AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of
the 29th day of November, 1995, by, between and among
XXXXXXX REAL ESTATE HOLDINGS, INC., a Utah corporation with
its headquarters at 00000 Xxxx Xxxx Xxxxxxx, Xxxxxx, Xxxx
00000 ("XXXXXXX"); IDAHO STATE UNIVERSITY, a body politic
and corporate of the State of Idaho, of X.X. Xxx 0000,
Xxxxxxxxx, Xxxxx 00000 ("UNIVERSITY"); and, EASTERN IDAHO
STRATEGIC ALLIANCE, INC., an Idaho nonprofit corporation
with its headquarters at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxx 00000 ("EISA"). XXXXXXX, UNIVERSITY and EISA are
sometimes hereinafter collectively referred to as the
"parties."
RECITALS
X. XXXXXXX is a wholly-owned subsidiary of XXXXXXX MEDICAL
PRODUCTS, a manufacturer and marketer of specialized
medical products, and desires to acquire from EISA (for
the purpose of constructing a new manufacturing
facility) certain real property in Pocatello, Idaho
that currently is owned by UNIVERSITY (and which will
be conveyed by UNIVERSITY to EISA in exchange for
certain other real properties to be acquired by EISA as
described herein).
B. UNIVERSITY is the owner of a parcel of twenty (20)
acres of real property described in Exhibit "A" annexed
hereto and made a part of this Agreement by reference
(the "University Parcel"), and desires to exchange the
University Parcel for certain real properties to be
acquired by EISA (which properties can be used for
UNIVERSITY purposes). The University Parcel is located
in the Idaho State University Research and Business
Park.
C. EISA is a non-profit economic development organization
that desires, through the combined funding of LOCKHEED
IDAHO TECHNOLOGIES COMPANY ("LOCKHEED"), EISA and, to
the extent described herein, UNIVERSITY, to acquire
certain real properties described in Exhibit "B"
annexed hereto and made a part of this Agreement by
reference, which properties will be conveyed by EISA to
UNIVERSITY in exchange for the aforementioned
University Parcel (which already will have been
conveyed by UNIVERSITY to EISA and re-conveyed by EISA
to XXXXXXX as described herein).
D. LOCKHEED is the primary contractor at the Idaho
National Engineering Laboratory, and already has
provided to EISA the sum of $200,000.00 to assist EISA
in the acquisition of certain real properties which
EISA thereafter will convey to UNIVERSITY (in exchange
for the aforementioned University Parcel that already
will have been conveyed by UNIVERSITY to EISA and re-
conveyed by EISA to XXXXXXX as described herein).
E. The parties desire to set forth in this Agreement their
respective commitments and obligations in order to
achieve the aforementioned mutually-desired results.
F. Contemporaneously with the parties' execution of this
Agreement, Xxxxxxx is also entering into a Development
Agreement with UNIVERSITY and the City of Pocatello
(the "Development Agreement").
NOW THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, the parties agree
as follows:
1.0 EISA/UNIVERSITY EXCHANGE.
Pursuant to the "Real Estate Exchange Agreement"
annexed hereto as Exhibit "C," EISA will commit to convey to
UNIVERSITY on or before March 1, 1996 (or such later date to
which UNIVERSITY may expressly agree) the real properties
described in Exhibit "B," and UNIVERSITY immediately will
convey to EISA the University Parcel described in Exhibit
"A." EISA will cause the Warranty Deed it receives from
UNIVERSITY for the University Parcel to be immediately
recorded. After EISA acquires the properties described in
Exhibit "B," EISA promptly shall convey such properties to
UNIVERSITY, and UNIVERSITY will cause the Corporation
Warranty Deeds it receives from EISA for such properties to
be immediately recorded.
2.0 XXXXXXX'X ACQUISITION OF PROPERTY FROM EISA.
2.1 Upon UNIVERSITY's conveyance of the University Parcel
to EISA as described in Section 1.0, EISA will convey to
XXXXXXX (as evidenced by EISA's delivery to XXXXXXX of the
"Corporation Warranty Deed" annexed hereto as Exhibit "D,"
together with an ALTA owner's extended coverage title
insurance policy obtained by UNIVERSITY at its expense in
the amount of $240,000.00, insuring good and marketable
title in XXXXXXX), the University Parcel. XXXXXXX will cause
the Corporation Warranty Deed it receives from EISA to be
immediately recorded. (The closing of EISA's conveyance of
the University Parcel to XXXXXXX is referred to herein as
the "Xxxxxxx Closing." The date of the Xxxxxxx Closing is
referred to herein as the "Xxxxxxx Closing Date.")
2.2 EISA's conveyance of the University Parcel to XXXXXXX
will be made at no purchase price or other consideration to
be payable by XXXXXXX, other than XXXXXXX'x covenants in
this Agreement.
2.3 XXXXXXX'x obligation to consummate the transaction
described in Sections 2.1 and 2.2 above is subject to and
conditional upon the satisfaction or waiver of the following
conditions:
(a) The Xxxxxxx Closing Date shall be no later
than December 15, 1995.
(b) All of the representations and warranties of
UNIVERSITY set forth in Section 3.0 below
shall be true and accurate as of the Xxxxxxx
Closing Date.
(c) On the Xxxxxxx Closing Date, all of the
terms, covenants and conditions of this
Agreement and the various agreements annexed
hereto to be complied with or performed by
parties other than XXXXXXX on or before the
Xxxxxxx Closing Date shall have been fully
complied with or performed. In addition, on
the Xxxxxxx Closing Date, the Development
Agreement shall have been executed by all
parties thereto.
(d) As of the Xxxxxxx Closing Date, no material
adverse change shall have occurred since the
effective date of this Agreement as regards
the University Parcel, or as regards any of
the approvals given or conditions or
requirements imposed by any governmental
agency or by UNIVERSITY in connection with
XXXXXXX'x planned development of the
University Parcel, or as regards XXXXXXX'x
studies and research regarding its planned
development of the University Parcel.
