Exhibit 10.01
COMMERCIAL EARNEST MONEY CONTRACT
THIS CONTRACT OF SALE is made by and between Novell, Inc., a
Delaware corporation, hereafter referred to as "SELLER" and
Origin Systems, Inc., a Texas corporation, hereafter referred
to as "BUYER" upon the terms, provisions and conditions set
forth herein.
1. PURCHASE AND SALE. Subject to all of the terms and
conditions of this contract, Seller agrees to sell and convey
to Buyer and Buyer agrees to buy from Seller the following
property situated in Travis County, Texas, known as
Bridgepoint Plaza, 5918 and 5914 West Courtyard Drive, Austin,
Texas 78730 (address).
2. PROPERTY. Described on attached
EXHIBIT A, together with all and singular the rights and
appurtenances pertaining to the property, including any right,
title, and interest of Seller in and to adjacent streets,
alleys or rights of way. All of such real property, rights,
and appurtenances being hereinafter referred to as the
"PROPERTY", together with any improvements, fixtures, and
personal property situated on, attached to, or used in
connection with, the Property, and owned by Seller, excluding
the personal property to be disclosed in writing to Buyer by
April 21, 1995.
3. CONTRACT SALES PRICE.
A. Cash down payment payable at closing
(including earnest money)............ $18,950,000.00
B. Sum of all notes described in this
contract ..............................$ -0-
C. Other................................. $ -0-
D. Sales Price (Sum of A, B, and C)...... $18,950,000.00
4. EARNEST MONEY.
A. Within two (2) business days after the effective date
of this contract, Buyer shall deposit $250,000.00 as Earnest
Money with Heritage Title Company of Austin, Inc., as Escrow
Agent. Additional Earnest Money, if any, shall be deposited with
the Escrow Agent on or before the earlier of (i) one day after
the date this contract is approved by the Board of Directors of
Electronic Arts Inc. or (ii) May 16, 1995, (the "ADDITIONAL
EARNEST MONEY DEPOSIT DATE") in the amount of $500,000.00.
Earnest Money and Additional Earnest Money is deposited with the
Escrow Agent with the understanding that Escrow Agent (i) does
not assume or have any liability for performance or
nonperformance of any party (ii) has the right to require the
receipt, release and authorization in writing of all parties
before paying the deposit to any party and (iii) is not liable
for interest or other charge on the funds held. If
any party unreasonably fails to agree in writing to an
appropriate release of Earnest Money or Additional Earnest Money,
then such party shall be liable to the other parties to the
extent provided in Section 15. At closing, Earnest Money and
Additional Earnest Money shall be applied to any cash down
payment required, next to Buyer's closing costs and any excess
refunded to Buyer.
B. [X] Yes [ ] No. The parties herein agree that the
Earnest Money and Additional Earnest Money shall be deposited in
an account at NationsBank, N.A. - Austin, Texas, bearing interest
at the highest obtainable rate and the interest shall be credited
to Buyer.
5. PROPERTY CONDITION/INVESTIGATION.
[ ] A. Buyer accepts the Property in "AS IS" condition.
[X] B. Buyer accepts the Property subject to the Special
Provisions contained in Section 25 and in the
Investigation/Feasibility Study Addendum attached hereto.
6. SURVEY AND TITLE BINDER.
A. Survey
[ ] 1. No survey is required.
[ ] 2. Seller shall furnish to Buyer within ten (10)
days from the effective date of this contract,
Seller's existing survey of the
Property dated ________________, 19____.
[X] 3. Within ten (10) days after the date of this
contract, Seller shall, [X] at Seller's expense [ ] at
Buyer's expense, deliver or cause to be delivered to
Buyer and Title Company a copy of a current-on-the-
ground survey ("SURVEY") of the Property made by a duly
licensed surveyor reasonably acceptable to Buyer and in
a form acceptable to Buyer and the Title Company issuing
the title commitment and Owner's Policy of Title
Insurance required herein. If the
survey exception (except as to shortages in area) is to
be deleted herein, the additional expense for such
deletion shall be paid by Buyer. The Survey shall show
acreage or square feet, access to the property, the
location of all improvements, rights of way, easements,
encroachments, streets, roads, water courses, or fences
on or adjacent to the Property, if any.
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[ ] i.) If the price of the Property, pursuant to Section
3, is based upon price per acre, then the Survey shall
reflect the total acreage.
[ ] ii.) If the price of the Property, pursuant to Section
3, is based upon price per square foot, then the
Survey shall reflect the total square footage.
B. Within ten (10) days after the date of this contract,
Seller shall, at Seller's expense, deliver or cause to be
delivered to Buyer:
(1) A title commitment ("TITLE BINDER") covering the
Property on the standard form of commitment prescribed
by the Texas State Board of Insurance in the full
amount of the purchase price;
(2) True, correct, and legible copies of any and all
instruments referred to in the Title Binder as
constituting exceptions or restrictions upon the title
of Seller; and
(3) A U.C.C. lien search on the Seller.
7. APPROVAL PERIOD AND TITLE.
A. Buyer shall have ten (10) days after the receipt of
both the Survey and Title Binder to review same and to deliver in
writing to Seller such objections as Buyer may have to anything
contained therein. Any such item to which Buyer shall not object
shall be deemed to be accepted by Buyer. If there are objections
by Buyer, Seller shall in good faith attempt to satisfy same
within the cure period set out below, but Seller shall not be
required to incur any cost to do so. If title objections are
disclosed, Seller shall have ten (10) days to cure same. If
Seller delivers written notice to Buyer within the cure period
set out above that Seller is unable to satisfy such objections,
or if, for any reason, Seller is unable to convey title in
accordance with Section 7.B. below, Buyer shall within two (2)
days after receipt of such notice either waive such objections
and accept such title as Seller is able to convey or terminate
this contract by written notice to Seller and Earnest Money and
Additional Earnest Money shall be refunded with no Broker's fee
due. Zoning ordinances and a lien for current taxes shall not be
valid objections to title.
B. Seller represents and warrants to Buyer that at the
closing Seller will have and will convey to Buyer good and
indefeasible title by General Warranty Deed subject only to
liens securing debt created, assumed or taken subject to as
part of the consideration, taxes for the current year, and any
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other reservations, easements, discrepancies in boundaries,
encroachments, restrictions or exceptions previously approved
by Buyer in accordance with Section 7.A.
8. NOTICE TO BUYER. At the time of the execution of
this contract, Broker has advised and hereby advises Buyer, by
this writing, that Buyer should be furnished with or obtain a
policy of title insurance or if an abstract covering the
Property is provided in lieu thereof, Buyer should have said
abstract examined by an attorney of Buyer's own selection.
9. CLOSING.
A. The closing of the sale (the "CLOSING DATE")
shall be on or before May 31, 1995, subject to extension as
provided in Section 10 below.
B. At the closing, Seller shall deliver to Buyer:
(i) a General Warranty Deed (with Vendor's Lien retained if
not a cash purchase), in form and with substance reasonably
satisfactory to Buyer and Seller, conveying the Property,
subject only to liens securing debt created, assumed or taken
subject to as part of the consideration, taxes for the current
year, and any other reservations or exceptions previously
approved by Buyer in accordance with Section 7.A.; (ii) an
Owner's Policy of Title Insurance (the "TITLE POLICY") issued
by Heritage Title Company of Austin, Inc. in the full amount
of the Sales Price, dated as of closing, insuring Buyer's fee
simple title to the Property to be good and indefeasible
subject only to those title exceptions permitted herein, or as
may be approved by Buyer in writing, and the standard printed
exceptions contained in the usual form of the Title Policy,
provided, however: (a) the exception as to area and
boundaries shall be in accordance with Section 6.A.3.; (b) the
exception as to restrictive covenants shall be endorsed "NONE
OF RECORD", or, if of record, restrictive covenants shall be
referenced by appropriate recording information; (c) the
exception as to taxes shall be limited to taxes for the
current year and subsequent years, and subsequent assessments
for prior years due to changes in land usage or ownership and
affirmatively endorsed "NOT YET DUE AND PAYABLE"; and (iii)
possession of the property.
C. At the closing, Buyer shall deliver to Seller
(i) the cash portion of the sales price (the Earnest Money
and Additional Earnest Money being applied thereto) (ii) the
assignment and assumption of leases described in Section 25.L.(ii)
of this contract, (iii) the assumption of service, maintenance
and management contracts and agreements, if any, described in
Section 25.L.(v) of this contract, and (iv) the letters to
tenants described in Section 25.L.(vii) of this contract.
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D. Unless otherwise provided
herein, (i) costs for the Survey, the Title Policy, preparing
Deed, tax certificates, brokerage commissions, Seller's
attorney's fees, 1/2 of escrow fee, and all other costs and
expenses incurred by Seller, shall be Seller's expense, and
(ii) expenses incident to new loans(s), Buyer's attorney's
fees, l/2 of escrow fee, and all other costs and expenses
incurred by Buyer shall be Buyer's expense. All other costs
and expenses incurred in connection with this contract shall
be paid by such party as is customary in connection with sales
of real property in Travis County, Texas.
E. Rents and lease
commissions, interest, utility charges, personal property
taxes and ad valorem taxes for the then current year shall be
prorated at the closing effective as of the date of closing.
If for any reason utility charges cannot be accurately
determined at date of closing for proration purposes, Buyer
may postpone proration of utility charges until after closing
and at such time as a statement for utility charge is
received. Charges appearing on such statement shall then be
prorated as of the date of closing, and Seller shall tender in
cash the cost of all utility charges to the date of closing to
Buyer upon demand. Any security or other deposits or prepaid
rents for any period after closing held by Seller shall be
delivered to Buyer. If the closing shall occur before the tax
rate is fixed for the then current year, the apportionment of
the taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation but
any difference in ad valorem taxes for the year of sale
actually paid by Buyer shall be adjusted between the parties
upon receipt of written evidence of the payment thereof. If
Seller has claimed the benefit of laws permitting a special
use valuation for the purposes of payment of ad valorem taxes
on the Property, then Seller represents that it was legally
entitled to claim such benefits. If this sale or Buyer's use
of the property after closing results in the assessment of
additional taxes for prior years, such additional taxes shall
be the obligation of the Seller and such obligation shall
survive closing.
F. If Buyer is to assume an existing loan,
Buyer shall pay any transfer fee as provided in this Section
9. Buyer shall execute, at the option and expense of Seller,
a Deed of Trust to Secure Assumption with a Trustee named by
Seller.
G. If the Property is situated within a utility
district subject to the provisions of Section 50.301, Texas
Water Code, then at or prior to the closing, Seller agrees to
give Buyer the written notice required by said Section and
Buyer agrees to sign and acknowledge the notice to evidence
receipt thereof.
10. ESTOPPEL CERTIFICATES BY TENANTS AND LEASES AND SERVICE
AND WARRANTY CONTRACTS. Seller shall deliver to Buyer an
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"ESTOPPEL CERTIFICATE" signed by each tenant leasing space in
the property according to the Special Provisions contained
herein stating (1) that no default exists under the terms of
the lease agreement by either landlord or tenant (2) the
amount of any rental payments made in advance, if any; (3) the
amount of any security or other deposits made, if any; (4) the
amount of any offsets against rent, if any; and (5) that
tenant has no defenses against the payment of rent accruing
under the terms of its lease agreement and no counterclaims
against landlord under the terms of its lease agreement.
Seller shall, at closing, tender to Buyer the amount of any
security deposits and advance rental payments received. If
any tenant presents a claim for an offset against rent or a
defense against the payment of rent or represents a state of
facts materially different from that set forth in its lease
agreement which is unacceptable to Buyer, Buyer shall so
notify Seller in writing within two (2) days after receipt of
such estoppel certificates. Seller shall promptly undertake
to eliminate or modify such unacceptable provision(s) but
shall not be required to incur any cost to do so. In the
event Seller is unable to do so within two (2) days after
receipt of written notice, (i) then within one (1) day after
the end of such two day cure period, Buyer may waive such
objections in writing, or (ii) if Buyer has not so waived such
objections, then either Seller or Buyer may extend the time up
to ten (10) days. If the time is not so extended, or if the
time is so extended and if Seller does not eliminate or modify
such unacceptable provision(s) within such extended time
period, this contract shall automatically terminate and
Earnest Money and Additional Earnest Money shall be refunded
with no Broker's fee due.
Seller shall deliver to Buyer copies of all existing leases
and service and/or warranty contracts applicable to the
premises within five (5) days after the date of this contract.
Buyer shall have through May 1, 1995, to disapprove of same
in writing to Seller, and Buyer may terminate this agreement
and Earnest Money and Additional Earnest Money shall be
refunded with no Broker's fee due. At closing the cost of any
service and/or warranty contracts assumed by Buyer shall be
prorated.
11. BROKER'S FEES:
[ ] A. Listing
-----------------------------------------
Broker ( %) and
----------- ------------------------
Co-Broker ( %) As Real Estate Broker
------------
(the Broker) has negotiated this sale
and Seller agrees to pay Broker in
----------------
County, Texas, on consummation of this sale a total
cash fee of $ or % of
--------------- -------------
the total Sales Price or as per separate written
agreement, which Escrow Agent shall pay from the
sale proceeds.
[X] B. Seller agrees to pay Listing Broker the fee
specified by separate agreement between Listing
Broker and Seller. Escrow Agent is
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authorized and directed to pay Listing Broker
said fee from the sale proceeds.
12. CASUALTY LOSS. If, prior to Closing, any part of the
Property is substantially damaged or destroyed by fire or
other casualty loss, Seller may at Seller's option, restore
the same to its previous condition as soon as reasonably
possible, but in any event by Closing Date; and if Seller
fails to do so, this contract shall terminate and Earnest
Money and Additional Earnest Money shall be refunded with no
Broker's fee due.
13. DEFAULT. If Buyer fails to comply
herewith, Seller may terminate this contract and (i) through
the day preceding the Additional Earnest Money Deposit Date,
receive $25,000.00 of the Earnest Money as liquidated damages
to compensate Seller for certain expenses incurred by Seller
in connection herewith and for the loss of rental income from
the date hereof to May 16, 1995, and (ii) beginning on the
Additional Earnest Money Deposit Date, and continuing
thereafter, receive the Earnest Money and Additional Earnest
Money as liquidated damages. If Seller is unable without fault
to deliver Title Policy, Buyer may either terminate this
contract and receive the Earnest Money and Additional Earnest
Money as the sole remedy, and no Broker's fee shall be earned,
or extend the time up to 10 days. If Buyer extends the time,
and if Seller is unable without fault to deliver Title Policy
within such extended time period, this contract shall
automatically terminate, Buyer shall receive the Earnest Money
and Additional Earnest Money as the sole remedy, and no
Broker's fee shall be earned. If Seller fails to comply
herewith for any other reason, Buyer may (i) terminate this
contract and receive the Earnest Money and Additional Earnest
Money, thereby releasing the parties from this contract, or
(ii) enforce specific performance hereof. Nothing contained
herein shall limit Buyer's rights or remedies for any breach
by Seller under any of the documents delivered by Seller at
closing as provided in Section 9.B. and Section 25.L.
14. CONDEMNATION. If any part of the Property is condemned
prior to Closing Date, Seller shall promptly give Buyer
written notice of such condemnation and Buyer shall have the
option of either applying the proceeds on a pro rata basis of
any condemnation award to reduce the Sales Price provided
herein or declare this contract terminated by delivering
written notice of termination to Seller and Earnest Money and
Additional Earnest Money shall be refunded to Buyer with no
Broker's fee due.
15. ATTORNEY'S FEES. Any signatory to this
contract who is the prevailing party in any legal proceeding
against any other signatory brought under or with relation to
this contract or transaction shall be additionally entitled to
recover court costs and reasonable attorney fees, and all
other litigation expenses, including deposition costs, travel,
and expert witness fees, from the non-prevailing party.
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16. REPRESENTATIONS. In addition to other representations
made herein, Seller represents that there will be no Title I
liens, unrecorded liens or Uniform Commercial Code liens
except those specified in Section 25 against any of the
Property on Closing Date, that loan(s) will be without
default, and reserve deposits will not be deficient. If any
representation above is untrue this contract may be terminated
by Buyer and the Earnest Money and Additional Earnest Money
shall be refunded without delay. These Section 16.
representations shall survive closing.
17. NOTICES. Any notice or communication
required or permitted hereunder shall be deemed to be
delivered, whether actually received or not, when deposited in
the United States mail, postage fully prepaid, registered or
certified mail, and addressed to the intended recipient at the
address on the signature page of this contract. Any address
for notice may be changed by written notice delivered as
provided herein.
18. INTEGRATION. This contract contains the
complete agreement between the parties and cannot be varied
except by the written agreement of the parties. The parties
agree that there are no oral agreements, understandings,
representations or warranties which are not expressly set
forth herein.
19. BINDING EFFECT. This contract shall be
binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, representatives,
successors and assigns where permitted by this contract. The
effective date of this contract shall be the date upon which
the last party signs.
