[GRAPHIC OMITTED]
COMMERCIAL - INDUSTRIAL - INVESTMENT
REAL ESTATE PURCHASE CONTRACT
This is a legally binding Contract. It has been prepared for the use of COLLIERS
CRG in transactions involving agents' clients or customers. As such the Contract
is intended to represent a reasonable effort to balance the interests of Xxxxx
and Seller. Nonetheless, the Buyer and the Seller may legally agree in writing
to alter or delete provisions of this form. Seek legal or tax advice from your
attorney or tax advisor before entering into a binding contract.
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XXXXXXX MONEY RECEIPT
The Buyer Xxxxxx Xxxxxxxx offers to purchase the Property described below and
delivers as Xxxxxxx Money Deposit $ 5,000.00 in the form of a check to be
deposited within three business days after Acceptance of this offer to purchase
by all parties to: |_| the Brokerage |X| the Title/Escrow Company identified
below.
Brokerage or Title/Escrow Company: First American Title Company,
Attn: Xxxxxxx Xxxxx
Address _0000 Xxxx Xxxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx Xxxx, XX 00000
Received by on (date) Phone Number
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(if Title/Escrow Company) for deposit no later than (date) 3 days following
full execution hereto.
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| |
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OFFER TO PURCHASE
1. PROPERTY: Dynatech International Building 50,123
Address: 0000 Xxxx Xxxxx Xxxxx Xx.
City: West Valley County: Salt Lake State: UT
For legal description, see: | | attached Addendum #
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|X| preliminary title report when available as provided below.
1.1 Included Items. Unless excluded herein, this sale shall include all
fixtures presently attached to the Property. The following personal property
shall also be included in this sale and conveyed under separate Bill of Sale
with warranties as to title: All personal property on site owned by Seller used
in conjunction with property operations and maintenance. .
1.2 Excluded Items. These items are excluded from this sale: None.
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2. PURCHASE PRICE AND FINANCING. Xxxxx agrees to pay for the Property as
follows:
$ 5,000.00 Xxxxxxx Money Deposit
$ Loan Proceeds:
--------------- | |Representing the liability to be assumed by Buyer under an
existing assumable loan | | with | | without Seller being
released of liability. Any net differences between the
approximate balance of the loan shown above and the actual
balance at Closing shall be then adjusted in cash.
| |From new institutional financing on terms no less favorable
to the Buyer than the following: __________ (interest rate for
first period prior to adjustment, if any); __________
(amortization period); __________ (term). Other than these,
the loan terms shall be the best obtainable under the loan for
which the Buyer applies below.
| |From seller-held financing, as described in the attached
Seller Financing Addendum.
| | Other
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$ Other:
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$ 3,095,000.00 Balance of purchase price in cash at closing
$ 3,100,000.00 TOTAL PURCHASE PRICE
3. CLOSING. This transaction shall be closed the thirty first day from the end
of the Due diligence period as specified in 7.3a. Closing shall occur when: (a)
Buyer and Seller have signed and delivered to each other (or to the escrow/title
company), all documents required by this Contract, by the Lender, by written
escrow instructions signed by the Buyer and the Seller, and by applicable law;
(b) the monies required to be paid under these documents have been delivered to
the escrow/title company in the form of collected or cleared funds; and (c) the
deed which the Seller has agreed to deliver under Section 6 has been recorded.
Seller and Xxxxx shall each pay one-half of the escrow Closing fee, unless
otherwise agreed by the parties in writing. Taxes and assessments for the
current year, rents, and interest on assumed obligations shall be prorated as
set forth in this Section. All deposits on tenancies shall be transferred to
Buyer at Closing. Prorations set forth in this Section shall be made as of |_|
date of Closing; |X| date of possession; | | other .
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4. POSSESSION. Seller shall deliver possession to Buyer within five (5) hours
after Closing.
5. CONFIRMATION OF AGENCY DISCLOSURE. At the signing of this Contract the
listing agent Xxxx Xxxxxxx/ANA Development represents |X| Seller | | Buyer,
and the selling agent Xxx Xxxx/XXX Development represents | |Seller |X| Buyer.
Xxxxx and Xxxxxx confirm that prior to signing this Contract written disclosure
of the agency relationship was provided to him/her.
