivery by
Seller of all documents and other items to be executed and delivered to Buyer at
Closing, have been accomplished;
(ii) The executed originals of the Existing Leases, the New
Leases and the Service Agreements, which shall be delivered on site at the
Project;
(iii) The originals of the Permits to the extent the same are
in possession of Seller or reasonably can be obtained by Seller prior to Closing
without cost or expense, which shall be delivered on site at the Project;
(iv) To the extent the same are in the possession of Seller
on the date of Seller's execution of this agreement, or reasonably can be
obtained by Seller prior to Closing without cost or expense, all prior surveys
of the Land or any portion thereof and all plans and specifications for any of
the Improvements;
(v) An updated schedule of leases furnishing all the
information set forth on Exhibit "C" hereto with respect to the Existing Leases
and the New Leases, which shall be certified by Seller to its best knowledge as
an exhibit to the assignment of tenant leases executed and delivered by Seller
to Buyer at Closing; and
(vi) A letter prepared by Buyer (if delivered to Seller at,
or before, the Closing Date) directed to all "lessees" or "tenants" under the
Existing Leases and the New Leases, notifying such "lessees" or "tenants" of the
transfer of ownership of the Property and the assignment to Buyer of the
Existing Leases and the New Leases, and directing such "lessees" or "tenants" to
make rental payments and all other payments required under the Existing Leases
and the New Leases to Buyer as of the Closing Date.
(c) Buyer shall pay the Purchase Price to Seller in accordance
with the provisions of this agreement. In addition, Buyer shall execute and
deliver such documents or instruments as are reasonably required by Seller in
order to consummate the transactions contemplated by this Agreement.
10. Costs of Closing. Seller shall pay one-half (1/2) of all stamp,
documentary and intangible taxes on the transfer of the Land and the
Improvements and Buyer's taking title to the Property, one-half (1/2) of all
recording costs, a portion of the cost of the Survey obtained by Buyer in
accordance with paragraph 8 hereof, one-half (1/2) of the premium for any
owner's policy of title insurance issued in favor of Buyer insuring Buyer's
title to the Property, and Seller's attorneys' fees. Buyer shall pay one-half
(1/2) of all stamp, documentary and intangible taxes on the transfer of the Land
and the Improvements and Buyer's taking title to the Property, one-half (1/2) of
all recording costs, a portion of the cost of the Survey obtained in accordance
with paragraph 8 hereof, one-half (1/2) of the premium for any owner's policy of
title insurance issued in favor of Buyer insuring Buyer's title to the Property,
and Buyer's attorneys' fees. All other costs and expenses of the transaction
contemplated hereby shall be borne by the party incurring the same.
11. Warranties, Representations and Additional Covenants of Seller.
Seller represents, warrants and covenants to and with Buyer:
(a) Seller is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of California and such
other jurisdictions as may be required to consummate this transaction;
(b) Seller has the lawful right, power, authority and capacity
to sell the Property in accordance with the terms, provisions and conditions of
this agreement;
(c) There are no actions, suits or proceedings pending or, to
Seller's actual knowledge, threatened against, by or affecting Seller which
affect title to the Property or which question the validity or enforceability of
this agreement or of any action taken by Seller under this agreement, in any
court or before any governmental authority, domestic or foreign;
(d) The execution of and entry into this agreement, the
performance by Seller of Seller's duties and obligations under this agreement,
the execution and delivery of the documents and instruments to be executed and
delivered by Seller on the Closing Date, and the performance of all other acts
necessary and appropriate for the full consummation of the purchase and sale of
the Property as contemplated by and provided for in this agreement, are
consistent with and not in violation of, and will not create any adverse
condition under, any contract, agreement or other instrument to which Seller is
a party, any judicial order or judgment of any nature by which Seller is bound,
or the partnership agreement of Seller and do not require any third party
consents;
(e) Between the date hereof and the Closing Date, Seller shall
operate the Project in the ordinary course of business in accordance with its
