Exhibit 99 (a)
PURCHASE AND SALE AGREEMENT
By and Between
THE PACIFIC TELESIS GROUP MASTER PENSION TRUST
"PacTel,"
and
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
"TRG,"
Dated:
July 17, 1996
Certain portions of this document have been omitted and are being separately
filed with the Securities and Exchange Commission with a request for
confidential treatment.
- 1 -
TABLE OF CONTENTS
PAGE
RECITALS AND CERTAIN DEFINITIONS...........................................1
ARTICLE I - PURCHASE AND SALE..............................................1
1.1 Purchase and Sale of the PacTel Interest.......................1
1.2 Purchase Price.................................................3
ARTICLE II - REPRESENTATIONS, WARRANTIES AND COVENANTS.....................3
2.1 Representations and Warranties of TRG..........................3
2.2 Survival of TRG's Representations and Warranties...............4
2.3 No Other Representations or Warranties by TRG..................5
2.4 Representations and Warranties of PacTel ......................5
2.5 Survival of PacTel's Representations and Warranties............7
2.6 As-Is Sale.....................................................8
2.7 Knowledge......................................................9
ARTICLE III - CLOSING......................................................9
3.1 Closing ......................................................9
3.2 Closing Documents.............................................10
3.2.1 TRG's Deliveries.....................................10
3.2.2 PacTel's Deliveries..................................10
ARTICLE IV - INDEMNIFICATION..............................................10
4.1 TRG's Indemnification of PacTel ..............................10
4.2 PacTel's Indemnification of TRG ..............................11
4.3 Procedure for Indemnification.................................13
4.4 Survival .....................................................15
4.5 Limitation on PacTel's Liability for Indemnity................17
ARTICLE V - PRORATIONS AND ADJUSTMENTS....................................17
ARTICLE VI - MISCELLANEOUS................................................18
6.1 Allocations...................................................18
6.2 Notices .....................................................18
6.3 Legal Fees and Other Costs....................................19
6.4 Successors and Assigns........................................20
6.5 Governing Law.................................................20
6.6 Captions .....................................................20
6.7 References; Gender............................................20
(i)
6.8 Entire Agreement; Amendment...................................20
6.9 Severability..................................................21
6.10 Time is of the Essence........................................21
6.11 Public Disclosure.............................................21
6.12 Additional Actions and Documents..............................21
6.13 Waiver; Modification..........................................21
6.14 Cumulative Remedies...........................................22
6.15 Commission....................................................22
6.16 Counterparts..................................................22
6.17 Exhibits and Schedules........................................23
SIGNATURE PAGE .....................................................23
EXHIBITS
A - Assignment of Partnership Interest
SCHEDULES
4.2 - Certain Lawsuits, Claims and other obligations
(ii)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into on this
17th day of July, 1996, by and among Boston Safe Deposit and Trust Company as
trustee of the Pacific Telesis Group Master Pension Trust ("PacTel"), and The
Taubman Realty Group Limited Partnership ("TRG"), a Delaware limited
partnership.
The following are the facts underlying this Agreement:
A. PacTel is the owner of a 75% partnership interest in Fairlane Town
Center (the "Partnership"), a Michigan co-partnership (the "PacTel Interest").
B. TRG is the owner of a 25% partnership interest in the Partnership. Prior
to Closing (as defined below) TRG will have assigned a one percent (1%)
partnership interest in the Partnership to The TRG Trust VIII.
C. TRG and PacTel desire to have PacTel sell, assign and transfer to TRG
the PacTel Interest upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the representations and warranties and
the covenants and agreements contained in this Agreement, the parties, intending
to be legally bound, hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of the PacTel Interest. Subject to all of the terms
and conditions set forth in this Agreement, PacTel agrees to sell, assign and
transfer the PacTel Interest to TRG effective on and as of the Closing Date (as
defined below) in accordance with the terms and conditions contained herein. The
parties acknowledge that such sale is intended to be a taxable event under the
Internal Revenue Code of 1986, as amended (the "Code"). As a result of such
sale, assignment and transfer, PacTel agrees that effective as of the
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Closing Date it shall withdraw as a partner in the Partnership and shall cease
to have any right or interest in or to the Partnership, its property and its
business, subject to the provisions set forth below in this Section 1.1. From
and after the Closing Date, (i) except as otherwise provided in Section 4.2
hereof, PacTel shall cease to represent itself as a partner in the Partnership
or as a person otherwise representing or having authority to bind the
Partnership, and (ii) PacTel shall cease to have any responsibility for any of
the debts, liabilities or obligations of or relating to the Partnership first
arising or first accruing after the Closing Date. Notwithstanding the foregoing,
(i) nothing contained herein shall affect any indirect interest in the
Partnership which PacTel may have or may in the future have by virtue of
PacTel's ownership of any units of partnership interest in TRG and (ii) except
as otherwise provided in Article IV hereof, nothing contained in this Agreement
shall affect any of PacTel's rights or obligations under the partnership
agreement of the Partnership or under law to the extent they relate to the
period of time when PacTel owned the PacTel Interest, or to claims or
liabilities which are asserted on or after the Closing Date which relate to any
period prior to the Closing Date, and without limiting the foregoing, PacTel
shall have (x) all of its existing rights to contribution and indemnification
from TRG and/or the Partnership under the partnership agreement of the
Partnership or law, if any, (y) the right to receive income tax information
relating to the Partnership with respect to any period on or prior to the
Closing Date, and (z) the right to audit, review and have access to the books
and records of the Partnership which relate to any period on or prior to the
Closing Date. PacTel covenants and agrees that on the Closing Date, the PacTel
Interest shall be free of any pledge, lien, encumbrance, or rights of others of
any kind, except for (i) the rights of TRG pursuant to this Agreement and (ii)
the terms and conditions of the partnership agreement of the Partnership. TRG
expressly waives, on its own behalf and on behalf of the Partnership, any rights
of first offer, rights of first
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refusal or similar rights that it or the Partnership may have to purchase the
PacTel Interest pursuant to the partnership agreement of the Partnership.
1.2 Purchase Price. TRG hereby agrees to pay, by means of a federal funds
wire transfer on the Closing Date, the sum of $65,575,000 (the "Purchase Price")
for the PacTel Interest.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Representations and Warranties of TRG. To induce PacTel to enter into
this Agreement, TRG hereby represents and warrants to PacTel as follows:
(a) TRG is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has
made all filings and recordings necessary to exist, operate and
to do business under all presently applicable statutes, laws,
ordinances and governmental rules and regulations ("Governmental
Regulations") and has the partnership power and authority to own,
operate and lease its properties, to carry on its business as
currently conducted and to execute and deliver this Agreement and
any other documents and instruments to be delivered by it
pursuant to or in connection with this Agreement, and to perform
all of its obligations under this Agreement and any other
documents and instruments to be delivered by TRG pursuant hereto
or in connection herewith;
(b) The execution, delivery and performance by TRG of this Agreement
and all other documents and instruments required to be delivered
by TRG pursuant hereto or in connection herewith, the fulfillment
of and the compliance by TRG with the respective terms and
provisions hereof and thereof, and the due consummation by TRG of
the transaction contemplated hereby and thereby, have been duly
and validly authorized by all necessary partnership actions of
TRG (none of which actions have been modified or rescinded, and
all of which actions are in full force and effect), and do not:
(a) require any consent or approval of any partner, lender,
creditor, investor or, to the best of TRG's knowledge, judicial
or administrative body, Authority or other party which has not
already been obtained; or (b) conflict with, or result in a
breach of, or constitute a default under, any partnership
agreement, articles of incorporation, bylaws, shareholders
agreement, bond, note or other evidence of indebtedness,
contract, indenture, mortgage, deed of trust, loan, lease, or any
other agreement or instrument to which TRG is a party or by which
TRG or any of TRG's properties may be bound or affected or, to
the best of TRG's knowledge, any Governmental Regulation
presently applicable to TRG;
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(c) No authorization, consent, order, approval or license of or
filing with, or other act by or in respect of any federal, state
or local governmental body, board, commission or agencies
("Authority") is or will be necessary to permit the valid
execution, delivery and performance by TRG of this Agreement or
any of the instruments or documents to be executed and delivered
by TRG pursuant to or in connection with this Agreement;
(d) This Agreement constitutes, and all other documents and
instruments to be delivered by TRG pursuant hereto or in
connection herewith will constitute, legal, valid and binding
obligations of TRG, enforceable against TRG in accordance with
their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium, or similar
laws relating to or affecting generally the enforcement of
creditors' rights and general principles of equity;
(e) No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy or other similar
legal proceedings are pending or, to the best of TRG's knowledge,
threatened against TRG nor are any such proceedings contemplated
by TRG. TRG has never been a debtor under any case commenced
under the United States Bankruptcy Code;
(f) [Omitted and being separately filed with the Securities and
Exchange Commission (SEC) with a request for confidential
treatment]; and
(g) [Omitted and being separately filed with the SEC with a request
for confidential treatment].