( DRD ) Buyer's initials ( ) Seller's initials
6. TITLE TO PROPERTY AND TITLE INSURANCE. (a) Seller has, or shall have at
Closing, fee title to the Property and agrees to convey such title to Buyer by
|X| general | | special warranty deed, free of financial encumbrances as
warranted under Section 10.6; (b) Seller agrees to pay for, and furnish Buyer at
Closing with, a current standard form owner's policy of title insurance in the
amount of the TOTAL PURCHASE PRICE; (c) the title policy shall conform with
Seller's obligations under subsections (a) and (b). Unless otherwise agreed
under subsection 8.4, the commitment shall conform with the title insurance
commitment provided under Section 7.1.
|X| The Buyer may elect to obtain a full-coverage extended ALTA policy
of title insurance under (b). The costs of this coverage above
that of a standard owner's policy shall be paid for by the
| | Buyer |X| Seller. Also the cost of a full-coverage ALTA survey
shall be paid for by the | | Buyer |X| Seller. See also 7.3 (c).
7. SPECIFIC UNDERTAKINGS OF SELLER AND BUYER.
7.1 SELLER DISCLOSURES. The Seller will deliver to the Buyer the
following Seller Disclosures no later than the number of calendar days indicated
below which shall be after Acceptance:
|X| (a) a Seller property condition disclosure for the Property, (days)
signed and dated by Seller: 10
|X| (b) a commitment for the policy of title insurance required
under Section 6, to be issued by the title insurance company,
including copies of all documents listed as Exceptions on
the Commitment; 10
| | (c) a copy of all loan documents relating to any loan now
existing which will encumber the Property after Closing;
|X| (d) a copy of all leases and rental agreements now in effect
with regard to the Property together with a current rent roll; 10
|X| (e) operating statements of the Property for its last 3 full
fiscal years of operation plus the current fiscal year through
June 30, certified by the Seller or by an independent auditor; 10
| | (f) tenant estoppel agreements. See 7.3 (b) below.
| | (g) a copy of the most recent survey of the Property which
the Seller possesses, if any.
Xxxxxx agrees to pay any charge for cancellation of the title commitment
provided under subsection (b).
If Seller does not provide any of the Seller Disclosures within the
time periods agreed above, the Buyer may either waive the particular Seller
Disclosure requirement by taking no timely action or the Buyer may notify the
Seller in writing within __30___ calendar days after the expiration of the
particular disclosure time period that the Seller is in Default under this
Contract and that the remedies under Section 16 are at the Buyer's disposal. The
holder of the Xxxxxxx Money Deposit shall, upon receipt of a copy of Xxxxx's
written notice, return to the Buyer the Xxxxxxx Money Deposit without the
requirement of further written authorization from the Seller.
7.3 ADDITIONAL DUE DILIGENCE.
(a) Notwithstanding any provision elsewhere in this Contract to the
contrary, the Buyer has _90_ days after the Offer Acceptance Date within which
to conduct economic, architectural and engineering studies; obtain environmental
audits and government permits; and perform other tests and studies as the Buyer
wishes. If within this time period the Buyer in its sole discretion wishes to
void this Contract, the Buyer may do so by providing the Seller with written
notice to that effect within the same time period. Whereupon, the Seller shall
release, or authorize the release of, any Xxxxxxx Money deposited by the Buyer
and the parties shall be released of all further obligation under this Contract.
(b) The time period for the Seller's providing and the Buyer's
reviewing tenant estoppels is fifteen calendar days, respectively, befor
closing.
(c) If the Seller has agreed to provide a survey under paragraph 6
above, the Buyer must receive it no later than 15 calendar days before the
expiration of the time period stated in 7.3 (a) above. If the Seller has not
agreed to provide a survey under paragraph 6 above, the Buyer may obtain a
survey and approve it within the time period stated in 7.3 (a) above.
Xxxxxx agrees to cooperate fully with Xxxxx's completing these due diligence
matters and to make the Property available as is reasonable and necessary for
the same.
8. CONTINGENCIES. This offer is subject to the Buyer's approving in its sole
discretion the Seller Disclosures, the Buyer Undertakings and Additional Due
Diligence matters in Section 7. However, the Buyer's discretion in approving the
terms of the loan under section 7.2(b) is subject to Buyer's covenant with
regard to minimally acceptable financing terms under Section 2.
8.1 Buyer shall have 30 calendar days after the times specified in
Section 7.1 and 7.2 (except for tenant estoppels) to review the content of the
Seller Disclosures and the outcome of the Buyer Undertakings. The times stated
in 7.3 (a) and (b) apply to the diligence items which those paragraphs address.
