Exhibit 10.14
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") made as of the 2nd
day of June, 1996, by and between MONROC, INC., a Delaware corporation (the
"Company"), having its principal place of business at 0000 Xxxx Xxxxxx,
Xxxx Xxxx Xxxx, Xxxx, and XXXXXX XXXXX, residing at 00000 Xxxxx Xxxxx Xxxx,
Xxxxx, Xxxxxxxxxx 00000, (the "Executive").
WHEREAS, the Executive wishes to be employed by the Company as
President and Chief Executive Officer of the Company, and the Company
wishes to employ the Executive in such capacity;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Employment. The Company agrees to employ the Executive and
the Executive agrees to serve the Company upon the terms and conditions
hereinafter set forth. The Executive shall commence full-time employment
with the Company on or before July 1, 1996 ("Commencement Date").
2. Term. The employment of the Executive by the Company
pursuant to this Agreement will be for a period of three years from the
date hereof.
3. Duties. The Executive shall, subject to overall direction
consistent with the legal authority of the Board of Directors of the
Company (the "Board"), serve as, and have all power and authority inherent
in the office of Chief Executive Officer of the Company during his
employment and, as such, shall supervise, control and be responsible for
the general management and operations of the Company and have such other
executive powers and duties as may from time to time be prescribed by the
Board. The Executive shall also serve as a member of the Board and its
Executive Committee and Compensation Committee, if any, during his
employment. While sitting on the Compensation Committee, if any, he may
make any presentation concerning his own compensation but shall not
otherwise participate in the consideration of his own compensation. The
Executive shall devote his business time and efforts to the business of the
Company.
4. Compensation and Other Provisions.
(a) Base Salary. The Company shall pay to the Executive a
base salary at the rate of $150,000.00 per annum from and after the
Commencement Date, payable in substantially equal semi-monthly installments
025\105480.1
(such amount, as it may be increased from time to time, hereinafter
referred to as the "Base Salary"). The Base Salary and the Executive's
other compensation will be reviewed by the Board at least annually and may
be increased or maintained as the Board may determine.
(b) Signing Bonus. The Company shall pay to the Executive
a one-time signing bonus of $50,000, which shall be payable in full within
30 days after the Commencement Date.
(c) Annual Incentive Bonus. Beginning with the calendar
year ending December 31, 1997, the Company shall pay the Executive with
respect to each calendar year during his employment an annual incentive
bonus in such amount as the Board shall determine. The incentive bonus
shall be paid no later than March 31 following the end of each calendar
year.
(d) Participation in Benefit Plans. The Executive shall be
eligible to participate in all employee benefit plans and arrangements now
in effect or which may hereafter be established which are generally
applicable to other senior executive officers of the Company or any of its
subsidiaries or divisions, including without limitation, the Company's
Employee Stock Ownership Plan ("ESOP"), all life, group insurance and
medical care plans and all disability, retirement and other employee
benefit plans of the Company, so long as any such plan or arrangement
remains generally applicable to other senior executives of the Company or
any of its divisions or subsidiaries. The Company shall purchase and,
during the term of this Agreement, pay the premiums with respect to a one-
million dollar term life insurance policy on the life of the Executive,
which policy shall designate the Executive's wife as the beneficiary of the
policy.
(e) Vacation, Expenses, etc. The Executive shall be
entitled to the same vacation benefits as are generally available to other
senior executives of the Company. He shall be reimbursed for all
reasonable expenses incurred by him in the discharge of his duties,
including but not limited to expenses for entertainment and travel. The
Executive shall account to the Company for all such expenses.
(f) Other Benefits. The Executive shall be entitled to
receive the following non-salary benefits including, an automobile, a
country club membership, and such other benefits as the Board of Directors
may from time to time determine. In the event any expenses provided under
this subparagraph shall not be deductible to the Company under the Internal
Revenue Code of 1986, as the same shall hereinafter be amended, then the
Company shall pay to the Executive additional compensation equal to the
025\105480.1 2
expense thereof and the Executive shall pay such expenses directly. All
such additional compensation to the Executive shall be subject to
applicable withholding taxes.