2.2 Survival of TRG's Representations and Warranties. All representations
and warranties made by TRG in Section 2.1 and 6.15 of this Agreement shall not
merge into the instruments of conveyance to be delivered at the Closing and
shall survive the Closing until [omitted and being separately filed with the SEC
with a request for confidential treatment], at which time such representations
and warranties shall automatically expire, except as hereinafter specifically
set forth. If, prior to [omitted and being separately filed with the SEC with a
request for confidential treatment], PacTel alleges in writing to TRG that any
specific representation or warranty given by TRG was untrue when made or was
breached by TRG (which written allegation shall identify with reasonable
specificity the contested representation
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or warranty and the facts supporting PacTel's allegation), then the contested
representation and warranty shall survive, solely with respect to the claims so
alleged, until [omitted and being separately filed with the SEC with a request
for confidential treatment], at which time it shall automatically expire, unless
PacTel has filed a lawsuit with respect thereto prior to [omitted and being
separately filed with the SEC with a request for confidential treatment] (and if
such lawsuit is filed, the contested representation and warranty, solely with
respect to the claims alleged in such lawsuit, shall survive until the lawsuit
is resolved, at which time it shall automatically expire).
2.3 No Other Representations or Warranties by TRG. Nothing in any of the
documents or instruments to be delivered by TRG at the Closing shall be deemed
to expand or alter in any manner the representations and warranties set forth in
this Agreement. Except as expressly set forth in this Agreement and in all
certificates, documents and instruments delivered pursuant to or in connection
with this Agreement, no representations, warranties or certifications regarding
the subject matter of this Agreement have been made or are made, and no
responsibility regarding the subject matter of this Agreement has been or is
assumed, by TRG or by any partner, officer, employee or equity owner in TRG as
to any fact or condition. The parties hereto agree that all undertakings and
agreements heretofore made between them or their respective agents or
representatives with respect to the subject matter hereof are merged in this
Agreement and the Exhibits and Schedules attached hereto and in all
certificates, documents and instruments to be delivered pursuant to or in
connection with this Agreement, which alone fully and completely express their
agreement. The terms and provisions of this Section 2.3 shall survive the
Closing, notwithstanding any provision of this Agreement to the contrary.
2.4 Representations and Warranties of PacTel. To induce TRG to enter into
this Agreement, PacTel hereby represents, warrants, and covenants to and with
TRG as follows:
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(a) [Omitted and being separately filed with the SEC with a request
for confidential treatment];
(b) As of the Closing, PacTel will convey to TRG good title to the
PacTel Interest free and clear of any lien, claim, pledge,
encumbrance, security interest, or rights of others of any kind,
except for the terms and conditions of the partnership agreement
of the Partnership;
(c) [Omitted and being separately filed with the SEC with a request
for confidential treatment];
(d) PacTel is a trust duly created and validly existing under the
laws of the State of California, and has made all filings and
recordings necessary to exist, operate and to do business under
all presently applicable Governmental Regulations and has the
trust power and authority to own, operate and lease its
properties, to carry on its business as currently conducted and
to execute and deliver this Agreement and any other documents and
instruments to be delivered by it pursuant to or in connection
with this Agreement, and to perform all of its obligations under
this Agreement and any other documents and instruments to be
delivered by PacTel pursuant hereto or in connection herewith;
(e) The execution, delivery and performance by PacTel of this
Agreement and all other documents and instruments required to be
delivered by PacTel pursuant hereto or in connection herewith,
the fulfillment of and the compliance by PacTel with the
respective terms and provisions hereof and thereof, and the due
consummation by PacTel of the transaction contemplated hereby and
thereby, have been duly and validly authorized by all necessary
trust actions of PacTel (none of which actions have been modified
