EXHIBIT 10:
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is entered into as of the
30th day of November, 1999, by and between Willowbrook Properties, Inc., a
Delaware corporation having its principal office at 1880 Industrial Circle,
Longmont, Colorado 80501 ( "SELLER" ) and Bellevue Partners, L.P., a
Pennsylvania limited partnership having a postal address of P.O. Box 505,
Belle Vernon, Pennsylvania 15012 ( " BUYER" ).
RECITALS
I. Seller owns certain property consisting of 88.163 acres more or
less located in Rostraver Township, Westmoreland County, Pennsylvania, which
is more particularly described on Exhibit A hereto (the "PROPERTY" ).
II. Seller desires to sell to Buyer, and Buyer desires to buy from
Seller, the Property, all in accordance with the terms and conditions
contained herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the Seller and Buyer agree as follows:
1. DEFINITIONS. In addition to the words and terms defined in the
Recitals and elsewhere in this Agreement, the words and terms set forth
hereinbelow will, unless the context otherwise requires, have the following
meanings:
1.1 "CLOSING" means the consummation of the purchase and sale
provided for herein, payment of the Purchase Price to the Seller by Buyer and
the conveyance of the Property to Buyer.
1.2 "COMMITMENT" means the commitment for title insurance issued
by the Title Company, setting forth the status of title to the Property,
accompanied by copies of all instruments of record referred to as exception
therein.
1.3 "CONFIDENTIAL INFORMATION" shall have the meaning set forth
in Section 6.6 hereof.
1.4 "DEED" means the special warranty deed in the form attached
hereto as Exhibit B.
1.5 "DEVELOPMENT AGREEMENTS" means that certain Development
Agreement and that certain Leasing Agreement, each dated as of August 1, 1998
and each between Seller and Michael Joseph Development Corporation.
1.6 "ENVIRONMENTAL CONDITION" shall have the meaning set forth
in Section 6.6 hereof.
1.7 "HAZARDOUS SUBSTANCE" shall have the meaning set forth in
Section 6.6 hereof.
1.8 "LEASE" means that certain Shopping Center Lease dated
March 16, 1999 between Seller and Supervalu Holdings, Inc., as amended.
1.9 "PERMITTED EXCEPTIONS" means the exceptions to title shown
on Exhibit C hereto.
1.10 "PERMITS" has the meaning set forth in Section 9.1.4
hereof.
1.11 "PURCHASE PRICE" means the amount set forth in Section 3.1
hereof.
1.12 "TITLE COMPANY" means -Commonwealth Land Title Insurance
Company.
1.13 "USE" shall have the meaning set forth in Section 9.1.3
hereof.
2. SALE OF PROPERTY. The Seller shall sell and convey and Buyer
shall purchase and pay for, upon the terms and conditions hereinafter set
forth, the Property.
3. PURCHASE PRICE.
3.1 AMOUNT. The Purchase Price for the Property shall be
$3,300,000.
3.2 PAYMENT. The Purchase Price shall be paid as follows:
3.2.1 Cash at closing - $600,000
3.2.2 Promissory Note - $2,700,000
3.3 FUNDS. All funds payable under this Agreement shall be paid
by wire transfer to such account as the Seller may designate in writing at
least on or prior to the Closing.
3.4 PROMISSORY NOTE. The promissory note to be delivered by Buyer
at closing will be in the form of and contain the terms set forth in
Exhibit D hereto.
4. CLOSING.
4.1 The Closing shall be held at a mutually agreed upon location
in Pittsburgh, Pennsylvania, no later than fifteen (15) days following
the satisfaction or waiver of the last of the conditions set forth in
Section 9 hereof, but in no event later than January 1, 2000. If the
Closing has not occurred prior to the close of business on the applicable
date set forth in the preceding sentence, any party who is not then
in breach hereof may terminate this Agreement upon written notice to
the other party.
4.2 At Closing, Seller shall execute, acknowledge and deliver
the following documents to Buyer:
4.2.1 The Deed;
4.2.2 A FIRPTA certificate in compliance with Section 1445
of the Internal Revenue Code;
4.2.3 Such documents as may be reasonably required by the
Title Company for purposes of issuing the title insurance policy in
accordance with the terms of this Agreement;
4.2.4 An assignment of the Lease, the Permits and the
Development Agreements;
4.2.5 An estoppel certificate from the tenant under the
Lease; and
4.2.6 Such other documents as Buyer may reasonably request.
All such documents shall be in form and substance reasonably
acceptable to Buyer.
4.3 At Closing Buyer shall execute, acknowledge and deliver the
following documents to Seller:
4.3.1 The Promissory Note;
4.3.2 An assumption of the Lease, the Permits and the
Development Agreements;
4.3.3 Such other documents as Seller may reasonably
request.
All such documents shall be in form and substance
reasonably acceptable to Seller.
5. TAXES AND ASSESSMENTS. At the Closing all real estate taxes and
assessments for the Property shall be prorated between Buyer and Seller as of
the date of Closing on a calendar year basis based on the most recently
available information. On and after the date of Closing, all taxes and
assessments not yet paid and any additional taxes for the year in which
Closing occurs which are assessed as a result of any improvements to the
Property made subsequent to Closing shall be paid by Buyer and the Seller
shall have no responsibility for such taxes and assessments.
6. RIGHT OF ENTRY; ENVIRONMENTAL AND/OR GEOTECHNICAL ASSESSMENT;
DEVELOPMENT COSTS.
