CONTRACT
BY AND BETWEEN
TCI REALTY LLC, A DELAWARE LIMITED LIABILITY COMPANY
AND
TELETECH SERVICES CORPORATION, A COLORADO CORPORATION
TABLE OF CONTENTS
PAGE
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ARTICLE I THE PROPERTY....................................................1
ARTICLE II CONSIDERATION; SELLER'S REPURCHASE RIGHT.......................2
ARTICLE III DUE DILIGENCE REVIEW..........................................3
ARTICLE IV TITLE INSPECTION PERIOD........................................4
ARTICLE V INSPECTION......................................................5
ARTICLE VI REPRESENTATIONS, WARRANTIES, RELEASES AND COVENANTS............6
ARTICLE VII CLOSING......................................................10
ARTICLE VIII OBLIGATIONS AT CLOSING......................................10
ARTICLE IX COSTS AND ADJUSTMENTS; INDEMNITIES............................12
ARTICLE X DAMAGE OR DESTRUCTION PRIOR TO CLOSING.........................13
ARTICLE XI EMINENT DOMAIN................................................13
ARTICLE XII POSSESSION OF PROPERTY.......................................13
ARTICLE XIII NOTICES.....................................................14
ARTICLE XIV REMEDIES.....................................................15
ARTICLE XV ASSIGNMENT....................................................15
ARTICLE XVI INTERPRETATION AND APPLICABLE LAW............................16
ARTICLE XVII AMENDMENT...................................................16
ARTICLE XVIII ATTORNEYS' FEES............................................16
ARTICLE XIX DESCRIPTIVE HEADINGS.........................................16
ARTICLE XX ENTIRE AGREEMENT; SURVIVAL....................................16
ARTICLE XXI MULTIPLE ORIGINALS ONLY; COUNTERPARTS........................17
ARTICLE XXII TIME........................................................17
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ARTICLE XXIII REAL ESTATE COMMISSION.....................................17
ARTICLE XXIV CONFIDENTIALITY.............................................17
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TABLE OF DEFINITIONS
"AAA" shall have the meaning set forth in Article XIV(C.)
"BUILDING" shall have the meaning set forth in Recital A
"CLOSING DATE" shall have the meaning set forth in Article VII
"COMMON AREA COSTS" shall have the meaning set forth in Article II D. (ii)
"COMMUNICATIONS" shall have the meaning set forth in Article XIV
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Article XXIV
"CURE PERIOD" shall have the meaning set forth in Article IV
"DEPOSIT" shall have the meaning set forth in Article II
"DUE DILIGENCE PERIOD" shall have the meaning set forth in Article III(D.)
"DUE DILIGENCE ITEMS" shall have the meaning set forth in Article III
"ENVIRONMENTAL LAW" shall have the meaning set forth in Article VI
"EXTENSIONS AND EXPANSIONS" shall have the meaning set forth in Article X(B.)
"HAZARDOUS SUBSTANCES" shall have the meaning set forth in Article VI
"LEASES" shall have the meaning set forth in Article I(C.)
"LIBERTY" shall have the meaning set forth in Article IV
"LOI" shall have the meaning set forth in Article IV(A.)(6.)
"MAJOR DEVELOPMENT ISSUE" shall have the meaning set forth in Article III(D.)
"MERIDIAN AMENDMENT" shall have the meaning set forth in Article VI(B.)
"MAJOR ISSUE" shall have the meaning set forth in Article III
"PERMITS" shall have the meaning set forth in Article I(F.)
"PERMITTED EXCEPTIONS" shall have the meaning set forth in Article IV
"PERSONAL PROPERTY" shall have the meaning set forth in Article I(C.)
"PROPERTY" shall have the meaning set forth in Article I.
"PROPERTY INFORMATION" shall have the meaning set forth in Article III
"PURCHASE MONEY NOTE" shall have the meaning set forth in Article II
"PURCHASER'S NOTICE" shall have the meaning set forth in Article III(D.)
"PURCHASER'S REPORTS" shall have the meaning set forth in Article III(C.)
"PURCHASER'S REPRESENTATIVES" shall have the meaning set forth in Article XXV
"REACQUISITION PARCELS" shall have the meaning set forth in Article II
"REAL PROPERTY" shall have the meaning set forth in Article I(B.)
"SELLER'S CLOSING CERTIFICATE" shall have the meaning set forth in Article VI
"SELLER'S LEASE" shall have the meaning set forth in Recital C
"SELLER'S REPRESENTATIVES" shall have the meaning set forth in Article XXIV
"SERVICE AGREEMENTS" shall have the meaning set forth in Article III(C.)
"SPECIAL WARRANTY DEED" shall have the meaning set forth in Article IV
"TENANT" shall have the meaning set forth in Recital C
"TITLE COMMITMENT" shall have the meaning set forth in Article III(B.)
"TITLE COMPANY" shall have the meaning set forth in Article II
"TITLE REVIEW PERIOD" shall have the meaning set forth in Article IV
"TITLE DEFECTS" shall have the meaning set forth in Article IV
"TITLE DOCUMENTS" shall have the meaning set forth in Article III(B.)
"TITLE POLICY" shall have the meaning set forth in Article IX(B.)
"WARRANTY MODIFICATIONS" shall have the meaning set forth in Article VI(A.)
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CONTRACT
This Purchase and Sale Agreement (the "CONTRACT") is entered
into by and between TCI Realty LLC, a Delaware limited liability company
("SELLER") and TeleTech Services Corporation, a Colorado corporation
("PURCHASER").
RECITALS
A. Seller owns certain improved real property located in
Xxxxxxx County, Colorado consisting of approximately 43.69 acres with
approximately 271,678 rentable square feet of building improvements (the
"BUILDING") thereon.
B. Seller desires to sell and Purchaser desires to purchase
the Property (as defined in Article I), subject to Seller's right to reacquire
certain portions of the real property that are part of the Property aggregating
approximately 18.97 acres as shown on EXHIBIT N in accordance with the terms of
this Contract.
C. At Closing, Seller's affiliate, AT&T Broadband Management
Corporation (herein, "TENANT"), shall lease certain space in the Building in
accordance with the terms of a lease, the form of which is attached hereto as
EXHIBIT A ("SELLER'S LEASE").
FOR AND IN CONSIDERATION of the promises, undertakings, and
mutual covenants of the parties herein set forth, Seller and Purchaser hereby
agree to the following terms and conditions in order to effectuate the
foregoing:
ARTICLE I
THE PROPERTY
ASSETS INCLUDED IN THE PROPERTY. As the term is used herein,
"PROPERTY" shall mean:
A. The real property described on EXHIBIT B hereof;
B. The Building (commonly known as the "TCI Building") located
on the real property described on EXHIBIT B, together with all
structures, improvements, machinery, fixtures and equipment affixed or
attached thereto and all easements and rights appurtenant thereto (all
of the foregoing being collectively referred to herein as the "REAL
PROPERTY");
C. All tangible and intangible personal property (the
"PERSONAL PROPERTY") described on EXHIBIT C attached hereto (and
specifically excluding the items designated thereon as "excluded
items");
D. All Service Agreements which Purchaser elects to assume in
accordance with the terms of Article III.E. of this Contract; and
E. To the extent transferable: all of Seller's right, title
and interest in and to any prepaid water, sewer and other utility fees
and all sanitary sewer rights and storm sewer rights and all water and
sewer taps with respect to the Property, all utility contracts relating
to the Property and to Seller's rights to have the Property served with
water, sewer and other utilities, all of Seller's right, title and
interest in and to all surveys, soil tests, market studies, drainage
studies, cost estimates for development, traffic studies, plats, plans,
landscape plans, specifications, engineering data, drawings,
feasibility studies, appraisals, environmental reports, topographical
reports or drawings and reports of any kind, character or description
prepared for use in connection with the Property in the possession of
or under the control of Seller, all of Seller's right, title and
interest in and to all permits, permissions, licenses, occupancy
certificates, options, advertising materials, booklets, and manuals
pertaining to equipment or other items installed on the Property and
other instruments, documents and material information relating to the
Property or occupancy thereof, operating books (specifically relating
to the operation of the Building only) and records relating to the
Property, written warranties, guarantees and representations made by
contractors, subcontractors, architects, engineers, materialmen,
suppliers, manufacturers, and any other parties related in any way to
the Property; provided however, that none of the foregoing shall
include any information or interests related to the business of Seller
which may have been operated from or on the Property.
ARTICLE II
CONSIDERATION; SELLER'S REPURCHASE RIGHT
A. DEPOSIT. Within two business days following the execution
of this Contract by both Seller and Purchaser, Purchaser shall deposit
$1,000,000 as xxxxxxx money with Chicago Title Insurance Company (the "TITLE
COMPANY"). The Title Company shall deposit Purchaser's xxxxxxx money deposit in
a federally insured bank and shall invest such xxxxxxx money deposit at money
market rates. The xxxxxxx money deposit and all interest earned thereon shall be
referred to herein as the "DEPOSIT." The Deposit shall be credited against the
purchase price at closing or otherwise paid to Seller or Purchaser as
hereinafter provided.
B. PURCHASE PRICE. The purchase price for the Property shall
be $32,168,000 and shall be paid in federal wire transfer funds at closing. In
the alternative, at the option of Purchaser which shall be exercised on or
before three days prior to Closing upon notice given by Purchaser to Seller, the
purchase price may be paid in the following manner: (a) by wire transfer funds
in the amount of $6,433,600 along with (b) a promissory note (the "PURCHASE
MONEY NOTE") (in the form of EXHIBIT F) that is made or guaranteed by TeleTech
Holdings Inc. for the remainder payable to Seller (with such Guaranty in the
form of EXHIBIT O), with interest at the rate of 7% per annum payable monthly
with the entire principal balance due on or before October 15, 2001, secured by
a first deed of trust on the Property (in the form of EXHIBIT G).
