EXHIBIT 10.48
AGREEMENT FOR PURCHASE AND SALE
BY AND BETWEEN
LINCOLN HARBOR VILLAGE, L.P.
("SELLER")
AND
BROOKDALE LIVING COMMUNITIES, INC.
("PURCHASER")
TABLE OF CONTENTS
XXXXXXX 0 - XXXXXXXXXXX.............................................. 0
XXXXXXX 0 - XXXXXXXX & SALE.......................................... 5
2.1 XXXXXXX MONEY DEPOSIT.................................... 6
2.2 ESCROW AGENT............................................. 6
2.3 CLOSING.................................................. 7
SECTION 3 - TITLE COMMITMENT, SURVEY, EXISTING CONTRACTS AND
ENVIRONMENTAL................................................... 7
3.1 TITLE COMMITMENT......................................... 7
3.2 SURVEY................................................... 8
3.3 EXISTING CONTRACTS AND REPORTS............................ 8
3.4 ENVIRONMENTAL............................................ 8
3.5 FEASIBILITY PERIOD....................................... 8
SECTION 4 - PRORATIONS AND EXPENSES.................................. 9
4.1 TAXES.................................................... 9
4.2 RENTS.................................................... 10
4.3 OTHER ITEMS.............................................. 10
4.4 CLOSING EXPENSES......................................... 11
4.5 SURVIVAL OF SECTION 4.................................... 12
SECTION 5 - REPRESENTATIONS & WARRANTIES............................. 12
5.1 SELLER................................................... 12
5.2 PURCHASER................................................ 15
5.3 SELLER AND PURCHASER..................................... 16
5.4 SURVIVAL OF SECTION 5.................................... 16
SECTION 6 - RADON GAS................................................ 16
SECTION 7 - CONDEMNATION............................................. 17
SECTION 8 - INVESTIGATION PERIOD..................................... 17
SECTION 9 - "AS IS-WHERE IS" SALE.................................... 19
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SECTION 10- CONDUCT OF SELLER PRIOR TO CLOSING....................... 19
SECTION 11- ASSISTANCE & COOPERATION OF PARTIES...................... 22
SECTION 12- DOCUMENTS FOR CLOSING.................................... 22
SECTION 13- BROKERS.................................................. 24
SECTION 14- TIMING OF OFFER AND ACCEPTANCE OR REJECTION THEREOF...... 24
SECTION 15- ERISA.................................................... 25
SECTION 16- CONDITIONS PRECEDENT..................................... 25
SECTION 17- TERMINATION AND DEFAULT.................................. 26
SECTION 18- RISK OF LOSS............................................. 27
18.1 DAMAGES GREATER THAN $500,000.00......................... 27
18.2 DAMAGES LESS THAN $500,000.00............................ 28
SECTION 19- NOTICES.................................................. 28
SECTION 20- ASSIGNMENT............................................... 30
SECTION 21- MISCELLANEOUS............................................ 30
21.1 ENTIRE AGREEMENT......................................... 30
21.2 NON-WAIVER............................................... 30
21.3 COUNTERPART SIGNATURES................................... 30
21.4 TIME OF THE ESSENCE...................................... 31
21.5 GENDER AND HEADINGS...................................... 31
21.6 CHOICE OF LAW............................................ 31
21.7 LITIGATION/VENUE......................................... 31
21.8 SUCCESSORS AND ASSIGNS................................... 31
21.9 CONFIDENTIALITY.......................................... 31
SECTION 22- TERMINATION OF CONTRACTS................................. 32
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AGREEMENT FOR PURCHASE AND SALE
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This Agreement for Purchase and Sale ("Agreement") between Lincoln Harbor
Village, L.P. a Delaware limited partnership (hereinafter referred to as
"Seller") and Brookdale Living Communities, Inc. a Delaware corporation,
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
In consideration of the mutual promises hereinafter set forth, and for Ten
and No/100 Dollars ($10.00) and other good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, Seller and Purchaser
mutually agree as follows:
SECTION 1 - DEFINITIONS
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For purposes of this Agreement, each of the following terms, when used
herein with an initial capital letter, shall have the following meaning:
1.1 APPURTENANCES. All rights, privileges and easements appurtenant to
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the Land, including, without limitation, all minerals and oil, gas and other
hydrocarbon substances on and under the Land; development rights; air rights;
easements; rights of way; sidewalks; and all other appurtenances used in
connection with the beneficial use and enjoyment of the Land; and all licenses,
consents, easements, rights of way and approvals required from private parties
to make use of utilities and to insure vehicular and pedestrian ingress and
egress to and from the Real Property.
1.2 BUSINESS DAY. Each day other than Saturday, Sunday and legal holidays
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in the State of Illinois.
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1.3 CLOSING. The consummation of the purchase and sale of the Property as
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contemplated by this Agreement.
1.4 CLOSING DATE. The date upon which Closing occurs.
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1.5 DEPOSIT(S). The xxxxxxx money deposits to be paid by Purchaser to the
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Escrow Agent in accordance with Section 2.1 together with any interest earned
thereon.
1.6 EFFECTIVE DATE. The date of Seller's acceptance/approval of
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Purchaser's offer in accordance with Section 14.
1.7 ESCROW AGENT. Lawyers Title Insurance Corporation, at its office in
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Chicago, Illinois.
1.8 GOVERNMENTAL REGULATIONS. Any applicable laws, ordinances, rules, and
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regulations (including, without limitation, those relating to land use,
subdivision, zoning, environmental, toxic or hazardous wastes, the Americans
with Disabilities Act, occupational health and safety, and building and fire
codes) of any of the local, city, state, or federal governmental bodies bearing
on the construction, alteration, rehabilitation, maintenance, use, operation, or
development of the Property.
1.9 IMPROVEMENTS. All buildings, fixtures, structures, parking areas,
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landscaping and other improvements constructed and located on the Real Property.
1.10 INTANGIBLE PERSONAL PROPERTY. All of Seller's interest in assignable
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intangible property consisting of: (a) any and all Licenses and Permits and
other approvals in effect on the Closing Date and necessary for the current use
and operation of the Real Property; (b) any and all warranties, contractual
rights, rebates and indemnities or other rights used or owned in
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connection with the ownership or operation of the Real Property; and (c)
telephone numbers, trade names, including the name "Harbor Village," and other
intangible property owned or used in connection with the ownership or use of the
Real Property.