(g) Stock Options. The Company shall grant to the
Executive stock options ("Options") to purchase an aggregate of 200,000
shares of Common Stock of the Company pursuant to the Company's 1996 Stock
Option Plan (the "Plan"). The Options shall be granted as of the
Commencement Date and shall expire on July 1, 2001; provided, however, the
Options shall terminate eighty-nine (89) days after the Executive's
employment has been terminated. On each anniversary of this Agreement
twenty percent (20%) of the Options shall vest and become exercisable at
the prices indicated below, so that all of the Options will become
exercisable over a period of four years:
July 1, 1996 - 40,000 shares at a price of $5.00 per share
July 1, 1997 - 40,000 shares at a price of $5.75 per share
July 1, 1998 - 40,000 shares at a price of $6.60 per share
July 1, 1999 - 40,000 shares at a price of $7.60 per share
July 1, 2000 - 40,000 shares at a price of $8.75 per share
Provided, however, in the event of a "change in control" of the Company, as
defined in the Plan, all of the outstanding Options shall vest and become
immediately exercisable, and the exercise price for the previously unvested
Options shall be the exercise price of the most recently vested Options
(for example, if the Company is sold during Year 2, the 120,000 unvested
Options shall become immediately exercisable at an exercise price of $5.75
per share); further provided, however, if the Executive elects to have the
Options qualify as incentive stock options under Section 422 of the
Internal Revenue Code, the Company will make such changes in the terms and
provisions of the Options, including the exercise prices thereof, as may be
necessary in order for the Options to qualify as incentive stock options.
(h) Moving and Housing Allowance. The Company shall pay
the reasonable expenses incurred by Executive in moving his residence from
Keene, California to Salt Lake City, Utah. In addition, for a period of up
to ninety days (90) from and after the date of this Agreement, the Company
will pay or reimburse the Executive for the payment of: (i) the weekly
round-trip airfare incurred by the Executive in traveling between Salt Lake
City, Utah and Bakersfield, California; and (ii) the sums expended by the
Executive for renting a residence in Salt Lake City, Utah.
5. Termination. The Executive's employment hereunder shall
terminate as a result of any of the following events:
025\105480.1 3
(a) Optional Termination by Company. The Company may
terminate the Executive's Employment at any time after the third
anniversary of this Agreement by giving the Executive one-hundred eighty
(180) days' prior written notice.
(b) Death. The death of the Executive;
(c) Disability. The Board may terminate the Executive's
employment in the event the Executive shall have been unable to
substantially perform his duties hereunder by reason of illness, accident
or other physical or mental disability for a continuous period of at least
six months or an aggregate of nine months during any continuous twelve
month period;
(d) Cause. The Board may terminate the Executive's
employment for "cause" at any time upon written notice to the Executive
stating the facts constituting such "cause". For purposes of this section,
the term "cause" shall mean:
(1) Conviction for commission of a felony by the
Executive; or
(2) Gross negligence or intentional or willful
misconduct by the Executive in the performance of his duties as determined
in good faith by the Board.
(e) Termination by Executive. The Executive may terminate
his employment at any time after the third anniversary of this Agreement by
giving the Company one-hundred eighty (180) days' prior written notice or
such lesser notice as the Board shall approve.
6. Representations and Warranties.
(a) The Executive represents and warrants to the Company
that the Executive is under no contractual or other restriction or
obligation which would prevent the performance of his duties hereunder, or
interfere with the rights of the Company hereunder.
(b) The Company represents and warrants to the Executive
that (i) it has all requisite power and authority to execute, deliver and
perform this Agreement; (ii) all necessary corporate proceedings of the
Company have been duly taken to authorize the execution, delivery, and
performance of this Agreement; and (iii) this Agreement has been duly
authorized, executed, and delivered by the Company, is the legal, valid and
025\105480.1 4
binding obligation of the Company, and is enforceable as to the Company in
accordance with its terms.
7. Survival. The covenants, agreements, representations and
warranties contained in or made pursuant to this Agreement shall survive
the Executive's termination of employment.
8. Amendment. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject
matter, and may be amended only by a written instrument duly executed by
each party.
9. Notice. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt to
the party to whom it is to be given at the address of such party as set
forth in the preamble to this Agreement (or to such other address as the
party shall have furnished in writing in accordance with the provisions of
this Section). Notice to the estate of the Executive shall be sufficient
if addressed to the Executive as provided in this Section. Any notice or
other communication given by certified mail shall be deemed given at the
time of certification thereof, except for notice changing a party's
address, which shall be deemed given at the time of receipt thereof.