existing practices and shall maintain and repair the Project so that, on the
Closing Date, the Project will be in the same condition as it exists at the end
of the Inspection Period, ordinary wear and tear and loss by insured casualty
alone excepted;
(f) Between the date hereof and the Closing Date, Seller shall
comply with all obligations of the "lessor" or "landlord" under the Existing
Leases and the New Leases and shall continue to carry and maintain in force all
existing policies of casualty and public liability insurance with respect to the
Property;
(g) Seller will pay or cause to be paid promptly when due all
city, state and county ad valorem taxes and similar taxes and assessments, all
sewer and water charges and all other governmental charges levied or imposed
upon or assessed against the Property between the date hereof and the Closing
Date, and will pay or cause to be paid all expenses incurred in the use,
occupancy and operation of the Property between the date hereof and the Closing
Date; provided, however, that Seller may, in good faith, contest any of such
taxes, assessments and charges;
(h) The Existing Leases scheduled and identified on Exhibit "C"
hereto are the only leases or other agreements for use, occupancy or possession
presently in force with respect to all or any portion of the Project; the
information set forth on Exhibit "C" hereto regarding the Existing Leases is
true, complete, and correct in all respects; to Seller's actual knowledge,
Seller has fully and completely performed all of the duties and obligations of
the "lessor" or "landlord" under the Existing Leases arising on or before the
date hereof; there are no rent concessions or offsets with respect to any of the
Existing Leases, except as expressly set forth therein; there are no options in
favor of the "lessees" or "tenants" under any of the Existing Leases to purchase
all or any portion of the Property;
(i) Seller will make available to Buyer during the Inspection
Period all Service Agreements, and Seller will be responsible for terminating to
the extent possible without penalty all Service Agreements to which Buyer
objects during the Inspection Period, and in any event all Service Agreements
with Seller related or affiliated parties will be terminated at Closing;
(j) To the best of Seller's knowledge and belief, there are no
pending, threatened or contemplated condemnation actions involving all or any
portion of the Property;
(k) Between the date hereof and the Closing Date, Seller will
make all payments of principal and interest and all other payments required
under any indebtedness secured by the Property;
(l) All apartments (including the full two hundred twelve [212]
apartments which comprise the Project) will be in rent-ready condition at
Closing, except those which have been vacated within ten (10) days of Closing.
For any apartments that are not so rent-ready Buyer shall be credited Three
Hundred Fifty and No/100 Dollars ($350.00);
(m) At the Closing all apartments shall contain all appliances
and HVAC equipment in working order necessary to rent such apartments except
those occupied apartments for which Seller has received no notice of appliances
and HVAC equipment being other than in working order; and
(n) Seller has no actual knowledge of any existing or threatened
violation of Environmental Laws related to the Property or the presence or
release of Hazardous Materials on or from the Property. The term "Environmental
Laws" means and includes without limitation the Resource Conservation and
Recovery Act and the Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA") and other federal laws governing the environment as in
effect on the date of this Agreement together with their implementing
regulations and guidelines as of the date of this agreement, and all state,
regional, county, municipal, and other local laws, regulations and ordinances
that are equivalent or similar to the federal laws recited above or that purport
to regulate Hazardous Materials. The term "Hazardous Materials" means and
includes without limitation petroleum as defined in CERCLA and any substance,
material waste, pollutant or contaminant listed or defined as hazardous or toxic
under any Environmental Law. Additionally, Hazardous Materials shall mean and
include any substance whose nature and/or quantity of existence, use,
manufacture, disposal or effect render it subject to federal, state or local
regulation, investigation, remediation or removal as potentially injurious to
public health or welfare, including but not limited to asbestos. Further,
Seller has no actual knowledge of the existence or prior existence on the
Property of any above or below ground storage tank or tanks.