1.11 INVESTIGATION PERIOD. A period of forty-five (45) calendar days from
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the date Seller delivers the last of the items to be delivered by Seller under
Section 3 of this Agreement.
1.12 LEASES. Those leases, residency, occupancy and ancillary agreements
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listed on Exhibit B attached to and made a part of this Agreement and any leases
entered into by Seller in respect of the Property after the date of this
Agreement and prior to the Closing Date pursuant to Section 10.
1.13 LICENSES AND PERMITS. All licenses, permits, certificates of
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occupancy, approvals, dedications, subdivision maps and entitlements issued,
approved or granted by local, city, state or federal governmental bodies to
Seller in connection with the ownership, use and operation of the Real Property.
1.14 OWNER'S TITLE POLICY. The owner's title insurance policy or the final
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marked-up Title Commitment, subject only to the Permitted Exceptions, to be
issued in the amount of the Purchase Price to Purchaser at Closing by Lawyers
Title Insurance Corporation insuring Purchaser's title as the new owner of the
Real Property, with extended coverage over the standard exceptions and such
endorsements as Purchaser shall reasonably require.
1.15 PERMITTED EXCEPTIONS. The Permitted Exceptions are:
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1.15.1 The rights of the tenants, as tenants only, under the leases.
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1.15.2 The lien of all ad valorem real estate taxes for 1998 subject
to proration as herein provided; and
1.15.3 Any items shown on the Title Commitment and approved by
Purchaser.
1.16 PERSONAL PROPERTY. All Tangible Personal Property, Intangible Personal
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Property, Leases, Service Contracts and Records and Plans owned by the Seller
and used solely in the operation of the Property.
1.17 PROJECT. The independent living center located at 0000 X. Xxxxxxxx
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Xxxx, Xxxxxxx, Xxxxxxxx, commonly known as Harbor Village.
1.18 PROPERTY. The Real Property and Personal Property owned by Seller as
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described herein.
1.19 PURCHASE PRICE. The purchase price for the Property shall be Sixteen
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Million Seven Hundred Fifty Thousand and No/100 Dollars ($16,750,000.00),
subject to prorations and other adjustments, if any, as provided herein.
1.20 REAL PROPERTY. All the land legally described in attached Schedule
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1.15 together with the Improvements thereon and the Appurtenances. The legal
description of the Property attached hereto as Schedule 1.15 is believed by
Seller to be correct, but its accuracy will be confirmed by the Seller and
Purchaser prior to Closing based on the legal description contained in the
Owner's Title Policy issued by the Escrow Agent.
1.21 RECORDS AND PLANS. To the extent in the possession or control of
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Seller; (a) all financial and other books and records maintained by Seller in
connection with the operation of the Property; (b) all preliminary, final and
proposed building plans and specifications
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(including "as-built" drawings) respecting the Improvements; and (c) all
structural reviews, architectural drawings and engineering, environmental,
soils, seismic, geologic and architectural reports, studies and certificates and
other similar documents pertaining to the Property.
1.22 SELLER'S ACTUAL KNOWLEDGE. The actual knowledge of Xxxx Xxxxx, Xxx
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Xxxxx and Xxxxxxx Xxxxx without any further diligence, inquiry or investigation.
1.23 SERVICE CONTRACTS. Those design contracts, space planning contracts,
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construction contracts, subcontract and purchase orders, utility contracts,
water and sewer service contracts, maintenance contracts, and management
contracts, to which Seller is a party and which relate to the Property, and
equipment leases, which are listed on Schedule 1.23.
1.24 TANGIBLE PERSONAL PROPERTY. All physical assets owned by Seller and
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located on, within, over, or under the land and used solely in the operation of
the Project, including all furniture, furnishings, equipment and other tangible
personal property owned by Seller that is located at the Real Property and used
in connection with the management, operation or repair of the Real Property.
1.25 TITLE COMMITMENT. The title commitment to be issued prior to Closing
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by Lawyers Title Insurance Corporation, prepared pursuant to Section 3.1.
SECTION 2 - PURCHASE & SALE
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The Seller agrees to sell and the Purchaser agrees to purchase, pursuant to
the provisions of this Agreement, the Property, and all of Seller's right,
title, and interest in, and in any way pertaining to the Property.
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2.1 XXXXXXX MONEY DEPOSIT. Within two (2) Business Days following the
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Effective Date, Purchaser shall make an initial deposit of One Hundred Thousand
and No/100 Dollars ($100,000.00) ("Initial Deposit"), which sum shall be payable
to Escrow Agent by wire transfer, certified check, or other forms of immediately
available funds. Escrow Agent will acknowledge receipt of the Initial Deposit,
by executing the Escrow Agent Acknowledgement Form, Schedule 2.1 hereof, and
distributing copies thereof to the parties listed in Section 19 below.
After the end of the Investigation Period, and in the event Purchaser does
not terminate this Agreement in accordance with Section 8 below, Purchaser shall
deposit with the Escrow Agent an Additional Deposit of, One Hundred Fifty
Thousand and no/100 Dollars ($150,000.00) ("Additional Deposit"), which sum
shall be payable to Escrow Agent by wire transfer, certified check, or other
forms of immediately available funds. Escrow Agent will acknowledge receipt of
the Additional Deposit by executing a second Escrow Agent Acknowledgment Form
(also in the form of Schedule 2.1 hereof) and distributing copies thereof to the
parties listed in Section 19 below.
2.2 ESCROW AGENT. The Escrow Agent shall hold and retain the Deposit(s) in
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trust and shall disburse same in accordance with the terms and conditions
contained herein. The Deposit(s) shall be placed in an interest-bearing account
with such interest being reported under the Purchaser's tax identification
number. If the sale of the Property is consummated as provided herein, the
Deposit(s) shall be paid to the Seller and applied against the payment of the
Purchaser Price and the interest shall be paid to Purchaser. If the Purchaser
terminates this
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Agreement in accordance with any right to terminate granted herein, the
Deposit(s) and interest earned thereon shall be immediately delivered by the
Escrow Agent to the Purchaser and, thereafter, this Agreement shall be null and
void and of no further force and effect, except for those rights, obligations or
liabilities set forth herein which expressly survive the termination of this
Agreement. In the event Purchaser fails to perform any of the terms, conditions
or obligations required to be performed by Purchaser herein or fails to close
the transaction contemplated by this Agreement through no default of Seller,
Seller may terminate this Agreement and the Deposit(s) shall be immediately
delivered by the Escrow Agent to Seller.
