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[EXHIBIT 10.10A]
REAL PROPERTY PURCHASE AGREEMENT
THIS REAL PROPERTY PURCHASE AGREEMENT ("Agreement") is made and entered
into as of the 2nd day of September, 1997 by and between ORTON RANCH &
DEVELOPMENT, INC., a Utah corporation (hereinafter sometimes referred to as the
"Seller"), as seller, and GENEVA ROCK PRODUCTS, INC., a Utah corporation
(hereinafter sometimes referred to as the "Buyer"), as buyer.
RECITALS:
A. The Seller is the owner of certain real property (hereinafter sometimes
referred to as the "Property") consisting of approximately 57 acres of land
situated in Box Elder and Xxxxx Counties, State of Utah, more particularly
described in Exhibit A attached hereto and by this reference made a part hereof.
B. The Buyer desires to purchase all of the Property for the purchase
price and on the terms and conditions set forth in this Agreement, and the
Seller is willing to sell the Property to the Buyer on the terms, provisions,
and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises,
obligations, and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
parties hereto agree as follows:
1. Property. The definition of the term "Property" used in this Agreement
as set forth in paragraph A of the Recitals above, is by this reference
incorporated herein and made a part of this Agreement. The Property shall
include, without limitation, the described real property, any improvements
constructed thereon (excluding underground storage tanks, if any), and all
appurtenant rights or hereditaments, including all easements, water, water
rights, shares of stock in water companies, and mineral rights.
2. Purchase Price. The purchase price for the Property shall be Forty
Thousand and No/100 Dollars ($40,000.00) per acre, determined in accordance with
the survey (hereinafter the "Survey"), as defined in Section 3 hereof, for each
acre of real property or fraction thereof, conveyed by the Seller to the Buyer.
The purchase price shall be determined by multiplying the net acreage of
property conveyed by the Seller to the Buyer by $40,000.00. Such purchase price
shall be payable as follows:
(a) Concurrently with the execution of this Agreement, the Buyer
shall pay to the Seller the sum of Twenty Thousand and No/100 Dollars
($20,000.00) as an xxxxxxx money deposit. Said xxxxxxx money deposit shall
be nonrefundable, except as provided in Xxxxxxxx 0, 0, xxx 00 xxxxxx.
(x) The balance of the purchase price, in current and immediately
available funds, shall be paid to the Seller, through escrow at closing
(hereinafter the "Closing") provided for in Section 9.1 hereof.
3. ALTA/ACSM Survey. Within fifteen (15) days after the execution of this
Agreement, the Seller shall, at its cost and expense, procure and deliver to the
Buyer and First American Title Company of Utah (the "Title Company") an
ALTA/ACSM land title survey of the Property, containing legal descriptions and
area calculations of the Property (the "Survey"). The Survey shall be conducted
by a Utah registered land surveyor chosen by the Seller, and reasonably
acceptable to the Buyer, and shall be certified to the Buyer, its successors and
assigns, their lenders and the Title Company, and shall be dated not earlier
than thirty (30) days prior to the date of delivery, shall be prepared in
accordance with the
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"minimum standard detail requirements for ALTA/ACSM land title surveys," jointly
established and adopted by ALTA and ACSM in 1992, shall meet the current
ALTA/ACSM accuracy requirements of an urban survey, and shall otherwise be
sufficient to meet the title insurer's requirements for issuance of the owner's
title policy specified in Section 9.2 hereof. Additionally, the certificate of
the surveyor on the Survey shall contain such additional certifications set
forth on Table A of the minimum standard detail requirements for ALTA/ACSM land
title surveys as the Buyer may reasonably require. The Buyer agrees to pay
$1,000.00 toward the cost of the Survey; provided, however, any portion of the
xxxxxxx money deposit retained by the Seller shall be credit first to
satisfaction of this obligation of the Buyer.
4. Title Commitment. Within fifteen (15) days after the execution of this
Agreement by the Seller and the Buyer, the Seller shall obtain and deliver to
the Buyer, at the Seller's cost and expense, a current Commitment for Title
Insurance covering the Property, together with legible copies of all instruments
and agreements referenced therein (hereinafter the "Commitment"), issued by the
Title Company. The Buyer shall, within fifteen (15) days after the Buyer
receives the Survey, the Commitment, and legible copies of all instruments and
agreements referenced in the Commitment, give written notice to the Seller
specifying any and each title exception contained in the Commitment or matters
which are revealed or located by the Survey which is objectionable to the Buyer
(hereinafter a "Title Defect"), and the Seller shall use its best efforts to
cause such Title Defect(s) to be removed or cured prior to the Closing;
provided, however, that if any such Title Defect(s) cannot be so removed or
cured prior to the Closing Date, then the Buyer shall elect either to: (a) waive
each objection to a Title Defect(s) and to proceed with the Buyer's purchase of
the Property and accept the Title Defect(s) as a Permitted Encumbrance, as
provided in Section 5 hereof; or (b) terminate this Agreement and receive an
immediate refund from the Seller of the xxxxxxx money deposit paid by the Buyer
pursuant to Section 2(a) hereof. Notwithstanding the foregoing, any monetary
lien against the Property which may be discharged or removed by the disbursement
of any portion of the purchase price by the Seller at the Closing, shall be so
cured, removed, and discharged by the Seller at the Closing.