12. Additional Covenants. Seller covenants and agrees to and with
Buyer that between the date of this agreement and the Closing Date, Seller shall
not make or enter into any New Lease or other agreement for the use, occupancy
or possession of all or any part of the Land or the Improvements, unless such
New Lease or other agreement is entered into on Seller's standard lease form
currently in use by Seller, a copy of which is attached hereto as Exhibit "G,"
and in accordance with Seller's current leasing practices at current rent rates.
In no event shall any leases be entered into for a period of time in excess of
one (1) year.
13. Warranties, Representations and Additional Covenants of Buyer.
Buyer represents, warrants and covenants to and with Seller that:
(a) Buyer is duly organized and validly existing under the laws
of the State of Tennessee;
(b) Buyer has the lawful right, power, and authority and the
financial capacity to acquire the Property in accordance with the terms,
provisions and conditions of this agreement;
(c) The execution of and entry into this agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Buyer on the Closing Date, and the performance by Buyer of Buyer's
duties and obligations under this agreement and of all other acts necessary and
appropriate for the full consummation of the purchase and sale of the Property
as contemplated by and provided for in this agreement, are consistent with and
not in violation of, and will not create any adverse condition under, any
contract, agreement or other instrument to which Buyer is a party, any judicial
order or judgment of any nature by which Buyer is bound; and
(d) On the Closing Date, all action will have been taken by
Buyer authorizing and approving the execution of and entry into this agreement,
the execution and delivery by Buyer of the documents and instruments to be
executed and delivered by Buyer on the Closing Date, and the performance by
Buyer of Buyer's duties and obligations under this agreement and all other acts
necessary and appropriate for the consummation of the purchase and sale of the
Property as contemplated by and provided for in this agreement.
14. Conditions to Buyer's and Seller's Obligations. (a) Buyer's
obligation to consummate the purchase and sale of the Property on the Closing
Date shall be subject to the satisfaction or performance of the following terms
and conditions, any one or more of which may be waived by Buyer, in whole or in
part, on or as of the Closing Date:
(i) Seller shall have materially complied with all
covenants and provisions required by this agreement to be complied with by
Seller before, on, or as of the Closing Date;
(ii) The representations and warranties of Seller in this
agreement shall be true and correct in all material respects on and as of the
Closing Date; and
(iii) Buyer shall not have terminated this agreement pursuant
to an express right to terminate set forth in this agreement.
If any of the foregoing Buyer's conditions have not been satisfied, waived or
performed on or as of the Closing Date, the Buyer shall have the right, at
Buyer's option, either: (i) to terminate this agreement by giving written
notice to Seller on or before the Closing Date, in which event all rights and
obligations of the parties under this agreement shall expire; or (ii) if such
failure of condition constitutes a breach of representation or warranty by
Seller, constitutes a failure by Seller to perform any of the terms, covenants,
conditions, agreements, requirements, restrictions or provisions of this
agreement, or otherwise constitutes a default by Seller under this agreement, to
exercise such rights and remedies as may be provided for in paragraph 16 of this
agreement. In either of such events, the Earnest Money shall be refunded to
Buyer immediately upon request.
(b) Seller's obligation to consummate the purchase and sale of
the Property on the Closing Date shall be subject to the satisfaction or
performance of the following terms and conditions, any one or more of which may
be waived by Seller, in whole or in part, on, or as of the Closing Date:
(i) Buyer shall have materially complied with all covenants
and provisions required by this agreement to be complied with by Buyer before,
on, or as of the Closing Date;
(ii) The representations and warranties of Buyer in this
agreement shall be true and correct in all material respects on and as of the
Closing Date; and
(iii) Buyer shall not have terminated this agreement pursuant
to an express right to terminate set forth in this agreement.
If any of the foregoing Seller's conditions have not been satisfied, waived or
performed on or as of the Closing Date, then Seller shall have the right, at
Seller's option, either: (i) to terminate this agreement by giving written
notice to Buyer on or before the Closing Date, in which event all rights and
obligations of the parties under this agreement shall expire, or (ii) if such
failure of condition constitutes a breach of representation or warranty by
Buyer, constitutes a failure by Buyer to perform any of the terms, covenants,
conditions, agreements, requirements, restrictions or provisions of this
agreement or otherwise constitutes a default by Buyer under this agreement, to
exercise such rights and remedies as may be provided for in paragraph 16 of this
agreement.