6.1 LICENSE. Buyer shall have a license for reasonable
access to the Property for the purpose of making environmental assessments,
engineering studies, core borings, drillings and for any and all acts
necessary to conduct and complete Buyer's due diligence investigation of the
Property.
6.2 COST OF WORK. All work performed by Buyer or on its
behalf pursuant to this Section shall be performed at Buyer's expense.
6.3 INDEMNITY. Buyer shall protect, defend, indemnify, save
and hold harmless Seller against and from any and all claims, demands, fines,
suits, actions, proceedings, orders, decrees and judgments of any kind or
nature by or in favor of any or whomsoever, and against and from any and all
costs, damages and expenses, including without limitation attorneys' fees,
resulting from or occasioned in whole or in part by an act or omission of
Buyer, or any of employees agents, contractors or invitees in, upon, at or
from the Property pursuant to the license granted to Buyer in this Section 6.
In the event that this Agreement is terminated for any reason, the Buyer shall
place the Property as close to the condition it was in prior to the tests by
the Buyer as is reasonably possible, and such obligation of Buyer shall
survive the termination of this Agreement.
6.4 TERM. The Term of this license shall commence on the date
of this Agreement and shall terminate upon the occurrence of the earlier of
the following:
6.4.1 the date of the Closing; or
6.4.2 termination of this Agreement by either party
pursuant to any provisions therefor.
6.5 COPIES OF TESTS. Subject to any confidentiality
obligations, Buyer shall furnish the Seller with results of soil tests and
copies of all engineering studies and other reports within five business days
of their written request by Seller.
6.6 CONFIDENTIALITY. Buyer agrees that all information
relating to the Property, including without limitation, information, documents
and studies regarding the Environmental Condition or geotechnical condition
thereof ("CONFIDENTIAL INFORMATION"), will be held strictly confidential, and
shall not be disclosed to any third parties (other than to actual or proposed
consultants, contractors, lenders and tenants and their respective advisors to
the extent reasonably related to Buyer's acquisition, financing, development
or use of the Property) without the prior consent of the Seller unless Buyer
is under a legal obligation to disclose the Confidential Information. As used
herein the term " ENVIRONMENTAL CONDITION".
shall be defined as the presence in surface water, ground water, drinking
water supply, land surface, subsurface strata, above-ground or underground
tanks or other containers, or ambient air of any pollutant, contaminant,
industrial solid waste or Hazardous Substance. The term "HAZARDOUS SUBSTANCE"
shall be defined in the manner set forth in Section 101(4) of the U.S.
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended. In the event that Buyer or any of its representatives becomes
legally compelled to disclose any of the Confidential Information, Buyer
and/or any representative shall provide the Seller with prompt notice so that
the Seller may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Section 6.6. In the event that
such a protective order or other remedy is not obtained or that the Seller
waive compliance with the provisions of this Section 6.6, Buyer or any
representative will furnish only that portion of the Confidential Information
that is legally required to be disclosed and will exercise its or their best
efforts to obtain confidential treatment for such Confidential Information. A
violation of this Section 6.6 will cause irreparable harm to the Seller;
remedies at law being inadequate, the Seller, in addition to any other legal
or equitable relief, shall be entitled to injunctive relief from any court of
competent jurisdiction to enjoin any actual or threatened violation. The
obligation of the Buyer under this Section 6.6 shall survive the termination
of this Agreement for any reason except the purchase of the Property by the
Buyer.
6.7 DEVELOPMENT COSTS. Prior to and after the date hereof,
Buyer has directly or indirectly advanced certain amounts to Seller for the
purpose of paying for Property development costs that will benefit Buyer after
the Closing. Concurrently with the Closing, and without further action on the
part of any party, such amounts shall be deemed to be expenses of Buyer
associated with the development of the Property. In the event that the
Closing does not occur, then Seller will repay such amounts to Buyer on such
terms as Buyer and Seller may agree, or, in the absence of such agreement, on
demand.
7. REPRESENTATIONS OF SELLER/CONDITIONS OF THE PROPERTY.
7.1 Seller hereby makes the following representations and
warranties, all of which shall continue to be true and correct on the date of
the Closing:
7.1.1 Seller is a corporation duly organized and in good
standing under the laws of the State of Delaware. The execution,
delivery and performance of this Agreement by Seller has been duly
authorized by all requisite corporate action.
7.1.2 The Property is presently in compliance with all
applicable laws and regulations.
7.1.3 To Seller's knowledge, the Lease and the Development
Agreements are in full force and effect and Seller has complied
with all of its obligations thereunder and, to Seller's knowledge,
the other parties thereto have complied with their obligations
thereunder.
7.2 THE PROPERTY MAY BE INSPECTED BY THE BUYER PURSUANT TO
SECTION 6 ABOVE. THE PROPERTY IS BEING PURCHASED SOLELY IN RELIANCE UPON SUCH
INSPECTION AND, EXCEPT AS SET FORTH IN THIS SECTION 7, THERE HAVE NOT BEEN AND
ARE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
TO THE PROPERTY MADE BY THE SELLER. BUYER SHALL ACQUIRE THE PROPERTY IN "AS
IS, WHERE IS" CONDITION, INCLUDING WITHOUT LIMITATION THE GRADING, COMPACTION
AND ELEVATION OF THE PROPERTY. WITHOUT LIMITATION OF THE FOREGOING, THERE
HAVE BEEN NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO, AND THE BUYER
SHALL PURCHASE THE PROPERTY SUBJECT TO, ANY CURRENTLY EXISTING ENVIRONMENTAL
CONDITIONS NOT WITHIN SELLER'S ACTUAL KNOWLEDGE.