5. Permitted Encumbrances. As used in this Agreement, the term "Permitted
Encumbrances" shall mean only: (a) Real property taxes for the year in which the
Closing occurs (subject to proration at Closing as provided in Section 9.1(c)
hereof); (b) all covenants, conditions, restrictions, easements, rights-of-way,
encroachments, encumbrances, title exceptions, and other matters disclosed in
the Commitment, except for such Title Defect(s) as to which the Buyer timely
objects in writing, as provided in Section 4 hereof and does not thereafter
waive such objection; and (c) such matters affecting title as are revealed by
the Survey and approved by the Buyer.
6. Buyer's Due Diligence. At all times prior to the Closing, the Buyer and
its representatives shall be provided with access to the Property for the
purpose of conducting the Buyer's due diligence. The Buyer's investigation of
the Property may include, but not be limited to, (1) a Phase I environmental
report and, at the Buyer's option, a Phase II environmental investigation if
recommended by the Phase I report; and (2) core samples, digging trenches, and
other tests or examinations related to the determination of the existence,
quantities, composition, and location of sand, gravel, rock, and other mineable
materials upon the Property. In the event this Agreement is terminated for any
reason other than the default or breach of warranty by the Seller, the Buyer
shall deliver to the Seller any reports or analysis of the Property generated by
the Buyer's independent contractors. The Seller acknowledges and agrees that any
reports or analysis of the Buyer made available to the Seller pursuant to this
Section 6 is without warranty or assurance of the Buyer. The Seller shall use
such information at its own risk and indemnify the Buyer against claims of
persons receiving such reports.
7. Conditions to Buyer's Obligations. The obligations of the Buyer under
this Agreement to purchase the Property are subject to the fulfillment, prior to
or at the Closing, of the following conditions:
(a) Within sixty (60) days after the execution of this Agreement,
the Buyer and/or the Buyer's agents or representatives shall (if the Buyer
elects to do so) have conducted and approved such tests, examinations,
studies, assessments, inspections, and analyses of the Property pertaining
to environmental issues or the quantities or quality of
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sand and gravel upon the Property as the Buyer determines necessary or
advisable and approved, in the Buyer's sole discretion, the results of
such tests, examinations, studies, assessments, inspections, analyses.
Unless the Buyer notifies the Seller in writing within sixty (60) days
after the execution of the Agreement that the buyer has not conducted and
approved its desired tests, examinations, and inspections of environmental
conditions upon the Property and the quantities and quality of sand and
gravel upon the Property, the Buyer shall be deemed to have waived this
condition 7(a).
(b) Within fifteen (15) days after the Buyer's receipt of the
Commitment (including legible copies of all instruments and agreements
referenced therein) and the Survey, the Buyer shall have reviewed and
approved, in the Buyer's sole discretion, the Survey, which review and
approval shall include without limitation the review and approval of the
size, location, and configuration of the Property. Unless the Buyer
notifies the Seller in writing within fifteen (15) days after the Buyer's
receipt of the Commitment (including legible copies of all instruments and
agreements referenced therein) and the Survey that the Buyer has not
reviewed and approved the Survey, the Buyer shall be deemed to have waived
this condition 7(b).
(c) Concurrently with the Buyer's closing on its purchase of the
Property from the Seller, the Buyer shall close on its purchase of
approximately 170 acres of real property owned by the Xxxxxxx Xxxxx family
and situated east of and adjacent to the Property (hereinafter the
"Adjacent Property"), on terms and conditions acceptable to the Buyer in
the Buyer's sole discretion.