or rescinded, and all of which actions are in full force and
effect), and do not: (a) require any consent or approval of any
lender, creditor, beneficiary or, to the best of PacTel's
knowledge, judicial or administrative body, Authority or other
party which has not already been obtained; or (b) conflict with,
or result in a breach of, or constitute a default under, any
partnership agreement, articles of incorporation, bylaws,
shareholders agreement, bond, note or other evidence of
indebtedness, contract, indenture, mortgage, deed of trust, loan,
lease, or any other agreement or instrument to which PacTel is a
party or by which PacTel or any of PacTel's properties may be
bound or affected or, to the best of PacTel's knowledge, any
Governmental Regulation presently applicable to PacTel; provided,
however, that the representations and warranties set forth in
this subparagraph (e) shall not cover, include or extend to any
documents, instruments, agreements, bonds, notes, evidences of
indebtedness, contracts, indentures, mortgages, deeds of trust,
loans, leases or any other agreement or instrument to which the
Partnership is a party or by which the Partnership's property may
be bound or affected and which was not executed by PacTel;
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(f) No authorization, consent, order, approval or license of or
filing with, or other act by or in respect of any Authority is or
will be necessary to permit the valid execution, delivery and
performance by PacTel of this Agreement or any of the instruments
or documents to be executed and delivered by PacTel pursuant to
or in connection with this Agreement;
(g) This Agreement constitutes, and all other documents and
instruments to be delivered by PacTel pursuant hereto or in
connection herewith will constitute, legal, valid and binding
obligations of PacTel, enforceable against PacTel in accordance
with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, or
similar laws relating to or affecting generally the enforcement
of creditors' rights and general principles of equity; and
(h) No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy or other similar
legal proceedings are pending or, to the best of PacTel's
knowledge, threatened against PacTel nor are any such proceedings
contemplated by PacTel. PacTel has never been a debtor under any
case commenced under the United States Bankruptcy Code.
2.5 Survival of PacTel's Representations and Warranties. All
representations and warranties made by PacTel in Section 2.4 and 6.15 of this
Agreement shall not merge into the instruments of conveyance to be delivered at
the Closing and shall survive the Closing until [omitted and being separately
filed with the SEC with a request for confidential treatment], at which time
such representations and warranties shall automatically expire, except as
hereinafter specifically set forth. If, prior to [omitted and being separately
filed with the SEC with a request for confidential treatment], TRG alleges in
writing to PacTel that any specific representation or warranty given by PacTel
was untrue when made or was breached by PacTel (which written allegation shall
identify with reasonable specificity the contested representation or warranty
and the facts supporting TRG's allegation), then the contested representation
and warranty shall survive, solely with respect to the claims so alleged, until
[omitted and being separately filed with the SEC with a request for confidential
treatment], at which time it shall automatically expire, unless TRG has filed a
lawsuit with respect thereto prior to [omitted and being separately filed with
the SEC with a request for confidential treatment] (and if such
7
lawsuit is filed, the contested representation and warranty, solely with respect
to the claims alleged in such lawsuit, shall survive until the lawsuit is
resolved, at which time it shall automatically expire).
2.6 As-Is Sale. Nothing in any of the documents or instruments to be
delivered by PacTel at the Closing shall be deemed to expand or alter in any
manner the representations and warranties set forth in this Agreement. Except as
expressly set forth in this Agreement and in all certificates, documents and
instruments delivered pursuant to or in connection with this Agreement, no
representations, warranties or certifications regarding the subject matter of
this Agreement have been made or are made, and no responsibility regarding the
subject matter of this Agreement has been or is assumed, by PacTel or by any
trustee, officer, employee, beneficiary or representative as to any fact or
condition which has or might affect the PacTel Interest or any portion thereof.
Without limiting the foregoing, TRG acknowledges that (i) it has served as
managing partner of the Partnership and has had full access to the books,
records, reports and property of the Partnership, (ii) TRG is relying upon its
own knowledge, inspection and investigation of the Partnership and the physical,
environmental, economic, legal and other condition or status of the property
owned by the Partnership, (iii) TRG has not received from PacTel any accounting,
tax, legal, architectural, engineering, environmental, property management or
other advice with respect to the purchase of the PacTel Interest and has relied
instead solely upon the advice of its own accounting, tax, legal, architectural,
engineering, environmental, property management or other advisors, and (iv)
except for the representations and warranties expressly made herein by PacTel,
TRG is purchasing the PacTel Interest in its "AS IS" condition and WITH ALL
FAULTS on the Closing Date and assumes the risk that adverse physical,
environmental, economic, legal or other conditions may not be known to TRG or
may not have been revealed by its inspection or investigation. The parties
hereto agree that all undertakings and agreements heretofore made between them
or their
8
respective agents or representatives with respect to the subject matter hereof
are merged in this Agreement and the Exhibits and Schedules attached hereto and
in all certificates, documents and instruments to be delivered pursuant to
Section 3.2 hereof, which alone fully and completely express their agreement,
and that this Agreement has been entered into after full investigation, or with
the parties satisfied with the opportunity afforded for investigation of, the
PacTel Interest and no party is relying upon any statement or representation by
any other party unless such statement or representation is specifically embodied
in this Agreement or in the Exhibits or the Schedules attached hereto or in any
certificates, documents and instruments to be delivered pursuant to or in
connection with this Agreement. The terms and provisions of this Section 2.6
shall survive the Closing, notwithstanding any provision of this Agreement to
the contrary.
2.7 Knowledge. TRG shall not have any liability for, nor shall it be deemed
to have breached, any representation or warranty set forth in this Agreement to
the extent that prior to the Closing Date, PacTel had actual knowledge that all
or any part of such representation or warranty made by TRG was not true on the
Closing Date, but only to the extent of those portions of such representation
and warranty that were known by PacTel to be untrue. PacTel shall not have any
liability for, nor shall PacTel be deemed to have breached, any representation
or warranty set forth in this Agreement to the extent that prior to the Closing
Date, TRG had actual knowledge that all or any part of such representation or
warranty made by PacTel was not true on the Closing Date, but only to the extent
of those portions of such representation and warranty that were known by TRG to
be untrue.
ARTICLE III
CLOSING
3.1 Closing. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall occur at the office of Miro Weiner & Kramer,
Suite 100, 500 North Woodward Avenue, Bloomfield Hills, Michigan 48304. The
Closing shall occur on July 17, 1996, or on such other date as the parties may
agree (the "Closing Date").
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3.2 Closing Documents.
3.2.1 TRG's Deliveries. At the Closing, TRG shall deliver to PacTel:
(a) An acceptance of the Assignment of Partnership Interest (as
defined below), executed by TRG.
(b) A release from TRG in favor of PacTel pursuant to which TRG
releases PacTel from any and all claims alleged by it in that
certain lawsuit titled Taubman Realty Group L.P. v. Comerica Bank
(Mich. Cir. Ct. Oakland County No. 95-510033-CK) (the "Lawsuit").
(c) An opinion of Miro Weiner & Kramer, legal counsel for TRG, in
form and substance reasonably satisfactory to PacTel, as to (i)
due authorization, execution and delivery of this Agreement, and
the documents described in this Section 3.2.1, by TRG and (ii)
such other matters as may be reasonably required by PacTel.
3.2.2 PacTel's Deliveries. At the Closing, PacTel shall deliver to TRG, as
applicable:
(a) Assignment of Partnership Interest in the form of Exhibit A,
attached hereto and made a part hereof (the "Assignment of
Partnership Interest"), assigning the PacTel Interest to TRG in
the condition required hereunder.
(b) A release from PacTel in favor of TRG pursuant to which PacTel
releases TRG from any and all claims alleged by it in the
Lawsuit.
(c) The opinion of Sheppard Mullin Richter & Hampton, legal counsel
for PacTel, in form and substance reasonably satisfactory to TRG,
as to (i) the due authorization, execution and delivery of this
Agreement, and the documents described in this Section 3.2.2, by
PacTel and (ii) such other matters as may be reasonably required
by TRG.
(d) PacTel's Foreign Investment in Real Property Tax Act
certification.
ARTICLE IV
INDEMNIFICATION
4.1 TRG's Indemnification of PacTel. [Omitted and being separately filed
with the SEC with a request for confidential treatment].
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4.2 PacTel's Indemnification of TRG. [Omitted and being separately filed
with the SEC with a request for confidential treatment].
4.3 Procedure for Indemnification. If a party (the "Obligated Party") is
required to indemnify the other party (the "Indemnified Party") under the terms
of this Agreement with respect to a third-party claim, then this Section 4.3
shall govern the procedure with respect to such indemnification. If the
Indemnified Party is the Partnership, then the Obligated Party shall be TRG and
PacTel acting jointly. Upon receipt by the Indemnified Party of notice of any
claim or matter for which it is entitled to seek indemnification from the
Obligated Party under the terms hereof (the "Claim"), the Indemnified Party
shall promptly notify the Obligated Party of the Claim, but the failure to
notify the Obligated Party will not relieve the Obligated Party of any liability
that it may have to any Indemnified Party, except to the extent that the
Obligated Party is prejudiced by the Indemnifying Party's failure to give such
notice. The Obligated Party shall contest and defend against the Claim;
provided, however, that the Obligated Party shall not commit, suffer, or permit
any act or omission which would cause the Indemnified Party to incur, or expose
the Indemnified Party to the incurrence of, any civil fines or criminal
penalties. The Obligated Party shall keep the Indemnified Party informed of the
progress of the defense against the Claim which shall be diligently pursued. If
the Obligated Party assumes the defense of any Claim, no compromise or
settlement of such Claim may be effected by the Obligated Party without the
Indemnified Party's consent unless (A) there is no finding or admission of any
violation by the Indemnified Party of any applicable laws, rules, regulations or
other legal requirements or any violation by the Indemnified Party of the rights
of any person or entity and no effect on other claims that may be made against
the Indemnified Party, and (B) the sole relief provided is monetary damages that
are paid in full by the Obligated Party. If a final adjudication (i.e., an
adjudication with respect to which the time for taking all appeals as of right
has lapsed or with respect to which no further appeal is legally
11
available) of such Claim is rendered against the Indemnified Party, by a court
of competent jurisdiction, the Obligated Party shall, within thirty (30) days
after such adjudication becomes final, pay and satisfy such Claim. The Obligated
Party shall notify the Indemnified Party in writing within ten (10) business
days after an adjudication is rendered as to whether the Obligated Party will
appeal the adjudication. If the Obligated Party notifies the Indemnified Party
that it will not appeal an adjudication, then the Indemnified Party may
undertake such appeal, at its sole cost and expense, in which case the
Indemnified Party shall notify the Obligated Party at least ten (10) business
days' prior to the last date on which the Obligated Party is required to pay and
satisfy the Claim pursuant to this Section 4.3 and the Obligated Party shall
within twenty (20) business days' after such notification deposit into escrow,
with a national financial institution or title company reasonably acceptable to
the Indemnified Party and the Obligated Party, the amount necessary to pay and
satisfy the Claim. Upon depositing such amount, the Obligated Party shall be
released from any further obligation hereunder to pay, satisfy and contest the
Claim. The escrowed amount shall be disbursed and applied as follows: first, to
the Indemnified Party, at any time upon demand by the Indemnified Party, to be
used to pay and satisfy such Claim; second, to the Indemnified Party for the
payment or reimbursement of the reasonable costs and expenses incurred by the
Indemnified Party in prosecuting such appeal; and third, any excess to the
Obligated Party. If the Obligated Party fails to contest and defend against, or
to pay and satisfy the Claim within such thirty (30) days, then the Indemnified
Party may, at its option, contest and defend against and/or pay and satisfy the
Claim, in which case the Obligated Party shall immediately reimburse the
Indemnified Party for all costs and expenses (such as, but not limited to,
actual attorneys' fees and disbursements) incurred by the Indemnified Party in
contesting and defending against and/or paying and satisfying the Claim and
enforcing the indemnification, together with interest on such costs and expenses
from the time incurred until the time paid at the lower of (i) three
12
percent (3%) in excess of the prime rate announced by Chemical Bank, from time
to time, or (ii) the highest rate permitted by law. Each party agrees to
cooperate with the reasonable requests of the other party in contesting,
defending, paying, satisfying or appealing an adjudication rendered with respect
to any Claim. If, as a result of an appeal, insurance recovery or otherwise, the
Indemnified Party recovers from a third party any amounts with respect to which
the Obligated Party made payments to or for the account of the Indemnified Party
under this Article IV, the Indemnified Party shall promptly pay over to the
Obligated Party any amounts so recovered.
A claim for indemnification for any matter not involving a third party
claim may be asserted by notice to the party from whom indemnification is
sought.
4.4 Survival. (a) [Omitted and being separately filed with the SEC with a
request for confidential treatment].
(b) [Omitted and being separately filed with the SEC with
a request for confidential treatment].
(c) [Omitted and being separately filed with the SEC with a
request for confidential treatment].
(d) [Omitted and being separately filed with the SEC with a
request for confidential treatment].
4.5 Limitation on PacTel's Liability for Indemnity. [Omitted and being
separately filed with the SEC with a request for confidential treatment].
ARTICLE V
PRORATIONS AND ADJUSTMENTS
[Omitted and being separately filed with the SEC with a request for
confidential treatment].
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ARTICLE VI
MISCELLANEOUS
6.1 Allocations. Notwithstanding any provision of this Agreement to the
contrary, profits, gains, and losses of the Partnership and items thereof
through the close of business on the day immediately prior to the Closing Date
shall be allocated by the Partnership in a manner permitted by Section 706 of
the Code as selected by TRG and reasonably acceptable to PacTel. In the event
that TRG elects to close its books for tax purposes and the Closing Date occurs
on a day other than on the last day of a month, the Partnership shall close its
books for tax purposes as of the end of such month and all profits, gains and
losses of the Partnership for the month in which the Closing occurs shall be
prorated for tax purposes on an equal, per diem basis.
6.2 Notices. All notices required, contemplated or sent under this
Agreement shall be delivered (a) personally, (b) by confirmed facsimile
transmission, (c) by next day courier service (e.g., Federal Express), or (d) by
certified or registered mail, return receipt requested, addressed as follows:
If to TRG, to:
200 East Long Lake Road
Suite 300
Bloomfield Hills, Michigan 48304
Attention: Robert S. Taubman
Telecopy: (810) 258-7601
With a required copy to:
Miro Weiner & Kramer
Suite 100
500 North Woodward Avenue
Bloomfield Hills, Michigan 48304
Attention: Jeffrey H. Miro, Esq.
Telecopy: (810) 646-2681
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If to PacTel to:
Pacific Telesis Group
130 Kearny Street
Suite 3401
San Francisco, California 94108
Attention: Frederick J. McIntosh
Telecopy: (415) 391-9148
and to:
The Yarmouth Group, Inc.
One Embarcadero Center
Suite 2101
San Francisco, California 94111
Attention: Andrew Friedman
Telecopy: (415) 392-3317
With a required copy to:
Sheppard, Mullin, Richter & Hampton, LLP
Four Embarcadero Center
17th Floor
San Francisco, California 94111
Attention: Joan H. Story, Esq.
Telecopy: (415) 434-3947
All notices under this Agreement shall be deemed to have been properly given or
served, (a) if delivered by hand or mailed, on the date of receipt or date of
refusal to accept shown on the delivery receipt or return receipt, (b) if
delivered by Federal Express or similar expedited overnight commercial carrier
or courier, on the date that is one (1) business day after the date upon which
the same shall have been delivered to Federal Express or similar expedited
overnight commercial carrier, addressed to the recipient, with all shipping
charges prepaid, provided that the same is actually received (or refused) by the
recipient in the ordinary course, and (c) if sent by telecopier, on the date of
confirmed delivery.
6.3 Legal Fees and Other Costs. (a) TRG shall not be responsible, directly
or indirectly, for any of PacTel's legal fees and any other costs incurred by it
incident to the preparation, negotiation or execution of this Agreement or any
other documents required pursuant hereto whether or not any of the transactions
contemplated hereunder is consummated.
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(b) PacTel shall not be responsible, directly or indirectly, for any of
TRG's or the Partnership's legal fees and any other costs incurred incident to
the preparation, negotiation or execution of this Agreement or any other
documents required pursuant hereto whether or not any of the transactions
contemplated hereunder is consummated.
6.4 Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto, and their respective successors and
assigns.
6.5 Governing Law. This Agreement shall be governed by, and shall be
interpreted and construed in accordance with, the laws of the State of Michigan
without regard to choice of law principles.
6.6 Captions. The captions used throughout this Agreement are for
convenience only and shall not be used in the interpretation or construction of
this Agreement.
6.7 References; Gender. Unless the context otherwise requires, references
in this Agreement to Sections shall be deemed to refer to Sections of this
Agreement. Throughout this Agreement, the use of masculine pronouns shall be
deemed to include feminine and neuter pronouns as the context may require.
