Exhibit 10.2


 


FIRST
AMENDMENT


TO
AGREEMENT OF PURCHASE AND SALE


(650 Komas Drive)


 


This First Amendment to Agreement of Purchase and Sale (“the Amendment”) is effective as of May 8, 2004 between EVANS & SUTHERLAND COMPUTER CORPORATION, a Utah
corporation (“Seller”) and WOODBURY
CORPORATION, a Utah corporation (“Buyer”),
collectively, the “Parties” and
individually, a “Party.”  Capitalized terms used in this Amendment and
not defined herein shall have the meanings given them in the Agreement.


 


R E C I T A L S:


 


WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale, dated April 7, 2004
(the “Agreement”),


 


WHEREAS, Seller and Buyer desire to extend certain time periods within
the Agreement (with the exception of the Close Date) in order to facilitate the
transaction contemplated therein.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree to amend
the Agreement as follows:


 


1.                                       Additional Earnest Money. 
In Section 2.2.2 of the Agreement
(the “Additional  Deposit Date”)
is amended to be June 3, 2004.


 


2.                                       Title Commitment. 
At close, Seller will cause the removal of certain Schedule B,
Section 2 exceptions dealing with
navigable rivers or lakes,  certain water
rights, the rights of tenants or lessees of Evans & Sutherland, and
financial encumbrances of the Premises which are as follows;


 


Exception 7.  Any adverse claim
based upon the assertion that (a) some portion of the land forms the bed or
bank of a navigable river or lake, or lies below the mean high water mark
thereof; (b) the boundary of the land has been affected by a change in the
course or water level of a navigable river or lake; (c) the land is subject to
water rights, claims or title to water and to any law or governmental
regulation pertaining to wetlands.


 


Exception 19.  Water rights,
claims or title to water, whether or not shown by the public records.


 


Exception 22.                          The rights of any tenants and/or lessees
of EVANS & SUTHERLAND, a Utah Corporation, which may also be known as EVANS
& SUTHERLAND COMPUTER CORPORATION, their creditors, and other parties
claiming by, through, or under said


 
















 


tenants/lessees, pursuant to any leases, rental
agreements, occupancy agreements, and/or assignments thereof.


 


Exception 24.   A Leasehold Deed of Trust, Assignment of Rents, Security Agreement and
Fixtures Filing,  dated
December 14, 2000, A First Amendment To
Leasehold Deed Of Trust, Assignment Of Rents, Security Agreement And Fixtures
Filing, dated as of May 30, 2003,


 


                                                Exception number 25. Absolute
Assignment Of Sub-Leases And Rents, dated December 14, 2000, A First Amendment To Absolute Assignment Of Sub-Leases And Rents,
dated as of May 30, 2003, and


 


Exception 26. A Consent To Encumbrance
of Tenant’s Interest and Landlord’s Waiver, dated as of
December 13, 2000.


 


Seller will, at close, also cause the removal of reference to inquiry
of Evans & Sutherland Computer Corporation with regards to unrecorded
rights-of- way and/or easements in Exception 20, Schedule B of the Title Commitment.


 


All remaining Schedule B
exceptions shall be deemed approved except as otherwise set forth in the
Agreement.


 


3.                                       Estoppel Certificate.  Section 3.4 Estoppel Certificate shall be amended and
restated in its entirety as follows:


 


“Seller shall have
obtained and delivered to Buyer, within ten (10) days of the date Buyer
delivers written notice to Seller of it’s assignment of this Agreement to Komas
L.L.C (the “Notice of Assignment”), an
estoppel certificate in substantially the form delivered to Buyer as Exhibit E of this Agreement (the “Estoppel Certificate”) from the Master Landlord with respect
to the Ground Lease (but in no event shall such estoppel certificate be
required to contain information which is not otherwise required to be provided
by the Master Landlord under the Ground Lease). 
If Seller has not delivered the Estoppel Certificate on or before the
later of the expiration of the Finance Contingency Period or within ten (10)
days of Notice of Assignment as set forth above, then this Agreement shall be
deemed terminated as of the the later of the expiration of the Finance
Contingency Period or within ten (10) days of Notice of Assignment in
accordance with this Section 3.4;
provided, however,
that Seller shall have the right, on or before the expiration of the Finance
Contingency Period or such ten (10) day period as case may, at Seller’s option
and in Seller’s sole discretion, to represent and warrant to Buyer the matters
set forth in the Estoppel Certificate, in which event this Agreement shall
remain in full force and effect and subject to the terms and conditions of this
Agreement the Parties shall proceed to close the transaction contemplated by
this Agreement on the Date of Closing. 
Seller agrees to indemnify Buyer from and against any liability, claims,
damages, expenses (including reasonable attorneys’ fees), judgments,
proceedings and causes of action to the extent arising from a misrepresentation
by Seller concerning the matters set forth in Seller’s representations and
warranties pursuant to this Section 3.4.  Notwithstanding the foregoing, Seller’s
representation and warranty described above (including any indemnification
obligation of Seller in connection therewith) shall only be in effect until
such time as Seller delivers to Buyer the Estoppel Certificate setting forth
the matters represented and warranted by Seller.  At the Date of Closing, Seller shall
represent and warrant the following to Buyer: (a) all rent and other payments
accrued and owing under the Ground


 


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Lease are current, except
for those amounts which have been agreed to between the Parties in connection
with the prorations under this Agreement; (b) to Seller’s actual knowledge,
there has been no material change in the facts set forth in the Estoppel
Certificate during the period between the date such Estoppel Certificate was
signed and the Date of Closing.”


 


4.                                       Financing Contingency. As set forth in Section 3.6
of the Agreement, Buyer herby waives said Finance contingency.


 


5.                                       Seller’s Conditions Precedent.  
Section 4.1, Consents shall be
amended and restated in it entirety as follows:


 


“Subject to the terms of this Section 4.1, on or before the date
which is ten (10) days prior to the Date of Closing (the “Consent Date”) (provided Buyer and Seller
have elected to proceed toward Closing), Seller shall have obtained all
consents required to consummate this transaction from (a) the Master Landlord
under the Ground Lease, and (b) Seller’s lenders holding liens on the
Improvements and Personal Property and/or on the Seller’s leasehold interest
under the Ground Lease, including, without limitation, required consents from
Foothill Capital Corporation (“Foothill”),
including, without limitation, (i) consents to any agreements between Seller
and Buyer to which Foothill would become subject upon any foreclosure of
Seller’s interest in adjacent properties within the University of Utah Research
Park; (ii) subordination of Foothill’s liens to any agreements that will be
recorded between Buyer and Seller in connection with this transaction; and
(iii) all appropriate documentation and agreements necessary to release all
Foothill liens on the Property, Improvements and Personal Property and on
Seller’s leasehold interest under the Ground Lease.  Seller agrees to use commercially reasonable
efforts and act in good faith in obtaining such Consents.  Notwithstanding the foregoing, Buyer and
Seller agree that if Buyer, Seller and any necessary third parties have not
agreed to final forms of all documents and/or agreements to which Seller’s
lenders would be required to consent, or for which Seller will require Seller’s
lenders’ consent, then the Consent Date shall be extended to the date which is
fifteen (15) days following the date on which (x) final forms of all such
documents and agreements have been agreed to by Buyer, Seller and any necessary
third parties; and (y) Seller’s lenders have received copies of the final forms
of all such documents and agreements. 
Buyer and Seller agree to negotiate in good faith to agree to the final
form of any such documents and/or agreements in a timely manner.  Buyer and Seller acknowledge and agree that
any extension of the Consent Date pursuant to this Section 4.1 shall not be deemed a Seller delay under Section 5.1 and shall no event result
in an extension of the Closing Date.”


 


7.                                       Building Lease.  Section 4.5, Building Lease
shall be amended and restated in its entirety as follows:


 


“On or before the Date of
Closing, Buyer and Seller shall have mutually agreed, and Seller’s lenders and
any other necessary third parties shall have consented to, the Building Lease,
which shall be in form and substance reasonably acceptable to Buyer and
Seller.”


 


8.                                       Counterparts. 
This Amendment may be executed in any number of counterparts, all of
which shall be an original, but each of which shall constitute the same
instrument.


 


9.                                       Agreement Amended. 
The Agreement is hereby amended to the extent necessary to effectuate
the purposes set forth in this Amendment.


 


10.                                 Amendment Controls. 
In the event the terms and conditions of this Amendment conflict with
any terms and conditions of the Agreement, the terms and conditions of this
Amendment shall control.  Except as
expressly set forth herein, the Agreement shall remain in full force and
effect.


 


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11.                                 Time of the Essence. 
Time is expressly made of the essence of each and every provision of
this Amendment.


 


12.                                 Interpretation. 
This Amendment shall be interpreted and construed only by the contents
hereof, and there shall be no presumption or standard of construction in favor
of or against either Party.


 


13.                                 Captions. 
The captions in this Amendment are for convenience only and do not
constitute a part of the provisions hereof.


 


14.                                 Authority. 
The individuals executing this Amendment represent and warrant that they
have the power and authority to do so, and to bind the entities for which they
are executing this Amendment.


 


THE
SUBMISSION OF THIS AMENDMENT FOR EXAMINATION OR ITS NEGOTIATION DOES NOT
CONSTITUTE A BINDING CONTRACT AND THE EXECUTION OF THIS AGREEMENT BY BUYER DOES
NOT CONSTITUTE A BINDING CONTRACT UNTIL SUCH TIME AS THIS AMENDMENT HAS BEEN
EXECUTED BY AUTHORIZED OFFICERS OF SELLER, AND DELIVERED TO BUYER.


 


This Agreement has been executed as of the date first above written.


 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  WOODBURY CORPORATION, 

  a Utah corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  (Signed)
  W. Richards Woodbury

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  EVANS & SUTHERLAND COMPUTER CORPORATION, 

  a Utah corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  (Signed)
  Thomas Atchison

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
  CFO

  
						



 


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