8.2 If Buyer does not deliver a written objection to Seller regarding a
Seller Disclosure, Buyer Undertaking or Due Diligence matter within the times
provided, those items will be deemed approved by Buyer and the Buyer shall have
no right to cancel with regard to those items beyond the applicable dates.
8.3 If Buyer objects, Buyer and Seller shall have _10_ calendar days
after receipt of the objections to resolve Buyer's objections. Seller may, but
shall not be required to resolve Buyer's objections. Likewise, the Buyer is
under no obligation to accept any resolution proposed by the Seller. If Xxxxx's
objections are not resolved within the stated time, Xxxxx may void this Contract
by providing written notice to Seller within the same stated time.
8.4 The holder of the Xxxxxxx Money Deposit shall, upon receipt of a
copy of Xxxxx's written notice, return to Buyer the Xxxxxxx Money Deposit
without the requirement of any further written authorization from Seller. If
this Contract is not voided by Xxxxx, Xxxxx's objection is deemed to have been
waived. However, this waiver does not affect warranties under Section 10.
8.5 Resolution of Xxxxx's objections under Section 8.3 shall be in
writing and shall become part of this Contract. After the latest of the dates
which apply under this Section 8, the Buyer's XXXXXXX MONEY DEPOSIT SHALL BE
NONREFUNDABLE EXCEPT IN THE CASE OF DEFAULT BY THE SELLER AS ADDRESSED IN
PARAGRAPH 16 BELOW.
9. SPECIAL CONTINGENCIES. This offer is made subject to the terms of attached
Addendum # 1 which is incorporated into this Contract by this reference.
10. SELLER'S LIMITED WARRANTIES. Seller's warranties to Buyer regarding the
Property are limited to the following:
10.2 Seller will deliver possession of the Property to Buyer with the
plumbing, plumbed fixtures, heating, cooling, ventilating, electrical
and sprinkler (indoor and outdoor) systems, appliances and fireplaces
in working order;
10.3 Seller will deliver possession of the Property to Buyer with the
roof and foundation free of leaks known to Seller;
10.6 At Closing, Seller will bring current all financial
obligations encumbering the Property which are assumed in
writing by Buyer and will discharge all such obligations which
Buyer has not so assumed;
10.7 As of Closing, Seller has no knowledge of any claim or notice of
an environmental, building or zoning code violation regarding the
Property which has not been resolved.
11. VERIFICATION OF WARRANTED AND INCLUDED ITEMS. After all contingencies have
been removed and before Closing, the Buyer may conduct a "walk-through"
inspection of the Property to determine whether or not items warranted by Seller
in Section , 10.2, 10.3 and are in the warranted condition and to verify that
items included in Section 1.1 are presently on the Property. If any item is not
in the warranted condition, Seller will correct, repair or replace it as
necessary or, with the consent of Buyer and (if required) Lender, escrow an
amount at Closing to provide for such repair or replacement. The Buyer's failure
to conduct a "walk-through" inspection or to claim during the "walk-through"
inspection that the Property does not include all items referenced in Section
1.1 or is not in the condition warranted in Section 10, shall constitute a
waiver of Buyer's rights under Section 1.1 and of the warranties contained in
Section 10.
12. CHANGES DURING TRANSACTION. Seller agrees that no changes in any existing
leases shall be made, no new leases entered into, and no substantial alterations
or improvements to the Property shall be undertaken without the written consent
of the Buyer.
13. AUTHORITY OF SIGNERS. If Buyer or Seller is a corporation, partnership,
trust, estate or other entity, the person signing this Contract on its behalf
warrants his or her authority to do so and to bind Buyer or Seller and the heirs
or successors in interest to Xxxxx or Seller. If the Seller is not the vested
owner of the Property but has control over the vested owner's disposition of the
Property, the Seller agrees to exercise this control and deliver title under
this Contract as if it had been signed by the vested owner.
14. COMPLETE CONTRACT. This instrument (together with its addenda, any attached
exhibits, and Seller Disclosures) constitutes the entire Contract between the
parties and supersedes all prior dealings between the parties. This Contract
cannot be changed except by written agreement of the parties.
