MEMORANDUM OF AGREEMENT
THIS MEMORANDUM AGREEMENT is made and entered into this ______ day of
September, 1997, by and between XXXXXXX XXXX, a married man dealing with his
sole and separate property ("Seller") and MONROC, INC., a Delaware corporation
("Buyer"):
RECITALS:
Monroc desires to purchase from Xxxx and Xxxx desires to sell to Monroc
certain real property owned by Xxxx located in Middleton, Canyon County, Idaho,
consisting of two parcels containing approximately 73 total acres of land
(generally shown on Exhibit "A" attached hereto as "Parcel Xxxx-1" and "Parcel
Xxxx-2"), including an area now subject to a railroad right-of-way, and
including all rights, interests and claims of Seller to an additional four acres
adjoining Parcel Xxxx-1 in an area bounding the Boise River, together with all
improvements, water, mining and mineral rights, beneficial easements and other
appurtenances owned by Seller (collectively the "Property").
The property is located in the East half of the Southeast quarter and Xxx 0
xx Xxxxxxx 00, xxxxxxxx 0 Xxxxx, Xxxxx 2 West of the Boise Meridian, Canyon
County, Idaho, excepting therefrom: the East 25 feet of said East half of the
Southeast quarter of said Lot 3. Prior to closing, the Property will be more
particularly described by metes and bounds on a mutually approved survey at
Buyer's expense; at such time as the descriptions are available and will be
attached hereto as Exhibit "B" and shall be the descriptions for the purpose of
completing this transaction.
NOW, THEREFORE, for valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the parties covenant and agree as
follows:
1. PURCHASE PRICE: The price to be paid for the property will be Seven
Hundred Fifty Thousand and no/100ths ($750,000.00) ("Purchase Price") payable in
the following manner:
(a) Thirty-five Thousand and no/100ths Dollars ($35,000.00) xxxxxxx money
("Xxxxxxx Money Deposit") payable upon the parties' execution of this Agreement,
which shall become non-refundable to Buyer upon expiration of the Review Period
as hereinafter set forth, excepting only Seller's inability to deliver good and
marketable title to the Property at closing or other failure to close which is
not the fault of the Buyer. The Xxxxxxx Money Deposit shall be credited against
the Purchase Price at closing.
(b) Twenty-five percent (25%) of the Purchase Price shall be payable in
cash at closing, less the Xxxxxxx Money Deposit. The balance shall be payable to
Seller under the terms of a promissory note secured by a first mortgage on the
Property, together with interest thereon at the rate of nine percent (9%) per
annum, principal and interest payable monthly fully amortized over ten (10)
years.
(c) If on or before December 31, 1997, Buyer has not obtained necessary
governmental approvals for its anticipated uses of the Property, Buyer at its
option may terminate this Agreement and, excepting Seller's retention of the
Xxxxxxx Money Deposit, the parties shall have no further obligation or liability
to each other.
2. REVIEW PERIOD/XXXXXXX MONEY: The parties agree that Buyer will have a
thirty (30) day period following the execution of this Agreement ("Review
Period") to enter upon the Property and to conduct such inspection,
environmental and geological testing as it deems appropriate, including the
drilling of test holes. Test holes will be limited to pasture or areas deemed
suitable by Seller, and if for any reason the Buyer does not complete the
purchase as provided herein Buyer shall immediately refill all test holes in a
manner acceptable to Seller. Buyer will also review and approve or state any
objections to a preliminary title commitment. If these conditions are not met to
Buyer's satisfaction by the expiration of the Review Period, Buyer shall be
entitled to receive the refund of the Xxxxxxx Money Deposit, this Agreement will
terminate, and the parties will have no further obligation or liability to each
other except for Buyer's cleanup if the same has not already been completed.
3. BUYER'S BOARD APPROVAL: It shall be a condition to closing that Buyer's
Board of Directors give its approval for the purchase of the Property by the
expiration of the review period. In the event Buyer satisfactorily completes its
review within the Review Period but does not receive the approval of its Board
of Directors, then Buyer shall forfeit its Xxxxxxx Money Deposit.
4. USE OF THE PROPERTY: The parties acknowledge that Buyer's intended use
of the Property is for construction of a ready-mix concrete plant, gravel
mining, production of pre-stress and pre-cast concrete products, construction of
roads, and ancillary uses, and will include noise, dust and trafficking of heavy
equipment. Seller will reasonably cooperate in obtaining the necessary zoning
approvals for this intended use.
5. RAILROAD RIGHT OF WAY: It shall be a condition of closing that the
portion of the property in Parcel Xxxx-2 now subject to a railroad right-of-way
shall be deeded to Buyer free and clear of any interest by the railroad or any
third party. It shall be the responsibility of Seller at his expense prior to
closing to obtain necessary documentation from the railroad releasing and/or
vacating the right-of-way for the benefit of Monroc.
6. BUILDING PERMITS: Buyer acknowledges that Seller has been granted three
building permits for the Property by the Canyon County Planning and Zoning
Department, and the parties agree that such building permits shall remain in the
name of the Seller. Buyer agrees to cooperate with Seller in having the building
permits transferred from the Property to other real property owned by Seller.
7. CLOSING/TITLE:
(a) The closing of the purchase of the Property will occur on the earlier
of 30 days following final governmental approvals or December 31, 1997, or on
such other date as the parties shall mutually agree. The Property will be
conveyed by general warranty deed at closing, free and clear of all
indebtedness, liens, claims and encumbrances, including the railroad
right-of-way, excepting, however, easements, restrictions and reservations as
approved by Buyer. In the event that there are any unpaid liens on the date of
closing, Buyer may cause any such indebtedness to be paid and credited against
the price.
(b) Seller will at its cost provide a title insurance policy insuring the
interest of Monroc in the amount of the Purchase Price an showing that the
Property is free and clear of all indebtedness, liens and encumbrances excepting
only those matters which Buyer has approved following its review of the title
commitment.
(c) Closing will occur at the offices of Pioneer Title Company in Caldwell,
Idaho, who will also provide the preliminary title commitment and title policy.
Except for the cost of title insurance, which is Seller's responsibility, the
parties will slit the closing costs 50-50 and pro-rate the taxes as of the date
of closing. Each party will be responsible for his or its own legal cost.
8. BROKER/REAL ESTATE FEES: The parties acknowledge that no realtors,
brokers or any person claiming a finder's fee are involved in this transaction.
9. RECORDING: Neither this Agreement nor any copy hereof shall be recorded
without the prior written consent of both parties having been obtained.
10. FURTHER ASSURANCES: The parties acknowledge that Buyer will be
incurring expenses to inspect, test and survey the Property, to seek Zoning
approvals and other preparatory activities in reliance on this Agreement. The
parties agree to execute any other documents necessary or appropriate to
effectuate the intention of the parties as expressed herein.
11. BINDING AGREEMENT: Upon Seller's execution of this Agreement it will
become a fully binding agreement between the parties, their heirs, successors
and assigns, and may only be modified by further written agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
_______________________________
Xxxxxxx Xxxx
MONROC, INC.
By ____________________________
Its
STATE OF IDAHO )
)ss.
County of Ada )
On this _______ day of September, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXXXXX XXXX, known or
identified to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public for Idaho
Residing at Boise, Idaho
My commission expires:
STATE OF IDAHO )
)ss.
County of Ada )
On this ___ day of September, 1997, before me, the undersigned, a Notary
Public in and for said State, personally appeared , known or identified to me to
be the of MONROC, INC., the corporation that executed the within instrument or
the person who executed the instrument on behalf of said corporation, and
acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public for Idaho
Residing at Boise, Idaho
My commission expires:
