Exhibit 10.02
FIRST AMENDMENT TO COMMERCIAL EARNEST MONEY CONTRACT
This First Amendment to Commercial Earnest Money Contract
(the "Amendment") is an amendment to the Commercial Earnest Money
Contract (the "Contract") between Novell, Inc., a Delaware
corporation (the "Seller") and Origin Systems, Inc., a Texas
corporation (the "Buyer"), effective April 13, 1995, executed by
Buyer and Seller, providing for the purchase and sale of the
following described property:
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 (the "Property"),
as more particularly described in the Contract. All capitalized
terms used in this Amendment shall have the same meaning and
definition as those used in the Contract.
Seller and Buyer desire to amend the Contract.
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Buyer
agree as follows:
1. The Investigation/Feasibility Study Addendum is amended
to provide that Buyer shall have through May 3, 1995, to perform
such investigation and/or study.
2. Subsection 25.D. of the Contract is amended to provide that
(a) Seller shall pay a maximum of $416,154.16 (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),
to secure the Post-closing Agreements and the Closing Vacant
Space, (b) Buyer may withhold its consent to any Pre-closing
Agreement or Post-Closing Agreement if Seller proposes to include
as part of its said $416,154.16 obligation, any claims against a
tenant that are of questionable enforceability in the reasonable
opinion of Buyer, (c) at closing Seller shall pay to Buyer the
lesser of (1) $200,664.99 or (2) the remainder of (i) all amounts
specified to be paid to tenants under the Pre-closing Agreements
and the Post-closing Agreements, (ii) PLUS all post-closing rent
abatement to be given to tenants under the Leases to secure the
Pre-closing Agreements and the Post-closing Agreements, (iii)
LESS $250,000.00, (iv) LESS all amounts paid to tenants prior to
closing or at closing under the Pre-closing Agreements and the
Post-closing Agreements, (d) notwithstanding clause (iii) of the
third grammatical paragraph of Subsection 25.D to the contrary,
Seller shall pay on the Closing Date to Fellers & Company the
amount of $125,000.00 pursuant to the terms of the Post-closing
Agreement between Fellers & Company and Seller, and (e) if Seller
is unable to secure the Closing Vacant Space and the Post-closing
Agreements
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by the Closing Date for the maximum $666,154.16 to be paid by
Seller and Buyer under the terms of Section 25.D., then the
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.
3. Subsection 25.E. of the Contract is amended to provide
that (a) the reference in such Subsection to May 1, 1995 is
amended to May 3, 1995, and (b) each reference in such Subsection
to May 15, 1995 is amended to May 22, 1995.
4. Subsections 25.E. and 4.A. of the Contract and Section
13 of the Contract, are each amended to provide that each
reference in such Subsections and such Section to May 16, 1995 is
amended to May 23, 1995.
5. Subsection 25.I.(m)(viii) of the Contract is amended to
provide that commissions due and payable on or before the Closing
Date with respect to Leases or any leasing commission agreements,
or any renewal, substitution, extension or expansion under either
thereof, shall be paid, or otherwise satisfied, by Seller, at or
prior to the Closing Date.
6. Subsection 25.R. of the Contract is amended to read as
follows:
25.R. At closing, Seller shall escrow $20,000.00 with
Escrow Agent for up to six months from the date of closing
to provide funds to cause certain floors of Building I to
be brought into compliance with the ADA in accordance with the
recommendations of Eckland Consultants, Inc., contained in a
Property Condition Report dated April 28, 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 the Closing Date.
At closing, Seller shall escrow $1,000.00 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 consent of which
shall be reasonably acceptable to Seller and Buyer and shall
be approved by the parties by the Closing Date.
At closing, Seller shall escrow $25,000.00 with the
Escrow Agent to provide funds for any legal fees reasonably
incurred by Buyer concerning, and for any costs and expenses
reasonably incurred by Buyer related to any legal
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action or proceeding concerning, the failure or refusal
of either Lotus Development Corporation or Fellers & Company
to vacate the premises that they are required to vacate under
the terms of their respective Pre-closing Agreements or Post-
closing Agreements. 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 the Closing Date.
7. An additional subsection, subsection 25.S., is added to
the Contract as follows:
25.S. With respect to the Lease between Seller and
Motorola, Inc., a Delaware corporation, dated July 15, 1994
(the "Motorola Lease"), if the closing occurs:
(a) Seller shall be liable for and shall pay, in accordance
with the terms of the Motorola Lease, a maximum of the lesser
of (i) 14% of the sum of the Improvement Allowance plus the
Plan Allowance (as "Improvement Allowance" and "Plan
Allowance" are defined in the Motorola Lease), or (ii)
$6,912.64,
(b) Buyer shall be liable for and shall pay, in accordance
with the terms of the Motorola Lease, a maximum of the lesser
of (i) 86% of the sum of such Improvement Allowance plus such
Plan Allowance, or (ii) $42,463.36,
(c) If the cost of the Tenant Work (as "Tenant Work" is
defined in the Motorola Lease) exceeds the sum of such
Improvement Allowance plus such Plan Allowance, and if
Motorola, Inc. elects to amortize such excess cost on a
straight-line basis over the primary term of the Motorola
Lease with an interest factor of nine percent (9%) per annum,
Seller shall finance such excess cost and shall receive the
principal and interest payments on such financed excess cost
from Motorola, Inc.
8. Subsection 9.A of the Contract is amended to provide
that the Closing Date shall be on or before June 1, 1995,
subject to extension as provided in Section 10 of the Contract.
9. The last grammatical paragraph of Subsection 25.I of
the Contract is amended to provide that the survival of the
representations and warranties contained in Section 25.I(i) and
(j) shall also only be limited in duration by any applicable law,
and shall not be merged in the deed to be delivered at Closing.
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10. Except as expressly revised and amended by this
Amendment, the terms and conditions of the Contract are hereby
ratified and confirmed by Buyer and Seller.
11. This Amendment is executed to be effective April 13,
1995.
SELLER:
NOVELL, INC., a Delaware corporation
By: /s/ Ronald K. Tolboe
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Name: Ronald K. Tolboe
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Title: Director, Corp. Real Estate
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Date: June 1, 1995
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BUYER:
ORIGIN SYSTEMS, INC., a Texas corporation
By: /s/ Michael S. Grajeda
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Name: Michael S. Grajeda
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Title: Vice President, COO
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Date: June 1, 1995
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