15. DISPUTE RESOLUTION. The parties agree that any dispute or claim relating to
this Contract, including but not limited to the disposition of the Xxxxxxx Money
Deposit and the breach or termination of this Contract, shall first be submitted
to mediation in accordance with the Utah Real Estate Buyer/Seller Mediation
Rules of the American Arbitration Association. Each party agrees to bear its own
costs of mediation. Any agreement signed by the parties pursuant to the
mediation shall be binding. If mediation fails, the procedures applicable and
remedies available under this Contract shall apply. Nothing in this Section
shall prohibit the Buyer from seeking specific performance by the Seller by
filing a complaint with the court, serving it on the Seller by means of summons
or as otherwise permitted by law, and recording a lis pendens with regard to the
action; provided that the Buyer permits the Seller to refrain from answering the
complaint pending mediation. Also the parties may agree in writing to waive
mediation.
16. DEFAULT. If Buyer defaults, Seller may elect to either retain the Xxxxxxx
Money Deposit as liquidated damages or to return the Xxxxxxx Money Deposit and
sue Buyer to enforce Seller's rights. If Seller defaults, in addition to return
of the Xxxxxxx Money Deposit, Buyer may elect to either accept from Seller as
liquidated damages a sum equal to the Xxxxxxx Money Deposit or sue Seller for
specific performance and/or damages. If Buyer elects to accept the liquidated
damages, Xxxxxx agrees to pay the liquidated damages to Buyer upon demand. Where
a Section of this Contract provides a specific remedy, the parties intend that
the remedy shall be exclusive regardless of rights which might otherwise be
available under common law.
17. ATTORNEY'S FEES. In any action arising out of this Contract, the prevailing
party shall be entitled to costs and reasonable attorney's fees.
18. DISPOSITION OF XXXXXXX MONEY. The Xxxxxxx Money Deposit shall not be
released unless it is authorized by: (a) Sections 7.1, 7.2, 7.3 and 8.3; (b)
separate written agreement of the parties including an agreement under Section
15 if (a) does not apply; or (c) court order.
19. ABROGATION. Except for Sections 10, 13, 15, 17 and 19 of this Contract, the
provisions of this Contract shall not apply after Closing.
20. RISK OF LOSS. All risk of loss or damage to the Property shall be borne by
Seller until Closing.
21. TIME IS OF THE ESSENCE. Time is of the essence regarding the dates set forth
in this transaction. Extensions must be agreed to in writing by all parties.
Performance under each Section of this Contract which references a date shall be
required absolutely by 5:00 P.M., Mountain Time on the stated date.
22. COUNTERPARTS AND FACSIMILE (FAX) DOCUMENTS. This Contract may be signed in
counterparts, and each counterpart bearing an original signature. Also facsimile
transmission of any signed original document and retransmission of any signed
facsimile transmission shall be the same as delivery of an original.
23. ACCEPTANCE. Acceptance occurs when Seller or Buyer, responding to an offer
or counteroffer of the other: (a) signs the offer or counteroffer where noted to
indicate acceptance; and (b) communicates to the other party or the other
party's agent that the offer or counteroffer has been signed as required.
24. OFFER AND TIME FOR ACCEPTANCE. Buyer offers to purchase the Property on the
above terms and conditions. If Seller does not accept this offer by 5:00 | | AM
|X|PM Mountain Time, July 21, 1999 this offer shall lapse; and the holder
of the Xxxxxxx Money Deposit shall return it to the Buyer.
July 16, 1999
(Offer Reference Date)
(IF COMPANY BUYER) (IF INDIVIDUAL BUYER)
Company name: /s/
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(Buyer's Signature)
By: Xxxxxx Xxxxxxxx
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(Print Buyer's Name)
Its:
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Address:
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(Buyer's Signature)
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Phone: (Print Buyer's Name)
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ACCEPTANCE / REJECTION / COUNTER OFFER
| | Acceptance of Offer to Purchase: Seller Accepts the foregoing offer on the
terms and conditions specified above.
(IF COMPANY SELLER) (IF INDIVIDUAL SELLER)
Company name: /s/
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(Seller's Signature)
By:
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(Print Seller's Name)
Its:
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Address:
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(Seller's Signature)
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Phone: (Print Seller's Name)
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|X| Rejection: Seller Rejects the foregoing offer.
PAB 7-19-99 8:55 AM
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(Seller's Initials) (Date) (Time)
| | Counteroffer: Seller presents for Xxxxx's Acceptance the terms of Xxxxx's
offer subject to the exceptions or modifications as specified in the attached
Counter Offer # 1.
PAB (1) 3,250,000 purchase price.
