Exhibit 3.32
AGREEMENT
THIS AGREEMENT, made and entered into this day of
1990, among XXXXXXXXXX COMPANY, a Montana corporation with principal office at
0000 Xxxxxx Xxxxxx, Xxxxx, XX, hereinafter referred to as "Seller". and
CENTENNIAL FOODS, INC., an Idaho corporation, 000 Xxxx Xxxxxxxxxx, Xxxxxxx, XX
00000, hereinafter referred to as "Buyer" and MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION, with office at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxx, 00000, hereinafter called "DNRC".
WITNESSETH:
In consideration of their mutual promises and other good and valuable
consideration, the parties agree as follows:
1. Property Sold: The Seller agrees to sell and convey to Buyer by good
and sufficient xxxx of sale or other appropriate instrument of transfer, the
following assets located in Dillon, Montana:
(1) All assets associated with the existing alcohol plant
presently owned by Seller.
(2) The building housing the alcohol plant, which is removable
from the real estate on which it sits [said real estate to remain
Seller's but shall be leased to Buyer along with additional acreage
(agreed to be approximately 1.25 acres, more or less, the exact acreage
and description to be determined by survey) under separate agreement
for a period of ten (10) years].
2. Consideration: In consideration for the sale of the property
described in 1. above, Buyer shall:
(1) Pay off Seller's loan related to these assets at the
Montana Bank of Butte, N.A. in the approximate amount of $56,769.35.
(2) Assume the Seller's obligation to the DNRC in the
approximate amount of $214,879.97.
3. Option to Buyer: So long as Buyer is not in default under this
contract, the obligation to the DNRC, or the lease to be entered into by the
parties, Buyer shall have an Option to Purchase the acreage under said lease
under the following terms:
(1) The option may not be exercised prior to five years from
the date of the execution of this Agreement.
(2) Buyer shall pay to Seller the sum of $2,500.00 in cash.
(3) Buyer shall be responsible for the subdivision of the
property in accordance with the Montana Subdivision and Platting Act
and all pertinent local regulations, all at Buyer's expense. The
subdivision of the property shall be a condition precedent to the
transfer of the real property from Seller to Buyer.
4. Access to Property Sold and Leased: Seller shall provide Buyer a
perpetual access to the boundary of the property sold and leased, at least sixty
(60) feet in width, from the East Bench county irrigation road, suitable for
Buyer's use of the property as a commercial waxy barley processing plant.
5. Use of Truck Scale: Buyer shall have the use of Seller's truck scale
at all reasonable times at no additional consideration.
6. Survey: Buyer shall cause surveys to be made of the:
(1) Property subject to the lease and option.
(2) Property subject to the perpetual casement.
7. Additional Documents and Agreements: The parties agree that after
the survey is complete the following additional documents shall be prepared and
agreed to:
(1) Lease and option.
(2) Perpetual easement
(3) Xxxx of Sale to all properties to be transferred with a
complete description and itemization of said properties attached. Said
attachments to contain an agreed allocation of the purchase price.
(4) Appropriate corporate resolutions of the Seller and of the
Buyer showing ratification of all actions contemplated herein by the
Shareholders and Directors of the respective parties. The parties
further agree that they each will act in good faith in negotiating
terms of all said documents.
8. Closing: The closing date of this transaction shall be on or before
Aug. 15, 1990 or such other date as the parties shall mutually agree in writing.
All documents to be agreed to under Section 7. above shall be prepared and ready
for signature at the closing with any required exhibits attached thereto.
9. Closing Agent: It is agreed that the Montana Bank of Butte will
prepare closing statements for this transaction and shall be the closing agent
for this transaction. Upon closing, said agent shall have the authority to
credit or debit Seller or Buyer for the prorated taxes, assessments and other
items of expense provided to be paid by Buyer or Seller. Upon signing the
closing statement the parties agree that it shall be binding upon such parties
and be a part of this Contract as though fully set forth. Seller and Buyer agree
that each party will pay one-half (1/2) of the fee charged by the closing agent.
10. Taxes and Assessments: Property taxes and assessments upon the
properties transferred shall be prorated as of the date of closing. Taxes and
assessments through the date of closing, and all prior taxes and assessments
shall be paid by the Seller. An subsequent taxes and assessments levied against
the properties shall be paid by Buyer.
11. Possession: Buyer shall be entitled to possession of the properties
sold and leased on the date of closing of this transaction or at such earlier
time and for such purposes as authorized in writing by Seller.
12. Full Disclosure and Independent Investigation: The Seller hereby
warrants to Buyer that the Seller has made a full and complete disclosure of all
pertinent data, information and knowledge that Seller might reasonably be in
possession of pertaining to the properties, including the disclosure that the
only liens affecting the properties to be sold hereunder are those to the
Montana Bank of Butte and the DNRC. Other than this express warranty of
disclosure the Seller makes no other warranties, express or implied, of any type
or nature. Buyer represents that Buyer has conducted an independent
investigation and inspection of the properties and has entered into this
Agreement in reliance upon such independent investigations. Buyer understands
and agrees that Seller has made no representations or, warranties other than
those set forth in this Agreement.
13. Water and Sewer Facilities: Buyer understands that it is
responsible for installationllation or maintenance of any water and sewer
facilities needed in conjunction with the premises.
14. Electrical, Telephone and Utilities: The Buyer understands that it
is responsible for the cost of installation or maintenance of electrical,
telephone and utilities services to the properties.