20. TERMINATION OF OFFER. Unless
accepted by Seller, as evidenced by Seller's signature hereto
and delivered to Buyer by 5:00 p.m., the 13th day of April,
1995, this offer to purchase shall be null and void and all
parties hereto shall stand relieved and released of any and
all liability or obligations hereunder and all Earnest Money
and Additional Earnest Money shall be returned to Buyer.
21. ASSIGNMENT.
[ ] A. Buyer may not assign this contract.
[X] B. Buyer may assign this contract and all rights hereunder
to its parent company, Electronic Arts Inc., or to a
wholly owned subsidiary of Buyer or of Electronic Arts
Inc., or to the founders of Buyer, and shall be relieved
of any future liability under this contract provided the
assignee shall assume in writing all the obligations of
Buyer hereunder; otherwise Buyer may not assign this
contract.
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22. TEXAS LAW TO APPLY. This agreement shall be construed
under and in accordance with the laws of the State of Texas,
and all obligations of the parties created hereunder are
performable in Travis County, Texas.
23. LEGAL CONSTRUCTION. In case any one or more of the
provisions contained in this contract shall for any reason be
held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not
affect any other provision hereof and this contract shall be
construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
24. TIME. Time is of the essence.
25. SPECIAL PROVISIONS. (This section to include
additional factual data relevant to the sale which may include
addendums.)
A. Notwithstanding anything to the contrary herein, if any
deadline specified in this contract falls on a Saturday,
Sunday or public holiday on which commercial banks in Austin,
Texas are permitted or required by law to be closed, such
deadline shall be extended to the next day which is not a
Saturday, Sunday or public holiday.
B. The "EFFECTIVE DATE OF THIS CONTRACT" and the "DATE OF
THIS CONTRACT" shall both mean and refer to the earliest date
on which this contract has been executed by both Seller and
Buyer.
C. Seller shall deliver the estoppel certificates described
in Section 10. above to Buyer no later than seven (7) days
prior to the Closing Date.
D. There are two buildings located on the real property
(collectively the "BUILDINGS" and respectively "BUILDING I"
and "BUILDING II". No later than the Closing Date there shall
be no less than 58,000 square feet (under (i) of the next
sentence) or 60,000 square feet (under (ii) of the next
sentence) of vacant tenant space in the Buildings (the
"CLOSING VACANT SPACE"). The Closing Vacant Space may be in
(i) any configuration in and on, any one, or any combination
of more than one, of the first, third and fourth floors of
Building I or (ii) any configuration of not less than 7,000
contiguous square feet per floor in and on, any one, or any
combination of more than one, of the following floors and
Buildings: the first, third and fourth floors of Building I
and the first and third floors of Building II. No later than
the Closing Date there shall be one or more written agreements
(the "POST-CLOSING AGREEMENTS") in effect between the Seller
and one or more tenants of one or more of the Buildings
providing that by December 31, 1995, there shall be no
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less than 16,000 additional square feet of vacant tenant space
in the Buildings (the "POST-CLOSING VACANT SPACE"). The
Post-closing Vacant Space must be all on one floor of either
Building I or Building II.
To secure the Post-closing Agreements and the Closing
Vacant Space Seller shall pay a maximum of $150,000.00
(inclusive of any pre-closing rent abatement or other offsets
under the Leases), and Buyer shall pay a maximum of
$250,000.00 (inclusive of any post-closing rent abatement and
other offsets under the Leases). The form and substance of
each Post-closing Agreement and the terms of any agreements to
obtain the Closing Vacant Space (the "PRE-CLOSING AGREEMENTS")
shall be reasonably acceptable to Seller and Buyer, and the
amount of any pre-closing rent abatement and other offsets
under the Leases to secure the Pre-closing Agreements and the
Post-closing Agreements shall be reasonably acceptable to
Seller and Buyer. Other than the payment by Buyer of the
amount set out in the preceding sentence, and Buyer's
reasonable acceptance of the form and substance of each
Post-closing Agreement and the terms of each Pre-closing
Agreement and the amount of any pre-closing rent abatement and
other offsets under the Leases to secure the Pre-closing
Agreements and the Post-closing Agreements, the Pre-closing
Agreements and the Post-closing Agreements shall be secured
through Seller's efforts and Buyer shall not participate in
such. Buyer may withhold its consent to any Pre-closing
Agreement or Post-closing Agreement if Seller proposes to
include as part of its $150,000 obligation described above any
claims against a tenant that are of questionable
enforceability in the reasonable opinion of Buyer.
At closing (i) Seller shall pay to Buyer the lesser of (a)
$150,000.00 LESS the amount of all pre-closing rent abatement
and other offsets under the Leases given to tenants to secure
the Pre-closing Agreements and the Post-closing Agreements, or
(b) 1/2 of all amounts specified to be paid to tenants under
the Pre-closing Agreements and the Post-closing Agreements,
PLUS 1/2 of all rent abatement and other offsets under the
Leases given, or to be given, to tenants to secure the
Pre-closing Agreements and the Post-closing Agreements (ii)
Buyer shall assume in writing all of Seller's obligations
under all Pre-closing Agreements and Post-closing Agreements
and shall agree to indemnify Seller for and hold Seller
harmless from and against any and all loss, costs, expenses or
liabilities suffered by Seller and arising from or directly
relating to Buyer's default under any Pre-closing Agreement or
Post-closing Agreement, and (iii) all payments due to tenants
as of the Closing Date under the Pre-closing Agreements and
the Post-closing Agreements shall be paid by Buyer to the
appropriate tenants.
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If Seller is unable to secure the Closing Vacant Space and
the Post-closing Agreements by the Closing Date for the
maximum $400,000.00 to be paid by Seller and Buyer under the
terms of this Section 25.D., then this contract shall
automatically terminate, the Earnest Money and the Additional
Earnest Money shall be returned to Buyer, and no Broker's fee
shall be earned. Seller shall use reasonable efforts to
obtain the Closing Vacant Space and the Post-closing
Agreements as inexpensively as possible.