PAB (2) Closing shall be no later than 60 days from Inl date of counteroffer.
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DOCUMENT RECEIPT
| | I acknowledge receipt of a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller).
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SELLER BUYER
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Authorized Signature for Seller Authorized Signature for Buyer
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Print Name Print Name
| | I personally caused a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller),
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to be mailed on (date) by certified United States Mail,
return receipt attached, to | | Buyer | | Seller.
Sent by:
ADDENDUM # 1
REAL ESTATE PURCHASE CONTRACT
This is an ADDENDUM/ to that REAL ESTATE PURCHASE CONTRACT (the "REPC")
with an Offer Referenced Date of July 16 ,1999 , including addenda and counter
offers between Xxxxxx Xxxxxxxx or assigns, as Buyer, and Dynatech
International, as Seller on the property located at 0000 Xxxx Xxxxx
Xxxxx Xx.
The following terms are hereby incorporated as part of the REPC, and to the
extent these terms modify or conflict with any provisions of the REPC, these
terms shall control. All other terms of the REPC not modified shall remain the
same.
1. Seller shall provide a Phase I environmental report at its cost and expense
certified to Buyer which report must be acceptable to Buyer.
2. Seller shall provide Buyer with all documentation, plans and specs, or
other information pertaining to the subject property which it may have
in it's possession.
3. Xxxxx's obligation to close is specifically contingent upon the
execution by Xxxxxx & by Xxxxx of an absolute net Lease for Seller's
continued occupation of the property at a base rent figure of $0.515
psf/mo for a period of 20 years and other terms and conditions
acceptable to Buyer.
4. It is understood and agreed between the parties hereto that Buyer may
elect to facilitate a tax-deferred exchange pursuant to Section 1031 of
the Internal Revenue Code regarding the purchase and/or sale of the
Subject Property. The parties, hereto, agree to fully cooperate, one
with the other, in executing whatever additional documents or
amendments may be required to property effect said tax-deferred
exchange, provided that Seller shall incur no liability or cost
therefrom.
5. In the event Buyer has not satisfied all the conditions within the
ninety (90) days provided, and Xxxxx has so advised the Seller, then
the Buyer shall have two options to extend the due diligence period for
thirty (30) days periods by written notice from Buyer to Seller per
each thirty (30) day period.
|X| Seller o Buyer shall have until 5:00 | | A.M. |X| P.M. Mountain Time,
July 19, 1999, to accept these terms in accordance with Section 23
of the REPC. Unless so accepted, this offer shall lapse.
(IF COMPANY SELLER/BUYER) (IF INDIVIDUAL SELLER/BUYER)
Company name: /s/
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(Seller's/Buyer's Signature)
By:
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(Print Seller's/Buyer's Name)
Its:
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Address:
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(Seller's/Buyer's Signature)
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Phone: (Print Seller's/Buyer's Name)
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ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE: | | Acceptance: | | Seller | | Buyer hereby accepts these terms.
(IF COMPANY SELLER/BUYER) (IF INDIVIDUAL SELLER/BUYER)
Company name: /s/
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(Seller's/Buyer's Signature)
By:
--------------------------------------- ------------------------------------
(Print Seller's/Buyer's Name)
Its:
--------------------------------------
Address:
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(Seller's/Buyer's Signature)
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Phone: (Print Seller's/Buyer's Name)
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|X| Rejection: |X| Seller | | Buyer rejects these terms.
PAB 7-19-99 8:35 AM
Seller's Initials Date Time
|X| Counter Offer: |X| Seller | | Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # 1.
PAB (1) 3,250,000 purchase price
PAB (2) Closing shall be no later than 60 day from the date of counteroffer.
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DOCUMENT RECEIPT
| | I acknowledge receipt of a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller).
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SELLER BUYER
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Authorized Signature for Seller Authorized Signature for Buyer
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Print Name Print Name
| | I personally caused a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller),
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to be mailed on (date) by certified United States Mail,
return receipt attached, to | | Buyer | | Seller.
Sent by:
ADDENDUM #______/COUNTER OFFER # 2
REAL ESTATE PURCHASE CONTRACT
This is an ADDENDUM/COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT
(the "REPC") with an Offer Referenced Date of July 16 ,1999 , including addenda
and counter offers between Xxxxxx Xxxxxxxx, as Buyer, and Dynatec
International, Inc., as Seller on the property located at 0000 Xxxxx Xxxxx Xx.,
Xxxx Xxxx Xxxx, Xxxx 00000.