10. Waiver. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not
be considered a waiver or deprive that party the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
Any waiver must be in writing.
11. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Executive and his heirs and
personal representatives and shall be binding upon and inure to the benefit
of each of the Company, its successors and assigns.
12. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction
or interpretation of this Agreement.
025\105480.1 5
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Utah, without giving
effect to rules governing conflicts of law.
14. Invalidity. The invalidity or unenforceability of any term
of this Agreement shall not invalidity, make unenforceable or otherwise
effect any other term of this Agreement which shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first hereinabove written.
MONROC, INC., a Delaware
corporation
By /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx, Chairman of
the Board of Directors
EXECUTIVE:
/s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
025\105480.1 6
Exhibit 10.15
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of December, 1996,
by and between XXXX XXXXXXX and XXXXXXX X. GIVEN, in their capacity as
co-trustees of the WHITNEY FAMILY TRUST, hereinafter referred to as
"Sellers", and MONROC, INC., a Delaware corporation, hereinafter referred
to collectively as "Purchaser",
WITNESS:
WHEREAS, the Sellers are desirous to sell and the Purchaser is
desirous to purchase real property (the "Property") located in the County
of Canyon, State of Idaho, more particularly described on Exhibit A hereto,
which exhibit is incorporated herein by reference as if set forth in full,
TOGETHER with all and singular the tenements, hereditaments, and
appurtenances thereunto belonging or in anywise appertaining, the reversion
and reversions, remainder and remainders, rents, issues and profits
thereof; and all estate, right title and interest in and to the Property,
as well in law as in equity, of the Grantor, but subject to all current
year taxes to be prorated at closing, easements of records, or matters
apparent or visible on the Property, and as set forth in the Warranty Deed
to be provided by Sellers to Buyer.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE TERMS AND COVENANTS HEREIN
CONTAINED AND THE PROVISIONS OF THIS AGREEMENT BY BOTH SELLERS AND
PURCHASER AS HEREIN SET OUT, the Sellers agree to transfer, sell, and
assign all of their right, title and interest in and to the above described
Property which Purchaser agrees to purchase.
I.
From the date of this Agreement is executed, Purchaser will have
thirty (30) days to make a due diligence inspection of the Property. In
consideration of Sellers keeping the Property off the market and allowing
the thirty (30) day inspection, Purchaser shall pay to Sellers the sum of
$25,000.00 xxxxxxx money, which shall be non-refundable, save and except
only if Sellers cannot deliver good and marketable title at closing or
other failure to close which is not the fault of Purchaser, in which event
the xxxxxxx money shall be returned to Purchaser. The xxxxxxx money shall
be credited against the purchase price at closing.
During the thirty (30) day inspection period Purchaser shall have
reasonable access to the Property and shall conduct such environmental and
geological testing including drilling of test holes as Purchaser deems
necessary and appropriate at Purchaser's sole cost. Purchaser shall
additionally confirm as it deems necessary the ability to obtain zoning and
other necessary government approvals for its intended uses of the Property,
and obtain a survey of the Property by a licensed surveyor acceptable to
Seller. Purchaser shall also present this Agreement to the Purchaser's
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REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 1
Board of Directors for approval, and within the thirty (30) day period
shall provide Seller with a Secretary's certificate containing a copy of
the resolution of Purchaser's Board of Directors authorizing Purchaser to
purchase the Property on the terms and conditions set forth herein. Should
Purchaser, at the end of the thirty (30) day period, not elect to continue
with the purchase of the Property, the Property will be returned to Sellers
in the condition which it was prior to the testing being done and shall
share with Sellers the results of geological tests and the survey. If the
transaction is terminated, with the exception of the hold harmless and
indemnification provisions of this section, each party will release the
other from any other obligation concerning this Agreement and the non-
refundable $25,000.00 shall remain with the Sellers.