C. ALLOCATION OF PURCHASE PRICE. The purchase price shall be
allocated between the Real Property and the Personal Property portions of the
Property. In this regard, prior to the closing, the parties shall agree on the
respective values of the Real Property and the Personal Property, using such
reliable information as may be available to them, including any
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available appraisals, and shall enter into a written agreement confirming
such values and the resulting allocation of the purchase price.
D. SELLER'S REPURCHASE OPTION. Following closing, Seller shall
have the right to repurchase those portions of the Property described and shown
on EXHIBIT N hereof (the "REACQUISITION PARCELS") on the terms and conditions
and in accordance with the provisions set forth in the special warranty deed
attached hereto as EXHIBIT J.
ARTICLE III
DUE DILIGENCE REVIEW
Purchaser acknowledges that Seller has made the Property
Information available to Purchaser at Seller's offices. Seller agrees to
continue to allow Purchaser access to the Property Information in accordance
with this Contract. As used herein, the term "PROPERTY INFORMATION" shall mean
all information and documents in any way relating to the Property and the use,
condition and operation thereof (including, without limitation, leases,
contracts, licenses and any environmental reports). Property Information shall
not be deemed to include any information or documents relating to Seller's
business operations.
Purchaser further acknowledges that Purchaser has received
each of the following:
A. The existing as-built ALTA/ACSM Urban Survey of the Real
Property dated June 20, 2000, updated on November 4, 2000 and last revised
December 5, 2000; and
B. A current commitment #1200016 - revised December 5, 2000
(the "TITLE COMMITMENT") for the issuance of an ALTA policy of title insurance
to Purchaser from the Title Company, together with good and legible copies of
all documents constituting exceptions to title as reflected in the Title
Commitment (collectively referred to hereinafter as the "TITLE DOCUMENTS").
C. Copies of the service agreements described on EXHIBIT D
attached to this Contract (collectively, the "SERVICE AGREEMENTS").
Items made available pursuant to this Article III are referred
to hereinafter as "DUE DILIGENCE ITEMS." Seller shall pay the costs associated
with providing any of the Due Diligence Items, but any additional copies thereof
shall be paid for by Purchaser.
D. Purchaser has performed its review of the Due Diligence
Items and hereby waives any right to terminate this Contract except (i) as set
forth in Articles IV B., IV C., X or XI hereof, (ii) if Seller defaults
hereunder, or (iii) as a result of the failure of the conditions precedent to
closing set forth in Articles IV B. and IV D hereof.
Notwithstanding anything to the contrary contained herein, in
the event this Contract is terminated for any reason, then Purchaser shall
promptly and at its sole expense return to Seller all Due Diligence Items which
have been delivered by Seller to Purchaser in
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connection with Purchaser's inspection of the Property, along with copies of
all reports, drawings, plans, studies, summaries, surveys, maps and other
data prepared by or for Purchaser in its investigation and inspection of the
Property, subject, however to any limitations on Purchaser's right to make
any such materials available to Seller that are imposed in any agreement with
a third party consultant preparing any such reports or materials
("PURCHASER'S REPORTS"). Purchaser shall cooperate with Seller at no expense
to Purchaser in order to obtain a waiver of any such limitation. Purchaser
shall have no obligation to insure that Seller is entitled to rely on any of
Purchaser's Reports, and Purchaser shall have no obligation to provide Seller
copies of Purchaser's Reports that contain confidential or proprietary
information regarding Purchaser or its business.
Notwithstanding any contrary provision of this Contract,
Purchaser acknowledges that Seller is not representing or warranting that any of
the Due Diligence Items are accurate or complete, and that Seller advises
Purchaser to independently verify the facts and conclusions set forth therein;
provided however, Seller warrants that it is not intentionally concealing
information regarding the Property.
E. The Service Agreements shall remain effective on and after
the closing. Prior to February 1, 2001, Purchaser shall provide Seller with
written notice of those Service Agreements which Purchaser elects to assume and
those which Purchaser does not elect to assume, at which time an assignment and
assumption agreement in the form of EXHIBIT L shall be duly executed and
delivered by the parties. In the event Purchaser fails to provide such written
notice with respect to any or all of the Service Agreements, Purchaser shall be
deemed to have elected not to assume them. Seller shall be obligated to
terminate on or before April 30, 2001 all Service Agreements which Purchaser
does not elect to assume and shall be obligated to pay all fees and expenses
associated with such termination.
ARTICLE IV
TITLE INSPECTION PERIOD
A. PERMITTED EXCEPTIONS. Purchaser has reviewed and approved
the Title Documents. Purchaser has no objections to the state of title. The
exceptions listed under Schedule B of the Title Commitment shall be deemed
"PERMITTED EXCEPTIONS."
B. MERIDIAN SPECIAL WARRANTY DEED AND AMENDMENT. Although the
Special Warranty Deed from Meridian Associates East to TCI Realty Investments
Company, recorded as Document DC9759592 in the Real Property Records of Xxxxxxx
County, Colorado (the "SPECIAL WARRANTY DEED") shall be deemed to be a Permitted
Exception, it shall nevertheless be a condition precedent to Purchaser's
obligations hereunder that on or before closing, Seller shall provide to
Purchaser a written amendment to the Special Warranty Deed, in recordable form,
executed by the grantor thereof (the "MERIDIAN AMENDMENT") stating that (i) any
and all of the Property other than the Reacquisition Parcels is released from,
and free of, the right to repurchase set forth in paragraph 1 of the Special
Warranty Deed (the "MERIDIAN REPURCHASE OPTION ,") effective immediately and
(ii) the Meridian Repurchase Option supercedes and replaces any repurchase
option set forth in (a) the Agreement for Sale of Real Estate by and
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between Meridian Associates East and TCI Realty Investments Company dated
July 28, 1997, and (b) any covenants, conditions and restrictions affecting
the Property.
C. ADDITIONAL TITLE DOCUMENTS. If additional Title Documents
are delivered to Purchaser following the date hereof that disclose a matter that
individually or in the aggregate would cost in excess of $50,000 to cure and if
the matter is not a Permitted Exception and was not previously known to
Purchaser, Purchaser shall have three business days following its receipt of the
Title Document in which to object thereto. If no objection is made during such
period, the title matter shall be deemed a Permitted Exception. If objection is
made, Seller in its sole discretion may elect to cure the same, and shall
complete such cure within sixty (60) days after electing to do so without any
extension of the date of closing, provided that if the matter cannot be cured
within sixty (60) days, the parties shall negotiate in good faith to determine
an appropriate cure period, and Seller shall thereafter effect such cure within
the agreed upon period. Seller shall pay the cost of any additional title
premium due to delete the matter from the owner's and lender's title policy. If
(i) Seller fails to respond to Purchaser within five (5) business days following
notice of Purchaser's objection to the additional title matter, or (ii) Seller
elects not to cure, Seller shall be deemed to have elected to terminate the
Contract, and the Deposit shall be refunded to Purchaser immediately.
D. LIBERTY MEDIA FACILITIES AND SERVICES AGREEMENT. Purchaser
acknowledges that there exists a Facilities and Services Agreement between
Seller and Liberty Media Corp. ("LIBERTY") allowing Liberty to use a portion of
the space occupied by Seller. It shall be a condition precedent to the closing
that on or before the Closing Date, Seller shall deliver to Purchaser a written
agreement in the form reasonably satisfactory to Purchaser (the "LIBERTY
ACKNOWLEDGMENT"), executed on behalf of Liberty, confirming that Liberty will
terminate its right to such possession and vacate the Property coterminous with
the expiration of the Tenant' s right to possession of the Property pursuant to
Seller's Lease.
E. CONDITION PRECEDENT. In the event Seller fails to deliver
either the Meridian Amendment or the Liberty Acknowledgment as and when
required, the condition precedents described in this Article IV shall have
failed to be satisfied and Purchaser shall be entitled to terminate this
Contract, in which event the Deposit shall be returned to Purchaser and this
Contract shall terminate.
ARTICLE V
INSPECTION
Purchaser, at its sole expense, shall have the right to
conduct a feasibility, environmental, engineering and physical study of the
Property at any time prior to closing. Purchaser and its duly authorized agents
or representatives shall be permitted to enter upon the Property at all
reasonable times prior to closing in order to conduct engineering studies, soil
tests and any other inspections and/or tests that Purchaser may deem necessary
or advisable. Purchaser must arrange all inspections of the Property with Seller
at least one day in advance of any such inspection. Purchaser shall pay when due
all fees and expenses incurred in the performance of any such inspections or
testing. In addition, Purchaser shall indemnify, defend, and save Seller
harmless from any and all claims or loss from mechanic's liens, claims for
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nonpayment of such charges or for damages or injuries arising out of the acts or
omissions of the parties performing such inspections. The indemnification of
Purchaser contained in this paragraph shall survive the closing or, in the
alternative, any termination of this Contract.
ARTICLE VI
REPRESENTATIONS, WARRANTIES, RELEASES AND COVENANTS
A. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Purchaser as follows:
1. Seller is a limited liability company duly formed and
validly existing under the laws of the State of Delaware. Seller has
full power and authority to enter into this Contract, to perform this
Contract and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Contract and all documents
contemplated hereby by Seller have been duly and validly authorized by
all necessary action on the part of Seller and all required consents
and approvals have been duly obtained and will not result in a breach
of any of the terms or provisions of, or constitute a default under any
indenture, agreement or instrument to which Seller is a party or by
which the Property is bound.