The following terms are hereby incorporated as part of the REPC, and to
the extent these terms modify or conflict with any provisions of the REPC, these
terms shall control. All other terms of the REPC not modified shall remain the
same.
1. The purchase price shall be $3,200,000.00.
2. Xxxxx's obligation to close is specifically contingent upon
the execution by Xxxxxx and Buyer of an absolute net lease for
Seller's continued occupation of the property of a base rent
figure of $0.532 per square foot/month for period of 20 years
and other terms and condition acceptable to Buyer.
3. The due diligence period shall be 75 days from offer
acceptance and closing shall occur no later than 90 days from
offer acceptance.
| | Seller | | Buyer shall have until | | A.M. | | P.M. Mountain
Time, , 19 , to accept these terms in accordance with Section
23 of the REPC. Unless so accepted, this offer shall lapse.
(IF COMPANY SELLER/BUYER) (IF INDIVIDUAL SELLER/BUYER)
Company name: Dynatec International /s/
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(Seller's/Buyer's Signature)
By: Xxxx X. Xxxxx Xxxxxx Xxxxxxxx
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(Print Seller's/Buyer's Name)
Its: SVP & CFO
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Address:
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(Seller's/Buyer's Signature)
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Phone: (Print Seller's/Buyer's Name)
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ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE: |X| Acceptance: | |Seller | | Buyer hereby accepts these terms.
(IF COMPANY SELLER/BUYER) (IF INDIVIDUAL SELLER/BUYER)
Company name: DYNATEC INT'L /s/
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(Seller's/Buyer's Signature)
By: XXXX X. XXXXX
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(Print Seller's/Buyer's Name)
Its:
SVP & CFO---------------------------------
Address:
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(Seller's/Buyer's Signature)
----------------------------------
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Phone: (Print Seller's/Buyer's Name)
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| | Rejection: | |Seller | |Buyer rejects these terms.
------------------------- ------------ ------------
Initials Date Time
| | Counter Offer: | | Seller | | Buyer presents as a counter offer the terms
set forth on the attached Counter Offer # .
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DOCUMENT RECEIPT
| | I acknowledge receipt of a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller).
------------------------------ -----------------------------
SELLER BUYER
------------------------------------- --------------------------------------
Authorized Signature for Seller Authorized Signature for Buyer
------------------------------------- --------------------------------------
Print Name Print Name
| | I personally caused a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller),
------------------------------ -----------------------------
to be mailed on (date) by certified United States Mail,
return receipt attached, to | | Buyer | | Seller.
Sent by:
ADDENDUM #______/COUNTER OFFER #___3___
REAL ESTATE PURCHASE CONTRACT
This is an ADDENDUM/COUNTER OFFER to that REAL ESTATE PURCHASE CONTRACT
(the "REPC") with an Offer Referenced Date of July 22 ,1999 , including addenda
and counter offers between Xxxxxx Xxxxxxxx, as Buyer, and Dynatec International,
Inc., as Seller on the property located at 0000 Xxxxx Xxxxx Xx., Xxxx Xxxx
Xxxx, Xxxx 00000.
The following terms are hereby incorporated as part of the REPC, and to the
extent these terms modify or conflict with any provisions of the REPC, these
terms shall control. All other terms of the REPC not modified shall remain the
same.
1. The purchase price shall be $2,900,000.00.
2. The annual absolute net rents shall be $330,000.00.
3. Closing shall take place no later than ten days following the receipt
of an appraisal that is acceptable to the Lender.
4. At closing, the Seller shall issue to the Buyer $25,000.00 in
unrestricted shares of stock with the NASDAQ symbol DYNX.
5. Upon execution of a lease agreement and loan commitment the Buyer
shall deposit an additional $95,000.00 of xxxxxxx money. The entire
xxxxxxx money, totaling $100,000.00 shall become non-refundable to
Buyer except in the case of a Seller default.
6. Buyer must obtain a loan of no less than 2 million dollars & not more
than 9 1/4%, repayable anytime during the term of the loan, in part or
in full.
|_| Seller |_| Buyer shall have until | | A.M. | | P.M. Mountain Time,
, 19 , to accept these terms in accordance with Section 23 of
the REPC. Unless so accepted, this offer shall lapse.