15. Possession at Closing. Seller shall surrender possession of the
Property to Buyer on the Closing Date.
16. Remedies. (a) If the purchase and sale of the Property is not
consummated in accordance with the terms and conditions of this agreement due to
a default by Buyer under this agreement, the Earnest Money shall be delivered to
Seller as full liquidated damages for such default. The parties acknowledge
that Seller's actual damages in the event of a default by Buyer under this
agreement will be difficult to ascertain, that the Earnest Money represents the
parties' best estimate of such damages and that the parties believe the Earnest
Money is a reasonable estimate of such damages. The parties expressly
acknowledge that the foregoing liquidated damages are intended not as a penalty,
but as full liquidated damages for all of Seller's damages at law or in equity
in the event of Buyer's default and as compensation for Seller's taking the
Property off the market during the term of this agreement. Such delivery of the
Earnest Money shall be the sole and exclusive remedy of Seller by reason of a
default by Buyer under this agreement.
(b) If (i) Seller shall fail to perform or comply with any of
the terms, covenants, or agreements, required by this agreement to be performed
or complied with by Seller, or if (ii) the purchase and sale of the Property is
otherwise not consummated in accordance with the terms and provisions of this
agreement due to a default by Seller under this agreement, then and in either of
such events the Earnest Money shall be refunded to Buyer immediately upon
request, and Buyer may, as its sole and exclusive remedy, at law or in equity,
at its option either (y) compel Seller to convey the Property to Buyer by a suit
for specific performance, and, if Buyer prevails in such suit, to recover all
costs incidental to such suit, including reasonable attorneys' fees, or (z)
declare this agreement terminated and receive the return of the Earnest Money.
17. Risk of Loss and Insurance. Between the date of this agreement
and Closing, the risks and obligations of ownership and loss of the Property and
the correlative rights against insurance carriers and third parties shall belong
to Seller. In the event of the damage or destruction of any material portion of
the Project prior to Closing, Buyer shall have the right, at Buyer's option, to
terminate this agreement by giving written notice thereof to Seller prior to
Closing, in which event the Earnest Money shall be refunded to Buyer immediately
upon request, all rights and obligations of the parties under this agreement
shall expire. For the purposes of this paragraph 17, the phrase "damage or
destruction of any material portion of the Project" shall mean any damage or
destruction to the Project which is estimated by Seller's insurance carriers to
cost in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) to
repair. If Buyer does not so terminate this agreement, the cash portion of
Purchase Price shall be reduced by the total of any insurance proceeds received
by Seller prior to Closing by reason of such damage or destruction, Buyer shall
receive a credit against the cash portion of the Purchase Price in the amount of
any applicable insurance deductible, and, at Closing, Seller shall assign to
Buyer all insurance proceeds payable thereafter by reason of such damage or
destruction.
18. Condemnation. In the event of the taking of all or any part of
the Property by eminent domain proceedings, or the commencement or bona fide
threat of the commencement of any such proceedings, prior to Closing, Buyer
shall have the right, at Buyer's option, to terminate this agreement by giving
written notice thereof to Seller prior to Closing, in which event the Earnest
Money shall be refunded to Buyer immediately upon request, all right and
obligations of the parties under this agreement shall expire, and this agreement
shall become null and void. If Buyer does not so terminate this agreement, the
Purchase Price shall be reduced by the total of any awards or other proceeds
received by Seller prior to Closing with respect to any taking, and, at Closing,
Seller shall assign to Buyer all rights of Seller in and to any awards or other
proceeds payable thereafter by reason of any taking. Seller shall notify Buyer
of eminent domain proceedings within five (5) days after Seller learns of the
same.