2. There are no actions, suits, or proceedings pending or, to
the best of Seller's knowledge, threatened against Seller and affecting
any portion of the Property, at law or in equity, or before or by any
federal, state, municipal, or other governmental court, department,
commission, board, bureau, agency, or instrumentality, domestic or
foreign. There are no pending eminent domain or condemnation
proceedings against the Property or any part thereof and to the best of
Seller's knowledge, no such proceedings are presently contemplated or
threatened by any authority with the power of eminent domain;
3. To the best of Seller's knowledge, Seller has not received
any notice of violation of any ordinance, regulation, law, or statute
of any governmental agency pertaining to the Property or any portion
thereof;
4. At closing, there will be no unpaid bills, claims, or liens
in connection with any construction or repair of the Property except
for those that will be paid in the ordinary course of business or which
have been bonded over or the payment of which has otherwise been
adequately provided for to the satisfaction of Purchaser;
5. Seller has good title to the Personal Property subject to
no liens or encumbrances;
6. There are no contracts or other obligations outstanding for
the sale, exchange, or transfer of the Property or any portion thereof
other than (a) that certain letter of intent dated October 25, 2000, by
and between Seller and TeleTech Holdings, Inc., (the "LOI")and (b) that
certain right of first offer and right to repurchase set forth in
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the Special Warranty Deed, the right of first offer having been waived
by the holder thereof;
7. Except for the Facilities and Services Agreement described
in Article IV hereof, there are no leases, subleases or other use or
occupancy agreements in effect with respect to the Property or any
portion thereof;
8. All books and records relating to operating expenses of
the Property which have been or will be furnished or made available to
Purchaser by Seller or its agents shall be those maintained by Seller
in regard to the Property in the ordinary course of business;
9. Seller is not a foreign person subject to withholding tax
as required by Section 1445 of the Internal Revenue Code; and
10. To the best of Seller's knowledge, the operating cost
information attached hereto as EXHIBIT M estimates (without audit) the
operating costs of the Property experienced by Seller during the prior
one year period using Seller's current operating practices and
procedures.
As used in this Contract, phrases such as "TO THE ACTUAL
KNOWLEDGE OF SELLER," "TO THE BEST OF SELLER'S KNOWLEDGE," "SELLER'S KNOWLEDGE,"
"SELLER HAS NO KNOWLEDGE THAT," "TO THE BEST KNOWLEDGE OF SELLER," "SELLER HAS
KNOWLEDGE" and "SELLER DOES NOT HAVE ANY KNOWLEDGE OF" shall be deemed to refer
exclusively to matters within the current, actual (as opposed to constructive)
knowledge of Xxxx XxXxxxxxx and Xxxx X. Xxxxxxx without having made any
investigation of facts or legal issues and without any duty to do so and without
imputing to the aforementioned persons the knowledge of any employee, agent,
representative or affiliate of Seller or any other person or entity.
All of the foregoing representations and warranties of Seller
are made by Seller as of the date hereof and shall survive the closing for a
period of one year only; provided any claim arising by reason of a claimed
breach of such representations and warranties must be filed in a court of
competent jurisdiction on or before the date which is one year from the Closing
Date.
If any of Seller's representations and warranties made
hereunder are found to be incorrect prior to closing to the extent they affect
the Property or its operation in any material respect, Purchaser shall inform
Seller in writing, and Purchaser's sole remedy shall be termination of this
Contract on account thereof and refund of the Deposit. If Purchaser elects not
to terminate the Contract, any remedy of Purchaser for breach of warranties or
representations discovered prior to the closing shall be deemed to be
irrevocably waived. Notwithstanding anything to the contrary contained in this
Article, if Seller breaches any representation or warranty made by Seller and if
prior to closing Purchaser notifies Seller that it elects to terminate this
Contract on account of such breach, Seller may by written notice to Purchaser
given on or before the closing agree to cure the breach by the scheduled Closing
Date, and Purchaser shall thereupon be obligated to close the transaction and
accept such cure as Purchaser's sole remedy for the breach.
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At the closing, Seller shall execute and deliver to Purchaser
a certificate ("SELLER'S CLOSING CERTIFICATE") in the form of EXHIBIT H attached
hereto, certifying to Purchaser that all the representations and warranties made
pursuant to this Article are true and correct on and as of the Closing Date,
with only such exceptions therein as are necessary to reflect facts or
circumstances arising or discovered by Purchaser and disclosed to Seller between
the date of this Contract and the Closing Date ("WARRANTY MODIFICATIONS") which
would make any representation or warranty untrue or incorrect on and as of the
Closing Date. At closing, Seller's representations made hereunder shall be
deemed amended by the Warranty Modifications. In the event Seller's Closing
Certificate discloses Warranty Modifications that were not previously disclosed
to, or discovered by Purchaser and that are material, Purchaser shall be
entitled to terminate this Contract, whereupon the Deposit shall be returned to
Purchaser; provided however, notwithstanding the foregoing, Seller may by
written notice to Purchaser given on or before the closing agree to cure any
breach of a representation or warranty arising from the Warranty Modifications
prior to December 31, 2000, and Purchaser shall thereupon be obligated to close
the transaction and accept such cure as Purchaser's sole remedy for the breach.
Seller shall indemnify and defend Purchaser against and hold
Purchaser harmless from, and shall be responsible for, all claims, demands,
suits, liabilities, losses, damages, judgments, costs and expenses, including
reasonable attorneys' fees, that may be suffered or incurred by Purchaser if any
representation or warranty made by Seller in Seller's Closing Certificate is
untrue or incorrect in any material respect when made; provided, however,
Purchaser shall not be entitled to a recovery under this section if any claim is
made after the closing as a result of a breach of the representations and
warranties set forth in Seller's Closing Certificate, unless the recovery for
each individual claim has a minimum value of Twenty-Five Thousand Dollars
($25,000); and further provided that Purchaser shall not be entitled to a
recovery under this section if any claim is made after the closing as a result
of a breach of the representations and warranties set forth in Seller's Closing
Certificate for any amounts in excess of the amount of the Purchase Price.
The terms of Seller's indemnity set forth above with respect
to the representations and warranties made in Seller's Closing Certificate shall
survive the closing for a period of one year following the closing.
Purchaser acknowledges that it has had, or will have had, as
of the closing, sufficient time to review all materials and information
Purchaser deems necessary, including the information and materials that Seller
has furnished to Purchaser and sufficient time and access to review and
investigate the Property. Notwithstanding any other provision of this Contract,
the representations and warranties of Seller as set forth herein or in Seller's
Closing Certificate are hereby modified as of the date hereof with respect to
the representations and warranties made herein and as of the closing with
respect to the representations and warranties made in Seller's Closing
Certificate to the extent that: (1) information contained in any of the items
delivered or made available to Purchaser at the Property pursuant to the
provisions of Article III hereof make the subject representation or warranty not
true, or (2) Purchaser has knowledge that the subject representation or warranty
is untrue, or (3) Seller has delivered or made available to Purchaser at the
Property other written information disclosing that the subject representation or
warranty is not true.
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B. "AS IS" CONDITION. To induce Seller to enter into this
Contract, Purchaser acknowledges and agrees that, except as otherwise expressly
set forth herein, the Property shall be conveyed and transferred "AS IS, WHERE
IS, AND WITH ALL FAULTS" and Seller does not warrant or make any representation,
express or implied, as to the merchantability, quantity, quality, condition,
suitability or fitness of the Property for any purpose whatsoever, including,
without limitation, its compliance with applicable building codes and
ordinances, zoning laws, environmental laws including, without limitation, the
Clean Air Act, the Comprehensive Response Compensation and Liability Act
(CERCLA) and the Super Fund Amendments and Reauthorization Act (XXXX), the
Americans with Disabilities Act, and any other federal, state or local statutes,
codes or ordinances. Seller hereby discloses to Purchaser the building defects
set forth on EXHIBIT I hereof. Purchaser also acknowledges and agrees that the
provisions in this Contract for inspection and investigation of the Property are
adequate to enable Purchaser to make Purchaser's own determination with respect
to the suitability or fitness of the Property, including, without limitation,
its compliance with applicable building codes and ordinances, zoning laws,
environmental laws including, without limitation, the Clean Air Act, the
Comprehensive Response Compensation and Liability Act (CERCLA) and the Super
Fund Amendments and Reauthorization Act (XXXX), the Americans with Disabilities
Act, and any other federal, state or local statutes, codes or ordinances.
Purchaser, for itself and its successors and assigns, releases
Seller and its agents, employees, partners, officers, directors, managers,
members, contractors, consultants and representatives from, and waives any and
all causes of action or claims against any of such persons for (1) any and all
liability attributable to any physical condition of or at the Property,
including, without limitation, the presence on, under or about the Property of
any materials the deposit, release or storage of which is regulated by law,
including without limitation, the presence on, under or about the Property of
any Hazardous Substances; (2) any and all liability resulting from the failure
of the Property to comply with any applicable laws, and (3) any liabilities,
damages or injury arising from, connected with or otherwise caused by
statements, opinions or information obtained from any of such persons with
respect to the Property; PROVIDED THAT the foregoing shall not be construed to
release Seller, Tenant or their respective officers, directors, employees,
agents, or representatives from liability arising under Seller's Lease or any of
the documents delivered by Seller to Purchaser at closing in the form of
EXHIBITS H, J, K, AND L hereof.
As used herein, the term "HAZARDOUS SUBSTANCES" shall mean any
material or substance that, whether by its nature or use, is now or hereafter
defined as a hazardous waste, hazardous substance, pollutant or contaminant
under any local, state or federal law, rule or regulation, or which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and which is now or hereafter regulated under
any local, state, or federal law, rule or regulation or which is or contains
petroleum, gasoline, diesel fuel or another petroleum hydrocarbon product.
As used herein, the term "ENVIRONMENTAL LAW" shall mean any
law, rule or regulation relating to any Hazardous Substances.
-9-
C. COVENANTS OF SELLER. Seller hereby covenants as follows:
1. From the date of execution of this Contract through the
date of closing, Seller shall continue to maintain the Property
substantially in its present condition, subject to ordinary wear and
tear and the provisions of Article X hereof, and shall continue to
manage the Property in the same manner as it is currently being
managed. Seller shall not remove any fixtures, equipment, furnishings
or other personal property from the Property unless replaced with items
of equal or greater quality and quantity, and unless any material
damage caused by removal is repaired at Seller's cost;
2. At all times from the date hereof through the date of
closing, Seller shall cause to be in force fire and extended coverage
insurance upon the Property, and public liability insurance with
respect to damage or injury to persons or property occurring on the
Property in at least such amounts as are maintained by Seller on the
date hereof; and
3. From the date of execution of this Contract through the
date of closing, Seller shall not sell, assign, or convey any right,
title, or interest whatsoever in or to the Property, or create or
permit to attach any lien, security interest, easement, encumbrance,
charge, or condition affecting the Property (other than the Permitted
Exceptions) without promptly discharging the same prior to closing.
D. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
hereby represents and warrants to Seller as follows:
Purchaser is a corporation duly organized and validly existing
under the laws of the State of Colorado. Purchaser has full power and
authority to enter into this Contract, to perform this Contract and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Contract and all documents
contemplated hereby by Purchaser have been (i) duly and validly
authorized by all necessary action on the part of Purchaser and all
required consents and approvals have been duly obtained and (ii) will
not result in a breach of any of the terms or provisions of, or
constitute a default under any indenture, agreement or instrument to
which Purchaser is a party.
ARTICLE VII
CLOSING
The closing shall occur on or before December 22, 2000, on a
date and at such time and place as mutually agreed upon by the parties, provided
that Purchaser may extend the closing until 2:00 p.m. on December 28, 2000 if
despite the exercise of due diligence by Purchaser, Purchaser's lender is unable
to close on or before December 22, 2000.
ARTICLE VIII
OBLIGATIONS AT CLOSING
At the closing, the following shall occur:
-10-
A. Seller shall convey the Property to Purchaser. The
conveyance shall be by special warranty deed duly signed and acknowledged by
Seller in the form attached hereto as EXHIBIT J. Such deed shall convey title
free and clear of all liens, rights of way, easements and other matters
affecting title thereto, except for the Permitted Exceptions and the repurchase
rights set forth therein.
B. Tenant and Purchaser shall execute the Seller's Lease
attached hereto as EXHIBIT A.
C. The Title Company shall issue to Purchaser an ALTA owner's
form of title insurance policy covering the Property in the amount of the
Purchase Price, subject to no exceptions other than the Permitted Exceptions and
matters that Seller undertakes to cure pursuant to Article III hereof (the
"TITLE POLICY").
D. Seller shall deliver a special warranty xxxx of sale and a
blanket assignment in the form set forth on EXHIBIT K, duly executed and
acknowledged by Seller, transferring the Personal Property to Purchaser, free
and clear of all liens and encumbrances.
E. Seller shall deliver the Seller's Closing Certificate to
Purchaser.
F. Seller shall deliver a non-withholding statement that will
satisfy the requirements of Section 1445 of the Internal Revenue Code so that
Purchaser is not required to collect any amounts for payment to the Internal
Revenue Service.
G. Purchaser shall pay the Purchase Price in the manner set
forth in Article II, above (including, if applicable, by delivery of the note
and deed of trust referred to therein).
H. The parties shall deliver such evidence or other documents
that may be reasonably required by the Title Company evidencing the status and
capacity of such party and the authority of the person or persons who are
executing the various documents on behalf of such party in connection with the
transactions described hereunder.
I. Seller shall deliver a customary Seller's Affidavit for
the benefit of the Title Company in form sufficient to enable the Title Company
to issue the Title Policy in the form required hereby.
J. Seller shall deliver to Purchaser the originals of the Due
Diligence Items and keys to the Property; PROVIDED THAT the original Due
Diligence Items may be delivered by Seller to Purchaser at the Property.
K. To the extent not previously delivered, Seller shall
deliver the Meridian Amendment and the Liberty Acknowledgment and shall
authorize and direct the Title Company to record the Meridian Amendment prior to
recording the special warranty deed described in A. above.
-11-
ARTICLE IX
COSTS AND ADJUSTMENTS; INDEMNITIES
At closing, the following items shall be paid or allocated:
A. Any sales or use tax payable in connection with the
conveyance of the Property shall be paid by Purchaser. The amount of the sales
or use tax that is payable shall be paid at closing by debit to Purchaser and
authorization of the Title Company to make payment to the State of Colorado.
Purchaser shall indemnify and hold Seller harmless from any loss, cost, damage
or penalty resulting from failure to pay the sales or use tax or the failure to
properly or adequately report the market value of the Personal Property. The
foregoing indemnity shall survive closing.
B. Purchaser shall pay all recording costs and documentary
fees. The parties shall share equally any escrow fees in connection with the
closing. Each party will be responsible for the fees and expenses of their
respective attorneys.
C. Seller shall pay the premium of a basic policy of title
insurance issued in accordance with the Title Commitment and the premium for
extended coverage, and Purchaser shall pay the premium for any other
endorsements thereto which Purchaser may desire.
D. All operating expenses, ad valorem taxes, general and
special assessments, personal property taxes, and other charges for or
pertaining to the Property, including, but not limited to, public utility
charges, benefits, supplies, maintenance, service charges, and all other
operating charges of the Property shall be prorated as of the date of closing;
or alternatively by mutual agreement, those items due from Seller may be paid by
Seller as an operating expense when due under Seller's Lease. Taxes shall be
based upon the latest levy and assessment. If any prorations are inaccurate, the
parties shall adjust for the actual costs thereof within 30 days following
receipt of information evidencing the same. Each party shall supply the other
any data in its possession necessary to make said adjustment.
Subject to the releases, waivers and acknowledgments set forth
in Article VI, Seller agrees to indemnify and hold Purchaser harmless of and
from any and all liabilities, claims, demands, suits, and judgments, of any kind
or nature, including court costs and reasonable attorneys fees (except those
items which under the terms of this Contract specifically become the obligation
of Purchaser), brought by third parties and based on events occurring before the
date of closing and which are in any way related to the Property, and all
expenses related thereto, including, but not limited to, court costs and
attorneys' fees.
Subject to Tenant's obligations under Seller's Lease,
Purchaser agrees to indemnify and hold Seller harmless of and from any and all
liabilities, claims, demands, suits, and judgments, of any kind or nature,
including court costs and reasonable attorneys fees, brought by third parties
and based on events occurring on or subsequent to the date of closing and which
are in any way related to the Property, and all expenses related thereto,
including, but not limited to, court costs and attorneys' fees.
-12-
ARTICLE X
DAMAGE OR DESTRUCTION PRIOR TO CLOSING
In the event that the Property should be damaged by any
casualty prior to closing, then if the cost of repairing such damage, as
estimated by an architect or contractor retained pursuant to the mutual
agreement of the parties, is:
A. less than $2,000,000 and the damage does not adversely
affect access to the Property or the parking therefor, the closing shall proceed
as scheduled, any insurance proceeds shall be distributed to Purchaser, and the
deductible portion of the insurance award shall be credited against the purchase
price;
or if said cost is:
B. greater than $2,000,000 or the damage adversely affects
either access to the Property or parking therefor, then either Seller or
Purchaser may elect to terminate this Contract, in which case the Deposit shall
be returned to Purchaser.
If neither Seller nor Purchaser elects to terminate the
Contract pursuant to this Article, the closing shall proceed as scheduled, any
insurance proceeds shall be distributed to Purchaser, and the deductible portion
of the insurance award shall be credited against the purchase price.
ARTICLE XI
EMINENT DOMAIN
If, before the closing, proceedings are commenced for the taking by exercise of
the power of eminent domain of all or a material part of the Property which, as
reasonably determined by Purchaser, would render the Property unacceptable to
Purchaser or unsuitable for Purchaser's intended use, Purchaser shall have the
right, by giving notice to Seller within fifteen days after Seller gives notice
of the commencement of such proceedings to Purchaser, to terminate this
Contract, in which event the Deposit shall be returned to Purchaser. If, before
the closing, proceedings are commenced for the taking by exercise of the power
of eminent domain of less than such a material part of the Property, or if
Purchaser has the right to terminate this Contract pursuant to the preceding
sentence, but does not exercise the right to do so, then this Contract shall
remain in full force and effect and, on the closing, the condemnation award (or,
if not there-to-fore received, the right to receive the award) pay-able on
account of the taking shall be transferred in the same manner as title to the
Property is conveyed.
ARTICLE XII
POSSESSION OF PROPERTY
Possession of the Property shall be delivered to Purchaser at
closing free and clear of all liens and encumbrances, except the Permitted
Exceptions and Seller's Lease.
-13-
ARTICLE XIII
NOTICES
All notices, statements, demands, requirements, or other
communications and documents ("COMMUNICATIONS") required or permitted to be
given, served, or delivered by or to either party or any intended recipient
under this Agreement shall be in writing and shall be either delivered by hand,
sent by a nationally recognized overnight courier service, or prepaid certified
or registered mail (airmail in the case of all international communications),
return receipt requested, to the party or intended recipient at its address
stated below, or sent by facsimile machine to the party or intended recipient at
its facsimile number stated below or to such other address or facsimile number
as either party may from time to time have notified the other party as being its
address or facsimile number for purposes of this Agreement to the exclusion of
all previously applicable addresses and facsimile numbers. Such Communications
shall be deemed to have been given, served, or delivered:
a. if delivered by hand, upon delivery;
b. if delivered by overnight courier, on the next business
day following the date of delivery to the courier;
c. if sent by mail, upon acknowledged receipt; or
d. if sent by facsimile machine between the hours of 9 a.m.
and 5:30 p.m., local time, Monday-Friday, upon
transmission, or if sent at any other times, then on the
next business day.
The addresses and facsimile numbers of the parties are as
follows:
SELLER: TCI Realty Investments Company
c/o A T & T Legal Department
000 Xxxxxxxxx Xxxxx X., 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
A T & T Broadband
Attn: Xxxx XxXxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
WITH REQUIRED COPY TO: Xxxxxxxxxx Hyatt & Xxxxxx, PC
Attn: Xxxxxx X. Xxxxx, Esq.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
-14-
PURCHASER: TeleTech Services Corporation
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx', Esq.