(IF COMPANY SELLER/BUYER) (IF INDIVIDUAL SELLER/BUYER)
Company name: DYNATEC INT'L /s/
----------------------------- ------------------------------------
(Seller's/Buyer's Signature)
By: Xxxxxxxxx Xxxxxxxxx, Xx. Xxxxxx X. Xxxxxxxx
--------------------------------------- ------------------------------------
(Print Seller's/Buyer's Name)
Its: CEO
---------------------------------
Address: 0000 X. Xxxxx Xxxxx Xx.
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Salt Lake City, Utah 84120 (Seller's/Buyer's Signature)
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Phone: 000-000-0000 (Print Seller's/Buyer's Name)
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ACCEPTANCE/REJECTION/COUNTER OFFER
CHECK ONE: Acceptance: Seller Buyer hereby accepts these terms.
(IF COMPANY SELLER/BUYER) (IF INDIVIDUAL SELLER/BUYER)
Company name: DYNATEC INT'L
----------------------------- ------------------------------------
(Seller's/Buyer's Signature)
By:
--------------------------------------- ------------------------------------
(Print Seller's/Buyer's Name)
Its:
---------------------------------
Address: 0000 X. Xxxxx Xxxxx Xx.
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Salt Lake City, Utah 84120 (Seller's/Buyer's Signature)
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Phone: 000-000-0000 (Print Seller's/Buyer's Name)
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Rejection: Seller Buyer rejects these terms.
-------------------------- -------------- ----------------
Initials Date Time
Counter Offer: Seller Buyer presents as a counter offer the terms set
forth on the attached Counter Offer # .
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DOCUMENT RECEIPT
| | I acknowledge receipt of a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller).
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SELLER BUYER
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Authorized Signature for Seller Authorized Signature for Buyer
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Print Name Print Name
| | I personally caused a final copy of this Real Estate Purchase Contract
dated bearing all signatures, between
(buyer) and (seller),
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to be mailed on (date) by certified United States Mail,
return receipt attached, to | | Buyer | | Seller.
Sent by:
RESTRICTED STOCK PURCHASE AGREEMENT
November 4, 1999
DYNATEC INTERNATIONAL, INC.
Attn. Xxxxxxxxx X. Xxxxxxxxx, Xx.,
Chairman and Chief Executive Officer
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Gentlemen:
The undersigned, FRE CORPORATION III, a California corporation
("Purchaser"), is the assignee of the rights and obligations of the undersigned,
Xxxxxx Xxxxxxxx ("Xxxxxxxx"), in and to that certain Real Estate Purchase
Contract ("REPC") by and between Datwyler and Dynatec International, Inc., a
Utah corporation ("Seller"), dated as of July 16, 1999, as supplemented by
Addenda nos. 1, 2 and 3 to the REPC (unless more specifically stated, as used in
this Agreement, the term REPC shall refer to the REPC together with each and all
of the addenda thereto). Purchaser has acquired Xxxxxxxx'x interests in the REPC
solely for purposes of effectuating a tax-deferred exchange pursuant to Section
1031 of the U.S. Internal Revenue Code of 1986, as amended. Capitalized terms
used but not specifically defined in this Agreement shall have the meanings set
forth in the REPC.
Paragraph 3 of Addendum No. 3 to the REPC provides that, as a material
inducement to Datwyler for executing and delivering the REPC and performing
thereunder, Seller is required, at closing, to "issue to [Datwyler] $25,000 in
unrestricted shares of stock with the NASDAQ symbol DYNX."
This letter is to amend the REPC to the extent that, in lieu of such
$25,000 of unrestricted common stock of Seller, Datwyler and Purchaser will
accept, in full satisfaction of such obligation, a total of Thirty-three
Thousand Nine Hundred Forty-eight (33,948) shares of the restricted, newly
issued shares of common stock of Seller (the "Shares"). Except to the extent
specifically modified by this Agreement, the REPC shall not be affected and
shall remain in full force and effect.
Seller, Purchaser and Datwyler agree that the issuance of the Shares
shall be subject to the following additional terms and conditions:
1. The Shares will be issued, and physical certificates representing
the Shares shall be delivered to Purchaser within four (4) business days after
the closing of the purchase and sale of the Property, which is to take place on
or about November 4, 1999, which Shares, upon issuance shall be fully paid and
non-assessable. The issuance of the Shares, therefore, shall not be a condition
to the closing of the purchase and sale of the Property, and the disbursement to
Seller of the proceeds therefor, after appropriate adjustment as set forth in
the Seller's Final Closing Statement.