19. Assignment. This agreement may be assigned in whole or in part
by Buyer, upon notice to, but without the prior written consent of, Seller, so
long as such assignee is a legal entity owned or controlled by Seller or Barney
D. Byrd, or, in the case of a limited partnership, has as its general partner an
entity owned or controlled by Seller or Barney D. Byrd. In all other instances
Seller must obtain the prior written consent of Buyer before assigning all or
any portion of this agreement, which consent may not be unreasonably withheld or
delayed. In the event of an assignment of this agreement by Buyer, Buyer shall
not be released from any liability or obligation hereunder.
20. Parties. This agreement shall be binding upon and enforceable
against, and shall inure to the benefit of, Buyer and Seller and their
respective legal representatives, successors and assigns.
21. Broker and Commission. All negotiations relative to this
agreement and the purchase and sale of the Property as contemplated by and
provided for in this agreement have been conducted by and between Seller and
Buyer without the intervention of any person or other party as agent or broker,
except as provided otherwise in this paragraph 21. Seller and Buyer warrant and
represent to each other that there are and will be no broker's commissions or
fees payable in connection with this agreement or the purchase and sale of the
Property by reason of their respective dealings, negotiations or communications
except the cost reimbursements or commissions payable to Insignia Mortgage and
Investment Company and to General Capital Mortgage, Inc. (which commission to
General Capital Mortgage, Inc. shall not exceed Two Hundred Ninety-Seven
Thousand and No/100 Dollars [$297,000.00]) by Seller pursuant to separate
agreements between the applicable parties. Seller and Buyer shall and do each
hereby indemnify, defend and hold harmless each of the others from and against
the claims, demands, actions and judgments of any and all brokers, agents and
other intermediaries alleging a commission, fee or other payment to be owing by
reason of their respective dealings, negotiations or communications in
connection with this agreement or the purchase and sale of the Property, except
as set forth in this paragraph.
22. Further Assurances; Survival. At Closing, and from time to time
thereafter, Seller shall do all such additional and further acts, and shall
execute and deliver all such additional and further instruments and documents,
as Buyer, Buyer's counsel or Buyer's title insurer may reasonably require fully
to vest in and assure to Buyer full right, title and interest in and to the
Property to the full extent contemplated by this agreement and otherwise to
effectuate the purchase and sale of the Property as contemplated by and provided
for in this agreement. To the extent Seller is required to undertake any task
or prepare any document not contemplated by this agreement, Buyer shall bear and
pay the reasonable costs incurred by Seller in the performance of these acts and
the execution and delivery of such instruments and documents. All the
provisions of this agreement (including, without limitation, the
representations, covenants and warranties of Seller as set forth in this
agreement), shall survive the consummation of the purchase and sale of the
Property on the Closing Date, the delivery of the deed and the payment of the
Purchase Price for a period of nine (9) months. The indemnification provisions
of paragraph 5 of this agreement shall survive both Closing and any termination
of this agreement, indefinitely.
23. Modification. This agreement supersedes all prior discussions
and agreements between Seller and Buyer with respect to the purchase and sale of
the Property and other matters contained herein, and this agreement contains the
sole and entire understanding between Seller and Buyer with respect thereto.
This agreement shall not be modified or amended except by an instrument in
writing executed by or on behalf of Seller and Buyer.
24. Applicable Law. This agreement shall be governed by, construed
under and interpreted and enforced in accordance with the laws of the State of
Tennessee, except in the event Buyer elects to compel Seller to convey the
Property to Buyer by a suit for specific performance pursuant to paragraph
16(b), in which event the laws of the State of Florida shall apply.
25. Counterparts. This agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
26. Time. Time is and shall be of the essence of this agreement.
27. Captions. The captions and headings used in this agreement are
for convenience only and do not in any way restrict, modify or amplify the terms
of this agreement.