8. EVIDENCE OF TITLE. Seller has provided Buyer with a copy of
the Commitment. At the Closing, Seller will arrange for all exceptions other
than Permitted Exceptions to be removed. Notwithstanding anything contained
elsewhere in this Agreement to the contrary, Buyer will be solely responsible
for the cost of the Commitment and any and all title examination fees payable
to the Title company or its agents. Seller warrants that, except for the
Permitted Exceptions, it has not assigned, conveyed or transferred the
Property or any part thereof or interest therein.
9. PRE-CLOSING CONDITIONS; OPTION TO TERMINATE.
9.1 CONDITIONS TO BUYER'S OBLIGATIONS. Buyer will have the
option to terminate this Agreement in the event that any one or more of the
following conditions are not satisfied within the applicable time periods set
forth below:
9.1.1 REPRESENTATIONS AND COVENANTS. All of Seller's
representations and warranties set forth in Section 7.1 shall be
true and correct in all material respects and Seller shall have
performed all of its obligations set forth herein.
9.1.2 TITLE. Title at Closing shall be in the same
condition as approved by Buyer pursuant to Section 8 hereof, and,
contemporaneously with the Closing and upon payment of standard title
insurance premiums, Buyer shall have obtained a title insurance policy
consistent with the Commitment and the Title Company shall have given
Buyer the right to purchase at standard rates additional title
insurance (subject to any liens, encumbrances or other matters
thereafter arising) in connection with additional improvements and
construction financing relating to the Property.
9.1.3 GENERAL INSPECTION. Buyer, in its sole discretion,
shall have determined that the Property is otherwise suitable to Buyer
for its intended use for a shopping center (the " USE" ) and
that there are no environmental conditions relating to the Property
that make it less desirable to Buyer.
9.1.4 PERMITS AND APPROVALS. All required permits and
other governmental approvals necessary for Buyer to develop the
Property as a shopping center in the manner presently contemplated by
the parties, including without limitation those set forth on Exhibit F
(the "PERMITS"), shall have been assigned to or received by Buyer, all
on such terms and conditions as Buyer, in its reasonable good
faith discretion deems satisfactory.
9.2 CONDITIONS TO SELLER'S OBLIGATIONS. Seller shall have
the option to terminate this Agreement in the event that Seller does not
receive the approval of the transactions contemplated hereby from the
shareholders of Seller's parent company, NBI, Inc., a Delaware corporation, on
or before the date of Closing.
9.3 OPTION TO TERMINATE. If either party determines that any
of the conditions set forth in this Section 9 will not be satisfied prior to
January 31, 2000, such party will have the option of terminating this
Agreement by delivery of written notice to the other party. Upon receipt of
such notice, this Agreement will terminate and neither party will have any
liability hereunder (except the provisions which expressly survive the
termination of this Agreement).
9.4 FIDUCIARY TERMINATION. In the event that the Board of
Directors of either the Seller or the parent company of the Seller determine
that their fiduciary obligations require them to terminate this Agreement,
Seller may terminate this Agreement at any time prior to Closing by written
notice to Buyer.
10. CLOSING CHARGES. The expense of the Closing shall be paid in
the following manner:
10.1 Seller shall pay:
10.1.1 the full cost of preparing, executing, and
acknowledging the Deed and other documents required to be delivered
by Seller hereunder;
10.1.2 the full cost of obtaining documents,
certifications, affidavits and utility and municipality letters
necessary to clear those exceptions listed in the Title Commitment;
and
10.1.3 one-half of all realty transfer taxes in connection
with the transfer of the Property.
10.2 The Buyer shall pay:
10.2.1 the full cost of securing any title insurance
policy(ies) required by the Buyer;
10.2.2 the cost of recording the Deed;
10.2.3 the cost of any inspections or tests performed by
the Buyer in, on or about the Property;
10.2.4 one-half of all realty transfer taxes in connection
with the transfer of the Property;
10.2.5 the cost of any survey obtained by Buyer; and
10.2.6 all escrow fees, if any.
11. BROKER. Buyer and Seller represent to each other that no
broker has been retained by either of them in connection with the transactions
contemplated hereby and each party agrees to defend and indemnify the other
against any claim of any broker or similar party claiming under such party.
12. DEFAULT BY BUYER; REMEDIES OF THE SELLER. In the event Buyer
fails to comply in any material respect with any or all of the obligations,
covenants, warranties or agreements to be performed, honored or observed by
Buyer under and pursuant to the terms and provisions of this Agreement and
such default is not cured within ten (10) days after notice (other than
Buyer's failure to tender the Purchase Price on the date of Closing, as to
which no notice is required), then the Seller may terminate this Agreement, in
which event Buyer shall pay Seller the sum of $60,000 as liquidated damages
for Buyer's default.
13. DEFAULT BY THE SELLER; REMEDIES OF BUYER. In the event Seller
fails to comply with any or all of the obligations, covenants, warranties or
agreements to be performed, honored or observed under and pursuant to the
terms and provisions of this Agreement, and such default is not cured within
ten (10) days after notice, then Buyer may either (i) terminate this Agreement
all parties will be released from any further liability hereunder (except the
provisions hereof which expressly survive the termination of this Agreement),
or (ii) pursue the right of specific performance.
14. AMENDMENTS. This Agreement once properly signed by both parties
can be changed only by a document executed by an authorized representative of
the respective parties hereto.
15. NOTICES. All notices, requests, demands or other communications
hereunder will be in writing and deemed given when delivered personally, when
telecopied or on the day said communication is deposited in the U.S. mail, by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Buyer: Bellevue Partners, L.P.
P.O. Box 505
Belle Vernon, PA 15012
If to the Seller: Willowbrook Properties, Inc.
c/o NBI, Inc.
1880 Industrial Circle
Longmont, CO 80501
With a copy to: Morris D. Weiss, Esq.
c/o NBI, Inc.
12400 Highway 281 North
San Antonio, TX 78216
or to such other address as the parties may from time to time designate by
notice in writing to the other parties.
16. MISCELLANEOUS.
16.1 SEVERABILITY. If any clause or provision of this Agreement
is held to be illegal, invalid or unenforceable, or the application
thereof to any person or circumstance shall to any extent be illegal,
invalid or unenforceable, under present or future laws effective during
the term hereof or of any provisions hereof which survive the Closing,
then and in any such event, it is the express intention of the parties
hereto that the remainder of this Agreement, or the application of such
clause or provision other than to those as to which it is held illegal,
invalid or unenforceable, shall not be affected thereby, and each clause
or provision of this Agreement and the application thereof shall be
legal, valid and enforceable to the fullest extent permitted by law.
16.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
16.3 SUCCESSORS AND ASSIGNS. This Agreement shall apply to, inure
to the benefit of and be binding upon and enforceable against the parties
hereto and their respective successors, assigns, heirs, executors,
administrators and legal representatives. Buyer may assign this Agreement
to any controlled, directly or indirectly, by Jay H. Lustig and, upon
delivery of written notice of such assignment to Seller and the
assumption of Buyer's obligations hereunder by the assignee, Buyer shall
be released from any further liability hereunder.
16.4 TIME.
16.4.1 The term "days" means calendar days. If the date for
performance of any action or for the expiration of any time period
shall fall on a weekend or a holiday honored by the federal
government, such date of performance or expiration shall be extended
until the next Monday or non-holiday, as applicable.
16.4.2 If full performance of this Agreement is not
completed by the Closing date provided for in this Agreement, as it
may be extended hereunder, either party shall have the right after
that date to declare time to be of the essence of this Agreement by
giving written notice to the other party. Such notice shall contain a
declaration that time is of the essence and shall fix the time, date
and place of final settlement, which shall not be less than seven (7)
days, nor more than fourteen (14) days after such notice.
16.5 SECTION HEADINGS; GENDER AND NUMBER. The headings inserted
at the beginning of each Section are for convenience of reference only and shall
not limit or otherwise affect or be used in the construction of any of the
terms or provisions hereof. The plural shall include the singular and the
singular, the plural, wherever the context so admits. The use of any one
gender includes all others.
16.6 POSSESSION. Exclusive possession of the Property (except for
Permitted Exceptions) shall pass to Buyer at the Closing, at which time Buyer
will be deemed to have acknowledged that it has inspected the Property and has
agreed to accept it in its then condition.
16.7 PREPARATION OF AGREEMENT. In the event of a dispute between
the Buyer and Seller as to this Agreement, no party shall be entitled to the
benefit of any principle of contract construction premised upon the relative
bargaining power of the parties, the identity of the party partly or wholly
responsible for drafting the portion of the Agreement giving rise to the
dispute, contra proferentum, contracts of adhesion, or any similar contract
construction principle.
16.8 EXHIBITS. All exhibits attached hereto are incorporated
herein by reference and made a part hereof as if fully rewritten or reproduced
herein.
16.8.1 ENTIRE AGREEMENT. This Agreement contains all the
terms, promises, covenants, conditions and representations made or entered into
by and between the Seller and Buyer, and supersedes all prior discussions and
agreements, whether written or oral, between the Seller and Buyer with respect
to the conveyance
of the Property and all other matters contained herein and constitutes the
sole and entire agreement between the Seller and Buyer with respect thereto.
16.9 WAIVER OF TENDER. Formal tender of the Deed and of the
Purchase Price are hereby waived.
16.10 COAL NOTICE. THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER,
INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHT OF SUPPORT UNDERNEATH THE
SURFACE LAND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH
COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COAL AND, IN THAT
CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE,
BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. THE INCLUSION OF THIS NOTICE
DOES NOT ENLARGE, RESTRICT OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE
CREATED, TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT.
16.11 RECORDING. The Buyer acknowledges that the parent company of
the Seller, NBI, Inc., will file this agreement as an exhibit to a filing with
the Securities and Exchange Commission.
16.1 SEWAGE NOTICE. The Property is served by a community sewage
system.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under proper authority, the day and year first above written.
WILLOWBROOK PROPERTIES, INC.