If Seller enters into any Pre-closing Agreements or
Post-closing Agreements which are binding upon Seller prior to
the Closing Date, Buyer shall have no liability therefor or
thereunder until and unless Buyer assumes in writing all of
Seller's obligations thereunder at closing as set out above in
this Section 25.D.
Seller shall notify Buyer on or before May 1, 1995 as to
whether in Seller's reasonable opinion Seller expects to be
able to obtain the Closing Vacant Space and the Post-closing
Agreements.
E. Unless Buyer terminates this contract by May 1, 1995 as
provided in the Investigation/Feasibility Study Addendum
attached hereto, Buyer shall use Buyer's best efforts to
secure the approval of this contract by the Board of Directors
of Electronic Arts Inc. on or before May 15, 1995. If Buyer
is unable to secure such approval on or before May 15, 1995,
this contract shall automatically terminate, Seller shall
receive $25,000.00 of the Earnest Money as the sole remedy to
compensate Seller for certain expenses incurred by Seller in
connection herewith and for the loss of rental income from the
date hereof to May 16, 1995, the remaining $225,000.00 of the
Earnest Money shall be returned to Buyer, and no Broker's fee
shall be earned. Buyer's failure to secure such approval on
or before May 15, 1995 shall not be deemed to be a default of
Buyer hereunder; provided however such $25,000.00 of the
Earnest Money shall be payable to Seller as provided in the
preceding sentence to compensate Seller for certain expenses
incurred by Seller in connection herewith and for the loss of
rental income from the date hereof to May 16, 1995,
F. Notwithstanding anything in this contract to the
contrary, One Hundred Dollars ($100.00) of the Earnest Money
shall be deemed earned by Seller and shall be non-refundable
to Buyer in all events, which amount the parties acknowledge
and agree has been bargained for and agreed to as
consideration for Seller's execution and delivery of this
contract.
G. The terms of this contract shall be kept confidential by
the parties hereto and shall not be disclosed to any third
parties without the prior written
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consent of both Seller and Buyer, other than to those persons who
have a legitimate reason to know such information in order to
facilitate this sale and purchase and as otherwise required by
law and to those persons entitled to brokerage commissions in
connection with this sale and purchase; provided however, that
after the closing, if any, the names of Buyer and Seller may be
disclosed without the prior written consent of any party.
H. Copies of any notices under this contract sent to Seller
shall also be sent by hand delivery or telecopy to:
Kay L. Taylor
Clark, Thomas and Winters
700 Lavaca, 12th Floor
Texas Commerce Bank Building
Austin, Texas 78701
TELEFAX: 474-1129
and copies of any notices under this contract sent to Buyer
shall also be sent by hand delivery or telecopy to:
Rick Reed
Haynes and Boone, L.L.P.
1600 One American Center
600 Congress Avenue
Austin, Texas 78701
TELEFAX: 867-8470
I. Seller represents and warrants to Buyer that, on the date
hereof and on the date of closing, to the best of Seller's
actual knowledge, except as previously disclosed in writing to
Buyer or as disclosed in writing to Buyer prior to April 24,
1995:
(a) Notwithstanding any limitation as to knowledge herein,
Seller has good and indefeasible title to the Property,
subject only to the exceptions allowed hereunder.
(b) Seller
has not received any notice of any condemnation proceedings
having been instituted against the Property or any portion
thereof.
(c) Seller has received no notice of, nor has Seller
any actual knowledge of, any violations of any federal, state,
county or municipal laws, ordinances, orders, regulations or
requirements ("LEGAL
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REQUIREMENTS") affecting the Property or
any portion thereof that do or would affect the title to the
Property or the alienability thereof, or that do or would
constitute or result in an encumbrance to the Property or that
would constitute or result in a liability to the Property or
the owner thereof from and after the closing.
(d) There is no action, suit or proceeding pending or
threatened against or affecting the Property or any portion
thereof or relating to or arising out of the ownership or
use of the Property or any portion thereof in any court or
before or by any federal, state, county or municipal
department, commission, board, bureau, agency or other
governmental instrumentality.
(e) There are no adverse or other parties in possession
of the Property, except for tenants under the leases described
in Section 10 ("LEASES") and any lessees or parties under
contract providing services to the Property, whose leases
(other than the Leases) and contracts will be terminated by
Seller prior to closing or assumed by Buyer at the closing.
(f) At closing, there will be no unpaid bills or claims in
connection with any work on the Property, except as to trade
creditors supplying goods or services to the Property who will
be paid by Seller not later than thirty (30) days after
receipt of invoice for payment for services or goods supplied
prior to and through the date of closing.
(g) Neither the entering into of this contract nor the
consummation of the transaction contemplated hereby will
constitute a violation or breach by Seller of any contract or
other instrument to which Seller is a party, or to which it is
subject or by which any of its assets or properties may be
affected, or of any judgment, order, writ, injunction or
decree issued against or imposed upon it, or will result in a
violation of any applicable law, order, rule or regulation of
any governmental authority affecting Seller.
(h) Seller shall take no action
or fail to take any action between the date of execution
hereof and the closing which would or could result in any
lien, encumbrance or other exception to Seller's title arising
or attaching to the Property, other than the exceptions
allowed hereunder, and except as to any lien, encumbrance or
other exception to be satisfied or discharged by Seller at or
prior to Closing.
13
(i) Notwithstanding any limitation as to knowledge
herein, Seller is not a foreign person within the meaning of
Sections 1445 and 7701 of the Internal Revenue Code of 1986
(and any regulation promulgated thereunder).