28. Exhibits. Each and every Exhibit referred to or otherwise
mentioned in this agreement is attached to this agreement and is and shall be
construed to be made a part of this agreement by such reference or other mention
at each point at which such reference or other mention occurs, in the same
manner and with the same effect as if each Exhibit were set forth in full and at
length every time it is referred to or otherwise mentioned.
29. Notices. All notices, requests, demands, tenders, and other
communications under this agreement shall be in writing. Any such notice,
request, demand, tender or other communication shall be deemed to have been duly
given when actually delivered, or the next business day following delivery to a
nationally recognized commercial courier for next business day delivery, to the
address for each party set forth below its execution of this agreement, or when
transmitted by facsimile to the telecopy number for each party set forth below
its execution of this agreement. Rejection or other refusal to accept, or
inability to deliver because of changed address of which no notice was given,
shall be deemed to be receipt of such notice, request, demand, tender, or other
communication. Any party, by written notice to the others in the manner herein
provided, may designate an address different from that stated above.
30. Attorneys' Fees. In the event of any litigation arising out of
this agreement, the party substantially prevailing in obtaining the relief
sought, in addition to all other sums that the other party may be required to
pay, shall recover a reasonable sum for such prevailing party's attorneys' fees
and disbursements.
31. Date of Agreement; Holidays. For the purposes of this agreement,
all references to the "date of this agreement" shall mean the latest date upon
which any party hereto executes this agreement. In the event any time period
specified in this agreement expires on a Saturday, Sunday or banking holiday,
then the time period so expiring shall be extended to expire on the next
business day.
32. Interpretation. The parties acknowledge that each of them,
together with their respective legal counsel, has reviewed this agreement and
participated in its drafting. The general rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this agreement or any amendments or exhibits
thereto.
33. Offer and Acceptance. This instrument shall constitute an offer
by Buyer to Seller and shall remain open for acceptance until 5:00 p.m. on
August 22, 1996. In order for this offer to be validly accepted, one (1)
counterpart of this agreement, will all exhibits completed and attached, in form
and substance satisfactory to Buyer, fully executed on behalf of the Seller,
must have been actually delivered to the Buyer at the address set forth below
Buyer's execution of this agreement, prior to the expiration of the offer.
IN WITNESS WHEREOF, Seller and Buyer have caused their duly authorized
representatives to execute and deliver this agreement, all as of the day and
year first written above.
SELLER:
NATIONAL PROPERTY INVESTORS II, LTD.,
a California limited partnership
By: NPI Equity Investments, Inc.,
General Partner
By: /s/ William H. Jarrard, Jr.
Title: President
Date of Execution: August 20, 1996
Initial address for notices:
c/o INSIGNIA FINANCIAL GROUP, INC.
Post Office Box 1089
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: J. L. Snedigar
Telephone: (864) 239-1037
Facsimile: (864) 239-1066
With a copy to:
INSIGNIA FINANCIAL GROUP, INC.
Post Office Box 1089
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: John K. Lines, General
Counsel and Secretary
Telephone: (864) 239-1675
Facsimile: (864) 239-1096
With a copy to:
John M. Baird
WHITE & REASOR
3305 West End Avenue
Nashville, TN 37203
Telephone: (615) 383-3345
Facsimile: (615) 383-5534
BUYER:
GENERAL CAPITAL CORPORATION, a
Tennessee corporation, as Trustee
By: /s/ Barrett B. Sutton, Jr.
Title: EVP
Date of Execution: August 16, 1996
Initial address for notices:
511 Union Street, Suite 2350
Nashville, Tennessee 37219
Attention: Barrett B. Sutton, Jr.