By: /S/Jay H. Lustig
Jay H. Lustig, President
BELLEVUE PARTNERS, L.P.,
a Pennsylvania limited partnership
By: J.H.L. Holdings, Inc.,
a California corporation, General Partner
By: /S/Jay H. Lustig
Jay H. Lustig, President
SCHEDULE OF EXHIBITS
Exhibit Document
A Property Description
B Deed
C Permitted Exceptions
D Promissory Note
E Reserved
F Permits
EXHIBIT A
PROPERTY DESCRIPTION
ALL that certain tract of land situate in Rostraver Township,
Westmoreland County, Pennsylvania, the same being more particularly bounded
and described as follows:
BEGINNING at a point in or near the center line of a certain improved
road (Route 51); said point being situate at the Northwesterly corner of a
certain other tract containing 20.13 acres heretofore conveyed by the
Pittsburgh Coal Company to Edgar Dunn and wife, by deed dated July 26, 1937;
thence from said point of beginning and along line of tract now or formerly of
Joseph Kuma, North 9 3' East, 1911.48 feet to a point; thence along line of
said tract, South 60 22' East, 231.0 feet to a point; thence along line of
tract now or formerly of J.P. Ward, South 53 07' East, 531.3 feet to a point
thence along line of tract now or formerly of James Stewart the following five
courses and distances, viz: South 38 56' East, 502.19 feet to a point; thence
South 49 35' East, 713.57 feet to a post; thence South 55 48' East, 722.49
feet to a post; thence South 38 27' East, 481.29 feet to a post; thence South
55 37' East, 22.75 feet to a point; thence along line of tract now or
formerly of William Scholl, South 12 12' West, 314.41 feet to a point in a
certain public road; thence in said public road partly along line of tract
containing 12.028 acres conveyed by said Pittsburgh Coal Company to Lulu
Martin by deed dated June 2, 1934, and partly through the original tract
(known as the James H. Moore tract of 175.307 acres), of which the herein
described tract is a part, North 56 48' West, 388.50 feet to a point in said
public road; thence by line through said original tract, South 14 04' West,
805.67 feet to a point in or near the center line of said improved road (Route
51); thence in said improved road through said original tract and partly along
line of tract heretofore conveyed to Edgar Dunn and wife, as aforesaid, North
63 07' West, 2370.20 feet to a point at the place of beginning.
CONTAINING 88.163 acres.
EXCEPTING and reserving from subject property all that certain parcel of
land containing 0.393 acre as conveyed by Maude G. Smith, widow and Dorothy G.
Smith, single to James Sabo and Margaret Sabo, his wife, dated November 27,
1979 and recorded in Deed Book Volume 2346, page 449.
BEING the same premises conveyed to Willowbrook Properties, Inc. by deed
of Darla J. Jones, unmarried and Della M. Ewart and Robert Ewart, her husband,
dated January 4, 1997, and recorded in Deed Book Volume 3467, page 101.
EXHIBIT C
PERMITTED EXCEPTIONS
1. Excepting and reserving all coal and mining rights, oil and gas and
appurtenant rights and right to maintain and operate a line of telegraph,
telephone and power poles as set forth in deed from Pittsburgh Coal Company to
Jesse Smith, et ux., dated April 6, 1939 and recorded in Deed Book Volume
1030, page 458.
2. The following rights of way:
a) Grantor: Jesse Smith and Maude G. Smith
Grantee: Manufacturers Light and Heat Company
granted by instruments dated November 1, 1954, and recorded
in Deed Book Volume 1548, page 304, for 8 inch pipeline.
b) Grantor: Willowbrook Properties, Inc. d/b/a NBI Development
Corporation
Grantee: Municipal Authority of Westmoreland County granted by
instrument dated May 20, 1999, and recorded in Deed Book Volume 3675,
page 352, for 8 inch water line.
Memorandum of Lease by and between Supervalu Holdings, Inc. and Willowbrook
Properties, Inc. (a memorandum of which is) dated March 16, 1999 and recorded
in Deed Book Volume 3665, page 154.
Drainage easements and easements in slopes of cuts and fills along the State
or Federal road known as SR 0051.
The following matters as set forth in the plan of lots entitled as Willowbrook
Plan of Lots, recorded in Plan Book Volume 91, page(s) 1441:
a) Rights of the public and others entitled thereto in and to the use
of that portion of the premises within the bounds of SR 0051.
b) Peoples Gas line pump station and gas well through northwesterly
portion of premises.
c) Columbia Gas line through westerly portion of premises.
d) Fence encroachment in northeasterly portion of premises.
e) NOTE: No habitable structure to be built nor further subdivision
of the area remaining unless approved for sewage. For approval the Township
Sewage Enforcement Officer must be contacted.
EXHIBIT F
LIST OF CONTRACTS AND PERMITS
Lease dated March 16, 1999 between Supervalu Holdings, Inc. and Willowbrook
Properties, Inc. d/b/a NBI Development Corporation, as amended by a First
Amendment to Lease dated September 24, 1999.
Drainage Agreement dated September 24, 1999 between Willowbrook Properties,
Inc. d/b/a NBI Development Corporation and Della M. Ewart and Darla J. Jones.
Highway Occupancy Permit issued by the Commonwealth of Pennsylvania Department
of Transportation on September 10, 1999.
Site Work Agreement dated April 30, 1999 (including Change Orders Nos. 1-8)
between NBI Development Corporation and Penn Transportation Services, Inc.
No-Lien Agreement dated April 30, 1999 between NBI Development Corporation and
Penn Transportation Services, Inc.
Permit for Discharge of Stormwater From Construction Activities No. PAS 10X080
issued to NBI Development Corporation by the Commonwealth of Pennsylvania
Department of Environmental Resources.
Site Paving Contract between Willowbrook Properties, Inc. and Peter J. Caruso
and Sons, Inc. dated November 17, 1999.
Architect's Agreement between Willowbrook Properties, Inc. and Turkhall
Associates, Inc. dated May 1, 1999.
Agreement for Engineering Services between McMillen Engineering Inc. and NBI
Properties, Inc. dated April 19, 1998.
Agreement for Engineering Services between McMillen Engineering Inc. and NBI
Development, Inc. dated September 29, 1998, as revised on October 8, 1998, as
revised on October 29, 1998.
Grading Permit issued by Rostraver Township.
Sewer Connection Permit issued by Rostraver Township.
Building Permit No. 990181 issued to Willowbrook Properties, Inc. by Rostraver
Township on September 1, 1999.