If any of the above-described conditions is not satisfied,
XXXXXXX shall have the right, exercisable by written notice
delivered to the other parties hereto, to terminate its
obligation to consummate the Xxxxxxx Closing.
2.4 XXXXXXX covenants and agrees to use the University
Parcel for light manufacturing and fabrication. Subject to
UNIVERSITY's prior written approval (which approval shall
not unreasonably be withheld), XXXXXXX also may use the
University Parcel for other uses allowed under current or
future zoning laws and regulations, but at no time will
XXXXXXX use the land for any of the following uses, which
shall be prohibited:
(i) Manufacturing of cement, lime, gypsum, rock
wool or plaster of paris;
(ii) Refining of petroleum and crank case oil;
(iii) Milling or smelting of ore;
(iv) Garbage dumps or dead animals reduction;
(v) Stock yards, feed yards or xxxxxxxxx of
animals; or
(vi) Amusement enterprises.
This covenant shall run with the University Parcel.
2.5 If at any time after the closing XXXXXXX desires to
sell the property conveyed to it by EISA (as improved),
UNIVERSITY shall have the right of first refusal to
repurchase such property (including all improvements
thereon), at the fair market value of the property (as
improved). XXXXXXX shall give UNIVERSITY written notice of
any bona fide written offer XXXXXXX receives for the
property (as improved) which offer XXXXXXX desires to accept
(the "First Notice"). UNIVERSITY shall have the period of
thirty (30) days after XXXXXXX gives the First Notice to
exercise its right of first refusal by written notice of
exercise to XXXXXXX (the "Second Notice"). Upon XXXXXXX'x
receipt of the Second Notice from UNIVERSITY:
(a) Each party shall pay for and obtain a
separate MAI appraisal on the property (as
improved). The fair market value of the
property (as improved) shall be the mean of
both appraisals.
(b) Closing of the purchase and sale shall occur
within ten (10) days after the two written
appraisals are received by both parties. The
purchase price will be paid in cash at the
closing.
If UNIVERSITY does not exercise its right of first refusal
strictly as provided herein, the right shall lapse.
2.6 UNIVERSITY covenants and agrees that all of its
representations, warranties and covenants (including without
limitation the indemnification obligations) made in the
following documents or by operation of law shall inure to
the benefit of, and be fully enforceable by, XXXXXXX, and
XXXXXXX shall be an intended third-party beneficiary of all
such representations, warranties and covenants:
(a) Real Estate Exchange Agreement (Exhibit "C"
hereto); and,
(b) The Warranty Deed from UNIVERSITY to EISA
(Exhibit "3" to the Real Estate Exchange
Agreement).
3.0 REPRESENTATIONS AND WARRANTIES OF UNIVERSITY.
UNIVERSITY hereby represents and warrants to
XXXXXXX as follows:
(a) UNIVERSITY has all consents and approvals
required to enter into and perform this
Agreement and the Real Estate Exchange
Agreement.
(b) On or about September 21, 1995, the Idaho
State Board of Education, as Trustees for
UNIVERSITY, approved, and authorized Xxxxxxx
X. Xxxxx (President of UNIVERSITY) to execute
all documents necessary to consummate, the
transactions contemplated herein and in the
Real Estate Exchange Agreement.
(c) The execution, delivery and performance by
UNIVERSITY of this Agreement and said Real
Estate Exchange Agreement:
(i) are within UNIVERSITY's power;
(ii) have been duly authorized by all
necessary action;
(iii) require no action by and no filing with
any governmental body, court, agency or
official; and,
(iv) do not contravene, or constitute a
default under, any provisions of
applicable law or regulation or of any
agreement, judgment, injunction, order,
decree or other instrument binding upon
UNIVERSITY.
(d) There is no action, suit or proceeding
pending, affecting, or, to the knowledge of
UNIVERSITY, threatened against UNIVERSITY
before any court, arbitrator, or any
governmental body, agency, or official in
which there is a reasonable possibility of an
adverse decision which could materially
affect the University Parcel or which in any
manner would question the validity of this
Agreement or the conveyances contemplated
herein.
(e) This Agreement constitutes a valid and
binding agreement of UNIVERSITY.
(f) UNIVERSITY owns good and marketable title to
the University Parcel, free and clear of
liens and encumbrances.
4.0 FUNDING TO EISA.
The sources of the funds to be used by EISA in
acquiring the real properties described in Exhibit "B"
annexed hereto are as follows:
(a) LOCKHEED already has remitted to EISA the sum
of $200,000.00;
(b) EISA itself will provide $50,000.00,
consisting of its own funds and such other
funds as may be secured by EISA from other
sources; and,
(c) UNIVERSITY will provide up to $50,000.00 as
may be necessary for EISA to acquire real
properties acceptable to UNIVERSITY as part
of the exchange transaction between EISA and
UNIVERSITY described herein.
5.0 EISA'S ACQUISITION OF PROPERTIES.
Utilizing the combined funds described in Section
4.0 of this Agreement, EISA will acquire the real properties
described in Exhibit "B." Upon the closing of each such
acquisition, EISA will cause the Warranty Deeds it receives
from the respective sellers of such properties to be
immediately recorded.
6.0 EISA'S CONVEYANCE OF PROPERTIES TO UNIVERSITY.
Immediately upon the recording by EISA of the
respective Warranty Deeds for the real properties described
in Exhibit "B" as acquired by EISA pursuant to Section 5.0
above, EISA will convey each such parcel of real property to
UNIVERSITY (as evidenced by EISA's delivery to UNIVERSITY,
for each such parcel, of the form of "Corporation Warranty
Deed" annexed as Exhibit "4" to the Real Estate Exchange
Agreement). UNIVERSITY will cause the Corporation Warranty
Deeds it receives from EISA to be immediately recorded.