Facsimile No.: 000-000-0000
WITH REQUIRED COPY TO: Xxxxx & Xxxxxxx L.L.P
Xxxxx Center, Suite 1500
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
ARTICLE XIV
REMEDIES
A. DEFAULT BY SELLER. If there is any default by Seller under
this Contract, including any failure to close as and when required by this
Contract, following notice to Seller and expiration of a ten day period, during
which period Seller may cure the default, Purchaser may at its option and as its
sole remedies, (a) declare this Contract terminated in which case the Deposit
shall be returned to Purchaser and each party shall thereupon be relieved of all
further obligations and liabilities, except any which survive termination, or
(b) bring an action against Seller for specific performance. In no event shall
Purchaser have the right to xxx for damages.
B. DEFAULT BY PURCHASER. If there is any default by Purchaser
under this Contract, including an y failure to close as and when required by
this Contract, following notice to Purchaser and expiration of a ten day period,
during which period Purchaser may cure the default, then Seller may, as its sole
remedy, declare this Contract terminated, in which case the Deposit shall be
paid to Seller and each party shall thereupon be relieved of all further
obligations and liabilities, except any which survive termination.
In the event this Contract is terminated due to the default of
Purchaser hereunder, Purchaser shall deliver to Seller, at no cost to Seller,
all of Purchaser's Reports.
ARTICLE XV
ASSIGNMENT
Purchaser may not assign its rights under this Contract to
anyone except as otherwise agreed to in writing by Seller, except that Purchaser
may assign its rights to (i) an entity of which it has voting control or (ii) an
entity acting as lessor in connection with a financing transaction, PROVIDED
THAT TeleTech Holdings Inc. guarantees the Purchase Money Note. The provisions
of this Contract shall be binding upon the successors and permitted assigns of
the parties.
-15-
ARTICLE XVI
INTERPRETATION AND APPLICABLE LAW
This Contract shall be construed and interpreted in accordance
with the laws of the State of Colorado. Where required for proper
interpretation, words in the singular shall include the plural; and the
masculine gender shall include the neuter and the feminine, and vice versa.
ARTICLE XVII
AMENDMENT
This Contract may not be modified or amended, except by an
agreement in writing signed by the parties.
ARTICLE XVIII
ATTORNEYS' FEES
In the event it becomes necessary for either party to file
suit to enforce this Contract or any provisions contained herein, the prevailing
party shall be entitled to recover, in addition to all other remedies or
damages, reasonable attorneys' fees, expert witness fees, and costs of court
incurred in such suit.
ARTICLE XIX
DESCRIPTIVE HEADINGS
The descriptive headings of sections contained in this
Contract are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
ARTICLE XX
ENTIRE AGREEMENT; SURVIVAL
This Contract constitutes the entire agreement between the
parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
therewith, including without limitation, the LOI. No representation, warranty,
covenant, agreement, or condition not expressed in this Contract shall be
binding upon the parties hereto nor shall affect or be effective to interpret,
change, or restrict the provisions of this Contract.
To the extent necessary to carry out the terms and provisions
of this Contract, unless otherwise provided herein, the terms, conditions,
warranties, representations, obligations and rights set forth herein shall not
be deemed terminated at the time of Closing, nor will they merge into the
various documents executed and delivered at the time of Closing.
-16-
ARTICLE XXI
MULTIPLE ORIGINALS ONLY; COUNTERPARTS
Multiple copies of this Contract may be executed by the
parties hereto. Each such executed copy shall have the full force and effect of
an original executed instrument. This Contract may be executed in any number of
counterparts, all of which when taken together shall constitute the entire
agreement of the parties.
ARTICLE XXII
TIME
Time is of the essence of this Contract. When this Contract is
last executed by either party shall be the date of execution of this Contract.
If the final date of any period falls upon a Saturday, Sunday, or legal holiday
under the laws of the State of Colorado, then the expiration date of such period
shall be extended to the next day that is not a Saturday, Sunday, or legal
holiday under the laws of the State of Colorado.
ARTICLE XXIII
REAL ESTATE COMMISSION
Seller and Purchaser each represent and warrant to the other
that neither Seller nor Purchaser has contacted or entered into any agreement
with any real estate broker, agent, finder or any other party in connection with
this transaction, and that, neither party has taken any action which would
result in any real estate broker's, finder's or other fees or commissions being
due and payable to any party with respect to the transaction contemplated
hereby, except Xxxxxxxx Xxxxx & Company, which has been engaged by Purchaser and
Xxxxxxxxx Xxxx & Company, which has been engaged by Seller. Seller shall pay a
commission of .85% of the purchase price to Xxxxxxxxx Xxxx & Company and
Purchaser shall pay any commission due to Xxxxxxxx Xxxxx & Company. Each party
hereby indemnifies and agrees to hold the other party harmless from any loss,
liability, damage, cost, or expense (including reasonable attorneys' fees)
resulting to the other party by reason of a breach of the representations and
covenants made by such party in this Article.
ARTICLE XXIV
CONFIDENTIALITY
Purchaser agrees that, prior to the closing and thereafter if
closing does not occur, all Property Information, any reports, studies, data and
summaries developed by Purchaser, and any information relating to the business
of either party (together, the "CONFIDENTIAL INFORMATION") shall be kept
confidential as provided in this Article. Without the prior written consent of
Seller, prior to the closing, the Confidential Information shall not be
disclosed by Purchaser or Purchaser's Representatives in any manner whatsoever,
in whole or in part, except (1) to Purchaser's Representatives who need to know
the Property Information for the purpose of evaluating the Property and who are
informed by the Purchaser of the confidential nature of the Property
Information; (2) as may be necessary for Purchaser or Purchaser's
Representatives to comply with applicable laws, including, without limitation,
governmental regulatory, disclosure,
-17-
tax and reporting requirements; to comply with other requirements and
requests of regulatory and supervisory authorities and self-regulatory
organizations having jurisdiction over Purchaser or Purchaser's
Representatives; to comply with regulatory or judicial processes; or to
satisfy reporting procedures and inquiries of credit rating agencies in
accordance with customary practices of Purchaser or its affiliates; and
(3) to existing or prospective tenants of the Property and lenders for the
transaction. As used herein, "PURCHASER'S REPRESENTATIVES" shall mean:
Purchaser's directors, officers, employees, affiliates, investors, brokers,
agents or other representatives, including, without limitation, attorneys,
accountants, contractors, consultants, engineers and financial advisors.
Should Seller obtain any information related to the business
of Purchaser, such information shall be held in confidence regardless of whether
the transaction contemplated hereby actually closes and both before and after
closing, except for disclosure to Seller's Representatives. As used herein,
"SELLER'S REPRESENTATIVES" shall mean Seller's directors, officers, employees,
affiliates, investors, brokers, agents or other representatives, including
without limitation, attorneys, accountants, contractors, consultants, engineers
and financial advisors.
No oral or written press release or public disclosure of the
existence or the terms of this Contract shall be made without the consent of the
other party, except that (a) the existence of this Contract (but not its
content) may be disclosed if necessary to market Purchaser's current facility on
Dry Creek Road and I-25 and (b) the existence and terms of this Contract may be
disclosed by Seller to Seller's Representatives and by Purchaser to Purchaser's
Representatives.
"CONFIDENTIAL INFORMATION" shall not be deemed to include any
information or document which (a) is or becomes generally available to the
public other than as a result of a disclosure by Purchaser or Purchaser's
Representatives in violation of this Contract, (b) becomes available to
Purchaser from a source other than Seller or any affiliates of Seller or their
agents or representatives, or (c) is developed by Purchaser or Purchaser's
Representatives without reliance upon and independently of otherwise
confidential Property Information.
In addition to any other remedies available to Seller and
Purchaser, Seller and Purchaser shall each have the right to seek equitable
relief, including, without limitation, injunctive relief or specific
performance, against the other party or its representatives, in order to enforce
the provisions of this Article.
The provisions of this Article shall survive the termination
of this Contract for one year.
-18-
IN WITNESS WHEREOF, the parties set their hands this 26th day
of December, 2000.
SELLER:
TCI Realty LLC, a Delaware limited liability company
By: /s/ Xxxx XxXxxxxxx
Title: Vice President
PURCHASER:
TELETECH SERVICES CORPORATION, a Colorado
corporation
By: /s/ Xxxxxx O'Dell
Title: CFO and EVP Human Resources
-19-
SCHEDULE OF EXHIBITS
Exhibit A - Seller's Lease
Exhibit B - Legal Description of the Property
Exhibit C - Schedule of Personal Property with Excluded Items
Exhibit D - Schedule of Service Agreements
Exhibit E - Intentionally Deleted
Exhibit F - Promissory Note
Exhibit G - Deed of Trust
Exhibit H - Form of Seller's Closing Certificate
Exhibit I - Disclosure of Building Defects
Exhibit J - Form of Special Warranty Deed
Exhibit K - Form of Special Warranty Xxxx of Sale
Exhibit L - Form of Assignment and Assumption
Exhibit M - Operating Statement for the Property
Exhibit N - Reacquisition Parcels
Exhibit O - Guaranty
EXHIBIT A
SELLER'S LEASE
EXHIBIT B
LEGAL DESCRIPTION OF THE PROPERTY
Lots 1 and 2,
Meridian Office Park, Filing Xx. 0,
Xxxxxx xx Xxxxxxx,
Xxxxx xx Xxxxxxxx.
EXHIBIT C
SCHEDULE OF PERSONAL PROPERTY WITH EXCLUDED ITEMS
1. All furniture (cubicles, desks, chairs, conference room tables, white
boards, etc.) on premises and in storage for use in this building
(minimal off-site in storage), except as provided in Schedule I,
including:
a. 467 sets of cubicles and associated furnishings and chairs;
b. 110 sets of office furniture, including desks and chairs; and
c. 39 sets of conference furniture.
2. All A/V equipment and tables and chairs in the Multi-Purpose Room
3. The PBX and telephones
4. Phone, data and coax cabling throughout the building, data hubs and
routers
5. Kitchen equipment in the cafeteria and deli areas (except those items
provided by suppliers as part of service agreements.