EXHIBIT D
NON-NEGOTIABLE PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD, PLEDGED, ASSIGNED
OR TRANSFERRED UNLESS REGISTERED THEREUNDER OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION SHALL BE AVAILABLE.
$2,700,000.00 December 17, 1999
FOR VALUE RECEIVED, Bellevue Partners, L.P., a Pennsylvania limited
partnership ("MAKER"), promises to pay to Willowbrook Properties, Inc., a
Delaware corporation ("PAYEE"), in lawful money of the United States of
America, the principal sum of Two Million Seven Hundred Thousand Dollars
($2,700,000.00), together with interest in arrears on the unpaid principal
balance at an annual rate equal to the Applicable Rate, as defined below, in
the manner provided in this Promissory Note (this "NOTE" ) below. From and
after a payment default hereof by Maker not waived in writing by Payee,
interest will accrue on the unpaid principal amount of this Note until the
date payment is made in full at a rate equal to the interest rate provided in
the immediately preceding sentence, plus 4% per annum. Interest shall be
calculated on the basis of a year of 365 or 366 days, as applicable, and
charged for the actual number of days elapsed.
This Note has been executed and delivered pursuant to and in accordance
with the terms and conditions of a Purchase and Sale Agreement, dated November
30, 1999, between Maker and Payee (the "Purchase Agreement"). Capitalized
terms used in this Note without definition shall have the meanings given them
in the Purchase Agreement.
1. PAYMENTS.
1.1 PRINCIPAL AND INTEREST. The principal amount of this Note shall
be due and payable on December 31, 2006 or, following an Event of Default, as
determined pursuant to Section 2.1 hereof. Interest on the unpaid principal
balance of this Note shall be due and payable on the last day of each calendar
quarter, commencing March 31, 2000.
1.2 MANNER OF PAYMENT. All payments on this Note shall be made by
check at 1880 Industrial Circle, Suite F, Longmont, CO 80501, or at such
other place in the United States of America as Payee shall designate to Maker
in writing. If any payment of principal or interest on this Note is due on a
day that is not a Business Day, such payment shall be due on the next
succeeding Business Day, and such extension of time shall be taken into
account in calculating the amount of interest payable under this Note.
"Business Day" means any day other than a Saturday, Sunday or legal holiday in
the Commonwealth of Pennsylvania.
1.3 PREPAYMENT. Maker may, without premium or penalty, at any time
and from time to time, prepay all or any portion of the outstanding principal
balance due under this Note, provided that each such prepayment is accompanied
by accrued interest on the amount of principal prepaid calculated to the date
of such prepayment.
1.4 RIGHT OF SET-OFF. Maker shall have the right to withhold and
set-off against any amount due hereunder the amount of any claim for
indemnification or payment to which Maker may be entitled under the Purchase
Agreement.
1.5 APPLICABLE RATE. The Applicable Rate for the period from the
date hereof to and including December 31, 2000 is 8.14% per annum. Effective
on January 1, 2001 and on each January 1 thereafter, the Applicable Rate will
equal 200 basis points plus the current yield at the close of business on the
immediately preceding December 31 (or, if such day is not a Business Day, the
last Business Day of such year) on United States Treasury Notes with a
maturity of two years as reported on the "U.S. Treasuries" page of
www.bloomberg.com or, if such rate is not reported there, such other reporting
service as Payee may reasonably select.
2. DEFAULTS.
2.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an event of default hereunder ("EVENT OF
DEFAULT"):
2.1.1 If Maker shall fail to pay when due any payment on this
Note, or if Maker shall in any respect fail to comply
with the provisions of Section 3 hereof, and such failure
continues for 15 days after Payee notifies Maker thereof
in writing; provided, however, that the exercise by
Maker in good faith of its right of set-off pursuant to
Section 1.4 above, whether or not ultimately determined
to be justified, shall not constitute an Event of
Default.
2.1.2 If, pursuant to or within the meaning of the United
States Bankruptcy Code or any other federal or state
law relating to insolvency or relief of debtors (a
"BANKRUPTCY LAW"), Maker shall (i) commence a voluntary
case or proceeding; (ii) consent to the entry of an
order for relief against it in an involuntary case;
(iii) consent to the appointment of a trustee, receiver,
assignee, liquidator or similar official; (iv) make an
assignment for the benefit of its creditors; or (v) admit
in writing its inability to pay its debts as they become
due.
2.1.3 If a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (a) is for relief
against Maker in an involuntary case, (b) appoints a
trustee, receiver, assignee, liquidator or similar
official for Maker or substantially all of Maker's
properties, or (c) orders the liquidation of Maker,
and in each case the order or decree is not
dismissed within 120 days.
2.1.4 If Maker shall voluntarily suspend transaction of its
business, or shall consent to the taking of possession
by any official of all or any substantial part of its
property whether or not any such proceeding is
instituted, shall dissolve, wind-up or liquidate itself
or any substantial part of its property, or shall take
any action in furtherance of any of the foregoing.
2.1.5 If Jay H. Lustig shall at any time fail to have, directly
or indirectly, control of the Maker.
2.1.6 If an "Event of Default" occurs under that certain
promissory note in the principal amount of $1,100,000
from Tybojen, Inc., an affiliate of the Maker, to NBI
Properties, Inc., an affiliate of the Payee.
2.2 NOTICE BY MAKER. Maker shall notify Payee in writing within five
days after the occurrence of any Event of Default of which Maker acquires
knowledge.