7.0 MISCELLANEOUS.
7.1 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed under the laws of the State of
Idaho, and the parties hereby submit to the exclusive
jurisdiction and venue of the courts located in the County
of Bannock, State of Idaho, for any dispute arising out of
this Agreement.
7.2 Binding on Successors. This Agreement shall be binding
upon and inure to the benefit of the respective parties and
their successors in interest.
7.3 Attorney Fees. In any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover
reasonable attorney fees from the non-prevailing party.
Determination of the prevailing party in any such litigation
shall be made on the basis of the factors enumerated in Rule
54(d)(1)(B), Idaho Rules of Civil Procedure, as the same now
exists or may subsequently be amended.
7.4 Prior Agreements. This Agreement supersedes all prior
agreements of the parties with respect to the properties
herein described, and any such prior agreements are hereby
rescinded.
7.5 Assignment; Amendment. None of the parties may assign
this Agreement, or any right or obligation hereunder,
without the prior written consent of all of the other
parties. No addition to or modification of any provision of
this Agreement shall be binding on any of the parties unless
made in writing and signed by the respective duly authorized
representatives of all of the parties.
7.6 No Merger. Neither the occurrence of any closing
contemplated by this Agreement nor the execution and
delivery of the various documents that are contemplated by
this Agreement to be executed and delivered in connection
with said closing(s) shall result in the termination or
extinguishment of this Agreement or the merger of this
Agreement into such documents.
7.7 Notices. Any notice required or permitted hereunder to
be given or transmitted from any party to another shall be
either personally delivered (including by courier service)
to, or mailed postage prepaid by United States mail directed
to, the address of the party concerned specified at the
beginning of this Agreement. Any party may, by notice to
the other parties given as prescribed in this Section 7.7,
change said address for any future notices which are given
under this Agreement. Any notice which is mailed shall be
effective only upon delivery thereof to the address which
applies for the party in question.
7.8 Execution by Facsimile and Counterparts. Signatures
sent via facsimile transmission shall constitute original
signatures. This Agreement may be executed separately or
independently in any number of counterparts, each and all of
which together shall be deemed to have been executed
simultaneously and for all purposes be one Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement the day and year first above written.
IDAHO STATE UNIVERSITY
(a body politic and corporate of the
State of Idaho)
Xxxxxxx X. Xxxxx
President
November 30, 1995
EASTERN IDAHO STRATEGIC ALLIANCE, INC.
Xxxxxx X. Xxxxxx
Project Director
November 30, 1995
XXXXXXX REAL ESTATE HOLDINGS, INC.
Xxxx X. Xxxxxxx
President
November 29, 1995
ISU
STATE OF IDAHO )
:ss
County of Bannock )
On this 30th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxxxxx X. Xxxxx, known or identified to me to be
the President of IDAHO STATE UNIVERSITY that executed the
within instrument, and acknowledged to me that IDAHO STATE
UNIVERSITY executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year first above
written.
Xxxxxxx X. Xxxxxx, Notary
My commission expires September 27, 0000
XXXX
XXXXX XX XXXXX )
:ss
County of Bannock )
On this 30th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxxxx X. Xxxxxx, known or identified to me to be
the Project Director of EASTERN IDAHO STRATEGIC ALLIANCE,
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 first above
written.
Xxxxxx Xxxxxxxx, Notary
My commission expires May 30, 0000
XXXXXXX
XXXXX XX XXXX )
:ss
County of Salt Lake )
On this 29th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxx X. Xxxxxxx, known or identified to me to be
the President of XXXXXXX REAL ESTATE HOLDINGS, 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 first above
written.
Xxxx X. Xxxxx, Notary
My commission expires April 23, 1997
EXHIBIT "A"
DESCRIPTION OF THE UNIVERSITY PARCEL
A tract of land in the northwest quarter of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 35 East, Boise Meridian, described
as follows:
Commencing at the northwest corner of Section 00, Xxxxxxxx 0
Xxxxx, Xxxxx 35 East, Boise Meridian; thence
South 89 degrees 44 minutes 03 seconds East along the north
line of Section 31 for a distance of 610.05 feet to a point
on the west line of the land associated with the Idaho State
Veterans Home; thence
South for a distance of 469.22 feet to the southwest corner
of the land associated with the Idaho State Veterans Home,
the TRUE POINT OF BEGINNING; thence
East along the south boundary line of the land associated
with the Idaho State Veterans Home for a distance of 496.84
feet; thence
South 08 degrees 07 minutes 22 seconds West for a distance
of 909.12 feet; thence
West for a distance of 903.77 feet; thence
North for a distance of 900.00 feet; thence
East for a distance of 535.39 feet to the point of
beginning.
Comprising 20.00 acres, more or less.
RETAINING THEREFROM:
An easement for the construction and maintenance of public
utility lines, extending over, under and across the easterly
fifteen (15.0) feet of the afore described tract of land.
EXHIBIT "B"
DESCRIPTION OF THE EISA PARCELS
Parcel 1 (The Xxxxxxxxx Property)
NW 1/4 SE 1/4 OF SECTION 31, TOWNSHIP 6 SOUTH,
RANGE 35 E.B.M., BANNOCK COUNTY, IDAHO.
EXCEPT: BEGINNING AT THE SOUTHEAST 1/16 XXXXXX XX
XXXXXXX 00, XXXXXXXX 0 XXXXX, XXXXX 35 E.B.M.,
THENCE NORTH ALONG THE EAST 1/16 LINE 400.0 FEET,
THENCE WEST PARALLEL TO THE SOUTH 1/16 LINE 544.5
FEET, THENCE SOUTH PARALLEL TO THE EAST 1/16 LINE
400.0 FEET, TO THE SOUTH 1/16 LINE, THENCE EAST
ALONG THE SOUTH 1/16 LINE 544.5 FEET TO THE POINT
OF BEGINNING. A TRACT OF LAND IN THE NW 0/0 XX
0/0 XXXXXXX 00, XXXXXXXX 0 XXXXX, XXXXX 35 E.B.M.,
BANNOCK COUNTY IDAHO.