(d) On or before the Closing, the Buyer shall have determined, in
the Buyer's sole discretion, that there are no constraints imposed upon
the Property or the Adjacent Property, including zoning or other
governmental regulations, covenants, conditions, or restrictions which
would prohibit or interfere with the Buyer's use of the Property and/or
the Adjacent Property for sand, gravel, and rock excavation and processing
and concrete and asphalt batch plants, and the Buyer shall have obtained
such licenses, permits, approvals, and authorizations as the Buyer
determines to be necessary or advisable for the Buyer to conduct its
intended sand, gravel, rock, ready mix concrete, and asphalt businesses
upon the Property and the Adjacent Property. Unless the Buyer notifies the
Seller in writing on or before the Closing that the Buyer has not approved
the matters addressed in this Section 7(d) or has not obtained all
licenses, permits, approvals, and authorizations contemplated by this
Section 7(d), the Buyer shall be deemed to have waived this condition
7(d).
(e) Within fifteen (15) days after the execution of this Agreement,
the Buyer's Board of Directors shall have approved the execution,
delivery, and performance by the Buyer of the Buyer's obligations under
this Agreement. Unless the Buyer notifies the Seller in writing within
fifteen (15) days after execution of this Agreement that the Buyer's Board
of Directors has failed, for any reason, to approve the Buyer's execution,
delivery, and performance under this Agreement, the Buyer shall be deemed
to have waived this condition 7(e).
(f) Each of the representations and warranties of the Seller set
forth herein shall be true and correct as of the date hereof and as of the
date of the Closing.
In the event that each of such conditions shall not have been satisfied at
or prior to the Closing, or waived by the Buyer, then the Buyer shall have the
right, at the Buyer's option, to terminate this Agreement by giving written
notice of such termination to the Seller, in which event the Title Company or
the Seller, as the case may be, shall immediately refund to the Buyer the
xxxxxxx money deposit paid pursuant to Section 2 hereof, or portion thereof as
provided below, and the Buyer and the Seller each shall be released
automatically from all further obligations and liabilities hereunder. In the
event this
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Agreement is terminated by the Buyer by reason of the failure of the conditions
set forth in Sections 7(b) and/or 7(f) the Seller shall promptly refund to the
Buyer the entire $20,000.00 xxxxxxx money deposit. In the event this Agreement
is terminated by the Buyer by reason of the failure of the conditions set forth
in Section 7(a) due to undesirable environmental conditions upon the property
not expressly disclosed in Exhibit B attached hereto, the Seller shall promptly
refund to the Buyer the entire $20,000.00 xxxxxxx money deposit. In the event
this Agreement is terminated by the Buyer by reason of any other circumstance or
state of facts covered by the conditions set forth in Section 7(a), or by reason
of the failure of the conditions set forth in Sections 7(c) and/or 7(d), the
Seller shall promptly refund to the Buyer the sum of $10,000.00, and the Seller
shall return the balance of the xxxxxxx money deposit in payment of costs and
expenses incurred by the Seller. In the event this Agreement is terminated by
reason of the failure of the condition set forth in Section 7(e), the Seller
shall promptly refund to the Buyer the sum of $18,000.00, and the Seller shall
retain the balance of the xxxxxxx money deposit in payment of costs and expenses
incurred by the Seller.
8. Seller's Warranties. The Seller hereby represents and warrants to the
Buyer for the purpose of inducing the Buyer to purchase the Property, and
acknowledges that such representations and warranties are material to the
Buyer's decision to purchase the Property, as of the date hereof and as of the
Closing Date, as follows:
(a) The Seller has good, marketable, and insurable fee simple record
title to the Property.
(b) The Seller has all legal right, power, and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Seller and
consummation by the Seller of the transactions contemplated hereby have
been duly and validly authorized by all necessary governmental action on
behalf of the Seller. This Agreement has been duly executed and delivered
by the Seller and it and all instruments and documents executed and
delivered by the Seller at the Closing, constitute and will constitute
legal, valid, and binding agreements of the Seller, enforceable in
accordance with their respective terms, except that: (i) Enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors' rights
generally; and (ii) the remedies of specific performance and injunctive
relief and other forms of equitable relief may be subject to equitable
defenses and other discretion of the court before which any proceedings
therefor may be brought.
(c) Without in any way limiting the generality of the above, neither
the Property nor the Seller is the subject of any pending or, to the best
of the Seller's knowledge, threatened investigation or inquiry by any
Governmental Authority, or are subject to any response or remedial
obligations or lien under any Environmental Requirements and this
representation and warranty would continue to be true and correct
following disclosure to any applicable Governmental Authority of all
relevant facts, conditions, and circumstances known to the Seller and
pertaining to the Property and/or the Seller.