At the end of the thirty (30) day inspection period, should Purchaser
elect to continue with the transaction, then Purchaser shall pay to Sellers
$50,000.00 additional xxxxxxx money, which shall be non-refundable, save
and except only if Sellers cannot deliver good and marketable title at
closing or other failure to close which is not the fault of Purchaser, in
which event the xxxxxxx money shall be returned to Purchaser. The xxxxxxx
money shall be credited against the purchase price at closing.
Further, Purchaser agrees and does hold Sellers harmless from any and
all liability, causes of action, claims and/or damages arising out of
Purchaser's occupancy of the Property or for the performing of such
inspections and the testing process.
Should the transaction close, all xxxxxxx money payments made by
Purchaser shall be credited against the purchase price as set forth below.
II.
The total purchase price for the above-described Property is the sum
of TWO MILLION ONE HUNDRED THIRTY THOUSAND FOUR HUNDRED DOLLARS
($2,130,400.00). Said purchase price is based upon the assumption that
there are 213.04 acres of real property being sold at the price of $10,000
per acre. Purchaser shall have the Property surveyed by a licensed surveyor
acceptable to Sellers at the Purchaser's sole cost and if the total acreage
is other than 213.04 acres, then the purchase price will be increased or
decreased based upon the per-acre purchase price of $10,000 per acre. The
purchase price shall be paid in U.S. Currency as follows:
(a) On the date this Agreement is executed, Purchaser shall pay to
Sellers $25,000 xxxxxxx money, which shall be non-refundable, save and
except only if Seller cannot deliver good and marketable title at closing
or other failure to close which is not the fault of Purchaser.
(b) At the end of the thirty (30) day inspection period, if Purchaser
elects to continue with the transaction, shall pay to Sellers an additional
$50,000.00 xxxxxxx money, which shall be non-refundable, save and except
only if Seller cannot deliver good and marketable title at closing or other
failure to close which is not the fault of Purchaser.
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REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 2
(c) At closing, Purchaser shall deposit a sum equal to 25% of the
purchase (receiving credit for the $25,000.00 and $50,000.00 xxxxxxx money
payments and any other xxxxxxx money payments previously received by
Sellers).
(d) The remaining balance of the purchase price, to-wit, the sum of
$1,597,800.00 (subject to adjustment incident to the above-referenced
survey), shall be amortized over 20 years, with interest commencing from
and after the date of closing at the rate of 8.25% per annum, with monthly
payments of $_________ per month. The first monthly payment will be due 30
days from the date of closing, with continuing monthly payments on the same
day of each and every month thereafter until the ___ day of ___________,
2002, at which time all accrued interest and unpaid principal will be due
and payable in full. The amount set forth in this subparagraph II(d) shall
be evidenced by a promissory note ( the "Promissory Note",), a copy of
which shall be attached hereto as Exhibit B to this Agreement and
incorporated herein by reference as if set forth in full. Said Promissory
Note shall provide for the prepayment of all amounts by Purchaser to
Sellers without penalty.
III.
The Sellers shall present at closing a sufficient Warranty Deed
transferring the above described Property to Purchaser, subject to all
easements, Declaration of Restrictions and Covenants on said Property which
do not unreasonably restrict Purchaser's intended use and subject to any
other exceptions set forth therein which are acceptable to Purchaser.
Sellers and Purchaser agree to cooperate in the modification or release of
such agricultural leases in the Property as may be reasonably requested by
Purchaser.
IV.
At closing, Purchaser shall also execute a mortgage (the
"Mortgage"),a copy of which shall be attached hereto as Exhibit C to this
Agreement, which shall secure the Promissory Note. Sellers shall execute a
Satisfaction of Mortgage, which Satisfaction of Mortgage shall be held by
the long term escrow holder to be recorded only upon payment in full of all
principal and accrued interest under the Promissory Note.
X.
Xxxxxxx Title Company of Canyon County is hereby named as the escrow
holder and the closing agent for this transaction. The parties shall each
pay one-half(1/2) of the respective closing agent's fees and one-half (1/2)
of all escrow fees for set up in the future. The parties shall execute the
escrow holder's escrow agreement. This Agreement and all accompanying
documents as it affects the escrow shall be a part of the escrow agreement
and incorporated therein as if set forth in full.
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REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 3
VI.