ALSO EXCEPT: A STRIP OF LAND 75 FEET IN WIDTH,
WITH 37.5 FEET ON THE RIGHT AND LEFT OF THE
FOLLOWING DESCRIBED CENTERLINE BEGINNING AT A
POINT 37.5 FEET EAST OF THE XXXXXXXXX XXXXXX XX XX
0/0 XX 0/0, XXXXXXX 31, TOWNSHIP 6 SOUTH, RANGE 35
E.B.M., THENCE SOUTH AND PARALLEL TO THE
MERIDIONAL CENTERLINE OF SAID SECTION 31, TO THE
SOUTH 1/16 LINE OF THE SAME SECTION TO A POINT
37.5 FEET EAST OF THE SOUTHWEST CORNER OF THE NW
1/4 SE 1/4. THIS STRIP OF LAND IS LOCATED IN THE
SW 1/4 NE 1/4 AND THE NW 1/4 SE 1/4 OF SECTION 31,
TOWNSHIP 6 SOUTH, RANGE 35 E.B.M., BANNOCK COUNTY,
IDAHO.
Parcel 2
This parcel shall be mutually determined at a
subsequent date by EISA and UNIVERSITY, and shall have a
fair market value of not less than $126,320.00.
EXHIBIT "C"
REAL ESTATE EXCHANGE AGREEMENT
This REAL ESTATE EXCHANGE AGREEMENT (the "Agreement")
is made and entered into as of the 30th day of November,
1995, by and between EASTERN IDAHO STRATEGIC ALLIANCE, INC.
(hereinafter "EISA), a nonprofit corporation, with its
principal office located at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxx 00000, and IDAHO STATE UNIVERSITY
("University"), a body politic and corporate of the State of
Idaho, of X.X. Xxx 0000, Xxxxxxxxx, Xxxxx, 00000. EISA and
University are sometimes hereinafter collectively referred
to as the "parties."
RECITALS
WHEREAS, EISA will be acquiring certain real properties
located in Bannock County, State of Idaho, which properties
are more particularly described in Exhibit "1" attached
hereto and incorporated herein by this reference (the "EISA
Parcels"); and
WHEREAS, University is the owner of real property
located in Bannock County, State of Idaho, which property is
more particularly described in Exhibit "2" attached hereto
and incorporated herein by this reference (the "University
Parcel"); and
WHEREAS, EISA is willing to exchange the EISA Parcels
for the University Parcel upon the terms and conditions set
forth herein; and
WHEREAS, University is willing to exchange the
University Parcel for the EISA Parcels upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the exchange of
real properties and the mutual promises set forth herein,
EISA and University covenant, promise and agree as follows:
1. Exchange of Parcels: The parties agree to an
exchange of the parcels, the EISA Parcels for the University
Parcel, with the University Parcel to be conveyed to EISA
immediately upon execution of this Agreement by both
parties, and the EISA Parcels to be conveyed to University
on or before March 1, 1996 (or such later date to which
University may expressly agree). The parties agree that
time is of the essence in this matter and that extensions of
time will not be granted for insubstantial causes.
2. Conveyance of Properties: University, as Grantor,
immediately shall execute, acknowledge and deliver to EISA,
as Grantee, a Warranty Deed (in the form attached hereto as
Exhibit "3") transferring and conveying title to the
University Parcel (with existing water rights, improvements,
utilities and appurtenances, if any, thereon) to EISA.
Immediately upon its acquisition of the EISA Parcels, EISA,
as Grantor, shall execute, acknowledge and deliver to
University or its nominee, as Grantee, Corporation Warranty
Deeds (in the form attached hereto as Exhibit "4")
transferring and conveying title to the respective EISA
Parcels (with existing water rights, improvements, utilities
and appurtenances, if any, thereon) to University or its
nominee. Upon their respective deliveries, the
aforementioned deeds shall be immediately recorded by the
respective parties.
3. No Retention of Mineral Interests: EISA shall not
retain any mineral interests or rights in or to the EISA
Parcels upon transferring such parcels to University.
University shall not retain any mineral interests or rights
in or to the University Parcel upon transferring such parcel
to EISA. The nonretention of mineral rights in the deed by
the University shall not be construed as a transfer or
obligation to transfer by University of mineral rights, if
any, vested in the State of Idaho or other body politic.
4. Title Insurance: University shall obtain, at its
sole cost and expense, ALTA owner's extended coverage title
insurance with respect to the University Parcel. Such
policy or policies shall name EISA (or, if EISA so requests,
Xxxxxxx Real Estate Holdings, Inc.) as the insured and shall
be in extended coverage form and in an amount of Two Hundred
Forty Thousand Dollars ($240,000), which amount is relevant
only for purposes of such insurance coverage. EISA shall
arrange to obtain, without cost or expense to University,
title insurance with respect to the EISA Parcels. Such
policies shall name University as the insured and shall be
in standard coverage form and in a total amount to be
determined (but not less than a combined total of Two
Hundred Forty Thousand Dollars ($240,000.00), which amount
is relevant only for purposes of such insurance coverage).
All such title insurance policies shall insure vesting of
title in the insured free and clear of liens and
encumbrances against the respective parcels to be exchanged
(except for easements and rights-of-way of record to be
specified in the respective Commitments for Title Insurance
of Alliance Title & Escrow Corporation to be obtained with
respect to the EISA Parcels, and except for easements and
rights-of-way of record specified in Commitment for Title
Insurance (Full Supplemental) of Alliance Title & Escrow
Corporation, dated as of September 14, 1995 (Commitment No.
1-63993) as to the University Parcel).
5. Costs: EISA shall bear the entire expense for any
appraisal(s) of the EISA Parcels authorized to be conducted
by EISA. University shall bear the entire expense for any
appraisal(s) of the University Parcel authorized to be
conducted by the University. EISA and University shall
equally share (i.e., 50% to EISA and 50% to University)
closing fees and recording fees. University shall also
take, at its sole cost and expense, such other action as is
necessary to make the University Parcel legally
transferrable to EISA.