(d) Except as expressly disclosed by the Seller in Exhibit B
attached hereto, neither the Seller nor, to the best knowledge of the
Seller, any previous owner, tenant, occupant, or user of the Property, or
any other person, has engaged in or permitted any operations or activities
upon, or any use or occupancy of the Property, or any portion thereof, for
the purpose of or in any way involving the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining,
dumping, or disposal of any "Hazardous Material" (hereinafter "Hazardous
Material"), as defined below (whether legal or illegal, accidental or
intentional), on, under, in, or about the Property, or transported any
Hazardous Materials to, from, or across the Property, nor are any
Hazardous Materials presently constructed, deposited, stored, or otherwise
located on,
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under, in, or about the Property, nor have any Hazardous Materials
migrated from the Property upon or beneath other properties, nor have any
Hazardous Materials migrated or threatened to migrate from other
properties upon, about or beneath the Property. There is not constructed,
placed, deposited, stored, disposed of, or located on the Property any
asbestos or material containing asbestos, nor insulating material
containing urea formaldehyde, nor any polychlorinated biphenyls (PCBs),
nor transformers, capacitors, ballasts, or other equipment containing or
contaminated by PCBs.
"Hazardous Material" shall mean any substance: (i) The presence of
which requires investigation or remediation under any federal, state or
local statute, regulation, ordinance, order, action, policy, or common
law; or (ii) which is presently defined as a "hazardous waste," "hazardous
substance," pollutant or contaminant under any federal, state, or local
statute, regulation, rule, or ordinance or amendments thereto including,
without limitation, the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. section 9601 et seq.), as amended, and/or the
Resource Conservation and Recovery Act (42 U.S.C. section 6901 et seq.),
as amended; and comparable statutes of the State of Utah; or (iii) which
is toxic, explosive, corrosive, ignitable, reactive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous
and is regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, the
State of Utah or any political subdivision thereof; or (iv) the presence
of which on the Property causes or threatens to cause a nuisance upon the
Property or to adjacent properties or poses or threatens to pose a hazard
to the health or safety of persons on or about the Property; or (v) the
presence of which on adjacent properties could constitute a trespass by
the Seller; or (vi) without limitation which contains gasoline, diesel
fuel, or other petroleum hydrocarbons; or (vii) without limitation which
contains polychlorinated biphenyls (PCBs), asbestos, or urea formaldehyde
foam insulation; or (viii) without limitation radon gas.
(e) Except for underground pipelines disclosed on the Survey, no
underground improvements, including but not limited to treatment or
storage tanks, septic systems or drain fields, sumps, or water, gas, oil,
or underground injection xxxxx are or have ever been located upon the
Property.
(f) Except for contracts approved by the Buyer pursuant to Section
12 hereof, there are no gravel removal or sale contracts, leases, or other
contracts or agreements of any nature relating to the Property which will
be in effect at the Closing Date.
(g) There is no pending or threatened litigation or pending or
contemplated condemnation proceedings which affect the Property or any
part thereof.
(h) There are no municipal or other government assessments against
the Property other than current real property taxes and the Seller has not
entered into any understanding or agreement with any taxing or assessing
authority with respect to the imposition or deferment of any taxes or
assessment relating to the Property, except as disclosed in the
Commitment.
The above representations and warranties of the Seller shall survive the
expiration or termination of this Agreement, the discharge of all other
obligations owed by the parties to each other, and the Closing and transfer of
title to the Property to the Buyer, and shall not be affected by any
investigation by or on behalf of the Buyer, or by any information which the
Buyer may have or obtain with respect thereto.
9. Closing and Post Closing.
9.1. Closing. The Closing on the Buyer's purchase of the Property
(hereinafter referred to as the "Closing") shall be held at the offices of First
American Title Company of Utah, 000 00xx Xxxxxx,
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Xxxxx, Xxxx 00000, on the later date of: (i) the fifteenth (15th) day after the
Buyer's receipt of all governmental approvals, licenses, permits, and
authorizations as are necessary for the Buyer's operation on the Property and
the Adjacent Property of its sand, gravel, and rock excavating and processing
businesses and its concrete and asphalt batch plant businesses, or if such day
is a weekend day or a legal holiday, on the next business day after the
fifteenth (15th) day following such approvals and permits, or (ii) the date of
the Buyer's closing on its purchase of the Adjacent Property; provided, however,
that if such events have not occurred by February 12, 1998 and if the Buyer has
not terminated this Agreement by reason of failure of its conditions to closing,
the Closing Date shall be February 28, 1998, or at such other time and place as
may be agreed to in writing by both the Buyer and the Seller. The Closing may be
accomplished on such date through an escrow established with the Title Company,
or another escrow agent approved in writing by the Seller and the Buyer. The
date on which the Closing actually takes place, or if more than one day is
required to complete the Closing, the date on which the Closing is actually
accomplished is herein referred to and designated as the "Closing Date." At the
Closing, the following shall occur, each action being considered a condition
precedent to the others and all being considered as taking place simultaneously,
and (subject to the terms and conditions hereof) each party covenanting to
perform or cause to be performed each such action to be performed on its part:
(a) The Buyer shall pay to the Seller current and immediately
available funds in the amount of that portion of the purchase price
payable pursuant to Section 2(a) hereof.
