Exhibit 2(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 separately filed with
the Securities and Exchange Commission with a request for confidential
treatment.
TABLE OF CONTENTS
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PAGE
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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....................................18
ARTICLE VI - MISCELLANEOUS................................................18
6.1 Allocations...................................................18
6.2 Notices .....................................................18
6.3 Legal Fees and Other Costs....................................20
6.4 Successors and Assigns........................................20
6.5 Governing Law.................................................20
6.6 Captions .....................................................20
6.7 References; Gender............................................20
6.8 Entire Agreement; Amendment...................................21
(i)
6.9 Severability..................................................21
6.10 Time is of the Essence........................................21
6.11 Public Disclosure.............................................21
6.12 Additional Actions and Documents..............................22
6.13 Waiver; Modification..........................................22
6.14 Cumulative Remedies...........................................22
6.15 Commission....................................................22
6.16 Counterparts..................................................23
6.17 Exhibits and Schedules........................................23
SIGNATURE PAGE .....................................................23
EXHIBITS
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A - Assignment of Partnership Interest
SCHEDULES
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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
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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 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 refusal or similar
rights that it or the Partnership may have to purchase the PacTel Interest
pursuant to the partnership agreement of the Partnership.
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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;
(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
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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) As of the date hereof, TRG has no actual knowledge of any
outstanding amounts currently owing to PacTel by TRG or the
Partnership, including without limitation, any distributions
owing by the Partnership to PacTel. All reserves established by
the Partnership are reasonable in amount and are consistent with
past practices of the Partnership; and
(g) The liability insurance carried by the Partnership is on an
"occurrence basis" and will be effective after the Closing Date
to cover claims against the Partnership in accordance with the
terms and conditions of the policy, and to the extent of the
coverage provided thereby, arising out of events occurring prior
to the Closing Date.
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 the second (2nd) anniversary of the Closing
Date, at which time such representations and warranties shall automatically
expire, except as hereinafter specifically set forth. If, prior to the second
(2nd) anniversary of the Closing Date, 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
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representation and warranty shall survive, solely with respect to the claims so
alleged, until the third (3rd) anniversary of the Closing Date, at which time it
shall automatically expire, unless PacTel has filed a lawsuit with respect
thereto prior to the third (3rd) anniversary of the Closing Date (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:
(a) As of the date hereof, PacTel has no actual knowledge of any
outstanding amounts currently owing to PacTel by TRG or the
Partnership under the partnership agreement of the Partnership
except as may be provided for in this Agreement or in any
certificates,
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documents or instruments executed and delivered by TRG pursuant
to or in connection with this Agreement;
(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) Prior to Closing, PacTel shall deliver to TRG copies of the
environmental and engineering reports or studies obtained by
PacTel with respect to the Partnership or its properties from and
after June 1, 1995. PacTel shall reasonably cooperate with TRG in
having any such reports or studies addressed or certified to the
Partnership;
(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
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the Partnership's property may be bound or affected and which was
not executed by PacTel;
(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 the second (2nd) anniversary of
the Closing Date, at which time such representations and warranties shall
automatically expire, except as hereinafter specifically set forth. If, prior to
the second (2nd) anniversary of the Closing Date, 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 the
third (3rd) anniversary of the Closing Date, at which time it shall
automatically expire, unless TRG has filed a lawsuit with respect thereto prior
to the third (3rd) anniversary of the Closing Date (and if such lawsuit is
filed, the contested representation and warranty, solely
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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 respective agents or representatives with respect to the subject matter
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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 ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Suite 100, 500
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Closing shall occur
on July 17, 1996, or on such other date as the parties may agree (the "Closing
Date").