2.3 CLOSING. Except as otherwise provided herein, the Closing shall take
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place on the Closing Date which shall be no later than thirty (30) calendar days
after the end of the Investigation Period. The Closing shall take place in the
office of Escrow Agent or such other place as Seller and Purchaser may
reasonably and mutually agree upon; provided, that written notice is given to
the other party and to Escrow Agent no later than five (5) Business Days prior
to the Closing Date. Pursuant to subsection 2.2 of this Section, on the Closing
Date, the Purchase Price, subject to prorations and other adjustments, if any,
shall be paid by Purchaser to Seller by wire transfer, certified check, or other
forms of immediately available funds.
SECTION 3-TITLE COMMITMENT, SURVEY,
EXISTING CONTRACTS AND ENVIRONMENTAL
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3.1 TITLE COMMITMENT. Seller will order the Title Commitment within three
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(3) Business Days of the Effective Date and shall use its best effort to cause
the Escrow Agent to furnish the Title Commitment and all recorded documents
relating to the Real Property to Purchaser within fifteen (15) days of the
Effective Date. The cost of the title premium for the
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standard coverage Owner's Title Policy shall be paid by the Seller. The cost of
extended coverage and any endorsements requested by Purchaser shall be an
expense of Purchaser.
3.2 SURVEY. Seller shall use its best effort to cause the surveyor to
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furnish to Purchaser within thirty (30) days following the Effective Date a
current survey of the Property, at Seller's cost, prepared by a registered
Illinois land surveyor, certified to Purchaser and the Title Insurer as being
made in accordance with the Minimum Detail Requirements for ALTA/ASCM land
surveys approved in 1992, for an urban survey.
3.3 EXISTING CONTRACTS AND REPORTS. Seller shall, within five (5)
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business days of the Effective Date, cause to be delivered to Purchaser all
Service Contracts.
3.4 ENVIRONMENTAL. Seller represents that there is no environmental
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report pertaining to the Property.
3.5 FEASIBILITY PERIOD. No later than five (5) Business Days following
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the Effective Date, Seller shall deliver to Purchaser at the office of the
Purchaser in Chicago, Illinois, each of the following items:
(i) a current copy of the rent roll attached hereto as Exhibit B;
(ii) copies of the most recent tax bills with respect to the
Property and copies of all notices and documents for any
assessments relating to the Property;
(iii) all existing surveys of the Property in the possession of
Seller;
(iv) copies of all existing title insurance policies insuring title
to the Property;
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(v) copies of operating statements for the Property for the
calendar years 1995 and 1996, and corresponding year-to-date
information for calendar year 1997, showing current income and
expense items and an itemization of all capital expenditures
made during the respective periods;
(vi) a list and copies of all Records and Plans;
(vii) a list and copies of the Licenses and Permits if any, and if
they are in Seller's possession, and a copy of any notice of
any statute or code violation pertaining to the Property,
including any documents pertaining to the resolution thereof;
and
(viii) copies of all Leases; provided the same shall be made
available at the Property and for purposes of this Section
shall be deemed to have been delivered on the Effective Date.
SECTION 4-PRORATIONS AND EXPENSES
4.1 TAXES. Real estate and personal property taxes applicable to the
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Property for the tax years 1997 and 1998 shall be prorated based upon the
official tax xxxx(s) for the current year, if available. If such bills are not
available, the proration shall be based upon one hundred ten percent (110%) of
the last ascertainable tax xxxx. If the official tax xxxx for the current year
is not available at Closing, Purchaser and Seller agree to cooperate and adjust
such proration, if necessary, after Closing when the official tax xxxx for the
current year becomes available. By, or at Closing, if not previously paid,
Seller shall pay or provide for
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payment of all real estate and personal property taxes applicable to the
Property which have become due and payable prior to Closing.
4.2 RENTS. All income and rents of the Property collected prior to the
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Closing Date shall be prorated as of the Closing Date. Purchaser shall
diligently pursue collection of all uncollected rents after the Closing and
agrees to remit to Seller any rents collected by Purchaser which are
attributable to the periods prior to Closing, provided, however, notwithstanding
the foregoing, any rents collected by Purchaser pursuant to this Section shall
be applied first to current rents and then to past due rents. Purchaser shall
diligently pursue collection of all percentage rents or additional rents under
the leases and remit Seller's pro rata portion to Seller. Seller shall retain
any security deposits paid by tenants, and Purchaser shall receive a credit at
Closing for all security deposits required under the leases actually paid by
tenants and retained by Seller.
4.3 OTHER ITEMS. Such other items as are customarily prorated in
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transactions of the type contemplated in this Agreement shall be ratably
prorated. All prorations shall be made pursuant to this Section 4 shall be made
as of the Closing Date, using the actual number of days of the year and month
which shall have elapsed as of the date immediately preceding the Closing Date
and, to the extent reasonably practicable, such prorations shall be determined
at Closing.
To the extent operating income, operating expenses or other charges to
be prorated are not available at Closing, then such prorations shall be adjusted
and completed after Closing as and when complete information becomes available.
Seller and Purchaser agree to cooperate
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and use their best efforts to complete such prorations or adjustments that are
not available at Closing no later than thirty (30) days after the Closing. Such
items of income and expense for the period prior to the date of Closing will be
for the account of Seller and such items of income and expense for the period on
and after the Closing Date will be for the account of Purchaser, all as
determined by the accrual method of accounting. Bills received after Closing to
the extent they relate to expenses incurred for services performed prior to the
Closing Date shall be paid by Seller, and those which relate to services
performed after the Closing Date shall be paid by Purchaser.
4.4 CLOSING EXPENSES.
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4.4.1 SELLER'S COSTS. Seller shall pay (i) Seller's legal fees and
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expenses, (ii) fifty percent (50%) of any fees charged by the Escrow Agent
for services provided hereunder, (iii) any transfer, sales or use taxes
applicable to the transactions contemplated by this Agreement, (iv) the
cost of the title premium for the standard coverage Owner's Title Policy
and (iv) the cost of the Survey.