6. Possession: EISA may enter into and take
possession of the University Parcel upon the date of the
closing on that parcel. University may enter into and take
possession of the EISA Parcels upon the date of the
respective closings on those parcels.
7. Care of Property: EISA agrees that during such
period of time as may transpire between the date of this
Agreement and the date of conveyance by EISA to University
of the respective EISA Parcels, EISA shall not make
alterations or changes to the EISA Parcels without the prior
written consent of the University. University agrees that
during such period of time as may transpire between the date
of this Agreement and the date of conveyance by University
to EISA of the University Parcel, University shall not make
alterations or changes to the University Parcel without the
prior written consent of the EISA.
8. Inspection of Title: EISA and University shall
each have a reasonable time in which to examine a
preliminary title report and/or abstract of title regarding
the parcels prior to the respective closings. The exchange
of parcels contemplated herein shall be subject to EISA's
approval, in EISA's sole and absolute discretion, of the
preliminary title report for the University Parcel as well
as University's approval, in University's sole and absolute
discretion, of the preliminary title reports for the EISA
Parcels. Should either EISA or University object to any
condition of title relative to the parcel(s) of the other,
EISA and/or University, as the case may be, shall specify
such objections in writing to the other party. Thereafter,
the notified party may elect, at its sole option and choice,
to cure or not to cure the specified defect(s). If the
notified party elects not to cure and satisfy the written
objections of the objecting party, and upon giving notice to
the objecting party of that election not to cure, the
objecting party's options shall be limited to: (a) waiving
the title objections and proceeding to close or (b)
terminating this Agreement. If the objecting party elects
to terminate this Agreement for this specific reason, such
party shall be entitled to a return of any xxxxxxx money
deposited.
9. Examination of Properties: EISA and University,
except as otherwise set forth herein, acknowledge,
respectively, that they have examined, or will have had the
opportunity to examine, the respective properties that they
will acquire from each other, that they have conducted or
will conduct such investigation and studies with relation to
such properties as they deem advisable, and that they have
satisfied or will satisfy themselves as to the nature and
condition of such properties and all pertinent factors in
relation thereto, and that they agree to receive the
properties in their existing conditions. Such examinations
shall not be construed as an estoppel to or a waiver of the
representations and indemnities set forth herein.
10. Prorations: To the extent applicable, all current
property taxes and assessments relating to the EISA Parcels
and the University Parcel shall be prorated between EISA and
University as of the date of the respective closings on
those parcels.
11. Further Encumbrances: EISA and University shall
not, from and after the date of this Agreement and through
the dates of the respective closings, grant, convey, or
allow any easement, right-of-way, lease, encumbrance,
mortgage, deed of trust, license, permit, lien, or any other
legal or beneficial interest in or to the EISA Parcels or
the University Parcel.
12. Approvals: Notwithstanding anything to the
contrary herein, this Agreement is subject to obtaining of
appropriate approvals. University shall exercise due
diligence and promptly proceed and persist in taking all
necessary action to obtain all appropriate approvals.
Likewise, EISA shall exercise due diligence and promptly
proceed to obtain approval of this exchange from its
appropriate officials. Failure of University and/or EISA,
as the case may be, to promptly proceed and persist in such
efforts shall constitute a breach of this Agreement and
entitle the non-breaching party, in its sole discretion, to
rescind this Agreement.
13. Compliance with Law: EISA and University each
acknowledge and covenant that they each, for themselves,
have complied and shall hereafter comply with applicable
federal, state, county, and other governmental and/or quasi-
governmental laws, rules and regulations which may affect
the properties at issue.
14. Environmental Indemnifications: Each party to
this Agreement affirmatively represents and acknowledges
that they individually or collectively have not deposited,
and further have no knowledge of, any environmental waste in
violation of any local, state, or federal laws or
regulations on their respective parcels. Specifically,
University represents and acknowledges that it has not
deposited nor has knowledge of any environmental waste
existing on the University Parcel; and EISA represents and
acknowledges that it has not deposited nor has knowledge of
any environmental waste existing on the EISA Parcels.
Moreover, the University covenants to defend, indemnify and
hold EISA, its officers, agents, directors and employees,
harmless from any environmental clean-up costs and expenses
insofar and to the extent of damage caused by hazardous or
toxic discharge on the University Parcel during University's
ownership thereof and not caused by or related to the
activities of EISA or EISA's predecessors. Likewise, EISA
covenants to defend, indemnify and hold University, its
officers, agents, directors and employees harmless from any
environmental clean-up costs and expenses insofar and to the
extent of damage caused by any hazardous or toxic discharge
on the EISA Parcels during EISA's ownership thereof and not
caused by or related to the activities of University or
University's predecessors.
15. Notices: Any notices required or permitted under
this Agreement shall be deemed appropriately served three
(3) days after deposit in the United States Mail, adequate
postage prepaid, certified mail, return receipt requested,
and addressed to the parties as follows:
TO EISA: Xxxxxx X. Xxxxxx
Eastern Idaho Strategic Alliance,
Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
TO UNIVERSITY: Idaho State University
ATTN: President Xxxxxxx X. Xxxxx
Campus Box 8310
Xxxxxxxxx, Xxxxx 00000
Any party may, by notice to the other party, change the
above address for any future notices which are to be given
under this Agreement.
16. Further Assurances: Each party shall provide all
information and take or forebear from all such action(s) as
may be necessary or appropriate to complete the transactions
contemplated by this Agreement. Each party shall, from time
to time, deliver, and execute, if necessary, such additional
documents as the other party may reasonably request to
complete the transactions contemplated by this Agreement.