Sellers shall provide Purchaser with a Title Insurance Policy
insuring title in Purchaser in the property in the sum of TWO MILLION ONE
HUNDRED THIRTY THOUSAND FOUR HUNDRED DOLLARS ($2,130,400.00)and shall order
a preliminary title report within thirty (30) days from the date this
Agreement is executed and provide a copy of the same to Purchaser.
Purchaser shall within fifteen (15) days of receipt of said preliminary
title report notify Sellers in writing of any exceptions to title not
accepted by Purchaser. All exceptions not objected to in writing by
Purchaser within said fifteen (15) day period shall be deemed accepted by
Purchaser. If Purchaser is not willing to accept the policy as set forth in
the commitment for title insurance and has given the prerequisite written
notice, then Seller shall have thirty (30) days to delete the exceptions
reasonably objected to by Purchaser and if not so done, then either party
has the right to terminate this Agreement by giving written notice to
terminate to the other.
VII.
Purchaser understands that it is purchasing this Property "as is" in
its present condition based on Purchaser's own independent inspection of
the Property and Purchaser is not relying upon any representations of
Sellers or Sellers' agents, or employees, with regard to the Property,
egress and ingress to the Property, the boundaries of said Property,
zoning, or any other matters. There are no representation or warranties
concerning this Property which are given by Sellers to Purchaser, except as
set forth in writing in this Agreement. Purchaser understands it has a
right to enter the Property to make any test or inspection of the Property
that it reasonably deems appropriate, at Purchaser's sole cost and expense,
and, at Purchaser's option and expense, to do any soil tests, hazardous
substance condition test or reports as it deems appropriate incident to the
purchase or Purchaser's intended use of the Property. Sellers agree to
disclose any adverse condition known to Sellers which would materially
affect Purchaser's intended use of the Property.
VIII.
This transection shall close on April 15, 1997. The Purchaser shall
have the right to request up to a three month extension of the closing date
and, upon such request shall pay to Sellers $100,000.00 additional xxxxxxx
money, which shall be non-refundable, save and except only if Sellers
cannot deliver good and marketable title at closing or other failure to
close which is not the fault of Purchaser, in which event the xxxxxxx money
shall be returned to Purchaser. The xxxxxxx money shall be credited against
the purchase price at closing. In the event Purchaser requests extension of
the closing date, closing shall occur at the expiration of the three month
extension or within fifteen (15) days of receipt by Purchaser of all
necessary governmental approvals for the Purchaser's anticipated uses of
the Property, whichever first occurs.
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REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 4
IX.
The parties understand that there is a real estate company involved in this
matter which is ERA West Wind/Eagle Excellence and the brokerage fee will
be the responsibility of Sellers, to be paid pursuant to separate agreement
with said brokers.
X.
The parties understand that the terms and agreements of the Promissory
Note and Mortgage to be executed by the Purchaser shall control as to
matters of default once the transaction closes. Prior to the transaction
closing, the terms of this Agreement shall be in full force and effect and
be binding upon the parties. However, all terms, covenants and conditions
of this Agreement not incorporated in the Mortgage shall remain in full
force and effect and shall survive the closing of this transaction.
XI.
If either party breaches this Agreement, then the other party shall
give the alleged breaching party 15 days written notice of the alleged
breach, which notice shall be given by certified or registered mail, return
receipt requested, and shall be deemed given three days after the mailing
of said notice. The failure of the party to cure the alleged breach within
said period of time shall allow the non-breaching party to commence an
action for damages and/or the enforcement of said Agreement and/or, as to
Purchaser, any right of specific enforcement. Each party shall have
available to them all remedies at law or equity to enforce the provisions
of this Agreement.
XII.
Any notices to be given under and in accordance with this Agreement
shall be given to the respective parties as follows:
SELLERS: XXXX XXXXXXX
10516 Lincoln
Xxxxxxxx, XX 00000
XXXXXXX X. GIVEN
0000 Xxxxxxxxx
Xxxxxxxx, Xxxxx 00000
Copy to: Xxxxx X. Xxxxxxx
XXXXX, XXXXX LLP
X.X. Xxx 000
Xxxxx, XX 00000
261\142747
REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 5
PURCHASER: MONROC, INC.
X.X. Xxx 000
Xxxxx, XX 00000
Copy to: Xxxxxx X. Xxxxxxxx
Attorney at Law
X.X. Xxx 000
Xxxxx, XX 00000
XIII.