6. Dining area tables and chairs (inside and outside)
7. Raised flooring, UPS, batteries and generators on premises
8. Security systems and video recording equipment controlled at Security
Office adjacent to Lobby
9. Athletic equipment in the Exercise Room
10. Building Maintenance tools and equipment used to maintain the facility
11. Building Maintenance systems and PCs used for operations management and
maintenance of the building.
SCHEDULE I
EXCLUDED FROM SALE
1) PC's/terminals, printers/multi function machines and modems
2) Copy machines, fax machines, printers and mail room equipment
3) Portable (not mounted to walls/floors) file cabinets
4) Television sets and mounting brackets
5) Applications servers and other centralized PCs/servers containing AT&T
Broadband systems and information
6) The Cable head end equipment located in the data room
7) Coffee Bar supplies and equipment leased as part of service agreements
8) Specialty furniture bought for ADA accommodation (limited, if any)
9) Employees' personal items (desk lamps, calculators, trophies, files, etc.)
10) Espresso Machine in the Cafe
11) Personal Property in Xxxx Xxxxxx'x office, reception area, file or
conference room:
3 Boat Replicas
1 Antique Sail Boat Replica
Antique Chest
Executive Swivel Chair
Safe
FAX Machine
12) Personal Furniture in Dob Xxxxxxx'x office, reception area, file or
conference room:
2 Black Leather Desk Chairs
Executive Swivel Chair
Antique Casual Chair (light Xxxxx)
Coffee Table (Glass top)
FAX Machine
13) Other:
Conference Table in Room 2-270.1
Picture on Wall of Conference Room 2-270.1
Work Table & 2 Chairs in Room 2-2.2
2 Leather Chairs & 2 Coffee Tables at approx. 2-10
Black leather sofa/love seat, located outside office 2-272.
EXHIBIT D
SCHEDULE OF SERVICE AGREEMENTS
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------
PROVIDER PROVIDES CONTRACT COMMENCEMENT
DATE
-------------------------------------------------------------------------------------------------
Xxxxxxxx Mechanical Company Mechanical Equipment 8/1/2000
Preventative Maintenance
-------------------------------------------------------------------------------------------------
Calcium Control, Inc. Water Treatment 4/1/2000
-------------------------------------------------------------------------------------------------
Hobart Slicer 4/19/2000
-------------------------------------------------------------------------------------------------
Frontier Fire Protection Fire Sprinkler System 4/4/2000
Maintenance
-------------------------------------------------------------------------------------------------
The Trane Company Preventative Chillers 6/1/2000
Maintenance
-------------------------------------------------------------------------------------------------
Xxxxxxx Commercial Appliance Refrigeration and HVAC 4/3/2000
-------------------------------------------------------------------------------------------------
Urban Xxxxxx Landscape Services 8/1/1999
-------------------------------------------------------------------------------------------------
Urban Xxxxxx Snow Plow Agreement 10/5/2000
Snow Removal
-------------------------------------------------------------------------------------------------
Thyssen Dover Elevator Elevator Maintenance 4/9/2000
-------------------------------------------------------------------------------------------------
ADT Security Services Security Monitoring and 4/1/2000
Inspection
-------------------------------------------------------------------------------------------------
Xxxxxxxxx Security Uniformed Security 5/1/2000
Services
-------------------------------------------------------------------------------------------------
Barney's US Building Maintenance Window Cleaning 10/11/1999
Company
-------------------------------------------------------------------------------------------------
Terminex International Pest Control Pest Control 4/29/1999
-------------------------------------------------------------------------------------------------
One Source Janitorial 4/11/1999
-------------------------------------------------------------------------------------------------
Sweep Tech Sweep Parking Lot 7/12/2000
-------------------------------------------------------------------------------------------------
Sodexho Marriott Management Food Services for Cafe 4/1/1999
(SMM)
-------------------------------------------------------------------------------------------------
EXHIBIT E
Intentionally Deleted
EXHIBIT F
PROMISSORY NOTE
EXHIBIT G
DEED OF TRUST
EXHIBIT H
FORM OF SELLER'S CLOSING CERTIFICATE
For valuable consideration, receipt of which is acknowledged,
______________ ("SELLER"), hereby certifies to ______________ ("PURCHASER"),
that all representations and warranties made by Seller in Article VI of the
Contract (the " CONTRACT") dated ______________, 2000, between Seller and
Purchaser are true and correct on and as of the date of this Certificate.
This Certificate is executed by Seller and delivered to Purchaser pursuant to
the Contract. The certification given herein shall expire and be of no
further force or effect upon expiration of one year following the date hereof
(the "SURVIVAL DATE"), and no legal action based upon this certification
shall be effective and shall be dismissed with prejudice if filed after the
Survival Date.
DATED as of ______________, 2000.
SELLER:
__________________________________, a
__________________________________
By: ______________________________
Its: _________________________
EXHIBIT I
DISCLOSURE OF BUILDING DEFECTS
1. Detail interior work on some of the window mullions on the second floor
requires repair.
2. An interior finish crack in the drywall on the second floor requires
repair.
3. Certain plants in the landscaping have died and require replacement.
EXHIBIT J
FORM OF SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED (this "DEED"), made as of the _____ day of
__________, 2000, is between ____________________, a ____________________
("GRANTOR"), and ____________________, a ____________________ ("GRANTEE"), whose
legal address is ______________________________________________________________.
WITNESSETH, That Grantor, for and in consideration of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, has granted,
bargained, sold and conveyed, and by these presents does grant,
bargain, sell, convey and confirm, unto Grantee, its successors and
assigns, all the real property, together with improvements, situate,
lying and being in __________ County, __________, and described on
EXHIBIT 1 attached hereto and incorporated herein by this reference.
And subject to the provisions of this Deed, together with all and
singular the hereditaments and appurtenances thereto belonging, or in anywise
appertaining, and the reversion and reversions, remainder and remainders, rents,
issues and profits thereof, and all the estate, right, title, interest, claim
and demand whatsoever of Grantor, either in law or equity, of, in and to the
above bargained premises, with the hereditaments, easements, rights of way and
appurtenances, and with all of Grantor's interest, if any, in and to any and all
minerals, water, ditches, xxxxx, reservoirs and drains and all water, ditch,
well, reservoir and drainage rights which are appurtenant to, located on, now or
hereafter acquired under or above or used in connection with the property
(collectively, the "PROPERTY").
TO HAVE AND TO HOLD the said premises above bargained and described
with the appurtenances, unto Grantee, its successors and assigns forever.
Grantor, for itself, and its successors and assigns, does covenant, grant,
bargain and agree to and with the Grantee, its successors and assigns, that at
the time of the ensealing and delivery of these presents, it is well seized of
the premises above conveyed, has good, sure, perfect, absolute and indefeasible
estate of inheritance, in law, in fee simple, and has good right, full power and
lawful authority to grant, bargain, sell and convey the same in manner and form
as aforesaid, and that the same are free and clear from all former and other
grants, bargains, sales, liens, taxes, assessments, encumbrances and
restrictions of whatever kind or nature so ever, except those matters set forth
on EXHIBIT 2, attached hereto and incorporated herein by this reference.
The Grantor shall and will WARRANT AND FOREVER DEFEND the
above-bargained premises in the quiet and peaceable possession of Grantee, its
successors and assigns, against all and every person or persons claiming the
whole or any part thereof, by, through or under Grantor.
It is the intent of Grantor and Grantee that the portions of the
Property (the "REACQUISITION PARCELS") shown, labeled and described as "Lot 3"
and "Lot 4" on EXHIBIT 3 hereto be reconveyed to Grantor at such time as the
Reacquisition Parcels may be so conveyed
without either Grantor or Grantee violating applicable subdivision laws and
regulations; therefore, conveyance of the Property is hereby made by Grantor
to Grantee subject to the following reservations, restrictions, rights,
covenants and agreements (collectively, the "RESERVATIONS"), each of which
shall be binding upon Grantee and all future owners of the Property and shall
run with the land and burden the Property and its appurtenant rights and
interests for the benefit of Grantor and its successors and assigns:
1. RIGHT TO SUBDIVIDE. In consideration for Grantor conveying the
Property to Grantee prior to the legal subdivision of the Reacquisition Parcels
therefrom, Grantor hereby reserves the right and option (but not the obligation)
for itself and its successors, assigns, employees, agents and independent
contractors (collectively, together with Grantor, the "GRANTOR PARTIES") to take
such actions as are reasonably necessary in order to subdivide the Property and
establish the Reacquisition Parcels as one or more separate legal lots and to
take such other actions with respect to the Property such that, after such
subdivision of the Property into such separate legal lots or other actions, the
Reacquisition Parcels may be legally conveyed separately from the remainder of
the Property in full compliance with applicable subdivision and other
governmental laws and regulations (the "SUBDIVISION"). All costs and expenses of
the Subdivision shall be borne by Grantor. Grantor agrees to use reasonably
commercial efforts to incorporate any reasonable requests by Grantee with
respect to the Subdivision and the processing thereof, and Grantee agrees to
cooperate with the Grantor Parties in all reasonable requests of Grantee made by
the Grantor Parties in accomplishing the Subdivision, which cooperation shall
include, without limitation, the execution and delivery of applications, plans,
plats and other documents and instruments required by applicable governmental
authorities to accomplish the Subdivision provided that Grantee shall have been
afforded the reasonable opportunity to review in advance any items it is being
requested to sign, and provided, further, that all costs of Grantee relating to
submissions that are required to be paid to any consultants, associations or
governments in connection therewith shall be borne by Grantor. In no event shall
Grantor be prevented by Grantee for any reason from obtaining the right to build
improvements on the Reacquisition Parcels that are allowed by current zoning. In
furtherance of the foregoing, Grantee hereby grants to the Grantor Parties a
license and easement to enter upon the Property at all reasonable times upon at
least one business day's prior notice to Grantee, in order to perform surveys or
other studies or investigations as shall be required in order to accomplish the
Subdivision in a timely and expedient manner, provided that Grantor and the
Grantor Parties shall be obligated to use reasonable good faith efforts to avoid
interfering with the ongoing business of Grantee at the Property. Grantor shall
indemnify and hold Grantee harmless from and against all liability, loss,
damage, cost and expense, including, without limitation, any mechanic's liens
and other claims for nonpayment of charges, which may be incurred by Grantee or
burden or encumber the Property arising out of the acts or omissions of the
Grantor Parties in accomplishing the Subdivision or performing the surveys or
other studies or investigations on or with respect to the Property. Grantee
shall indemnify and hold Grantor harmless from and against any liability, loss,
damage, cost, and expense including, without limitation, any mechanics liens and
other claims for non-payment of charges, which may be incurred by Grantee or
burden or encumber the Reacquisition Parcels arising out of the acts or
omissions of Grantee between the date of the Special Warranty Deed and the
reconveyance of the Reacquisition Parcels to Grantor.