4.4.2 PURCHASER'S COSTS. Purchaser shall pay (i) any recording fee
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payable in connection with the delivery or recording of any instrument or
document provided for or contemplated by this Agreement, (ii) the charges
for or in connection with the recording of any closing instrument or
closing document provided for herein or contemplated by this Agreement,
(iii) Purchaser's legal fees and expenses, (iv) all expenses incurred by
Purchaser in connection with Purchaser's due diligence and for the
recording of instruments in connection with any financing obtained by
Purchaser,
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(vi) fifty percent (50%) of any fees charged by the Escrow Agent for
services provided hereunder, and (vii) the cost of extended coverage and
any endorsements to the Owner's Title Policy.
4.5 SURVIVAL OF SECTION 4. The agreements of the parties in Section 4
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shall survive the Closing of this Agreement for a period of six (6) months.
SECTION 5 - REPRESENTATIONS & WARRANTIES
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5.1 SELLER. Seller makes the following representations to Purchaser as of
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the Effective Date hereof, which shall be deemed remade as of the Closing Date,
unless Seller has provided Purchaser with written notice of revisions to the
representations.
5.1.1 There are no pending and to Seller's Actual Knowledge no
contemplated condemnation proceedings affecting the Property or any part
thereof. Except for other parties who may have been granted easement rights
for ingress, egress, parking and related matters over common areas within
the Property, no person, firm or entity, except as set forth herein, has
any rights in or rights to acquire the Property or any part thereof. Except
for the reciprocal easement agreement pertaining to the parking garage,
which Seller will provide Purchaser with a copy, there are no leases,
agreements, other commitments or tenancies which pertain to or are
applicable with respect to the Property other than as disclosed in this
Agreement or provided to Purchaser as required by this Agreement.
5.1.2 Except for a Workers' Compensation claim filed by a former
employee, Xxxxxx Xxxxxxxxx, against the former management company, Ashley
Management Co.,
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which also names Harbor Village Retirement Apartments, Seller is not a
party to any litigation affecting the Property and Seller knows of no
litigation affecting the Property. Seller has received no notice of and to
Seller's Actual Knowledge no violations of Governmental Regulations exist.
No leasing commission in connection with the Property is due or owing from
Seller to any party. There are no Service Contracts rendered in connection
with the operation of the Property except as may be specifically set forth
herein or provided to Purchaser as required herein. To Seller's Actual
Knowledge there are no proposed special assessments against or relating to
the Property.
5.1.3 Subject to the provision of Section 14, this Agreement has been
duly and validly executed and delivered by Seller, and this Agreement
constitutes the valid and legally binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally.
5.1.4 All taxes and assessments levied upon the Property which become
due for payment prior to the Closing Date have been paid or will be paid in
full by Seller prior to the Closing.
5.1.5 Seller is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Delaware, is
duly qualified to do business
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in the State of Illinois, and has all requisite power and authority to own
its property and carry on its business as now being conducted.
5.1.6 Neither the execution and delivery by Seller of this Agreement
nor the consummation by Seller of the sale of the Property will conflict
with, result in the breach of, constitute a default under, or accelerate
the performance provided by the terms of any law, any rule or regulation of
any government or agency of any government or any judgement, order, or
decree of any court or other agency of any government to which Seller may
be subject, any material contract, material agreement, or material
instrument to which Seller is a party or by which Seller is bound or
committed.
5.1.7 Neither the execution and delivery of this Agreement, nor the
consummation of the transaction with Purchaser will constitute an event
which, with the lapse of time or action by a third party, could result in
the creation of any lien, charge, or encumbrance upon any of the material
assets or properties of Seller.
5.1.8 To Seller's Actual Knowledge, (a) the materials delivered under
Section 3 are true and correct copies thereof, (b) the Service Contracts
are (subject to expiration of the term thereof or breach by the other party
thereof), in full force and effect, and all such Service Contracts have
been, or will be delivered to Purchaser pursuant to this Agreement, and (c)
there is no default by Seller, nor any state of facts which with the
passage of time or giving of notice or both, would constitute a default by
Seller under any of the Service Contracts.
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5.1.9 To Seller's Actual Knowledge, Seller knows of no facts, nor
has Seller failed to disclose to Purchaser any fact known to Seller, which
would prevent Purchaser from using and operating the Property after the
Closing Date in the manner in which the Property has been used and operated
prior to the Agreement Date.
5.1.10 To the best of Seller's knowledge without any due inquiry and
except to the extent disclosed in the material delivered to Purchaser,
Seller has received no notice of any proceeding or inquiry by any authority
with respect to the presence of any hazardous substances on the Property
or the migration thereof from or to other property and Seller is not aware
of the presence of substances or materials regulated under or defined as
being a hazardous material or a hazardous substance under any environmental
law.
5.2 PURCHASER. Purchaser makes the following representations and
warranties to Seller, as of the Effective Date hereof.
Purchaser represents and warrants to Seller that Purchaser is a corporation
validly existing under the laws of the State of Delaware, is, or will by the
Closing Date be, to the extent required by law, duly qualified to do business in
the State where the Property is located and has all necessary power to execute
and deliver this Agreement and perform all of Purchaser's obligations hereunder.
The execution, delivery and performance of this Agreement by Purchaser (I) has
been duly and validly authorized by all necessary action on the part of
Purchaser, (ii) does not conflict with or result in a violation of Purchaser's
organizational documents or any judgment, order or decree of any court or
arbiter in any
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proceeding to which Purchaser is a party, and (iii) does not conflict with or
constitute a material breach of, or constitute a material default under any
contract, agreement or other instrument by which Purchaser is bound or to which
Purchaser or any persons constituting Purchaser is a party. This Agreement and
the closing documents to be delivered by Purchaser pursuant hereto are or will
constitute the valid and binding obligations of Purchaser, enforceable in
accordance with their respective terms.
5.3 SELLER AND PURCHASER. Seller and Purchaser agree to comply with the
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applicable requirements of any Responsible Property Transfer Act ("RPTA") which
is in force with respect to the Property which is the subject of this Agreement.