17. Applicable Law and Jurisdiction: The validity,
construction, and performance of this Agreement shall be
governed by and construed in accordance with the laws of the
State of Idaho. Any legal proceeding relating to this
Agreement shall be brought in a state or federal court
located in Bannock County, State of Idaho, and the parties
hereby specifically consent and submit to the jurisdiction
of such courts exclusively for this purpose.
18. Default: In the event that either party shall
breach any of its obligations, the non-defaulting party
shall have the right to enforce specific performance or to
bring suit for damages incurred as a result thereof.
19. Assignment: The parties recognize that University
is an institution of higher education and has an interest in
protecting the integrity of its role as an academic
enterprise and the allowable uses of its properties.
Therefore, any subsequent alienation, assignment or
conveyance by EISA of the University Parcel shall be
compatible with University's purpose as an institution of
higher education and shall be subject to the prior written
approval of University, such approval not to be unreasonably
withheld or delayed. University hereby expressly approves
EISA's conveyance of the University Parcel to Xxxxxxx Real
Estate Holdings, Inc.
20. Option to Repurchase: In the event that EISA
shall, after taking deed to the University Parcel, desire to
sell or otherwise convey the same to any person or entity
other than Xxxxxxx Real Estate Holdings, Inc., in such event
the University is granted the first right, option and
privilege to purchase such parcels as herein described,
together with buildings and improvements thereon, if any, at
its then fair and reasonable market value; and in the event
the parties in such event cannot agree as to the fair and
reasonable market value of such property, then each party
shall appoint an appraiser, which appraisers shall appoint a
third, and said appraisers shall inspect the property and
appraise the same as to the fair and reasonable market value
and report to each of the parties, in writing, within ninety
(90) days after their appointment, as to the value
established by them, or a majority of them, which value EISA
agrees to accept from the University at the University's
option, notice of the exercise of said option to be given by
the University to EISA within thirty (30) days after the
receipt of the valuation fixed by the appraisers. EISA
covenants and agrees that it will not convey the University
Parcel to any person or entity other than Xxxxxxx Real
Estate Holdings, Inc. without first obtaining the express
prior approval of University, which approval will not be
unreasonably withheld or delayed. University covenants and
agrees that it will make every reasonable and appropriate
effort to support EISA in complying with any and all
governmental and other regulatory requirements with respect
to the improvement or development of the hereinbefore
mentioned real property, including, without limitation, the
obtaining of building permits.
21. Waiver: The failure of either party to this
Agreement to insist upon the performance of any of the terms
and conditions of this Agreement, shall not be construed as
thereafter waiving any such terms and conditions or
subsequent breach, but the same shall continue and remain in
full force and effect as if no such forbearance or waiver
had occurred.
22. Attorney Fees and Costs: In the event of any
dispute with respect to any of the covenants or agreements
contained herein, the prevailing party shall be entitled to
recover from the other party all costs and expenses,
including reasonable attorney fees, which may arise or
accrue from enforcing this Agreement or in pursuing any
remedy by this Agreement or the laws of the State of Idaho,
whether such remedy is pursued by filing suit or otherwise.
23. Representations, Covenants and Warranties: All
covenants, conditions, representations, agreements,
understandings, and indemnities set forth in this Agreement
shall be continuing and perpetual in nature for the benefit
of the party in whose favor such covenants, conditions,
representations, agreements, understandings, and/or
indemnities run.
24. Entire Agreement: This Agreement constitutes the
entire understanding and agreement between the parties and
supersedes all prior agreements (whether written or oral),
representations and understandings of the parties relating
to the subject matter of this Agreement. No representations
have been made to induce either party to enter into this
Agreement except as are specifically set forth herein.
25. Severability and Power to Modify: All terms,
provisions, covenants and agreements contained in this
Agreement are severable, and if any of them is held to be
invalid by any court of competent jurisdiction, the
remaining provisions not held to be invalid shall be fully
enforceable according to their terms. The parties
specifically agree that the Court shall have the power to
modify any provision held to be invalid by, among other
things, reducing the geographical scope, the duration, the
amount and/or the terms and provisions covered in order to
make the same valid and in such event this Agreement and
terms and conditions hereof, as modified by the Court, shall
be interpreted and enforced in accordance with such
modification, or where applicable, as if such invalid terms
or provisions were not contained herein.
26. Applicable to Successors and Assigns: The
covenants and agreements contained herein shall transfer,
inure to the benefit of, and be binding upon the successors
in interest, transferees and assigns of the parties hereto;
and the parties acknowledge that Xxxxxxx Real Estate
Holdings, Inc. is a third party beneficiary of University's
representations, warranties and contract of indemnity
hereunder.
IN WITNESS WHEREOF, EISA and University have executed
this Real Estate Exchange Agreement effective as of the date
first set forth above.
IDAHO STATE UNIVERSITY
Xxxxxxx X. Xxxxx
President
EASTERN IDAHO STRATEGIC ALLIANCE, INC.
Xxxxxx X. Xxxxxx
Authorized Agent
ISU
STATE OF IDAHO )
:ss
County of Bannock )
On this 30th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxxxxx X. Xxxxx, known or identified to me to be
the President of IDAHO STATE UNIVERSITY that executed the
within instrument, and acknowledged to me that IDAHO STATE
UNIVERSITY executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year first above
written.
Xxxxxxx X. Xxxxxx, Notary
My commission expires September 27, 0000
XXXX
XXXXX XX XXXXX )
:ss
County of Bannock )
On this 30th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxxxx X. Xxxxxx, known or identified to me to be
the Authorized Agent of the EASTERN IDAHO STRATEGIC
ALLIANCE, INC., an Idaho Corporation, who acknowledged to me
that he signed the foregoing instrument as Authorized Agent
for said Corporation, and the said Xxxxxx X. Xxxxxx
acknowledged to me that the said Corporation executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year first above
written.