(j) Notwithstanding any limitation as to knowledge herein,
Seller has the full right, power and authority to sell and
convey the Property as provided in this contract and to carry
out Seller's obligations hereunder, and all requisite action
necessary to authorize Seller to enter into this contract and
to carry out Seller's obligations hereunder has been, or by
the closing will have been, taken.
(k) All items delivered by Seller or its agents to Buyer
pursuant to this contract shall be true, correct, accurate and
complete in all material respects and fairly present the
information set forth in a manner that is not misleading.
(l) In accordance with the terms of this contract, Seller
shall deliver to Buyer true, correct, accurate and complete
copies of all Leases, leasing agreements and leasing
commission agreements and all amendments thereto and all
guarantees of any such Leases and a true, correct, accurate
and complete rent roll for the Property. In addition, Seller
shall deliver to Buyer by May 10, 1995, an updated rent roll
for the Property as of a date which is no earlier than May 1,
1995.
(m) Except as reflected in the Leases and in the rent roll,
excluding agreements in connection with Closing Vacant Space
or Post-closing Vacant Space, with respect to each Lease: (i)
there are no other promises, amendments, agreements or
commitments between the tenant and Seller or any predecessor
landlord; (ii) each Lease is in full force and effect; (iii)
there are no uncured breaches or defaults under any Lease, and
no offset, defense, abatement or claim is presently available
to, or has been asserted by, any tenant under any Lease; (iv)
tenant has not prepaid any rent other than rent due for the
current month except as shown in the Leases and rent roll; (v)
except as expressly provided in the Leases or the rent roll,
no tenant is entitled to any rent concession, rent-free
occupancy or reduction or abatement of rent in connection with
such tenant's occupancy pursuant to its Lease, (vi) the tenant
under each Lease has accepted possession of all space leased
to it thereunder except as expressly set forth in its Lease
with respect to expansion space; (vii) all tenant finish work
that Seller is obligated to perform on or before the Closing
Date for a tenant will be performed prior to the Closing Date
at Seller's cost; (viii) all commissions due or to come due
14
with respect to Leases or any leasing commission agreements,
or for any renewal, substitution, extension or expansion
thereunder shall be paid, or otherwise satisfied by Seller, at
or prior to the Closing Date.
(n) There are no service, maintenance, management or other
similar agreements that are not cancelable on thirty (30)
days' or less notice without payment of any cancellation
consideration. Copies of such agreements delivered to Buyer
hereunder shall be true, correct, accurate and complete when
delivered and there is no material, uncured breach or default
by Seller nor breach or default by the other party under such
agreements.
(o) None of the properties to be conveyed hereunder are leased
from or owned by third parties.
(p) Seller has not engaged in any Environmental Activity and
no Environmental Activity has otherwise occurred in connection
with or otherwise relating to the Property either prior to or
after the date Seller obtained title to or any interest in the
Property; Seller has no actual knowledge of any existing
liability, absolute or contingent, in connection with any
Environmental Requirements relating to the Property; no
written notice, order, directive, complaint or other
communication has been made or issued by any Governmental
Agency or other person alleging the occurrence of any
Environmental Activity or any violation of any Environmental
Requirements with respect to the Property; and no
investigations, inquiries, orders, hearings, actions or other
proceedings by or before any federal, state, county or local
government, or any agency, department, bureau or
instrumentality of any of them (each referred to herein as a
"GOVERNMENTAL AGENCY") are presently pending or threatened in
connection with the Property. (For purposes hereof, the term
"Environmental Activity" means any actual, proposed or
threatened release, emission, discharge, generation, storage,
holding, processing, existence, abatement, removal,
disposition, handling or transportation of any asbestos,
explosives, radioactive materials, hazardous or toxic
materials, hazardous or toxic substances, hazardous or toxic
waste, pollutants or other such hazardous and/or toxic
materials and substances (collectively, "HAZARDOUS MATERIALS")
designated or otherwise identified as such in, or regulated
under, any Environmental Requirements; and the term
"ENVIRONMENTAL REQUIREMENTS" means all federal, state, county,
municipal and local laws, ordinances, rules, regulations,
policies, judicial orders, decrees, restrictions and
requirements relating to the environment or to any Hazardous
Materials or Environmental Activity).
15
(q) The Property and the improvements located on the
Property, including, but not limited to, the foundation, roof,
walls, superstructure, plumbing, air-conditioning and heating
equipment, electrical wiring, boilers, hot water heaters,
parking structures and surfaces are structurally sound, in
good working order, and in a state of good repair.
The representations and warranties contained in this Section
25.I shall survive the Closing and continue in full force and
effect for two years from the date of closing, except that the
representation and warranty contained in Section 25.I(a) shall
only be limited in duration by any applicable law, and shall
not be merged in the deed to be delivered at Closing.
J. Seller covenants and agrees with Buyer that from the date
of this contract until the Closing Date or earlier termination
of this contract, Seller shall:
(a) use reasonable efforts to comply with all Legal
Requirements affecting the Property, but shall not be required
to incur any cost to do so with respect to compliance with the
Americans with Disabilities Act ("ADA") (except as provided by
Section 25.R hereof) or any Legal Requirements enacted after
the date of this contract, and shall not be required to incur
any cost in excess of $5,000 to do so in any other
circumstance unless otherwise expressly provided in this
contract.
(b) not enter into any written or oral service contract or
other agreement with respect to the Property that will not be
fully performed by Seller on or before the Closing Date or
that will be binding on Buyer after the Closing Date.
(c) advise Buyer promptly in writing of any (i) litigation,
arbitration or administrative hearing before any Governmental
Authority concerning or affecting the Property which is
instituted or threatened after the date of this contract and
(ii) adverse change in the physical condition of the Property
or any portion thereof, or in any of the Leases, contracts or
agreements pertaining to the Property of which Seller has
actual knowledge.