(b) The Seller shall execute, acknowledge, and deliver to the Buyer
a Warranty Deed, conveying and warranting to the Buyer fee simple title to
the Property, as described in the Survey, subject only to the Permitted
Encumbrances referred to in Section 5 hereof.
(c) All reasonable and customary prorations shall be made as of the
Closing Date and appropriate credits shall be given for real property
taxes, assessments, rents, deposits, and other matters the nature of which
properly requires such treatment.
(d) The Seller shall pay in full the premiums for the ALTA Owner's
Policy of Title Insurance referred to in Section 9.2 hereof.
(e) The Seller shall pay the costs of recording the Warranty Deed
and the costs of recording any releases or reconveyances of monetary liens
required pursuant to this Agreement.
(f) The Buyer and the Seller each shall pay one-half (-1/2) of the
costs of the escrow established in conjunction with the Closing.
(g) The Seller shall deliver to the Buyer possession of the
Property, subject only to the Permitted Encumbrances referred to in
Section 5 hereof.
(h) The Seller and the Buyer shall execute and deliver to each other
closing statements reflecting the adjustments, payments, and credits
described in this Section 9.1.
(i) Each party shall execute, acknowledge, and deliver such other
documents and instruments and take such other action as the other party or
its legal counsel may reasonably require in order to document and carry
out the transactions contemplated in this Agreement.
9.2. Owner's Title Insurance. In conjunction with the Closing, the Seller
shall, at the Seller's cost and expense, cause the Title Company to issue and
deliver to the Buyer (as the named insured), an ALTA Owner's Policy of Title
Insurance, providing for extended coverage, in the amount of the purchase price
of the Property, insuring that fee simple title to the Property, as described in
the Survey, is vested
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in the Buyer subject only to the Permitted Encumbrances referred to in Section 5
hereof. The Buyer shall pay the additional cost of any special endorsements or
so-called "extended coverage" that the Buyer may desire.
10. Default and Remedies.
10.1. Default by Seller. In the event of a default by the Seller in the
performance of its obligations hereunder, the Buyer shall give written notice to
the Seller designating such default. The Seller shall have a period of ten (10)
days following the effective date of said notice within which to correct, or in
the case of a default which is of a nature that cannot reasonably be corrected
within such ten (10) day period, within which to commence action to correct, the
default of which the Seller has received notice. In the event that the Seller
shall fail to correct such default within said ten (10) day period or, if
applicable, to commence action to correct such default within said ten (10) day
period and thereafter diligently to pursue the same to completion, the Buyer
shall have the right, at the Buyer's election: (a) If such default occurs prior
to the Closing Date, to terminate this Agreement and all rights, duties, and
obligations of the parties hereunder by giving written notice thereof to the
Seller and to receive an immediate refund of the xxxxxxx money deposit paid
pursuant to Section 2 hereof; or (b) by legal action to compel performance by
the Seller of its obligations hereunder and/or to recover damages from the
Seller resulting from said default.
10.2. Default by Buyer. In the event of a default by the Buyer in the
performance of its obligations hereunder, the Seller shall give written notice
to the Buyer designating such default. The Buyer shall have a period of ten (10)
days following the effective date of said notice within which to correct, or in
the case of a default which is of a nature that cannot reasonably be corrected
within such ten (10) day period, within which to commence action to correct, the
default of which the Buyer has received notice. In the event that the Buyer
shall fail to correct such default within said ten (10) day period or, if
applicable, to commence action to correct such default within said ten (10) day
period and thereafter diligently to pursue the same to completion, the Seller
shall have the right to terminate this Agreement and all rights, duties, and
obligations of the parties hereunder by giving written notice thereof to the
Buyer and to retain the xxxxxxx money deposit paid pursuant to Section 2 hereof
as liquidated and stipulated damages.
10.3. Remedies. The rights and remedies of the Buyer shall not be mutually
exclusive, and the exercise of one or more of the provisions of this Agreement
shall not preclude the exercise of any other provisions. The Seller confirms
that damages at law may be an inadequate remedy for the Buyer for a breach or
threatened breach by the Seller of any provisions hereof. The Buyer's rights and
the Seller's obligations hereunder shall be enforceable by specific performance,
injunction, or other equitable remedy, but nothing herein contained is intended
to or shall limit or affect any rights at law or by statute or otherwise of the
Buyer against the Seller for a breach or threatened breach of any provisions
hereof. It is the intention of the parties by this provision to make clear the
agreement of the parties that the Buyer's rights and the Seller's obligations
hereunder shall be enforceable in equity as well as at law or otherwise.