15. Attorneys' Fees and Costs: In the event it becomes necessary for
either party to retain counsel to enforce any right or privilege under this
Agreement, or in the event that either party shall be obligated to take any
action to terminate this Agreement or remove any cloud created hereby, then it
is agreed that the successful party shall be entitled to attorneys' fees and all
costs including but not limited to discovery and expert witness fees in the
successful pursuit of the action.
16. Miscellaneous Provisions:
(1) Interpretation: This Agreement shall be deemed to be made
and shall be construed in accordance with the laws of the State of
Montana. Whenever the context of this Agreement so requires, the
singular shall include the plural, the plural shall include the
singular, the whole shall include any part thereof, and any gender
shall include all other genders. The paragraph headings contained
herein are for convenience only and are not intended to define or limit
the scope of any provisions of this Agreement.
18. Agreement of the DNRC: In consideration of the covenants and
agreements of the parties herein contained, DNRC agrees that Buyer may assume
the outstanding loans to it which encumber the property transferred hereunder,
upon the following conditions:
(1) DNRC will retain a first-security position on all existing
alcohol plant equipment.
(2) DNRC will retain Xxx Xxxxxxxxxx'x personal guarantee on
the portion of the loan that covers the upgrade (currently estimated at
$96,156.00).
(3) All interest paid by Xxxxxxxxxx on the DNRC portion of the
loan will be reapplied to principal on that portion. (4) Centennial
will pay off the loan in five years at seven percent (7%) interest. The
first two years' payments will be interest-only payments. An estimated
repayment schedule, proposed by Centennial, is enclosed.
19. Legal Requirements: This Agreement is governed by all applicable
federal, state, and local laws, statutes or ordinances and all applicable rules,
regulations and standards established by the DNRC, including, but not limited to
the applicable provisions of the Alternative Renewable Energy Sources Act, Title
90, Chapter 4, Part 1, M.C.A. and the implementing rules adopted by the DNRC
thereunder, Title 35, Chapter 8, subchapter 1.
20. Public Information: As required by Section 90-4-106(5), M.C.A., all
information resulting from any research funded under the loan approved in this
Agreement shall be made available to the public.
21. Assignments, Transfers and Subcontracts: The parties mutually agree
that there will be no assignment, transfer, or subcontracting of this Agreement
or any interest in this Agreement unless agreed to by the parties hereto in
writing as provided in Section 24, Modifications.
22. Successors and Assigns: This Agreement shall be binding on all
successors and assigns of the parties.
23. Limits of Agreement: This Agreement contains the entire agreement
between the parties, and no statements, promises or inducements made by either
party or agents of either party that are not contained in this written Agreement
shall be valid or binding; and this Agreement may not be enlarged, modified, or
altered except as provided in Section 24, Modifications.
24. Modifications: No letter, telegram, or other communication passing
between the parties to this Agreement concerning any matter during this contract
period shall be considered a part of this Agreement unless it is distinctly
stated in such letter, telegram, or communication that it is to constitute part
of this Agreement, and such letter, telegram, or communication is attached as an
Appendix to this Agreement and is signed by an authorized representative of each
of the parties to this Agreement.
25. Record Keeping and Audits:
(1) Buyer shall maintain for the term of the loan adequate and
accurate records of all matters pertaining to the loan and shall make
such records available to the DNRC, the Legislative Auditor, or where
required by law, the Legislative Fiscal Analyst upon request. Upon any
refusal by the Buyer to allow access to the records by the DNRC, the
Legislative Auditor or where required by law, the Legislative Fiscal
Analyst for the purpose of auditing all accounting books, files and
records pertaining to the loan, or for any failure by the Buyer to
maintain required records pertaining to the loan, the loan shall be in
default. Upon such default, the DNRC may, at its discretion, declare
the loan's principal and accrued interest immediately due and payable,
and if necessary, initiate foreclosure proceedings upon the loan's
security through the Montana Bank of Butte.
(2) Buyer shall supply to the DNRC annual financial reports in
such form as required by DNRC until such time as the loan assumed
hereunder is fully repaid to the DNRC.
26. Montana Law and Venue: The parties agree that any action at law,
suit in equity, or judicial proceeding for the enforcement of this Agreement or
any provision thereof shall be instituted only in the courts of the State of
Montana, and it is mutually agreed that this Agreement shall be governed by the
laws of the State of Montana both as to interpretation and performance. In the
event of litigation concerning the terms of this Agreement, venue shall be in
the First Judicial District in and for the County of Xxxxx and Xxxxx, Montana.
27. Severability: It is understood and agreed by the parties hereto
that if any term or provision of this Agreement is by the courts held to be
illegal or in conflict with any Montana law, the validity of the remaining terms
and provisions shall not be affected, and the rights and obligations of the
parties shall be construed and enforced as if this Agreement did not contain the
particular term or provision held to be invalid.
28. Execution: This Agreement consists of seven (7) pages and it shall
be executed in triplicate, each of which shall be considered to be an original.
29. Condition of Agreement: This agreement contemplates that the Buyer
will have arranged project financing of $2,866,000.00 by August 15, 1990. In the
event the total project financing required is not in place by August 15, 1990,
then the obligations of all parties to this agreement shall cease and this
agreement shall on said August 15, 1990 become of no further force nor effect.
IN WITNESS WHEREOF, the parties, their heirs and personal
representatives have set their hands the day and year first written above.
SELLER: BUYER:
XXXXXXXXXX COMPANY, CENTENNIAL FOODS, INC.
a Montana corporation an Idaho corporation
BY: /s/ Xxxxxx X. Xxxxxxxxxx BY: /s/Xxx Xxxxx
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Its Pres. Its President
DNRC:
BY: /s/Xxxxx X. Xxxxxxx Director
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