If Seller determines that RPTA is not applicable to the Property or the
transaction contemplated by this Agreement, Seller shall deliver an affidavit to
that effect at Closing.
5.4 SURVIVAL OF SECTION 5. The representations and warranties of the
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parties in Section 5 shall survive the Closing or termination of this Agreement
for a period of one (1) year.
SECTION 6 - RADON GAS
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Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed Federal and
State guidelines have been found in buildings in the State of Illinois.
Additional information regarding radon and radon testing may be obtained from
your county public health unit. Seller makes no representation, express or
implied, as to the presence or absence of Radon Gas in the improvements or
elsewhere on the Property.
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SECTION 7 - CONDEMNATION
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If any portion of the Property is condemned or under condemnation pursuant
to a notice of taking by appropriate authority prior to the Closing Date, Seller
shall promptly notify Purchaser and Escrow Agent of such facts and agrees that
it shall not settle or consent to any condemnation during the term of this
Agreement without Purchaser's prior written consent. By notice given to
Seller and Escrow Agent, within ten (10) days following Seller's notice,
Purchaser shall elect in writing to either (a) terminate this Agreement
whereupon all rights, obligations and liabilities of the parties shall
terminate, except for those set forth herein which expressly survive the
termination of this Agreement, or (b) consent to purchase the Property subject
to the condemnation, taking an assignment from Seller of all of Seller's rights
in and to any condemnation award, and continue this Agreement in full force and
effect.
SECTION 8 - INVESTIGATION PERIOD
--------------------------------
Seller hereby grants to Purchaser the Investigation Period specified in
Section 1.8 hereof during which period Purchaser shall have the right to conduct
any and all inspections, surveys, environmental audits, surface and subsurface
explorations and radon gas tests; review any of the Leases and Lease files;
physically inspect the Property and the tenants' apartments, provided such
inspection of the tenant's apartments is consented to by tenants and does not
unduly disrupt any tenancy, review all Service Contracts; and conduct such other
inspections and reviews as shall be reasonably necessary for Purchaser to
determine Purchaser's desire to proceed to close the subject transaction.
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In consideration of Purchaser's right to inspect the Property as described
in this Section, Purchaser agrees to indemnify, defend and hold Seller harmless
from any actions, suits, liens, claims, damages, expenses, losses and liability
for damage to personal property or personal injury arising from or attributable
to any acts performed in exercising Purchaser's rights under this Section 8
(including Seller's reasonable attorneys' fees and costs relating to any such
indemnified claims, but excluding any matter to the extent arising out of the
gross negligence or misconduct of Seller). This agreement to indemnify Seller
shall survive the Closing and any termination of this Agreement.
Purchaser shall no later than the end of the Investigation Period provide
Seller written notice stating whether Purchaser has elected to assume any
Service Contract(s) pertaining to the Property. In the event Seller is not
provided with such written notice, Purchaser shall be deemed to have elected to
assume all such contracts. Additionally, Purchaser shall before the end of the
Investigation Period provide Seller with a list of Permitted Exceptions.
If Purchaser, in Purchaser's sole discretion, shall deem any of said
inspections or reviews unsatisfactory, Purchaser shall notify Seller, in
writing, within the Investigation Period of Purchaser's desire to terminate this
Agreement and, provided any damage to the Property caused by Purchaser has been
restored by Purchaser to the condition that existed prior to commencement of the
Investigation Period, the Escrow Agent shall forthwith refund to Purchaser the
Deposit(s) and interest earned on the Deposit(s), less Seller's out-of-pocket
expenses; thereafter this Agreement shall be rendered null and void and neither
party shall have any further rights or obligations hereunder.
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If Purchaser accepts the Property, Purchaser shall provide written
notification to Seller of such acceptance prior to the end of the Investigation
Period, in which event, the Closing shall proceed in accordance with the
provisions of this Agreement. If Purchaser fails to give Seller notice prior to
the expiration of the Investigation Period of Purchaser's election, Purchaser
shall be deemed to have elected to accept the Property and shall proceed to
close the transaction.
SECTION 9 - "AS IS-WHERE IS" SALE
---------------------------------
PURCHASER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS BEING PURCHASED IN
AN "AS-IS-WHERE IS" CONDITION WITH NO REPRESENTATIONS OR WARRANTIES, EXPRESSED
OR IMPLIED, AS TO THE PHYSICAL OR OPERATING CONDITION OF ANY OF THE PERSONAL
PROPERTY OR THE PROPERTY, THE ENVIRONMENTAL OR SUBSURFACE CONDITION OR STATUS OF
THE PROPERTY, THE IMPROVEMENTS ON THE PROPERTY, CONDITION OF THE ROOF, ANY PAST
OR EXISTING VERMIN INFESTATION, CONDITION OF PLUMBING OR ELECTRICAL SERVICE, THE
STRUCTURAL INTEGRITY OF ANY IMPROVEMENTS OR BUILDINGS OR THE STATUS OF ANY
LEASES WITH RESPECT TO THE PROPERTY OTHER THAN AS STATED IN THIS AGREEMENT.
PURCHASER HEREBY FURTHER REPRESENTS THAT PURCHASER HAS CONDUCTED, OR THROUGH THE
USE OF PURCHASER'S OWN CONTRACTORS, ENGINEERS AND OTHER LIKE-TYPE CONSULTANTS
HAS CAUSED OR WILL CAUSE TO BE CONDUCTED PRIOR TO THE END OF THE INVESTIGATION
PERIOD, SUFFICIENT, ADEQUATE AND INDEPENDENT INVESTIGATIONS OF THE PROPERTY AND
THE CONTENTS THEREOF.
SECTION 10 - CONDUCT OF SELLER PRIOR TO CLOSING
-----------------------------------------------
Seller covenants and agrees with Purchaser as follows:
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10.1 Seller shall not, without the prior written consent of Purchaser in
each instance, (a) modify, amend or terminate (except for material breach,
nonpayment of rent or other sums due, or death or transfer to a nursing home) in
any manner whatsoever, any of the Leases, (b) consent to the assignment or
subletting of any of the Leases, or (c) enter into any new lease of the Property
or any portion thereof or extend or renew any existing Lease which is not on the
standard form of lease currently in use for the Property and is not at a rental
rate equal to the current schedule of rentals as shown in Schedule 10.1 for the
Property (all such permitted leases shall be deemed to be included within the
term "Leases"). If Seller desires to take any of the actions described in
clauses (a), (b) or (c) above, Seller shall so notify Purchaser. Purchaser shall
have three (3) Business Days from receipt of Seller's notice to object in
writing to any proposed action described in Seller's notice. If Purchaser fails
to notify Seller within the time period prescribed above of any objections, it
shall be conclusively presumed that Purchaser consented to all of the actions
described in Seller's notice and Seller may immediately implement such actions.