11. General Provisions.
11.1. Real Estate Commissions. The Seller represents and warrants to the
Buyer, and the Buyer represents and warrants to the Seller, that no broker or
finder has been engaged by the respective party in connection with this
Agreement or any of the transactions contemplated by this Agreement, is in any
way connected with this Agreement or any of such transactions, or is entitled to
any fee or commission as a result of this Agreement or any of the transactions
contemplated hereby. In the event of a claim for a broker's or finder's fee or
commission in connection with this Agreement or any of the transactions
contemplated hereby and except as otherwise provided above: The Buyer shall
indemnify, save harmless, and defend the Seller from and against such claim if
it is based upon any statement, representation, or agreement alleged to have
been made by the Buyer; and the Seller shall indemnify, save harmless, and
defend the Buyer from and against such claim if it is based upon any statement,
representation, or
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agreement alleged to have been made by the Seller. The provisions of this
Section 17.1 shall survive the Closing or any termination of this Agreement.
11.2. Notices. All notices and other communications provided for in this
Agreement shall be in writing and shall be sufficient for all purposes if
personally delivered or if mailed by certified or registered U.S. mail, return
receipt requested, postage prepaid, and addressed to the respective party at the
address set forth below or at such other address as such party may hereafter
designate by written notice to the other party as herein provided.
To Seller: To Buyer:
Orton Ranch & Development, Inc. Geneva Rock Products, Inc.
4225 West 1700 North 0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000 Xxxx, Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxx Attn: Xx. Xxxxxx X. Xxxxxxxxxxxx
If personally delivered, notices and other communications under this Agreement
shall be deemed to have been given and received and shall be effective when
personally delivered. If sent by mail in the form specified in this section,
notices and other communications under this Agreement shall be deemed to have
been given and received and shall be effective when deposited in the U.S. mail.
11.3. Costs. Except as otherwise specifically provided in this Agreement,
the Seller and the Buyer each shall pay their own costs and expenses incurred in
preparation and execution of and performance under this Agreement.
11.4. Interpretation. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Utah. Whenever the context
requires, the singular shall include the plural, the plural shall include the
singular, the whole shall include any part thereof, any gender shall include
both other genders, and the term "person" shall include an individual,
partnership (general or limited), corporation, limited liability company, trust,
or other entity or association, or any combination thereof. The word "including"
shall be interpreted to mean "including without limitation." The term "Buyer"
shall mean the Buyer named herein or any assignee of the Buyer. The section
headings contained in this Agreement are for purposes of reference only and
shall not limit, expand, or otherwise affect the construction of any provisions
of this Agreement. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns. The provisions of
this Agreement shall be construed both as covenants and conditions in the same
manner as though the words importing such covenants and conditions were used in
each separate provision hereof. The exhibit referred to in this Agreement shall
be incorporated into and shall be considered a part hereof. The provisions of
this Agreement and the exhibit hereto shall, when possible, be construed
together in determining the intent of the parties.
11.5. Assignment. Either party shall have the right to assign all of its
right, title, and interest under this Agreement, provided that any such assignee
agrees in writing with the other party hereto to assume and be responsible for
the performance of each and every obligation of the assigning party.
Notwithstanding the assignment of either party's interest hereunder, each party
shall remain primarily responsible to the other party hereto for the performance
of each and every obligation of such party under this Agreement.
11.6. Short Form of Agreement. The Seller agrees, upon the Buyer's
execution of this Agreement or at any time thereafter during the effectiveness
hereof upon the request of the Buyer, to execute a Short Form of Agreement, in
the form and content reasonably requested by the Buyer, and to deliver such
Short Form of Agreement to the Buyer so that the Buyer might, at its election,
record such Short Form of Agreement with the County Recorder for Xxxxx County,
State of Utah.
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11.7. Consultation with Attorney. Each party represents that such party
had opportunity to consult with legal counsel of that party's choice concerning
this Agreement prior to execution hereof.
11.8. Entire Agreement. This Agreement and the documents referenced herein
contain the entire understanding of the parties hereto with respect to the
transactions contemplated hereby. All prior representations, negotiations,
agreements, and understandings of the parties are merged into this Agreement. No
change or modification to this Agreement shall be valid unless it is in a
writing signed by the party against whom enforcement is sought.