2.3 REMEDIES. If an Event of Default hereunder has not been cured or
waived by Payee, Payee may, at its option, (i) by written notice to Maker,
declare the entire unpaid principal balance of this Note, together with all
accrued interest thereon, immediately due and payable regardless of any prior
forbearance, and (ii) exercise any and all rights and remedies available to it
under this Note and under applicable law, including, without limitation, the
right to collect from Maker all sums due under this Note. Maker shall pay all
reasonable costs and expenses incurred by or on behalf of Payee in connection
with Payee's exercise of any or all of its rights and remedies under this
Note, including, without limitation, reasonable attorneys' fees.
3. REPRESENTATIONS AND COVENANTS.
3.1 SINGLE PURPOSE ENTITY. Maker represents to Payee that Maker is and
has at all times since its formation been a Single Purpose Entity. "Single
Purpose Entity" shall mean an entity that exists solely for the purpose of
acquiring, developing, financing, managing and owning the Property, that
conducts business only in its own name, that does not engage in any business
or have any assets unrelated to such purpose, that does not have any
indebtedness other than that related to such purpose, that has its own
separate books, records, and accounts (with no commingling of assets), that
holds itself out as being an entity separate and apart from any other entity,
and that observes partnership formalities independent of any other entity.
3.2 LEGAL EXISTENCE; NAME, ETC. Maker shall preserve and keep in full
force and effect its existence as a Single Purpose Entity, franchises, rights
and privileges under the laws of the state of its formation, and all
qualifications, licenses and permits applicable to the ownership, use and
operation of the Property. Maker shall not wind up, liquidate, dissolve,
reorganize, merge, or consolidate with or into, or convey, sell, assign,
transfer, lease, or otherwise dispose of all or substantially all of its
assets, or acquire all or substantially all of the assets of the business of
any Person. Maker shall conduct business only in its own name and shall not
change its name, identity, or organizational structure unless Maker shall have
obtained the prior written consent of Payee to such change.
4. MISCELLANEOUS.
4.1 WAIVER. The rights and remedies of Payee under this Note shall
be cumulative and not alternative. No waiver by Payee of any right or remedy
under this Note shall be effective unless in a writing signed by Payee.
Neither the failure nor any delay in exercising any right, power or privilege
under this Note will operate as a waiver of such right, power or privilege and
no single or partial exercise of any such right, power or privilege by Payee
will preclude any other or further exercise of such right, power or privilege
or the exercise of any other right, power or privilege. To the maximum extent
permitted by applicable law, (i) no claim or right of Payee arising out of
this Note can be discharged by Payee, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by Payee; (ii)
no waiver that may be given by Payee will be applicable except in the specific
instance for which it is given; and (iii) no notice to or demand on Maker will
be deemed to be a waiver of any obligation of Maker or of the right of Payee
to take further action without notice or demand as provided in this Note.
Maker hereby waives presentment, demand, protest and notice of dishonor and
protest.
4.2 NOTICES. Any notice required or permitted to be given hereunder
shall be given in accordance with the Purchase Agreement.
4.3 SEVERABILITY. If any provision in this Note is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Note will remain in full force and effect. Any provision of this Note
held invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
4.4 GOVERNING LAW. This Note will be governed by the laws of the
Commonwealth of Pennsylvania without regard to conflicts of laws principles.
4.5 PARTIES IN INTEREST. This Note shall bind Maker and its
successors and assigns. This Note shall not be assigned or transferred by
Payee without the express prior written consent of Maker, except by operation
of law.
4.6 MAXIMUM INTEREST. Notwithstanding anything to the contrary
contained in this Note, no interest shall accrue or be payable hereunder that
is in excess of the maximum amount permitted under the applicable law relating
to usury.
IN WITNESS WHEREOF, intending to be legally bound, Maker has executed and
delivered this Note as of date first above written.
BELLEVUE PARTNERS, L.P.
By: /S/Jay H. Lustig
Name: Jay H. Lustig
Title: President of JHL Holdings, Inc.,
General Partner
EXHIBIT B
SPECIAL WARRANTY DEED
MADE on this 17th day of December, 1999 by WILLOWBROOK PROPERTIES,
INC., a Delaware corporation, d/b/a NBI Development Corporation
(hereinafter called "GRANTOR" )
and
BELLEVUE PARTNERS, L.P., a Pennsylvania limited partnership
(hereinafter called "GRANTEE" ).
WITNESSETH, that the Grantor, in consideration of the sum of THREE MILLION
THREE HUNDRED THOUSAND AND 00/100 DOLLARS ($3,300,000.00) paid to the Grantor
by the Grantee, the receipt of which is hereby acknowledged, does grant,
bargain, sell and convey to the Grantee, its successors and assigns:
ALL that certain tract of land situate in Rostraver Township, Westmoreland
County, Pennsylvania, being more particularly described as follows:
BEGINNING at a point in or near the center line of a certain improved road
(Route 51), said point being situate at the Northwesterly corner of a certain
other tract containing 20.13 acres heretofore conveyed by the Pittsburgh Coal
Company to Edgar Dunn, et ux., by deed dated July 26, 1937; thence from said
point of beginning and along line of tract now or formerly of Joseph Kuma,
North 9 3' East, 1761.69 feet to a point; thence North 81 27' 19 East,
226.87 feet to a point; thence along line of tact now or formely of J. P.