(d) not take, or omit to take, any action that would result
in a violation of any of the representations, warranties,
covenants and agreements of Seller contained in this contract.
16
(e) not sell, assign, lease or convey any right, title or
interest whatsoever in or to the Property, or any portion
thereof, or any space in any of the improvements located
thereon, or create or permit to exist any lien, encumbrance or
charge thereon, that will not be satisfied or terminated
without liability to Buyer or the Property at Closing.
(f) not remove, demolish or otherwise adversely impair the
improvements on the Property in any manner.
(g) advise Buyer promptly in writing if any of the
improvements on the Property are damaged or destroyed by fire
or other casualty or if any condemnation or eminent domain
proceedings are threatened or initiated affecting the Property.
(h) not commence, authorize, approve, consent to,
voluntarily permit or otherwise voluntarily take part in any
actual or proposed rezoning, platting or replatting,
condemnation, or dedication or grant any easements with regard
to the Property or any portion thereof on or after the
effective date of this contract.
(i) maintain and operate the Property in its present
condition and not defer any regularly scheduled or necessary
maintenance. Seller, at its sole cost and expense, shall
replace the cooling tower with comparable or better equipment.
Seller shall use Seller's best efforts to so replace the
cooling tower on or before the Closing Date, but in any case
shall do so as soon after the Closing Date as reasonably
possible.
In the event that Seller breaches any one or more of the
covenants contained in this Section 25.J. or any one or more
of the representations or warranties contained in Section
25.I. above, then Buyer shall be entitled at its option to
either (a) terminate this contract, whereupon all Earnest
Money and Additional Earnest Money shall be returned to Buyer;
or (b) waive such breach, or disregard such occurrence, and
proceed to closing.
K. The survey described in Section 6 shall otherwise comply
with the requirements of a Category 1-A, Urban, Condition II
survey in accordance with the most current edition of the
Manual of Practice for Land Surveying in Texas as adopted by
the Texas Society of Professional Surveyors. The surveyor's
certificate shall be in form and with substance acceptable to
Buyer and the title company and shall, among other things, at
closing be amended to be addressed to Buyer and the title
company, and certify that the survey complies with the
requirements of a Category 1-A, Urban, Condition II survey as
provided above.
17
L. At the Closing, Seller shall also deliver to Buyer:
(i) A Blanket Conveyance, Bill of Sale and Assignment with
general warranties of title (except such conveyance shall be
with special warranties of title as to any personal property
acquired by Seller in connection with Seller's acquisition of
the Property for which it did not receive a general warranty
of title from Seller's grantor) in form and with substance
reasonably satisfactory to Buyer and Seller and transferring
all personal property, including, without limitation, all
equipment, furniture, furnishings, any contracts and
agreements that Buyer desires to assume, if any, and all
guarantees, warranties, licenses, permits, and trade names
pertaining to the Property. If Buyer assumes any contracts or
agreements, Buyer shall execute, and deliver to Seller at
closing, a written assumption of such, reasonably satisfactory
in form and content to Seller and Buyer.
(ii) An Assignment and Assumption of Leases with general
warranties of title in form and with substance reasonably
satisfactory to Buyer and Seller, assigning all of Seller's
landlord's interest in the Leases, such being assumed in
writing therein by Buyer.
(iii) An Affidavit or Certificate in form and with
substance reasonably satisfactory to Buyer and Seller in
compliance with Section 1445 of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder,
stating under penalty of perjury Seller's United States
identification number and that Seller is not a "FOREIGN
PERSON" as that term is defined in Section 1445.
(iv) Keys to all locks, card keys to all card access
control devices and combinations to all combination locks
located on the Property, which keys, card keys, and
combinations shall be properly identified.
(v) Originals, or copies if the originals are not in
Seller's possession, of all Leases, guaranties, warranties,
service, maintenance and management contracts and agreements
(to the extent assumed by Buyer), licenses, permits and plans.
(vi) All deposits and prepaid rents.
(vii) Letters (in form and with content reasonably approved
by Buyer and Seller), executed by both Seller and Buyer, to
tenants informing them of the sale, that rents are to be paid
to Buyer, and that
18
tenant security deposits, if any, have been transferred
to Buyer and that Buyer has assumed all liability for such
tenant security deposits.
(viii) Such other items as are reasonably required by Buyer
or the title company to effect the transfers and transactions
contemplated in this contract.
M. The estoppel certificates to be signed by each tenant as
provided in Section 10 of this contract shall also provide (i)
that the Lease is in full force and effect; (ii) the monthly
rental agreed to be paid by the tenant; (iii) the number of
months remaining on the term of the Lease; (iv) that attached
as an Exhibit is a copy of the executed Lease including all
amendments thereto; (v) that Seller has no obligations to
tenant or agreements with tenant except as set forth in
writing in the attached Lease or in connection with Closing
Vacant Space or Post-closing Vacant Space; and (vi) that the
premises described in the Lease have been completed and have
been accepted by tenant as being in conformity with the Lease.
N. The Property to be conveyed shall also include the right
to use the name "BRIDGEPOINT PLAZA" and any tradename rights
or copyrights in connection therewith.
O. In addition to the acts and deed recited in this contract
and contemplated to be performed, executed and/or delivered by
Seller or Buyer, Seller and Buyer agree to perform, execute
and/or deliver or to cause to be performed, executed and/or
delivered at the closing or after the closing any and all
further acts, deeds and assurances as are reasonably necessary
to consummate the transactions contemplated hereby.
P. This contract may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same agreement, and all of the parties to this
contract may execute this contract by signing any other
counterparts.
Q. Seller shall pay any leasing commission to the leasing
agent on the lease for the first floor of Building I currently
being negotiated between Seller and Buyer if the lease
transaction is not consummated because of the closing of this
sale and purchase and if the lease transaction is consummated
but this sale and purchase is not consummated.
