Exhibit 99 (b)
SUBSCRIPTION AGREEMENT
By and Between
THE PACIFIC TELESIS GROUP MASTER PENSION TRUST
"PacTel,"
and
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
"TRG,"
Dated:
July 18, 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 - SUBSCRIPTION...................................................1
1.1 Subscription for Units of Partnership Interest.................1
1.2 Subscription Price.............................................2
1.3 Continuing Offer...............................................2
ARTICLE II - REPRESENTATIONS, WARRANTIES AND COVENANTS.....................4
2.1 Representations and Warranties of TRG..........................4
2.2 Survival of TRG's Representations and Warranties...............8
2.3 As-Is Issuance.................................................8
2.4 Representations and Warranties of PacTel ......................9
2.5 Survival of PacTel's Representations and Warranties...........10
2.6 No Other Representations or Warranties by PacTel..............11
2.7 Knowledge.....................................................12
ARTICLE III - CLOSING.....................................................12
3.1 Closing .....................................................12
3.2 Closing Documents.............................................12
3.2.1 TRG's Deliveries.....................................12
3.2.2 PacTel's Deliveries..................................13
ARTICLE IV - INDEMNIFICATION..............................................13
4.1 TRG's Indemnification of PacTel ..............................13
4.2 PacTel's Indemnification of TRG ..............................14
4.3 Procedure for Indemnification.................................14
4.4 Survival .....................................................17
4.5 Limitation on TRG's Liability for Indemnity and
Representations and Warranties..............................18
4.6 Limitation on PacTel's Liability for Indemnity and
Representations and Warranties..............................18
ARTICLE V - PRORATIONS AND ADJUSTMENTS....................................19
ARTICLE VI - MISCELLANEOUS................................................19
6.1 Public Disclosure.............................................19
6.2 Notices .....................................................20
6.3 Legal Fees and Other Costs....................................21
(i)
6.4 Successors and Assigns........................................21
6.5 Governing Law.................................................21
6.6 Captions .....................................................21
6.7 References; Gender............................................22
6.8 Entire Agreement; Amendment...................................22
6.9 Severability..................................................22
6.10 Time is of the Essence........................................22
6.11 Additional Actions and Documents..............................22
6.12 Waiver; Modification..........................................23
6.13 Cumulative Remedies...........................................23
6.14 Commission....................................................23
6.15 Counterparts..................................................23
6.16 Exhibits and Schedules........................................24
SIGNATURE PAGE .....................................................24
EXHIBITS
A - TCI Designation
B - TCI Representation Letter
C - Investment Certificate
SCHEDULES
2.1(c) - TRG Consents and Approvals
2.1(d) - TRG Governmental Authorizations and Filings
2.1(h) - Schedule of Ownership of TRG
2.1(k) - Press Releases
2.4(a) - TRG Tenant Ownership by PacTel
(ii)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is entered into on this 18th
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. TRG and PacTel desire to have PacTel subscribe for certain units of
partnership interest in TRG 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
SUBSCRIPTION
1.1 Subscription for Units of Partnership Interest. Taubman Centers, Inc.,
a Michigan corporation ("TCI"), pursuant to a certain Continuing Offer, dated
November 30, 1992 (the "Continuing Offer"), has made available to certain
partners in TRG the ability to exchange Units of Partnership Interest in TRG for
shares of TCI's common stock ("TCI Stock"), which is currently traded on the New
York Stock Exchange. Terms used in this Section 1.1 and 1.3 that are not defined
herein and that are defined in the Continuing Offer have the meanings ascribed
to them in the Continuing Offer. PacTel hereby subscribes for, and TRG shall
issue to PacTel, 3,095.585 Units of Partnership Interest in TRG (the "TRG
Units"). The TRG Units shall be evidenced by a certificate (the "Certificate of
Units") and shall be economically equivalent to, and otherwise have all of the
rights and benefits of, the units of partnership interest of TRG that are issued
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and outstanding prior to the issuance of the TRG Units. On the Closing Date,
PacTel shall be admitted as a limited partner in TRG. PacTel acknowledges and
agrees that at Closing PacTel must execute and deliver to TRG the Investment
Certificate (as defined in, and required pursuant to Section 3.2.2(a) of this
Agreement).
1.2 Subscription Price. PacTel hereby agrees to pay, by means of a federal
funds wire transfer on the Closing Date, the sum of $65,575,000 for the TRG
Units (the "Subscription Price").
1.3 Continuing Offer. [Omitted and being separately filed with the
Securities and Exchange Commission (SEC) with a request for confidential
treatment]. PacTel shall have no right to exchange the TRG Units pursuant to the
Continuing Offer until the first anniversary of the Closing Date, and PacTel
hereby agrees not to tender or otherwise attempt to exchange the TRG Units for
shares of TCI Stock under the Continuing Offer until such one (1) year
anniversary.