Telephone: (615) 256-0388
Facsimile: (615) 256-2487
With a copy to:
Joseph N. Barker
FARRIS, WARFIELD & KANADAY
Third National Financial Center
424 Church Street, Suite 1900
Nashville, Tennessee 37219-2327
Telephone: (615) 782-2242
Facsimile: (615) 726-3185
Schedule of Exhibits
(to be attached prior to execution)
Exhibit "A" - Legal Description
Exhibit "B" - Personalty List
Exhibit "C" - Current Rent Roll
Exhibit "D" - Service Agreements
Exhibit "E" - Escrow Agreement
Exhibit "F" - Permitted Exceptions
Exhibit "G" - Current Lease Form
Exhibit "A"
Sugar Mill Apartments, 3151 South Babcock Street, Melbourne, Florida,
being more particularly described as follows:
ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as of August 27th, 1996, by and among
NATIONAL PROPERTY INVESTORS II, LTD. (the "Seller"), GENERAL CAPITAL
CORPORATION, as Trustee (the "Buyer"), and LAWYERS TITLE INSURANCE CORPORATION
(the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, Seller and Buyer have entered into that certain Purchase and
Sale Agreement, dated August 20th, 1996 (the "Contract"); and
WHEREAS, the Contract provides, in part, that Buyer shall deliver to
Escrow Agent an initial earnest money deposit in the amount of Twenty-Five
Thousand and No/100 Dollars ($25,000.00) (the "Initial Deposit"); and
WHEREAS, the Contract provides, in part, that under certain
circumstances Buyer is to deliver to Escrow Agent a second earnest money deposit
in the amount of Twenty-Five Thousand and No/100 Dollars ($25,000.00) (the
"Final Deposit");
NOW, THEREFORE, for and in consideration of the mutual covenants and
obligations contained herein, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, it is agreed as follows:
1. The parties hereto agree that the Initial Deposit, together with
interest earned thereon, may be referred to herein as the "Earnest Money" until
such time as the Final Deposit has been delivered to Escrow Agent, at which time
the Initial Deposit and the Final Deposit shall be combined and, together with
interest earned thereon, may be referred to herein as the "Earnest Money."
2. Buyer hereby deposits with Escrow Agent the Initial Deposit to be
held by Escrow Agent in a separate account on the terms and conditions set forth
herein.
3. Escrow Agent hereby accepts the Initial Deposit and agrees to hold
it on the terms and conditions set forth herein. Escrow Agent agrees to accept
the Final Deposit when it is delivered to Escrow Agent. Escrow Agent shall
deposit the Earnest Money into a separate, interest bearing account.
4. Escrow Agent shall release the Earnest Money, as follows:
(a) In accordance with written instructions of Seller,
uncontradicted by Buyer within fifteen (15) days after the delivery of such
instructions to Escrow Agent, which instructions Seller must set forth that
Buyer is in breach of its obligations under the Contract, or otherwise set forth
the provisions of the Contract pursuant to which Seller is entitled to delivery
of the sums held by Escrow Agent;
(b) In accordance with written instructions of Buyer,
uncontradicted by Seller within fifteen (15) days after the delivery of such
instructions to Escrow Agent, which instructions Buyer must set forth that
Seller is in breach of its obligations under the Contract, or otherwise set
forth the provisions of the Contract pursuant to which Buyer is entitled to
delivery of the sums held by Escrow Agent; or
(c) In accordance with joint instructions executed by both Buyer
and Seller.
5. Escrow Agent agrees to serve in the capacity as Escrow Agent under
this Agreement, upon and subject to the following conditions and limitations:
(a) The duties of the Escrow Agent are only such as are herein
specified, being purely ministerial in nature; the Escrow Agent shall incur no
liability to any party for damages, losses or expenses of any nature, except for
any willful default of its breach of trust. Without limiting the foregoing,
Escrow Agent shall not incur liability with respect to (i) any action taken or
omitted in good faith upon the advice of counsel with respect to any questions
relating to the duties and responsibilities under this Agreement; or (ii) any
action taken or omitted in reliance upon this Agreement, including any written
notice of instructions, not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which the Escrow Agent shall, in good faith,
believe to be genuine, to have been signed or presented by a proper person or
persons, and to conform with provisions of the Contract and this Agreement.