If Purchaser notifies Seller of any objections to the actions proposed in
Seller's notice and thereafter Seller and Purchaser cannot agree on a course of
action within (15) Business Days of the date of Purchaser's notice of
objections, Seller shall not take any action to which Purchaser has objected.
10.2 Seller shall not, without the prior written consent of Purchaser in
each instance, enter into any new commitments, licenses, options or other
agreements of any kind affecting or relating to the Property except for
agreements that are terminable on or before the Closing Date and Leases that are
governed by Section 10.1.
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10.3 If Seller removes any item of Personal Property prior to the Closing
Date, Seller shall substitute therefor an item of like kind and comparable
value.
10.4 Subject to the provisions of Sections 7 and 18 hereof, Seller shall,
between the Effective Date and the Closing Date, at Seller's sole cost and
expense, maintain the Property in good order, condition and repair, reasonable
wear and tear excepted, shall perform all work required to be done by the
landlord under the terms of the Leases, and shall make all repairs and
maintenance and otherwise operate the Property in the same manner as before the
making of this Agreement and as though Seller were retaining the Property.
Seller shall not make any alterations to the Property except as required under
the Leases. Seller shall not, after the Effective Date, without in each case
obtaining Purchaser's prior written consent thereto, enter into, amend, extend
(including by exercise of option), terminate any Service Contract or waive any
rights of Seller thereunder. The foregoing notwithstanding, Purchaser's consent
shall not be required for Seller to enter into or extend (including by exercise
of option) any Service Contract, provided the term of such Service Contract does
not extend beyond the Closing Date and does not otherwise expose Purchaser to
any liability.
10.5 Seller shall immediately notify Purchaser of any fact or other
circumstance which, if known by Seller on the Effective Date or the Closing
Date, would render any representative or warranty of Seller incorrect or
incomplete.
10.6 Between the date of this Agreement and the Closing Date, Seller shall
keep all Licenses and Permits in full force and effect and operate the Property
or cause the Property to be operated, in compliance with all Licenses and
Permits.
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10.7 Without Purchaser's consent, Seller shall not (a) voluntarily subject
any right, title or interest in or to this Property to any new mortgage, pledge,
lien or other hypothecation or encumbrance, or (b) transfer, convey or assign
any right, title or interest in or to all or any portion of the Property or (c)
enter into any contracts to transfer, convey or assign any right, title or
interest in or to all or any portion of the Property.
10.8 Seller will, at all times after the Effective Date to and including
the Closing Date, operate the Property in a manner consistent with the operation
of the Property on the date hereof.
10.9 Seller shall permit Purchaser, at Purchaser's expense, to engage an
independent certified public accountant to audit the most recent annual
financial statements for the Property and Seller shall cooperate with such
accounting firm in connection with such audit by allowing access to all books
and records for the Property.
SECTION 11 - ASSISTANCE & COOPERATION OF PARTIES
------------------------------------------------
Seller and Purchaser agree that they shall execute and deliver to each
other such further documents and instruments in form and substance reasonably
satisfactory to the parties as may be necessary to confirm and/or effectuate the
obligations of Seller and Purchaser hereunder and the consummation of the
transaction contemplated hereby.
SECTION 12 - DOCUMENTS FOR CLOSING
----------------------------------
At closing, Seller shall deliver to Purchaser the following documents:
12.1 A Special Warranty Deed in recordable form (see Schedule 12.1
attached hereto).
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12.2 Xxxx of Sale (see Schedule 12.2 attached hereto).
12.3 Mechanic's Lien Affidavit.
12.4 Assignment and Assumption of Leases And Guaranties executed by Seller
and Purchaser as to any Leases (see Schedule 12.4 attached hereto).
12.5 Assignment and Assumption of Service Contracts and Intangible
Personal Property executed by Seller and Purchaser as to the Service Contracts
and Intangible Personal Property which, pursuant to the terms of Section 8,
Purchaser has agreed to assume (see Schedule 12.5 attached hereto).
12.6 Original Service Contracts, Licenses, Permits and Leases, if not
located on the Property.
12.7 A written certification ("FIRPTA Certificate") in form reasonably
satisfactory to Purchaser and dated no earlier than ten (10) days prior to the
Closing Date, which certification shall be in compliance with The Tax Reform
Act of 1984 (the "Act") and the regulations thereunder that are imposed by the
Foreign Investment in Real Property Tax Act ("FIRPTA") and certifying that
Seller is not a person or entity subject to withholding under FIRPTA and the
Act, and containing Seller's tax identification number and address.
12.8 Owner's Title Policy and such other documents as shall be reasonably
requested by Purchaser or Lawyers Title Insurance Corporation in order for
Seller to convey title to Purchaser, and property transfer all of the rights and
obligations being conveyed/transferred in accordance with this Agreement.
-23-
At Closing, Purchaser shall provide written instructions to Escrow Agent to
deliver the Deposit(s) to Seller.
SECTION 13 - BROKERS
--------------------
The Seller and Purchaser hereby acknowledge that the following disclosure
has previously been made: National Equity Advisors is the Purchaser's agent (the
"Purchaser's Agent") and is serving solely as agent for Purchaser in connection
with this transaction. Purchaser shall pay the Purchaser's Agent's consulting
fee ("Consulting Fee"). Except for this Consulting Fee, each party warrants and
represents that no other broker, finder, or other person is entitled to a
commission, finder's fee or other compensation in connection with this
Agreement, and each party shall indemnify and hold harmless the other from any
and all claims, liabilities, losses, damages, costs and expenses, including, but
not limited to, reasonable attorneys' fees, arising from the claim of any other
broker, finder or other person for such compensation, arising by, under or
through such party. At Closing, as a condition to Purchaser's obligation to
close hereunder, Purchaser's Agent must execute a paid receipt for the
Consulting Fee.