Xxxxxx Xxxxxxxx, Notary
My commission expires May 20, 1998
EXHIBIT "1"
DESCRIPTION OF THE EISA PARCELS
Parcel 1 (The Xxxxxxxxx Property)
NW 1/4 SE 1/4 OF SECTION 31, TOWNSHIP 6 SOUTH,
RANGE 35 E.B.M., BANNOCK COUNTY, IDAHO.
EXCEPT: BEGINNING AT THE SOUTHEAST 1/16 XXXXXX XX
XXXXXXX 00, XXXXXXXX 0 XXXXX, XXXXX 35 E.B.M.,
THENCE NORTH ALONG THE EAST 1/16 LINE 400.0 FEET,
THENCE WEST PARALLEL TO THE SOUTH 1/16 LINE 544.5
FEET, THENCE SOUTH PARALLEL TO THE EAST 1/16 LINE
400.0 FEET, TO THE SOUTH 1/16 LINE, THENCE EAST
ALONG THE SOUTH 1/16 LINE 544.5 FEET TO THE POINT
OF BEGINNING. A TRACT OF LAND IN THE NW 0/0 XX
0/0 XXXXXXX 00, XXXXXXXX 0 XXXXX, XXXXX 35 E.B.M.,
BANNOCK COUNTY IDAHO.
ALSO EXCEPT: A STRIP OF LAND 75 FEET IN WIDTH,
WITH 37.5 FEET ON THE RIGHT AND LEFT OF THE
FOLLOWING DESCRIBED CENTERLINE BEGINNING AT A
POINT 37.5 FEET EAST OF THE XXXXXXXXX XXXXXX XX XX
0/0 XX 0/0, XXXXXXX 31, TOWNSHIP 6 SOUTH, RANGE 35
E.B.M., THENCE SOUTH AND PARALLEL TO THE
MERIDIONAL CENTERLINE OF SAID SECTION 31, TO THE
SOUTH 1/16 LINE OF THE SAME SECTION TO A POINT
37.5 FEET EAST OF THE SOUTHWEST CORNER OF THE NW
1/4 SE 1/4. THIS STRIP OF LAND IS LOCATED IN THE
SW 1/4 NE 1/4 AND THE NW 1/4 SE 1/4 OF SECTION 31,
TOWNSHIP 6 SOUTH, RANGE 35 E.B.M., BANNOCK COUNTY,
IDAHO.
Parcel 2
This parcel shall be mutually determined at a
subsequent date by EISA and UNIVERSITY, and shall have a
fair market value of not less than $126,320.00.
EXHIBIT "2"
DESCRIPTION OF THE UNIVERSITY PARCEL
A tract of land in the northwest quarter of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 35 East, Boise Meridian, described
as follows:
Commencing at the northwest corner of Section 00, Xxxxxxxx 0
Xxxxx, Xxxxx 35 East, Boise Meridian; thence
South 89 degrees 44 minutes 03 seconds East along the north
line of Section 31 for a distance of 610.05 feet to a point
on the west line of the land associated with the Idaho State
Veterans Home; thence
South for a distance of 469.22 feet to the southwest corner
of the land associated with the Idaho State Veterans Home,
the TRUE POINT OF BEGINNING; thence
East along the south boundary line of the land associated
with the Idaho State Veterans Home for a distance of 496.84
feet; thence
South 08 degrees 07 minutes 22 seconds West for a distance
of 909.12 feet; thence
West for a distance of 903.77 feet; thence
North for a distance of 900.00 feet; thence
East for a distance of 535.39 feet to the point of
beginning.
Comprising 20.00 acres, more or less.
RETAINING THEREFROM:
An easement for the construction and maintenance of public
utility lines, extending over, under and across the easterly
fifteen (15.0) feet of the afore described tract of land.
EXHIBIT "3"
WARRANTY DEED
FOR VALUE RECEIVED, IDAHO STATE COLLEGE (NOW KNOWN AS
IDAHO STATE UNIVERSITY) AND THE IDAHO STATE BOARD OF
EDUCATION, AS TRUSTEES FOR IDAHO STATE UNIVERSITY, a body
politic and corporate of the State of Idaho (collectively,
"Grantor"), does hereby grant, bargain, sell and convey unto
EASTERN IDAHO STRATEGIC ALLIANCE, INC., a non-profit
corporation organized and existing under the laws of the
State of Idaho ("Grantee"), 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxx 00000, the following described real estate
(including all existing water rights, improvements,
utilities and appurtenances thereon), to wit:
A tract of land in the northwest quarter of
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 35 East, Boise
Meridian, described as follows:
Commencing at the northwest corner of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 35 East, Boise Meridian;
thence
South 89 degrees 44 minutes 03 seconds East along
the north line of Section 31 for a distance of
610.05 feet to a point on the west line of the
land associated with the Idaho State Veterans
Home; thence
South for a distance of 469.22 feet to the
southwest corner of the land associated with the
Idaho State Veterans Home, the TRUE POINT OF
BEGINNING; thence
East along the south boundary line of the land
associated with the Idaho State Veterans Home for
a distance of 496.84 feet; thence
South 08 degrees 07 minutes 22 seconds West for a
distance of 909.12 feet; thence
West for a distance of 903.77 feet; thence
North for a distance of 900.00 feet; thence
East for a distance of 535.39 feet to the point of
beginning.
Comprising 20.00 acres, more or less.
RETAINING THEREFROM:
An easement for the construction and maintenance
of public utility lines, extending over, under and
across the easterly fifteen (15.0) feet of the
afore described tract of land.
TO HAVE AND TO HOLD the said premises, with its
appurtenances unto the said Grantee, its successors in
interest and assigns forever. And the said Grantor does
hereby covenant and warrant to and with the said Grantee
that it is the owner in fee simple of said real property;
that it conveys good and marketable title to the same; that
the property is free from all liens and encumbrances, except
as set out above, and that Grantor will forever warrant and
defend the same and Grantee's (and its successors in
interest and assigns') quiet and peaceable possession of
said premises from all lawful claims whatsoever.