(b) In the event of a dispute between the parties to this
Agreement, or in the event Escrow Agent has received neither written
instructions signed by Buyer and Seller pursuant to paragraph 4(c) above, nor
uncontradicted instructions pursuant to paragraphs 4(a) or 4(b) above, on or
before December 9, 1996, Escrow Agent, in its discretion, shall be entitled to
tender into the registry or custody or any court of competent jurisdiction, any
money or property held by it under this Agreement, together with such pleadings
as it may deem appropriate, and thereupon to be discharged from all future
duties and liabilities under this Agreement.
(c) Escrow Agent may consult with and obtain advice from
independent legal counsel in the event of any question as to any of the
provisions of this Agreement or its duties hereunder, and it shall incur no
liability and shall be fully protected in acting in good faith in accordance
with the opinion and instructions of such counsel.
(d) All costs which may be incurred by Escrow Agent as a result
of the performance of its duties under this Agreement, including, without
limitation, court costs pursuant to paragraph 5(b) and consultation fees
pursuant to paragraph 5(c), shall be borne by the non-prevailing party to the
dispute at issue, with such costs to be determined by the court or independent
counsel, as the case may be.
(e) Escrow Agent shall not be liable to any party or person for
misdelivery to Buyer or Seller of amounts subject to this Agreement, unless such
misdelivery shall be due to willful breach of this Agreement, or gross
negligence on the part of Escrow Agent. So long as Escrow Agent has established
the depository interest bearing account required by paragraph 3 of this
Agreement in good faith, Escrow Agent shall not be liable to any party for the
failure of the institution with which that account is established, nor shall
Escrow Agent be liable to Buyer or Seller in the event that the amount of the
Earnest Money exceeds the maximum amount insured by the Federal Deposit and
Insurance Corporation.
6. This Agreement shall terminate upon the earlier to occur of (a)
disbursement of the Earnest Money and accrued interest thereon in accordance
with paragraph 4 above, or (b) tender of the Earnest Money and accrued interest
thereon into the custody of any court of competent jurisdiction, pursuant to
paragraph 5(b) above.
7. Any notices required or permitted in this Agreement shall be given
to all parties hereto, contemporaneously, and shall be delivered in person, by a
nationally recognized commercial courier for next business day delivery, or by
certified mail, return-receipt requested, as follows:
As to Buyer:
General Capital Corporation
511 Union Street, Suite 2350
Nashville, Tennessee 37219
Attention: Barrett B. Sutton, Jr.
With a copy to:
Farris, Warfield & Kanaday
SunTrust Center
424 Church Street, Suite 1900
Nashville, Tennessee 37219-2327
Attention: Joseph N. Barker
As to Seller:
National Property Investors II, Ltd.
c/o Insignia Financial Group, Inc.
Post Office Box 1089
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: J. L. Snedigar
With a copy to:
Insignia Financial Group, Inc.
Post Office Box 1089
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: John K. Lines, General Counsel and
Secretary
With a copy to:
White & Reasor
3305 West End Avenue
Nashville, Tennessee 37203
Attention: John M. Baird
As to Escrow Agent:
Lawyers Title Insurance Corporation
Third National Financial Center
424 Church Street, Suite 200
Post Office Box 2787
Nashville, Tennessee 37219-0787
Attention: Stuart Jones
or such other address as any party may designate in writing to the other
parties.
8. This Escrow Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed an original. This
Agreement may not be modified or otherwise amended, except in writing and signed
by all parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and date first above written.
ESCROW AGENT: SELLER:
LAWYERS TITLE INSURANCE NATIONAL PROPERTY INVESTORS
CORPORATION II, LTD., a California
limited partnership
By: /s/ Stuart Jones By: NPI EQUITY INVESTMENTS,
Title: Underwriting Counsel INC., General Partner
By: /s/ William H. Jarrard, Jr.
Title: President
FEIN: # 13-2906846
BUYER:
GENERAL CAPITAL CORPORATION,
a Tennessee corporation, as
Trustee
By: /s/ Barrett B. Sutton, Jr.
Title: Executive Vice President
FEIN: 62-1191439