2. RECONVEYANCE OPTION. In addition to the reservation, license and
other rights and options granted above and as further consideration for Grantor
conveying the Property to Grantee prior to the legal subdivision of the
Reacquisition Parcels therefrom, Grantor hereby reserves the right and option
for itself and its successors and assigns (and Grantee hereby grants to Grantor
and its successors and assigns the right and option) to require Grantee to
reconvey to Grantor (or such successors or assigns) by special warranty deed in
the form of EXHIBIT 4 hereof and by special warranty xxxx of sale in the form of
EXHIBIT 5 hereof the Reacquisition Parcels (or either of them) after the
Subdivision has been completed (said right and option being referred to herein
as the "RECONVEYANCE OPTION"). Grantor shall have the right to exercise the
Reconveyance Option by delivering notice of such exercise to the then owner of
the Reacquisition Parcels within 15 business days after the Subdivision has been
finally completed and the closing of the conveyance of the Reacquisition Parcels
to Grantor shall occur on that date which is 10 business days after such notice.
The conveyance of the Reacquisition Parcels shall include any and all rights and
interests appurtenant to the Reacquisition Parcels arising out of the
Subdivision and shall be subject to (and only to) those matters set forth on
EXHIBIT 2 attached hereto, those matters arising as a result of the Subdivision
or the acts or omissions of Grantor and any other matters as may have been
previously approved by Grantor. Grantor shall pay all unpaid Common Area Costs,
as hereinafter defined, up to the date of such closing and shall also pay for
all recording costs and transfer taxes associated with recording the deed to the
Reacquisition Parcels and all of its title insurance premiums.
3. REA. Simultaneous with the closing of the conveyance of the
Reacquisition Parcels, Grantor and Grantee shall enter into a separate,
recordable instrument (the "REA") pursuant to which each party shall grant to
the other one or more perpetual easements for pedestrian and vehicular access,
ingress and egress on, over and across the existing and to be constructed
driveways and walkways located on their respective portions of the Property
providing access to and from Xxxxxxx Avenue and Peoria Street. The REA shall
further state that the parties will (i) modify the median structures in said
driveway and walkway areas, (ii) establish new curb cuts into such areas as
shown on EXHIBIT 3 or as otherwise reasonably required by Grantor in order to
provide efficient access to the Reacquisition Parcels, and (iii) provide for
on-site direction of the flow of parking to and from the parking areas located
adjacent to the Reacquisition Parcels. The REA will also provide for the
equitable sharing of the costs and responsibilities of the matters addressed
therein. The REA shall supercede and replace the agreements set forth in this
paragraph 3.
4. COMMON AREA COSTS. At all times while the Reservations remain in
effect, Grantor shall be responsible for payment of the following costs and
expenses attributable to the Reacquisition Parcels (collectively, the "COMMON
AREA COSTS"): (i) a fee of $154.00 per month for liability insurance for the
Reacquisition Parcels, (ii) a fee of $800.00 per month for landscaping
maintenance costs; provided however, with appropriate advance notice to Grantee
in lieu of payment of such fee, Grantor shall have the right to perform the
maintenance work itself, so long as it maintains the Reacquisition Parcels in a
neat, clean and safe condition, and (iii) a pro rata share of real estate taxes
and assessments for the Reacquisition Parcels (collectively, the "COMMON AREA
COSTS"). Said real estate taxes and assessments shall be calculated by
multiplying: (i) the ratio of the land area of the Reacquisition Parcels to the
total land area of the land included in the tax xxxx (ii) by the total tax due
for the land (but not improvements) set forth
in the tax xxxx. The Common Area Costs shall be paid by Grantor on a monthly
basis in advance within 15 business days after delivery to Grantor of an
invoice for the monthly amount owing together with a calculation in
reasonable detail (including reasonable supporting evidence of the total
amount payable for which Grantor's proportionate share is being calculated)
of how the monthly amount was determined.
5. TERMINATION OF THE RESERVATIONS. The Reservations shall
automatically terminate and be of no further force and effect upon the first to
occur of the following events: (i) July 1, 2001, if Grantor has not commenced
Subdivision by such date, (ii) July 1, 2003, extended by any cause that is Force
Majeure (as hereinafter defined), or (iii) the closing of conveyance of the
Reacquisition Parcels to Grantor. Upon the occurrence of any of the foregoing
events and request therefor from Grantee, Grantor shall execute and record any
documents or instruments as shall be required in order for Grantee to be able to
convey the Property free and clear of the Reservations, as determined by a title
insurance company mutually acceptable to Grantor and Grantee. As used herein,
the term "FORCE MAJEURE" shall mean: provided that Grantor has proceeded in a
diligent and reasonable manner to obtain Subdivision, any act of God, or event
not within the control of Grantor, including, without limitation, war, strikes,
work stoppages, governmental moratorium, and governmental denial of applications
or submissions for any reason, but specifically excluding weather, lack of funds
and increase of costs.
The Reservations constitute real property interests in the Property
that run with the land and burden the Property and all present and future owners
of the Property for the benefit and use of Grantor. The Reservations are
personal to Grantor and may at any time and from time to time be freely
conveyed, assigned or otherwise transferred. Upon any and each such transfer and
delivery of notification of such transfer to Grantee along with a written
assumption of the obligations of Grantor hereunder with respect to the
Reservations, the applicable transferee shall automatically be substituted in
all respects for Grantor with respect to all of the rights and obligations under
the Reservations and Grantor shall automatically be released and relieved of all
such rights and obligations other than any indemnity obligations hereunder; and
thereafter, the term "GRANTOR" as used herein with respect to the Reservations
shall mean and refer to such transferee.
In the event of litigation that arises from a dispute regarding the
provisions of this Deed, the prevailing party shall pay to the other party its
reasonable attorneys' fees, expert witness fees, costs and expenses.
IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed as
of the date set forth above.
GRANTOR:
__________________________________,
a ________________________________
By: ______________________________
Its: _________________________
STATE OF )
) ss.
COUNTY OF ____________)
On this ____ day of __________, 2000, before me, the undersigned
officer, personally appeared ____________________ and acknowledged that he/she
executed the foregoing instrument in such capacity of the purposes therein
contained.
WITNESS my hand and official seal.
My commission expires: ____________________.
(NOTARIAL SEAL)
____________________________________
Notary Public
AGREED AND ACCEPTED: DATE: December ____, 2000
GRANTEE:
______________________________________________,
a ____________________________________________
By: __________________________________________
Its: _____________________________________
STATE OF )
) ss.
COUNTY OF ____________)
On this ____ day of __________, 2000, before me, the undersigned
officer, personally appeared ____________________ and acknowledged that he/she
executed the foregoing instrument in such capacity of the purposes therein
contained.
WITNESS my hand and official seal.
My commission expires: ____________________.
(NOTARIAL SEAL)
____________________________________
Notary Public
EXHIBIT 1
TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT 2
TO THE SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
EXHIBIT 3
TO THE SPECIAL WARRANTY DEED
REACQUISITION PARCELS
[SAME AS EXHIBIT N TO THE CONTRACT]
EXHIBIT 4
TO SPECIAL WARRANTY DEED
RECONVEYANCE DEED
THIS SPECIAL WARRANTY DEED (this "DEED"), made as of the _____ day of
__________, 2000, is between ____________________, a ____________________
("GRANTOR"), and ____________________, a ____________________ ("GRANTEE"), whose
legal address is ______________________________________________________________.
WITNESSETH, That Grantor, for and in consideration of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, has granted,
bargained, sold and conveyed, and by these presents does grant,
bargain, sell, convey and confirm, unto Grantee, its successors and
assigns forever, all the real property, together with improvements,
situate, lying and being in __________ County, __________, and
described on EXHIBIT A attached hereto and incorporated herein by this
reference.
TOGETHER with all and singular the hereditaments and appurtenances
thereto belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title, interest, claim and demand whatsoever of Grantor, either in law or
equity, of, in and to the above bargained premises, with the hereditaments,
easements, rights of way and appurtenances, and with all of Grantor's interest,
if any, in and to any and all minerals, water, ditches, xxxxx, reservoirs and
drains and all water, ditch, well, reservoir and drainage rights which are
appurtenant to, located on, now or hereafter acquired under or above or used in
connection with the property (collectively, the "PROPERTY").
TO HAVE AND TO HOLD the said premises above bargained and described
with the appurtenances, unto Grantee, its successors and assigns forever.
Grantor, for itself, and its successors and assigns, does covenant, grant,
bargain and agree to and with the Grantee, its successors and assigns, that at
the time of the ensealing and delivery of these presents, it is well seized of
the premises above conveyed, has good, sure, prefect, absolute and indefeasible
estate of inheritance, in law, in fee simple, and has good right, full power and
lawful authority to grant, bargain, sell and convey the same in manner and form
as aforesaid, and that the same are free and clear from all former and other
grants bargains, sales, liens, taxes, assessments, encumbrances and restrictions
of whatever kind or nature so ever, except those matters set forth on EXHIBIT B,
attached hereto and incorporated herein by this reference.