Ward, South 53 07' East, 531.30 feet to a point; thence along line of tract
now or formerly of James Stewart, the following five courses and distances,
viz: South 38 56' East, 502.19 feet to a point; thence South 49 35' East,
713.57 feet to a post; thence South 55 48' East, 722.49 feet to a post;
thence South 38 27'East, 481.29 feet to a post; thence South 55 37' East,
22.75 feet to a point; thence along line of tract now or formerly of William
Scholl, South 12 12'West, 314.41 feet to a point in a certain public road;
thence in said public road partly along line of tract containing 12.028 acres
conveyed by said Pittsburgh Coal Company to Lulu Martin by deed dated June 2,
1934, and partly through the original tact (known as the James H. Moore tract
of 175.307 acres), of which the herein described tract is a part, North 56
48' West, 388.50 feet to a point in said public road; thence by line through
said original tract, South 14 04' West, 805.67 feet to a point in or near the
center line of said improved road (Route 51); thence in said improved road
through said original tract and partly along line of tract heretofore conveyed
to Edgar Dunn, et ux., as aforesaid, North 63 07' West, 2370.20 feet to a
point at the place of BEGINNING.
BEING the same property which Della M. Ewart and Robert Ewart, her husband,
and Darla J. Jones, unmarried, by Corrective Deed dated November 28, 1997, and
recorded on December 12, 1997, in the Westmoreland County Recorder of Deeds'
Office in Deed Book Volume 3545, page 55, granted and conveyed to Willowbrook
Properties, Inc., Grantor herein.
BEING the same property a portion of which was subdivided pursuant to that
certain subdivision plan entitled Willowbrook Plan of Lots recorded on
January 28, 1999, in the Westmoreland County Recorder of Deeds' Office in Plan
Book Volume 91, page 1441.
BEING designated as Tax Parcel Number 56-09-71 in the records of the Deed
Registry Office of Westmoreland County.
UNDER AND SUBJECT to all rights-of-way, easements, restrictions, reservations,
exceptions, and other matters as set forth in prior instruments of record or
which would be apparent upon an accurate survey and an inspection of the
property.
TOGETHER with all rights and appurtenances: TO HAVE and TO HOLD the same to
and for the use of the Grantee, its successors and assigns forever, and the
Grantor for itself, its successors and assigns, hereby covenants and agrees
that it will WARRANT SPECIALLY the property hereby conveyed.
NOTICE--THIS DOCUMENT MAY NOT/DOES NOT SELL, CONVEY, TRANSFER, INCLUDE OR
INSURE THE TITLE TO THE COAL AND RIGHT OF SUPPORT UNDERNEATH THE SURFACE LAND
DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY
HAVE/HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COAL AND, IN THAT
CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE,
BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. THE INCLUSION OF THIS NOTICE
DOES NOT ENLARGE, RESTRICT OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE
CREATED, TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT. [This notice
is set forth in the manner provided in Section 1 of the Act of July 17, 1957,
P.L. 984, as amended, and is not intended as notice of unrecorded instruments,
if any.]
IN WITNESS WHEREOF, the Grantor has caused this Special Warranty Deed to
be executed on the day and year first written above.
WILLOWBROOK PROPERTIES, INC.,
a Delaware corporation, d/b/a NBI Development
Corporation
By: /S/Jay H. Lustig
Jay H. Lustig
President
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ALLEGHENY )
On this 17th day of December 1999, before me, the undersigned
officer, personally appeared Jay H. Lustig, who acknowledged himself to be the
President of Willowbrook Properties, Inc., a Delaware corporation, d/b/a NBI
Development Corporation, and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as the President of the
corporation.
In Witness Whereof, I hereunto set my hand and official seal.
/S/Dorothy A. Brown
Notary Public
My Commission Expires:
Notarial Seal
Dorothy A. Brown, Notary Public
Pittsburgh, Allegheny County
My Commission Expires Nov. 23, 2000
Member, Pennsylvania Association of Notaries
NOTICE THE UNDERSIGNED, AS EVIDENCED BY THE SIGNATURE(S) TO THIS NOTICE
AND THE ACCEPTANCE AND RECORDING OF THIS DEED, (IS, ARE) FULLY COGNIZANT OF
THE FACT THAT THE UNDERSIGNED MAY NOT BE OBTAINING THE RIGHT OF PROTECTION
AGAINST SUBSIDENCE, AS TO THE PROPERTY HEREIN CONVEYED, RESULTING FROM COAL
MINING OPERATIONS AND THAT THE PURCHASED PROPERTY, HEREIN CONVEYED, MAY BE THE
OWNERS OF THE ECONOMIC INTEREST IN THE COAL. THIS NOTICE IS INSERTED HEREIN
TO COMPLY WITH THE BITUMINOUS MINE SUBSIDENCE AND LAND CONSERVATION ACT OF
1966.
WITNESS: BELLEVUE PARTNERS, L.P.
/s/ Morris D. Weiss a Pennsylvania limited partnership
By: J.H.L. Holdings, Inc., a
California corporation, its
general partner
By: /s/Jay H. Lustig
Jay H. Lustig
President
CERTIFICATE OF RESIDENCE
I hereby certify that (1) FOR THE PURPOSE OF DELIVERY OF TAX STATEMENTS
ONLY the precise residence of Grantee is 100 Wilshire Boulevard, Suite 1700
Santa Monica, CA 90401 and (2) FOR ALL OTHER PURPOSES (including delivery of
assessment change notices) the precise residence of Grantee is 100 Wilshire
Boulevard, Suite 1700 Santa Monica, CA 90401.
Witness the due execution hereof this 17 day of December, 1999.
BELLEVUE PARTNERS, L.P.,
a Pennsylvania limited partnership
BY: J.H.L. HOLDINGS, INC., a California
corporation, its general partner
By: /S/ Jay H. Lustig
Jay H. Lustig
President