Should Purchaser sell, transfer, or hypothecate any portion or all of
the Property being sold herein, then in that event, all amounts due and
owing to Seller shall become immediately due and payable in full.
XIV.
It is understood and agreed that Sellers own real property in Section
20 adjacent to the Property (the "Adjacent Property"), containing three (3)
houses. Sellers hereby grant to Purchaser, on the following terms, a first
right of refusal to purchase the Adjacent Property. From and after the date
hereof, should Sellers decide to accept a bona fide offer to purchase the
Adjacent Property, or any portion thereof, from a third party, Sellers
shall first offer the same to Purchaser on the same terms and conditions as
the proposed third party sale, and shall provide Purchaser with written
notice of such proposed sale and the terms thereof. If Purchaser does not
agree, within fifteen (15) days after receipt of the Sellers' notice, to
purchase the Adjacent Property, then Sellers shall be entitled to sell the
Adjacent Property to the third party and this right of first refusal shall
thereafter be null and void; provided, however that if, prior to closing
the sale to the third party, any substantive terms or conditions of the
sale should change, the Seller shall re-offer the Adjacent Property to
Purchaser on the revised terms and conditions, granting Purchaser an
additional fifteen (15) day period within which to accept.
It is further understood and agreed that notwithstanding the
foregoing, Sellers retain the right to transfer or sell the Adjacent
Property, or any part thereof, to the children, grandchildren and/or great
grandchildren of Xxxxxxx X. Xxxxxxx without any right of Purchaser to
purchase such Adjacent Property pursuant to the terms of this Article XIV,
it being understood that the children, grandchildren end great
grandchildren of Xxxxxxx X. Xxxxxxx are not considered to be third parties
for purposes of this Article XIV, provided, however, that such children,
grandchildren and/or great grandchildren are bound by the terms of this
Article XIV as if the same were identified as Sellers in this paragraph.
XV.
The Purchaser warrants and represents that the person executing this
Agreement on behalf of the Purchaser corporation is duly authorized to
execute this Agreement and bind the corporation hereto. Not later than
thirty (30) days after execution of this Agreement, Purchaser shall supply
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REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 6
Sellers with a copy of a resolution with Purchaser's Board of Directors
authorizing this transaction at the time this Agreement is executed.
XVI.
Each of the parties to this Agreement has been represented in this
transaction by legal counsel of his or her choice. This Agreement shall be
interpreted as if each party equally participated in the drafting of this
Agreement. The recitals are a part of this Agreement.
XVII.
Time is deemed to be of the essence in the performance of each and
every term and condition of this Agreement.
XVIII.
If either party obtains the services of any attorney to enforce the
provisions of this Agreement, or of the Mortgage or Promissory Note,
whether or not litigation is commenced, the prevailing party shall have the
right to reimbursement of all costs and attorney fees incurred both as to
trial and on appeal.
XIX.
This agreement shall inure to the benefit of the respective parties,
their heirs, assigns, their personal representatives and successors in
interest.
XX.
This Agreement affects real estate in the state of Idaho and shall be
interpreted in accordance with the laws of the state of Idaho.
This Agreement is executed this 27th day of December, 1996.
SELLERS:
XXXX XXXXXXX
By /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx, Co-Trustee
By /s/ Xxxxxxx X. Given
-----------------------------
Xxxxxxx X. Given, Co-Trustee
261\142747
REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 7
PURCHASER:
MONROC, INC., a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Its Division Manager
STATE OF IDAHO )
)ss.
County of Ada )
On this :27th day of December, 1996, before me, the undersigned,
a Notary Public in and for said State, personally appeared XXXX XXXXXXX and
XXXXXXX X. GIVEN, known to me to be the co-trustees of the WHITNEY FAMILY
TRUST, the trust that executed the above instrument or the persons who
executed the instrument on behalf of said corporation, and acknowledged to
me that such trust executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
. /s/ Xxxxx Xxxxxxxxx
-----------------------------
NOTARY PUBLIC for Idaho
Residing at Boise
My Commission Expires: 2/12/02
STATE OF IDAHO )
) ss.
County of Ada )
On this 27 day of December, 1996, before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXXXXX X.