SECTION 14 - TIMING OF OFFER AND
ACCEPTANCE OR REJECTION THEREOF
-------------------------------
Execution of this Agreement by Purchaser and submission to Seller shall
constitute Purchaser's offer and agreement to purchase the Property upon the
terms and conditions set forth herein. Purchaser shall have until 5:00 p.m.
E.S.T. on Wednesday, November 19, 1997. to execute and submit this Agreement to
Seller.
-24-
Within fifteen (15) Business Days after receipt of the Agreement which has
been executed by Purchaser, provided such receipt is by 5:00 p.m. E.S.T.
Wednesday, November 19, 1997, Seller shall seek approval of the Seller's
Investment Committee, which has the sole authority to approve or reject this
proposed transaction. If Seller's Investment Committee approves this proposed
transaction, then Seller shall proceed to have the Agreement executed on its
behalf. The date of such approval/acceptance shall constitute the Effective
Date, and Seller shall notify Purchaser the day Seller's Investment Committee
approves the proposed transaction and Seller shall return a copy of the
fully-executed Agreement to Purchaser within three (3) business days after the
Effective Date. If Seller's Investment Committee approves the transaction with
conditions, then Seller shall notify the Purchaser for its further
consideration. If Seller's Investment Committee does not approve the proposed
transaction, Seller shall notify Purchaser the day Seller's Investment Committee
takes this action and then this Agreement shall be null and void and neither
party shall have any obligations or liabilities hereunder.
SECTION 15 - ERISA
------------------
At Closing, Purchaser shall deliver to Seller an ERISA Certificate in the
form attached hereto as Schedule 15.
SECTION 16 - CONDITIONS PRECEDENT
---------------------------------
Purchaser shall have no obligation to close this transaction unless the
conditions hereinafter set forth in this Section 16 shall have been satisfied or
have been waived in writing by Purchaser. Such conditions are:
-25-
16.1 All representations and covenants of the Seller herein shall be true
and correct as of the Closing Date.
16.2 Seller shall have delivered to Purchaser documents required by Section
3 of this Agreement.
16.3 Between the Effective Date of this Agreement and the Closing Date,
there shall have been no condemnation of the Property, or Purchaser shall have
consented to purchase of Property subject to such condemnation.
16.4 Seller shall have performed all of its material obligations under this
Agreement.
16.5 Lawyers Title Insurance Company shall be prepared to issue the Owner's
Title Policy.
SECTION 17 - TERMINATION AND DEFAULT
If Seller fails to perform in accordance with this Agreement and Purchaser
is not then in material default hereunder, Purchaser shall be entitled to
receive a refund of the Deposit(s) as liquidated damages in full settlement of
any claim or damages available to Purchaser at law or in equity or Purchaser
shall have the remedy of specific performance, unless Seller's default is caused
by circumstances beyond Seller's control.
If Seller is unable to convey title in accordance with this Agreement, or
if as of the Closing Date, there is an adverse change in the representations of
Seller due to a circumstance which arose subsequent to the Effective Date of
this Agreement and was not due to (i) Seller's failure to perform a covenant,
(ii) Seller's breach of a covenant hereunder or, (iii) a misrepresentation by
Seller under this Agreement, then Seller shall notify Purchaser of the
-26-
reasonable estimated aggregate costs to cure or correct such circumstance or
circumstances, and Purchaser may, by written notice to Seller prior to the
Closing Date, elect to accept such title as Seller is able to convey or elect to
terminate this Agreement. Seller shall have no obligation to correct such
circumstance(s). Upon the election to terminate by Purchaser, the Deposit(s)
shall be refunded to Purchaser and thereafter neither party shall have any
further rights, obligations or liabilities hereunder, except for those set forth
herein which expressly survive termination of this Agreement.
Subject to all conditions set forth in this Agreement, if Purchaser fails
to purchase the Property on the Closing Date in accordance with the terms
hereof or fails to perform any of Purchaser's other obligations hereunder, and
Seller is not then in material default hereunder, then Seller shall have the
right to receive the Deposit(s) from the Escrow Agent as liquidated damages in
full settlement of any claim for damages at law or in equity.
Where liquidated damages are provided for herein, Seller and Purchaser
acknowledge the difficulty of determining actual damages, that it is impossible
to more precisely estimate the damages upon default, that the return or
retention of the Deposit(s) is not intended as a penalty but as full liquidated
damages and that such amount constitutes a good faith estimate of the potential
damages arising from default.
SECTION 18 - RISK OF LOSS
-------------------------
18.1 Damages Greater Than $500,000.00. After the expiration of the
--------------------------------
Investigation Period and if before Closing and delivery of the deed, any Real
Property or Personal Property subject to this sale is damaged or destroyed by
fire or other casualty and the estimated cost of
-27-
repair, restoration or replacement is more than Five Hundred Thousand and no/100
dollars ($500,000.00), the Purchaser shall have the right to cancel this
Agreement by written notice to Seller or advise Seller in writing that it elects
to accept title to the Property in its damaged condition, in which case Seller
shall assign and turn over to Purchaser all insurance proceeds payable or paid
as a consequence of such casualty and shall give Purchaser a credit against the
Purchase Price for the amount of the deductible portion of the claim.
18.2 Damages Less Than $500,000.00. Any damage from fire or other
-----------------------------
casualty costing less than Five Hundred Thousand ($500,000.00) to repair,
restore or replace shall be repaired, restored or replaced by Seller prior to
the Closing Date for which purpose Seller shall be entitled to a reasonable
postponement of the Closing up to but not exceeding one hundred twenty (120)
days, or at Purchaser's option, Purchaser may elect in writing to accept title
to the Property in its damaged condition, in which case Seller shall give the
Purchaser a credit at Closing for the actual cost to repair, restore or replace
the Property to the condition it was prior to the damage, which cost shall not
excess $500,000.00.
SECTION 19 - NOTICES
--------------------
All notices, consents, approvals, waivers, and elections which any party
shall be required or shall desire to make or give under this Agreement shall be
in writing and shall be sufficiently made or given only when sent by (a)
certified mail, return receipt requested, (b) prepaid overnight delivery service
with proof of delivery, or (c) electronic transmission with hard copy to follow
as confirmation of receipt, addressed:
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19.1 TO SELLER: Lincoln Harbor Village, L.P.