11.9. No Waiver. Acceptance by either party of any performance less than
required hereby shall not be deemed to be a waiver of the rights of such party
to enforce all of the terms and conditions hereof. No waiver of any such right
hereunder shall be binding unless reduced to writing and signed by the party to
be charged therewith.
11.10. Invalidity of Provision. If any provisions of this Agreement as
applied to any party or to any circumstance shall be adjudged by a court of
competent jurisdiction to be void or unenforceable for any reason, the same
shall in no way affect (to the maximum extent permitted by applicable law) any
other provision of this Agreement, the application of any such provision under
circumstances different from those adjudicated by the court, or the validity or
enforceability of the Agreement as a whole.
11.11. Attorney's Fees. If any action is brought because of any breach of
or to enforce or interpret any of the provisions of this Agreement, the party
prevailing in such action shall be entitled to recover from the other party
reasonable attorney's fees and court costs incurred in connection with such
action, the amount of which shall be fixed by the court and made a part of any
judgment rendered.
11.12. Time of the Essence. As concerns all matters of notice and
performance agreed upon hereunder, it is covenanted by the parties that time is
strictly of the essence of this Agreement.
11.13 Seller Exchange Transaction. The Buyer acknowledges that the Seller
intends to acquire another property with the proceeds from the Seller's sale of
the Property to the Buyer in accordance with Internal Revenue Code Section 1031,
as a deferred like-kind exchange. The Buyer agrees to cooperate with the Seller
in consummating this transaction as an exchange by the Seller of like-kind
properties under Internal Revenue Code Section 1031 at no additional cost or
expense or other adverse consequence to the Buyer and with no delay in the
Closing, except as provided in this Agreement. The Seller may assign the
Seller's rights and obligations under this Agreement, without the Buyer's
consent and at any time on or prior to the Closing, to the Seller's designated
intermediary with written notice of assignment to the Buyer. The designated
intermediary may, but need not, act as the agent of the Seller in the
performance of any of the Seller's obligations under this Agreement. The Buyer
agrees to accept performance of the Seller's obligations under this Agreement
from the designated intermediary and to render performance of the Buyer's
obligations under this Agreement to the designated intermediary if and when
requested to do so by the Seller in writing. The Buyer further agrees that any
and all liabilities and obligations of the Buyer to the Seller under this
Agreement shall not be released or discharged by the Seller's assignment of its
rights hereunder to the designated intermediary, and that such liabilities and
obligations may be enforced by the Seller notwithstanding such assignment to the
designated intermediary. The Seller agrees that any and all liabilities and
obligations of the Seller under this Agreement shall not be released or
discharged by the Seller's assignment of its rights hereunder to the designated
intermediary, and that such liabilities and obligations may be enforced by the
Buyer against the Seller notwithstanding such assignment to the designated
intermediary.
12. Gravel and Rock contracts. Prior to entering into contracts for the
sale of gravel or rock products from the Property for periods after December 31,
1997, the Seller shall submit all such contracts to the Buyer (in accordance
with the notice provisions of Section 11.2 hereof) for review and approval.
Unless the Buyer notifies the Seller within ten (10) business days of the
Buyer's receipt of such contract (in accordance with the notice provisions of
Section 11.2 hereof) that such contract(s) is/are not acceptable to the Buyer,
the Buyer shall be deemed to have approved such contract and agreed to perform
the obligations
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of the Seller arising thereunder from and after the Closing Date. Any contract
objected to by the Buyer must terminate prior to the Closing Date. Contracts
approved by the Buyer and remaining in effect after the Closing Date shall be
assigned to the Buyer at the Closing. Such assignment shall contain an agreement
by the Buyer to perform the Seller's obligations thereunder from and after the
Closing Date and warranties of the Seller to the buyer of the complete and
timely performance of the Seller's obligations under such contract through the
Closing Date.
Within ten (10) days after the execution of this Agreement, the Seller
shall deliver to the Buyer copies of any contracts for the sale of gravel or
rock products from the Property. If the Buyer objects to any such contracts
within ten (10) business days after the Buyer's receipt of such contracts
(pursuant to Section 11.2 hereof), the Closing Date shall be extended to the
later of January 3, 1998 or the date for Closing set forth in Section 9.1
hereof. Any such contracts approved by the Buyer shall be assigned to the Buyer
as provided in the preceding paragraph of this Section 12.
IN WITNESS WHEREOF, the Seller and the Buyer have executed this Agreement
as of the day and year first above written.