XXXXXXXXX, known or identified to me to be the Division Manager of MONROC,
INC., the corporation that executed the above 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.
/s/ Xxxxx Xxxxxxxxx
-----------------------------
NOTARY PUBLIC for Idaho
Residing at Boise
My Commission Expires:2/12/02
261\142747
REAL ESTATE PURCHASE AND SALE AGREEMENT, PAGE 8
FIRST ADDENDUM TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
DATED DECEMBER 27, 1996
IT IS HEREBY AGREED by and between Xxxx Xxxxxxx and Xxxxxxx X. Given,
in their capacity as co-trustees of the Whitney Family Trust, hereinafter
referred to as "Sellers," and Monroc Inc., hereinafter referred to as
"Purchaser," that the Real Estate Purchase and Sale Agreement dated
December 27, 1996, hereinafter "Agreement," be amended as follows:
1. Purchaser shall have an additional ten (10) days to complete its
due diligence inspection of the Property as described in Section I of the
Agreement. On or before February 6, 1997, Purchaser shall elect to
terminate or continue with the transaction as and in accordance with the
terms outlined in Section I of the Agreement.
2. In consideration of this extension of time to complete the due
diligence inspection of the Property, Purchaser shall pay to Sellers the
sum of $25,000.00 additional xxxxxxx money, which shall be non-refundable,
save and except only if Sellers cannot deliver good and marketable title at
closing, or other failure to close which is not the fault of the Purchaser,
in which event the additional xxxxxxx money shall be returned to Purchaser.
The additional xxxxxxx money shall be credited against the purchase price
at closing.
3. All other terms and conditions of the Agreement, not expressly
modified herein, remain in full force and effect.
This First Addendum is executed this 27th day of January,
1997.
SELLERS:
By /s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx, Co-Trustee
By /s/ Xxxxxxx X. Given
------------------------------
Xxxxxxx X. Given, Co-Trustee
PURCHASER:
MONROC, INC., a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Its Division Manager
261\142747
FIRST ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT DATED DECEMBER 27,
1996.
PAGE 1
STATE OF IDAHO )
) ss.
County of Ada )
On this 27th day of January,1997,before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXX XXXXXXX and
XXXXXXX X. GIVEN, known to me to be the co-trustees of the WHITNEY FAMILY
TRUST, the trust that executed the above instrument or the persons who
executed the instrument on behalf of said corporation, and acknowledged to
me that such trust executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
.... /s/ Xxxxxx X. Xxxx
-------------------------------
NOTARY PUBLIC for Idaho
Residing at Boise, Idaho
My Commission Expires: 10/3/97
STATE OF IDAHO )
)ss.
County of Ada )
On this 27th day of January, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXXXXX XXXXXXXXX,
known or identified to me to be the Division Manager of MONROC, INC., the
corporation that executed the above 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.
.... /s/ Xxxxxx X. Xxxx
--------------------------------
NOTARY PUBLIC for Idaho
Residing at Boise, Idaho
My Commission Expires: 10/3/97
261\142747
FIRST ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT DATED DECEMBER 27,
1996.
PAGE 2
SECOND ADDENDUM TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
DATED DECEMBER 27, 1996
IT IS HEREBY AGREED by and between Xxxx Xxxxxxx and Xxxxxxx X. Given,
in their capacity as co-trustees of the Whitney Family Trust, hereinafter
referred to as "Sellers," and Monroc Inc., hereinafter referred to as
"Purchaser," that the Real Estate Purchase and Sale Agreement dated
December 27, 1996, hereinafter "Agreement," be amended as follows:
1. That Section II of the Agreement shall be amended to read as follows:
The total purchase price for the above-described Property is the
sum of TWO MILLION ONE HUNDRED THIRTY THOUSAND FOUR HUNDRED
DOLLARS ($2,130,400.00). Said purchase price is based upon the
assumption that there are 213.04 acres of real property being
sold at the price of $10,000 per acre. Purchaser shall have the
Property surveyed by a licensed surveyor acceptable to Sellers at
the Purchaser's sole cost and if the total acreage is other than
213.04 acres, then the purchase price will be increased or
decreased based upon the per-acre purchase price of $10,000 per
acre. It is expressly understood and agreed that a railroad right
of way exists or existed over and/or through a portion of the
Property. The total acreage of the Property sold hereunder shall
include all of the property included in and/or under the railroad
right of way to the extent Sellers shall have a transferrable
interest in such right of way property. Sellers shall, to the
extent necessary, use Sellers' best efforts to perfect and secure
right, title and interest in such railroad right of way property
prior to closing. Sellers shall convey to Purchaser any and all
such right, title and interest in the railroad right of way
property at closing. The purchase price shall be paid in U.S.