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx
Title: Assistant Vice President
Phone Number: (000)000-0000
Facsimile Number: (000)000-0000
WITH A COPY TO: C. Xxxxxx Xxxxxxx
Lincoln National Corporation
Title: Counsel
Lincoln National Corporation
Law Division - 2R
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Phone Number: (000)000-0000
Facsimile Number: (000)000-0000
19.2 TO ESCROW AGENT: Xxxxxxx Xxxxxxxx
Lawyers Title Insurance Corporation
00 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone Number: (000)000-0000, Ext. 3017
Facsimile Number: (000)000-0000
19.3 TO PURCHASER: Brookdale Living Communities, Inc.
Attn: Xxxxxx X. Xxxxxxxx
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone Number: 000-000-0000
Facsimile Number: 000-000-0000
WITH A COPY TO: Xxxxxxx X. Xxxxxxx, Esquire
Xxxxx, Xxxxxx, XxXxx & Xxxxxxxxxx, P.C.
22 Floor IBM Plaza
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Phone Number: 000-000-0000
Facsimile Number: 000-000-0000
-29-
or to such other address as any party hereto shall designate by like notice
given to the other parties hereto. Notices, consents, approvals, waivers and
elections given or made as aforesaid shall be deemed to have been given and
received on the third business day following the post marked date of the mailing
thereof as aforesaid, or upon receipt when sent by overnight delivery service or
upon confirmation of receipt if sent by electronic transmission.
SECTION 20-ASSIGNMENT
---------------------
Purchaser shall not assign its rights under this Agreement without Seller's
prior written consent, which consent is within Seller's sole discretion;
provided, however, Purchaser may assign this Agreement to an affiliate of
Purchaser without Seller's consent. No assignments as herein permitted shall
operate to release Purchaser from its obligations hereunder.
SECTION 21-MISCELLANEOUS
------------------------
21.1 ENTIRE AGREEMENT. This Agreement, together with exhibits referenced
----------------
herein, integrates and supersedes all other oral or written agreements and
understandings of the parties and comprises the entire agreement among them with
regard to the matters herein. This Agreement may not be changed except in
writing, signed by both parties.
21.2 NON-WAIVER. No waiver of any rights or obligations hereunder shall
----------
be deemed to have occurred unless in writing signed by the party against whom
such waiver is asserted and no waiver shall be deemed a waiver of any other or
subsequent rights or obligations.
21.3 COUNTERPART SIGNATURES. This Agreement may be executed in any number
----------------------
of counterparts, which counterparts when considered together shall constitute a
single, binding, valid and enforceable Agreement.
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21.4 TIME OF THE ESSENCE. Time is of the essence with regard to the
-------------------
provisions of this Agreement.
21.5 GENDER AND HEADINGS. Words used herein in the singular shall include
-------------------
the plural and words in the masculine shall include words in the feminine or
neuter gender where the text of this Agreement so requires. The descriptive
paragraph headings are inserted for convenience only and shall not control of
affect the meaning or construction of any of the provision of this Agreement.
21.6 CHOICE OF LAW. This Agreement shall be interpreted according to the
-------------
laws of the State of Illinois.
21.7 LITIGATION/VENUE. In the event there is any litigation arising out of
----------------
this Agreement, the prevailing party shall be entitled to recover all costs
incurred in connection therewith including, but not limited to, reasonable
attorneys' fees and all costs of appeal including, but not limited to,
attorneys' fees incurred on appeal. The venue of any litigation arising out of
this Agreement shall be in Xxxx County, Illinois.
21.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and
assigns.
21.9 CONFIDENTIALITY. All information, studies and reports relating to the
---------------
Property obtained by Purchaser, either by the observations and examinations of
its agents and representatives or as disclosed to it by Seller, shall remain
confidential and if the transaction contemplated herein fails to close for any
reason, Purchaser shall deliver to Seller, at no cost to Seller, all such
information, reports and studies, and Purchaser shall make no further
-31-
distributions or disclosures of any such information, reports and studies.
Purchaser and Seller agree that, to the extent reasonably practical, they shall
keep the contents of this Agreement confidential and that no publicity or press
release to the general public with respect to this transaction shall be made by
either party without the prior written consent of the other party, provided that
such prohibition as to publicity shall not apply (other than to the Purchase
Price) after Closing. The provisions of this confidentiality provision shall
survive the Closing or termination of this Agreement. Notwithstanding the
foregoing, Purchaser may disclose the existance and contents of this Agreement
to (i) its legal and financial advisers, or (ii) any governmental or
administrative authority upon request or obligation to disclose by law.
SECTION 22 - TERMINATION OF CONTRACTS
-------------------------------------
No later than five (5) days before the end of the Investigation Period,
Purchaser shall provide Seller written notice of which of the Service Contracts
provided under Section 3.3 it intends to assume and which Purchaser requests
that Seller terminate on or before the Closing Date. Within five (5) business
days after receipt of Purchaser's notice, Seller shall terminate those Service
Contracts Purchaser has requested Seller to terminate prior to closing, except
for the laundry contract, which is not terminable. With respect to the laundry
contract, which cannot be terminated, Purchaser shall advise Seller prior to the
end of the Investigation Period that Purchaser has either agreed to assume the
laundry contract or has elected to terminate this Agreement, in which latter
instance the Deposit, plus any interest accrued thereon, shall be refunded to
Purchaser and neither Seller nor Purchaser shall have any further liability to
the other.
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IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed as of the Effective Date.
PURCHASER
---------
Brookdale Living Communities, Inc.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Printed Name: Xxxx X. Xxxxxxx
------------------------
Title: President
------------------------------
Date: 11/18/97
-------------------------------------
SELLER
------
Lincoln Harbor Village,L.P.
By: Lincoln National Realty Corporation,
General Partner
By: Lincoln Investment Management, Inc., its
Attorney-in-Fact
By: /s/ Xxxx X. Glass
----------------------------------
Printed Name:Xxxx Xxxxx
Title: Assistant Vice President
Date: 12/4/97
-------------------------------------