SELLER: BUYER:
ORTON RANCH & DEVELOPMENT, INC., GENEVA ROCK PRODUCTS, INC., a Utah
a Utah corporation, corporation,
By By
------------------------------- ---------------------------------------
Xxxx X. Xxxxx Xxxxxx X. Xxxxxxxxxxxx
President Vice President
STATE OF UTAH )
: ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of
September, 1997 by XXXX X. XXXXX, the President of ORTON RANCH & DEVELOPMENT,
INC., a Utah corporation.
--------------------------------------
Notary Signature and Seal
STATE OF UTAH )
: ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of
September, 1997 by XXXXXX X. XXXXXXXXXXXX, the Vice President of GENEVA ROCK
PRODUCTS, INC., a Utah corporation.
--------------------------------------
Notary Signature and Seal
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EXHIBIT A
(Attached to and forming a part of the Real Property Purchase Agreement,
dated September 3, 1997, between Orton Ranch & Development, Inc.,
as Seller, and Geneva Rock Products, Inc., as Buyer)
LEGAL DESCRIPTION OF THE PROPERTY
Real property located in Xxxxx County, State of Utah, more particularly
described as follows:
Parcel 1
Part of the Southeast quarter of Section 14, Township 7 north, Range 2 west,
Salt Lake Meridian, U.S. Survey: Beginning at intersection of east line of
said quarter section and north limits of Pleasant View town; thence west to a
point west 262 feet; north 4 feet, and north 7 deg. 20 min. east from
southeast corner of said quarter section; thence north 7 deg. 20 min. east to
a point 262 feet west; 4 feet north, and north 7 deg. 20 min. east 450.14
feet from the southeast corner of said section 14; thence north 81 deg. 15
min. west 392.34 feet, more or less, to Xxxx Xxxxxxxx property, thence north
7 deg. 10 min. 37 sec. East 330.44 feet, thence north 40 deg. 38 min. 30 sec.
West 323.70 feet, more or less, to county line, thence northeasterly along
county line 1265.01 feet to east line of said section, thence south 1730 feet
to beginning. Except 1.18 acres in Utah Power and Light Company (707-496).
Real property located in Box Elder County, State of Utah, more
particularly described as follows:
Parcel 3
Part of the Southeast quarter of Section 14, Township 7 north, Range 2 west,
Salt Lake Base and Meridian, beginning at the intersection of the county line
between Box Elder and Xxxxx counties as recorded in the Box Elder County
recorder's office, Recorder's no. 34422, and the east line of said section
14, said point of beginning being 255.67 feet south 0 deg. 55 min. 35 sec.
West from east -1/4 corner of said section 14, thence south 37 deg. 01 min.
43 sec. West 1373.95 feet along said county line, to the easterly property
line of the Xxxx Xxxxxxxx property thence northerly along said line the
following three courses, north 40 deg. 38 min. 30 sec. West 13.78 feet, north
42 deg. 35 min. 12 sec. West 80.30 feet, north 80 deg. 18 min. 34 sec. West
420.51 feet to the east line of SR89, thence northwesterly along said line to
an existing fence line being 140 feet more or less south from the north line
of the southeast -1/4 of said section 14, thence east along said fence line
to the east line of said section 14, thence south 0 deg. 55 min. 35 sec. West
along said east line to the point of beginning.
Together with all water rights as may be appurtenant to all of said parcels.
Subject to easements, restrictions and rights of way of record.
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EXHIBIT B
SELLER'S DISCLOSURE STATEMENT
This Seller's Disclosure Statement is an addendum to the Real Property
Purchase Agreement made and entered into as of the 2nd day of September, 1997,
by and between Orton Ranch & Development, Inc., a Utah corporation (hereinafter
sometimes referred to as "Seller"), as seller, and Geneva Rock Products, inc., a
Utah corporation (hereinafter sometimes referred to as the "Buyer"), as buyer.
Seller makes the following disclosures as to the condition of the
property:
1. There is no current access to potable water on the property.
2. There exists approximately 100 discarded automobile tires on the
property, some of which may be covered with earth.
3. There exists a septic holding tank on the property which has been
used for disposal of human waste.
4. Dynamite and similar explosives have been used in the course of
Seller's operations on the property.
5. Heavy machinery has been operated on the property from which
small amounts of motor fluids may have discharged onto the property.
6. There exists discarded debris on the property, including wood,
scrap metal, concrete, asphalt, ceramics and plastic.
7. The property may exist in an earthquake zone, or be located on or
near an earthquake fault.
The Real Property Purchase Agreement attached hereto does not include the
sale of any equipment which is now located on the property, or which in the
future may be located on the property prior to Closing.
ORTON RANCH & DEVELOPMENT, INC., a
Utah corporation
By:
-------------------------------------
Xxxx X. Xxxxx
President