Currency as follows:
2. That Section II (d) of the Agreement shall be amended to read as
follows:
(d) The remaining balance of the purchase price, to-wit, the sum
of $1,597,800.00 (subject to adjustment incident to the above-
referenced survey), shall be amortized over 20 years, with
interest commencing from and after the date of closing at the
rate of 9.00% per annum, with monthly payments of $________ per
month. The first monthly payment will be due 30 days from the
date of closing, with continuing monthly payments on the same day
of each and every month thereafter until the _____ day of
__________, 2007, at which time all accrued interest and unpaid
principal will be due and payable in full. The amount set forth
in this subparagraph II(d) shall be evidenced by a promissory
note (the "Promissory Note"), a copy of which shall be attached
hereto as Exhibit B to this Agreement and incorporated herein by
reference as if set forth in full. Said Promissory Note shall
provide for the prepayment of all amounts by Purchaser to Sellers
without penalty, but only after five years from the date of the
Promissory Note. Purchaser shall have no prepayment right in the
first five years.
261\142747
SECOND ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT DATED DECEMBER 27,
1996.
PAGE 1
3. That Section VIII of the Agreement shall be amended to read as
follows.
This transaction shall close on April 15, 1997. The Purchaser
shall have the right to request up to a three month extension of
the closing date and, upon such request shall pay to Sellers
$100,000.00 additional xxxxxxx money. At the end of the three
month extension of the closing date, Purchaser shall have the
right to request up to a five month extension of the closing date
and, upon such request shall pay to Sellers $200,000.00
additional xxxxxxx money. All additional xxxxxxx money paid to
Sellers to extend the closing date shall be non-refundable, save
and except only if Sellers cannot deliver good and marketable
title at closing or other failure to close which is not the fault
of Purchaser, in which event the xxxxxxx money shall be returned
to Purchaser. The additional xxxxxxx money paid at the time of
request for each such extension, shall be credited against the
purchase price at closing. In the event Purchaser requests
extension of the closing date, closing shall occur at the
expiration of the extension or within fifteen (15) days of
receipt by Purchaser of all necessary governmental approvals for
the Purchaser's anticipated uses of the Property, whichever first
occurs. Purchaser shall regularly keep Sellers informed of the
status of proceedings and progress in securing the governmental
approvals.
4. All other terms and conditions of the Agreement, not expressly
modified herein, remain in full force and effect.
This Second Addendum is executed this 28th day of January, 1997.
SELLERS:
By /s/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx, Co-Trustee
By /s/ Xxxxxxx X. Given
----------------------------------
Xxxxxxx X. Given, Co-Trustee
PURCHASER:
MONROC, INC., a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Its Division Manager
261\142747
SECOND ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT DATED DECEMBER 27,
1996.
PAGE 2
STATE OF IDAHO )
) ss.
County of Ada )
On this 28th day of January,1997,before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXX XXXXXXX and
XXXXXXX X. GIVEN, known to me to be the co-trustees of the WHITNEY FAMILY
TRUST, the trust that executed the above instrument or the persons who
executed the instrument on behalf of said corporation, and acknowledged to
me that such trust executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
.... /s/ Xxxxxx X. Xxxx
-----------------------------
NOTARY PUBLIC for Idaho
Residing at Boise, Idaho
My Commission Expires: 10/3/97
STATE OF IDAHO )
)ss.
County of Ada )
On this 28th day of January, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXXXXX XXXXXXXXX,
known or identified to me to be the Division Manager of MONROC, INC., the
corporation that executed the above 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.
.... /s/ Xxxxxx X. Xxxx
----------------------------
NOTARY PUBLIC for Idaho
Residing at Boise, Idaho
My Commission Expires: 10/3/97
261\142747
SECOND ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT DATED DECEMBER 27,
1996.
PAGE 3