IN WITNESS WHEREOF, the Grantor, pursuant to the
authority vested in it, has executed this Warranty Deed this
30th day of November, 1995.
GRANTOR:
IDAHO STATE COLLEGE (NOW KNOWN AS
IDAHO STATE UNIVERSITY) AND THE
IDAHO STATE BOARD OF EDUCATION, AS
TRUSTEES FOR IDAHO STATE UNIVERSITY
(a body politic and corporate of
the State of Idaho)
Xxxxxxx X. Xxxxx
President, Idaho State
University
November 30, 1995
STATE OF IDAHO )
:ss
County of Bannock )
On this 30th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxxxxx X. Xxxxx, known or identified to me to be
the President of IDAHO STATE UNIVERSITY, and acknowledged to
me that he executed the within instrument on behalf of IDAHO
STATE COLLEGE (NOW KNOWN AS IDAHO STATE UNIVERSITY) AND THE
IDAHO STATE BOARD OF EDUCATION, AS TRUSTEES FOR IDAHO STATE
UNIVERSITY (a body politic and corporate of the State of
Idaho).
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal the day and year first above
written.
Xxxxxxx X. Xxxxxx, Notary
My commission expires September 27, 2000
EXHIBIT "4"
[FORM OF]
CORPORATION WARRANTY DEED
FOR VALUE RECEIVED, EASTERN IDAHO STRATEGIC
ALLIANCE, INC., a corporation organized and existing under
the laws of the State of Idaho ("Grantor"), does hereby
grant, bargain, sell and convey unto IDAHO STATE UNIVERSITY,
a body politic and corporate of the State of Idaho
("Grantee"), X.X. Xxx 0000, Xxxxxxxxx, Xxxxx 00000, the
following described real estate (including all existing
water rights, improvements, utilities and appurtenances
thereon), to wit:
TO HAVE AND TO HOLD the said premises, with its
appurtenances unto the said Grantee, its successors in
interest and assigns forever. And the said Grantor does
hereby covenant and warrant to and with the said Grantee
that it is the owner in fee simple of said real property;
that it conveys good and marketable title to the same; that
the property is free from all liens and encumbrances, except
as set out above, and that Grantor will forever warrant and
defend the same and Grantee's (and its successors in
interest and assigns') quiet and peaceable possession of
said premises from all lawful claims whatsoever.
IN WITNESS WHEREOF, the Grantor, pursuant to a
resolution of its Board of Directors, has caused its
corporate name to be hereunto subscribed by its Project
Director this day of , 199 .
GRANTOR:
EASTERN IDAHO STRATEGIC
ALLIANCE, INC.
Date:
STATE OF IDAHO )
:ss
County of Bannock )
On this _____ day of ________________, 199_____,
before me, the undersigned Notary Public in and for said
State, personally appeared Xxxxxx X. Xxxxxx, known or
identified to me to be the Project Director of EASTERN IDAHO
STRATEGIC ALLIANCE, 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 first above
written.
NOTARY PUBLIC - STATE OF IDAHO
My commission expires
EXHIBIT "D"
CORPORATION WARRANTY DEED
FOR VALUE RECEIVED, EASTERN IDAHO STRATEGIC
ALLIANCE, INC., a non-profit corporation organized and
existing under the laws of the State of Idaho ("Grantor"),
does hereby grant, bargain, sell and convey unto XXXXXXX
REAL ESTATE HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Utah ("Grantee"),
00000 Xxxx Xxxx Xxxxxxx, Xxxxxx, Xxxx 00000, the following
described real estate (including all existing water rights,
improvements, utilities and appurtenances thereon), to wit:
A tract of land in the northwest quarter of
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 35 East, Boise
Meridian, described as follows:
Commencing at the northwest corner of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 35 East, Boise Meridian;
thence
South 89 degrees 44 minutes 03 seconds East along
the north line of Section 31 for a distance of
610.05 feet to a point on the west line of the
land associated with the Idaho State Veterans
Home; thence
South for a distance of 469.22 feet to the
southwest corner of the land associated with the
Idaho State Veterans Home, the TRUE POINT OF
BEGINNING; thence
East along the south boundary line of the land
associated with the Idaho State Veterans Home for
a distance of 496.84 feet; thence
South 08 degrees 07 minutes 22 seconds West for a
distance of 909.12 feet; thence
West for a distance of 903.77 feet; thence
North for a distance of 900.00 feet; thence
East for a distance of 535.39 feet to the point of
beginning.
Comprising 20.00 acres, more or less.
RETAINING THEREFROM:
An easement for the construction and maintenance
of public utility lines, extending over, under and
across the easterly fifteen (15.0) feet of the
afore described tract of land.
TO HAVE AND TO HOLD the said premises, with its
appurtenances unto the said Grantee, its successors in
interest and assigns forever. And the said Grantor does
hereby covenant and warrant to and with the said Grantee
that it is the owner in fee simple of said real property;
that it conveys good and marketable title to the same; that
the property is free from all liens and encumbrances, except
as set out above, and that Grantor will forever warrant and
defend the same and Grantee's (and its successors in
interest and assigns') quiet and peaceable possession of
said premises from all lawful claims whatsoever.
IN WITNESS WHEREOF, the Grantor, pursuant to a
resolution of its Board of Directors, has caused its
corporate name to be hereunto subscribed by its Project
Director this 30th day of November, 1995.
GRANTOR:
EASTERN IDAHO STRATEGIC
ALLIANCE, INC.
Xxxxxx X. Xxxxxx
Project Director
Date: November 30, 1995
STATE OF IDAHO )
:ss
County of Bannock )
On this 30th day of November, 1995, before me, the
undersigned Notary Public in and for said State, personally
appeared Xxxxxx X. Xxxxxx, known or identified to me to be
the Project Director of EASTERN IDAHO STRATEGIC ALLIANCE,
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 first above
written.
Xxxxxx Xxxxxxxx
My commission expires May 20, 1998