The Grantor shall and will WARRANT AND FOREVER DEFEND the
above-bargained premises in the quiet and peaceable possession of Grantee, its
successors and assigns, against all and every person or persons claiming the
whole or any part thereof, by, through or under Grantor.
IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed as
of the date set forth above.
GRANTOR:
__________________________________,
a ________________________________
By: ______________________________
Its _________________________
STATE OF )
) ss.
COUNTY OF ____________)
On this ____ day of __________, 2000, before me, the undersigned
officer, personally appeared ____________________ and acknowledged that he/she
executed the foregoing instrument in such capacity of the purposes therein
contained.
WITNESS my hand and official seal.
My commission expires: ____________________.
(NOTARIAL SEAL)
____________________________________
Notary Public
EXHIBIT 5
TO THE SPECIAL WARRANTY DEED
SPECIAL WARRANTY XXXX OF SALE
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________, a _______________ ("SELLER"), hereby sells, assigns, transfers
and delivers to _______________, a _______________ ("PURCHASER"), all of
Seller's right, title and interest, if any, in, but to the extent relating only
to the Reacquisition Parcels: all sewer and water taps, permits and licenses,
surveys, soil tests, market studies, drainage studies, cost estimates for
development, traffic studies, plats, plans, landscape plans, specifications,
engineering data, drawings, feasibility studies, appraisals, environmental
reports, topographical reports or drawings and reports of any kind, character or
description in the possession of or under the control of Seller, permissions,
options, advertising materials, booklets, and manuals pertaining to equipment
and other instruments, documents and material information, records, written
warranties, guarantees and representations made by contractors, subcontractors,
architects, engineers, materialmen, suppliers, manufacturers, and any other
parties; provided however, that none of the foregoing shall include any
information or interests related to the business of Seller which may have been
operated from or on the Reacquisition Parcels. Seller warrants to Purchaser that
Seller has good title to all such personal property, free and clear of all
liens, encumbrances, security interests and adverse claims of any kind or nature
whatsoever, and Seller shall forever warrant and defend the title to all such
personal property unto Purchaser against all and every person or persons
claiming the whole or any part thereof, by, through or under Seller.
DATED: _____________________________, 2000.
__________________________________,
a ________________________________
By: ______________________________
Its _________________________
EXHIBIT K
FORM OF SPECIAL WARRANTY XXXX OF SALE
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged
_______________, a _______________ ("SELLER"), hereby sells, assigns, transfers
and delivers to _______________, a _______________ ("PURCHASER"), all of
Seller's right, title and interest, if any, in and to all Personal Property (as
such term is defined in the Contract) including, without limitation, the
personal property described in Exhibit C of the Contract and to the extent
transferable: all of Seller's right, title and interest in and to all surveys,
soil tests, market studies, drainage studies, cost estimates for development,
traffic studies, plats, plans, landscape plans, specifications, engineering
data, drawings, feasibility studies, appraisals, environmental reports,
topographical reports or drawings and reports of any kind, character or
description prepared for use in connection with the Property in the possession
of or under the control of Seller, all of Seller's right, title and interest in
and to all permits, permissions, licenses, occupancy certificates, options,
advertising materials, booklets, and manuals pertaining to equipment or other
items installed on the Property and other instruments, documents and material
information relating to the Property or occupancy thereof, operating books
(specifically relating to the operation of the building situated on the Property
only) and records relating to the Property, written warranties, guarantees and
representations made by contractors, subcontractors, architects, engineers,
materialmen, suppliers, manufacturers, and any other parties related in any way
to the Property; provided however, that none of the foregoing shall include any
information or interests related to the business of Seller which may have been
operated from or on the Property. Seller warrants to Purchaser that Seller has
good title to all such personal property, free and clear of all liens,
encumbrances, security interests and adverse claims of any kind or nature
whatsoever, and Seller shall forever warrant and defend the title to all such
personal property unto Purchaser against all and every person or persons
claiming the whole or any part thereof, by, through or under Seller.
For purposes of this Special Warranty Xxxx of Sale and Blanket
Assignment, the term "CONTRACT" means that certain Contract dated December ___,
2000, by and between TCI Realty LLC, as Seller, and Teletech Services
Corporation, as Purchaser, relating to the property known generally as 0000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, and more particularly described on Exhibit A
attached hereto.
DATED: _____________________________, 2000.
__________________________________,
a ________________________________
By: ______________________________
Its _________________________
EXHIBIT L
FORM OF ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "ASSIGNMENT") is made as of
__________ __, 2000, by and between _______________, a _______________
("ASSIGNOR"), and _______________, a _______________ ("ASSIGNEE").
W I T N E S S E T H:
For valuable consideration, receipt of which is acknowledged, Assignor
and Assignee agree as follows:
ASSIGNMENT AND ASSUMPTION.
a. Assignor hereby assigns and transfers to Assignee all right, title
and interest of Assignor in, to and under the service agreements described in
EXHIBIT A attached hereto (the "SERVICE AGREEMENTS").
b. Assignee hereby accepts the foregoing assignment, and assumes and
agrees to perform, and Assignor is hereby relieved of all further liability in
connection with all of Assignor's obligations and liabilities under the Service
Agreements, and all costs related thereto that arise or accrue after the date
hereof.
1. INDEMNIFICATION.
a. Assignor shall indemnify and defend Assignee against and
hold Assignee harmless from all claims, demands, liabilities, losses,
damages, costs and expenses, including, without limitation, reasonable
attorneys' fees that are caused by any failure by Assignor to perform
the obligations of the Assignor under the Service Agreements before the
date of this Assignment to the extent that Assignee has not assumed any
of such obligations as provided above.
b. Assignee shall indemnify and defend Assignor against and
hold Assignor harmless from all claims, demands, liabilities, losses,
damages, costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, that are caused by any failure by
Assignee to perform the obligations of the Assignee arising or accruing
under the Service Agreements on or after the date of this Assignment or
any failure by Assignee to otherwise perform any of the obligations of
Assignee assumed herein.
2. RETENTION OF RIGHTS AGAINST THIRD PARTIES. Nothing contained in
this Assignment shall be deemed to limit, waive or otherwise derogate from
any rights, claims or actions that
Assignor has, or may have, with respect to vendees, contractors or other
relevant third parties in connection with any events, acts or omissions
arising or occurring prior to the date hereof.
3. WARRANTY OF SIGNERS. Each individual executing and delivering this
Assignment on behalf of a party hereto hereby represents and warrants to the
other party that such individual has been duly authorized and empowered to make
such execution and delivery.
4. FURTHER ASSURANCES. The parties shall promptly execute and deliver
any additional instruments or documents which may be reasonably necessary to
evidence or better effect the assignment contemplated hereby.
5. COUNTERPARTS. This Assignment may be executed in any number of
counterparts and by each party on a separate counterpart or counterparts, each
of which when so executed and delivered shall be deemed an original and all of
which taken together shall constitute but one and the same instrument.
6. GOVERNING LAW. This Assignment shall be deemed to be an agreement
made under the laws of the State of Colorado and for all purposes shall be
governed by and construed in accordance with such laws.
7. BINDING EFFECT. This Assignment shall be binding upon and inure to
the benefit of each of the parties and its successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first hereinabove written.
"ASSIGNOR"
__________________________________,
a ________________________________
By: ______________________________
Its _________________________
"ASSIGNEE"
__________________________________,
a ________________________________
By: ______________________________
Its _________________________
Exhibit A to Assignment and Assumption
EXHIBIT M
OPERATING STATEMENT FOR THE PROPERTY
October 99-September 00
Operating Expenses
ACCOUNT CATEGORY ANNUAL AMT. $/RSF=271,678 COMMENTS
---------------- ----------- ------------- --------
UTILITIES
Water 101,929 $0.38 Investigating surcharge of $30,000
Power 440,520 $1.62 BOMA Avg = $1.42, High Mid = $1.55 (Denver
suburban)
Trash Removal 18,135 $0.07
560,584 $2.06
---------------------------------------------- -------------------------------------------------
JANITORIAL $ -
Cleaning 319,836 $1.18 Includes day porters doing light mechanical
Windows 37,120 $0.14
Pest 6,828 $0.03
Garage & Roads 7,847 $0.03
---------------------------------------------- -------------------------------------------------
371,631 $1.37 Could be reduced, 188 Inverness running $1.12
$ -
---------------------------------------------- -------------------------------------------------
LANDSCAPING/SNOW REMOVAL 32,938 $0.12
---------------------------------------------- -------------------------------------------------
$ -
---------------------------------------------- -------------------------------------------------
SECURITY GUARDS 184,404 $0.68 $184,404 per year at 5.2 FTE guards/dockmaster.
AT&T Broadband currently has 13 full time
"guards" at 520 hours per week for a total of
$461,112 per year.
---------------------------------------------- -------------------------------------------------
FIRE LIFE & SAFETY 101,300 $0.37 ADT maintenance and inspection agreement, this
could be reduced upon review of duties and needs
---------------------------------------------- -------------------------------------------------
MAINTENANCE & REPAIR $ -
Mechanics/Wages/Benefits 81,200 $0.30 Chief Engineer & Mechanic, cost includes
benefits
Mechanical 70,680 $0.26 May include some contract labor for mechanic
vacancy
Electrical 44,486 $0.16 May include some contract labor for mechanic
vacancy
Elevator 20,088 $0.07
Misc 4,768 $0.02
---------------------------------------------- -------------------------------------------------
241,934 $0.89
PROP MGR/ALLOCATED FAC MGR $ -
Salaries/Wages/Benefits/Taxes 86,000 $0.32 Staff of 1.2 FTE, cost includes benefits. (20%
of Fac Mgr)
Property Taxes 1,017,117 $3.74 Paid in 2000, includes all land
Insurance - $ - Under master company agreement
--------- -----
Total 2,595,908 $9.56
EXHIBIT N
REACQUISITION PARCELS