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) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
(b) 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 in connection with or pursuant hereto;
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(c) 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 and except as set forth on Schedule 2.1(c), judicial or
administrative body, Authority (as defined herein) 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;
(d) Except as set forth in Schedule 2.1(d), 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;
(e) 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;
(f) 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;
(g) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
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(h) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
(i) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
(j) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
(k) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
(l) [Omitted and being separately filed with the SEC with a request for
confidential treatment];
(m) [Omitted and being separately filed with the SEC with a request for
confidential treatment]; and
(n) [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 6.14 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 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).
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2.3 As-Is Issuance. Nothing in any of the documents or instruments to be
delivered by TRG or TCI 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, TCI or by any
partner, officer, employee or equity owner in TRG, or TCI, as to any fact or
condition which has or might affect the TRG Units or any portion thereof. 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, and that this Agreement has been entered
into after full investigation, or with the parties satisfied with the
opportunity afforded for investigation of, TRG, TCI and the TRG Units 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 Section 3.2 hereof. 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) 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 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;
(c) The execution, delivery and performance by PacTel of this Agreement
and all other documents and instruments required to be delivered by
PacTel pursuant hereto, 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 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;
(d) 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 this Agreement;
(e) This Agreement constitutes, and all other documents and instruments to
be delivered by PacTel pursuant hereto 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
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(f) 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 Sections 2.4 and 6.14 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 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 No Other Representations or Warranties by PacTel. 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
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no responsibility regarding the subject matter of this Agreement has been or is
assumed, by PacTel or by any partner, officer, or employee 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 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 Section 3.2 hereof. 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.
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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 18, 1996, (the "Closing Date").
3.2 Closing Documents.
3.2.1 TRG's Deliveries. At the Closing, TRG shall deliver to PacTel:
(a) The Certificate of Units evidencing the issuance of the TRG Units to
PacTel in the condition required hereunder.
(b) A copy of the Continuing Offer, certified by TCI as being true,
correct and complete.
(c) A copy of the TRG Partnership Agreement, certified by TRG as being
true, correct, and complete.
(d) A Confirmation of Transfer Determination (the "Confirmation of
Transfer Determination"), executed by TCI, confirming that a "Transfer
Determination" pursuant to the TRG Partnership Agreement authorizing
the issuance of the TRG Units has been made.
(e) The TCI Designation and the TCI Representation Letter duly executed by
TCI.
(f) An opinion of Miro Weiner & Kramer, legal counsel for TRG and TCI, 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 or by TCI, as
applicable 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:
(a) An investment certificate in the form of Exhibit C, attached hereto
and made a part hereof (the "Investment Certificate"), duly executed
by PacTel (i) certifying to TRG that (a) the TRG Units are being
acquired by PacTel as an investment for PacTel and not with a view to
the resale or distribution of the TRG Units and (b) PacTel is an
"accredited investor" as defined in Regulation D under the Securities
Act, and (ii) acknowledging and agreeing that in addition to the
restrictions on
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transfers contained in the TRG Partnership Agreement, the TRG Units
may not be resold, pledged or otherwise transferred unless such
transfer is registered under the Securities Act and qualifies under
applicable state "Blue Sky" laws and regulations or unless such
transfer is exempt from such registration and qualification.
(b) 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 or TCI.
ARTICLE IV
INDEMNIFICATION
4.1 TRG's Indemnification of PacTel. [Omitted and being separately filed
with the SEC with a request for confidential treatment].
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. 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
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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 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
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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 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].
4.5 Limitation on TRG's Liability for Indemnity and Representations and
Warranties. [Omitted and being separately filed with the SEC with a request for
confidential treatment].
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4.6 Limitation on PacTel's Liability for Indemnity and Representations and
Warranties. [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].
ARTICLE VI
MISCELLANEOUS
6.1 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.
6.2 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:
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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
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,
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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.
(b) PacTel shall not be responsible, directly or indirectly, for any
of TRG's or TCI'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 TRG's successors and assigns
and PacTel's permitted successors and assigns who hold the TRG Units.
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.
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6.8 Entire Agreement; Amendment. This Agreement and the documents and
instruments executed pursuant hereto or in connection herewith (including,
without limitation, that certain Confidentiality Agreement dated July 15, 1996,
between PacTel and TRG) contain the entire agreement between the parties hereto
with respect to the transaction contemplated herein, supersedes all prior
written agreements and negotiations and oral understandings, if any, and may not
be 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 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.
6.12 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 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.
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6.13 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.
6.14 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.
6.15 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.
6.16 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.
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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"