2. In connection with the acquisition of the Shares by Datwyler (or by
Purchaser solely as a facilitator to Datwyler of a Section 1031 exchange) of the
Shares, Datwyler and/or Purchaser, as the case may be, hereby represent as
follows:
x. Xxxxxxxx is the ultimate beneficial owner of the Shares,
and is acquiring the Shares for his own account and not with a view to,
or for resale in connection with, any distribution of such Shares.
b. Purchaser and Datwyler understand and agree that the Shares
have not been and will not be registered under the Securities Act of
1933, as amended (the "Act"), or applicable state statutes, by reason
of a specific exemption under the provisions of the Act which depends
upon the representations in this Section 2.
x. Xxxxxxxx understands the merits, nature and financial risks
of an investment in the Shares and is able to bear the financial risks
thereof.
x. Xxxxxxxx has been accorded access (including the
opportunity to ask questions of representatives of Seller and receive
answers thereto) to information regarding Seller's business operations
and financial condition and has been furnished with all financial and
other information regarding Seller which he has requested and deemed
necessary; he has examined the same or caused the same to be examined
by his representatives; and he does not desire any further information
or data concerning Seller.
e. Purchaser and Datwyler understand and agree that the Shares
are "restricted securities" within the meaning of Rule 144 promulgated
under the Act, and that any future sale or disposition of the Shares by
Purchase or Datwyler may be subject to the terms of, reporting
requirements and holding periods (which Seller represents is presently
one year under Rule 144(d), although Seller makes no representation
about any successor rule or regulation) set out in Rule 144 or other
requirements of the Act (including registration of such securities) and
the rules and regulations promulgated thereunder; consequently,
Purchaser and Datwyler understand that they must bear the economic risk
of owning the Shares for an indefinite period of time because the stock
has not been registered under the Act and, therefore, cannot be sold
unless it is subsequently registered under the Act (and any applicable
state statutes) or an exemption from such registration is available.
f. Purchaser and Datwyler agree that Seller not permit the
transfer of the Shares unless any request for transfer is accompanied
by evidence satisfactory to Seller and its securities counsel that
neither the sale nor the proposed transfer of the Shares will result in
a violation of any applicable law, rule or regulation, federal or
state, and they agree that they will not sell, transfer or otherwise
dispose of the Shares without registration under the Act or exemption
therefrom. Purchaser and Datwyler, for themselves and their heirs,
personal representatives, successors and assigns, consent to the taking
of any action or the imposition of any requirement reasonably intended
by Seller or its securities counsel to prevent the disposition of any
interest in the Shares that would appear to them to be inconsistent
with any of my foregoing statements, to include without limitation the
affixing to any certificates representing the Shares an appropriate
restrictive legend and the issuance of "stop transfer" instructions to
Xxxxxx's transfer agent and similar notations on its records.
g. In deciding to acquire the Shares, Datwyler has not relied
on any representations, promises, or information, written or verbal, by
any person. Datwyler has had access to reports filed by Seller with the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, including without limitation Seller's Annual Report
on Form 10-KSB for the year ended December 31, 1998, and the quarterly
report on Form 10-QSB of Seller for the six months ended June 30, 1999.
h. Purchaser and Datwyler acknowledge that neither Seller nor
any person acting on its behalf offered to sell the Shares by means of
any form of general advertising.
3. This Agreement shall be governed by and construed in accordance with
the laws of the State of Utah, without regard to choice of law principles. This
Agreement may be executed in two or more counterparts, each of which when so
executed shall be deemed to be an original instrument that shall be enforceable
against the parties actually executing such instrument. In lieu of the original
documents, a facsimile transmission or copy of the original documents shall be
as effective and enforceable as the original. This Agreement may be amended only
by a writing executed by all parties. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter hereof
and supersedes all prior and contemporaneous agreements, negotiations and
understandings between the parties, both oral and written relating to the
subject matter hereof.
Very truly yours,
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
FRE CORPORATION III,
a California corporation
Date: By: /s/
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Xxxxxx X. Xxxxxx, President
Date: /s/
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Xxxxxx Xxxxxxxx
Acknowledged and Agreed:
DYNATEC INTERNATIONAL, INC.
By: /s/
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Xxxxxxxxx X. Xxxxxxxxx, Xx.,
Chairman and Chief Executive Officer
Date:
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