6.8 Entire Agreement; Amendment. This Agreement and the documents and
instruments executed by TRG and/or PacTel pursuant hereto or in connection
herewith contain the entire agreement between the parties hereto with respect to
the transaction contemplated herein, supersedes all prior written agreements and
negotiations (including, without limitation the (i) term sheet letter, dated
January 12, 1996, between TRG and PacTel, (ii) the Confidentiality Agreement,
dated February 14, 1996, between TRG and PacTel, (iii) the letter agreement,
dated March 14, 1996, from TRG to PacTel and (iv) the term sheet letter, dated
June 13, 1996 between TRG and PacTel) and oral understandings, if any, and may
not be
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amended, supplemented, or discharged except by performance or by an instrument
in writing signed by all of the parties hereto.
6.9 Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by, or shall be
invalid under, applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
6.10 Time is of the Essence. Time is of the essence with respect to this
Agreement.
6.11 Public Disclosure. Neither PacTel nor TRG, each of whom is extremely
sensitive to public announcements, will make any public announcement or other
disclosure of the transaction described herein or the terms thereof without the
consent of the other party, except as may be required by such party to comply
with applicable securities and other laws, rules and regulations including the
rules and requirements of the New York Stock Exchange. If either party
determines that it is required by such laws, rules or requirements to make any
public announcement or public disclosure prior to the Closing Date, the
disclosing party, prior to such disclosure or announcement, shall notify the
other party and shall deliver to the other party an opinion of its counsel that
such disclosure is required by such laws, rules or requirements.
6.12 Additional Actions and Documents. To the extent not inconsistent with
the express terms of this Agreement, each of the parties hereto hereby covenants
to take or cause to be taken such further actions, to execute, deliver, and file
or cause to be executed, delivered, and filed such further documents and
instruments, and to obtain such consents, as may be necessary or as may be
reasonably requested in order to effectuate fully the purposes, terms, and
conditions of this Agreement, whether before, at, or after the Closing.
6.13 Waiver; Modification. Failure by any party hereto to insist upon or
enforce any of its rights shall not constitute a waiver thereof, and nothing
shall constitute a waiver of a
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party's right to insist upon strict compliance with the provisions hereof. Any
party hereto may waive the benefit of any provision or condition for its benefit
contained in this Agreement. No oral modification hereof shall be binding upon
the parties, and any modification shall be in writing and signed by the parties.
6.14 Cumulative Remedies. Each and every one of the rights, benefits and
remedies provided to PacTel by this Agreement, or any instruments or documents
executed pursuant to this Agreement, are cumulative, and shall not be exclusive
of any other rights, remedies and benefits allowed by law or equity to PacTel.
Each and every of the rights, benefits and remedies provided to TRG by this
Agreement, or any instruments or documents executed pursuant to this Agreement,
are cumulative, and shall not be exclusive of any other rights, remedies and
benefits allowed by law or equity to TRG.
6.15 Commission. PacTel represents and warrants to TRG, and TRG represents
and warrants to PacTel, that no broker or agent has been engaged by such party
in connection with the negotiation and/or consummation of this Agreement. Each
of the parties hereto agrees to defend and indemnify the other party against any
claims against the other party for any brokerage fees, finders' fees or
commissions with respect to the transaction contemplated by this Agreement which
are asserted by any person purporting to act or to have acted for or on behalf
of the indemnifying party, and to pay the other party's reasonable attorneys'
fees and disbursements in connection therewith.
6.16 Counterparts. To facilitate execution, this Agreement may be executed
in as many counterparts as may be required; and it shall not be necessary that
the signature of, or on behalf of each party, or that the signatures of all
persons required to bind any party, appear on each counterpart, but it shall be
sufficient that the signature of or on behalf of each party, or the signatures
of the persons required to bind any party, appear on one or more of such
counterparts. All counterparts shall collectively constitute a single agreement.
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6.17 Exhibits and Schedules. The Exhibits and Schedules enumerated herein
are attached hereto and incorporated herein by this reference. The Exhibits and
Schedules are hereby made a part of this Agreement as fully as if set forth in
the text hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
BOSTON SAFE DEPOSIT AND TRUST COMPANY,
AS TRUSTEE OF THE PACIFIC TELESIS GROUP
MASTER PENSION TRUST
By: The Yarmouth Group, Inc., its
authorized agent
By: /s/ Andrew Friedman
---------------------------
Andrew Friedman
Its: Senior Vice President
"PacTel"
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: /s/ Cordell A. Lietz
---------------------------
Cordell A. Lietz
Its: Authorized Signatory
"TRG"
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