R. At closing, Seller shall escrow $20,000 with Escrow Agent
for up to six months from the date of closing to provide funds to
cause one floor in Building I that is secured as Closing Vacant
Space to be brought into
19
compliance with the ADA in accordance with Seller's and Buyer's
respective consultants' recommendations as agreed by Seller and
Buyer by May 1, 1995. The terms of the escrow shall be governed
by an escrow agreement, the form and content of which shall be
reasonably acceptable to Seller and Buyer and shall be approved
by the parties by May 1, 1995.
At closing, Seller shall escrow $1,000 with the Escrow
Agent for up to six months from the date of closing to provide
funds for any repair required due to rain penetration into the
fifth floor of Building I. The terms of the escrow shall be
governed by an escrow agreement, the form and content of which
shall be reasonably acceptable to Seller and Buyer and shall be
approved by the parties by May 1, 1995.
26. CONSULT YOUR ATTORNEY. This is intended to be a legally
binding contract. This contract constitutes the entire
agreement between the parties and their real estate agents,
their being no oral agreements, representations, conditions,
or warranties, express or implied, in addition to this
contract.
27. PRINCIPAL DISCLOSURE.
[ ] The Buyer of this property is a licensed real estate
agent and is acting as a principal in this transaction.
[ ] The Seller of this property is a licensed real estate
agent and is acting as a principal in this transaction.
EXECUTED by Seller on this the 13th day of April, 1995.
BROKERS: SELLER:
SEE SEPARATE AGREEMENT BETWEEN NOVELL, INC.
LISTING BROKER AND SELLER
By: /s/ DAVID R. BRADFORD
-----------------------
Name: DAVID R. BRADFORD
---------------------
Title: SENIOR VICE PRESIDENT
----------------------
Address: 122 East 1700 South
Provo, Utah 85018
Attn: Ronald K. Tolboe
20
TELEPHONE: (801) 228-8613
TELEFAX: (801) 228-8676
EXECUTED by Buyer on this the 12th day of April, 1995.
BUYER:
ORIGIN SYSTEMS, INC.
By: /s/ MICHAEL S. GRAJEDA
---------------------------
Name: MICHAEL S. GRAJEDA
-------------------------
Title: VICE PRESIDENT,
CHIEF OPERATING OFFICER
------------------------
ADDRESS: 12940 Research Blvd.
Austin, Texas 78750
Attn: Mike Grajeda
TELEPHONE: (512) 335-5200 ext 517
TELEFAX: (512) 335-9622
21
RECEIPT
RECEIPT OF $_________ EARNEST MONEY IS ACKNOWLEDGED IN THE
FORM OF _____________________________________________________
____________________________________________________________ .
ESCROW AGENT:
HERITAGE TITLE COMPANY OF AUSTIN, INC.
By: ____________________________
Name: __________________________
Title: _________________________
22
INVESTIGATION/FEASIBILITY STUDY ADDENDUM
INVESTIGATION/FEASIBILITY STUDY. Buyer is granted the right
to conduct, at Buyer's sole expense, an investigation and/or
feasibility study of the Property as follows:
[ ] market or economic feasibility study
[X] engineering study
[X] inspection of zoning, subdividing, or other use
restrictions affecting the Property
[ ] availability of utilities, including electricity, gas,
water and wastewater treatment
[ ] inspection of soil and subsoil condition
[X] other: structural, MEP, civil, architectural, elevator,
roof/waterproofing, ADA, cabling systems, "AS BUILT" document
review, sq. ft. calculation of improvement size, service
contracts, operating statements (including utilities and
taxes), Certificate of Occupancy, personal property inventory,
environmental, appraisal.
Buyer shall have through May 1, 1995, to perform such
investigation and/or study. Buyer or Buyer's agents shall have
the right of access to the Property during such period for the
purpose of conducting such investigation and/or study, and shall
have the right to conduct tests and obtain core samples. Seller
agrees to cooperate with Buyer in connection with the
investigation and/or study, agrees to furnish Buyer with copies
of any and all documents within Seller's possession relating to
the Property that might be necessary to complete such
investigation and/or study within five (5) days after receipt of
written request for such by Buyer, and agrees to execute any and
all documents that might be required in order to obtain any
necessary governmental information with respect to the
above-described matters. If Buyer determines, in Buyer's sole
judgment and discretion, that the Property is not suitable for
Buyer's intended use, Buyer shall give Seller written notice of
such fact on or before the end of the period stated above with a
copy to Escrow Agent. Upon receipt of such written notice, the
Escrow Agent shall refund the Earnest Money and Additional
Earnest Money to Buyer, and both parties shall be released from
all further obligations under this contract. If Buyer does not
send such written notice to Seller, then it shall be presumed
that the Property is suitable for Buyer's intended use, and the
contract may not be terminated by Buyer for the reasons set forth
in this Section. In the event this contract does not close,
through no fault of Seller, Buyer
shall restore the Property to its original
condition, if changed due to the investigation and/or study
performed by Buyer.
BUYER: SELLER:
ORIGIN SYSTEMS, INC. NOVELL, INC.
By: /s/ MICHAEL S. GRAJEDA By: /s/ MICHAEL S. GRAJEDA
---------------------- ----------------------
Name: MICHAEL S. GRAJEDA Name: DAVID R. BRADFORD
------------------ -----------------
Title: VICE PRESIDENT, Title: SENIOR VICE PRESIDENT
CHIEF OPERATING OFFICER ---------------------
-----------------------
Date: 4/12/95 Date: 4/13/95
------- -------
EXHIBIT A
Lot 1, Hidden Valley Phase A, a subdivision in Travis County,
Texas, according to the map or plat thereof recorded at Volume
84, Pages 117D-118A, Plat Records of Travis County, Texas.