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 ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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. TRG hereby agrees to indemnify,
defend, and hold harmless PacTel and its officers, directors, employees,
fiduciaries, trustees,
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representatives, affiliates, successors and assigns (the "PacTel Indemnitees")
from and against all (and in the case of (c) below, the Partnership and its
successors and assigns (the "Partnership Indemnitees") from and against 25% of
all) demands, claims, actions, causes of action, assessments, losses, damages,
liabilities, costs, and expenses, including, without limitation, interest,
penalties and reasonable attorneys' fees and disbursements, asserted against,
resulting to, imposed upon, or incurred by a PacTel Indemnitee by reason of or
resulting from (a) any misrepresentation or breach of any of TRG's
representations or warranties contained in Section 2.1 or 6.15 of this Agreement
or in any document or instrument delivered by TRG to PacTel at or in connection
with the Closing; (b) any breach by TRG of, or a default by TRG under, any of
the provisions of this Agreement or any other document or instrument delivered
to PacTel by TRG at or in connection with the Closing; (c) any actual or alleged
obligation, liability, or expense (or related claim) of the Partnership (or any
partner thereof by virtue of its partnership interest in the Partnership) first
arising or first accruing prior to the Closing Date, including, without
limitation, all of the Partnership's existing lawsuits, claims or obligations
listed on Schedule 4.2 hereto; (d) any actual or alleged obligation, liability
or expense (or related claim) of the Partnership (or any partner thereof by
virtue of its partnership interest in the Partnership) or property owned by the
Partnership, first arising or first accruing on or after the Closing Date; and
(e) any actual or alleged obligation, liability, or expense (or related claim)
of the Partnership (or any partner thereof by virtue of its partnership interest
in the Partnership) first arising or first accruing prior to the Closing Date up
to a maximum aggregate amount of * Dollars ($ * ) after PacTel satisfies, and
without affecting any of, PacTel's indemnity obligations under clause * of
Section 4.2 below (which is subject to the limitations set forth in Section 4.5
below) or PacTel's indemnity
* Text omitted and separately filed with the Securities and Exchange Commission.
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obligations under clause * of Section 4.2 expire in accordance with the
provisions of Section *.
4.2 PacTel's Indemnification of TRG. PacTel hereby agrees to indemnify,
defend, and hold harmless TRG and its officers, directors, employees,
representatives, affiliates, successors and assigns (the "TRG Indemnitees") from
and against all (and in the case of (c) below, the Partnership and Partnership
Indemnitees from and against 75% of all) demands, claims, actions, causes of
action, assessments, losses, damages, liabilities, costs, and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees and disbursements, asserted against, resulting to, imposed upon, or
incurred by a TRG Indemnitee or a Partnership Indemnitee by reason of or
resulting from (a) any misrepresentation or breach of any of PacTel's
representations or warranties contained in Section 2.4 or 6.15 of this Agreement
or in any document or instrument delivered by PacTel to TRG at or in connection
with the Closing; (b) any breach by PacTel of, or a default by PacTel under, any
of the provisions of this Agreement or any other document or instrument
delivered to TRG or the Partnership by PacTel at or in connection with the
Closing; and (c) any actual or alleged obligation, liability, or expense (or
related claim) of the Partnership (or any partner thereof by virtue of its
partnership interest in the Partnership) first arising or first accruing prior
to the Closing Date, including, without limitation, all of the Partnership's
existing lawsuits, claims or obligations listed on Schedule 4.2 hereto.
Notwithstanding anything to the contrary contained herein, PacTel shall have no
liability to TRG, any of the TRG Indemnities, the Partnership or any of the
Partnership Indemnitees under the foregoing clause *, (i) unless and until the
damages and claims for indemnities under such clause * exceed the total sum of $
* (i.e., damages and claims against the Partnership in excess of $ * ), (ii) for
the Partnership's non-payment of any normal obligations, costs or expenses
incurred by the Partnership, or
* Text omitted and separately filed with the Securities and Exchange Commission.
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which result from or which relates to products or materials provided to or
services rendered to or on behalf of the Partnership, prior to the Closing Date
in connection with the normal management, operation and maintenance of the
Fairlane Town Center Shopping Center and for refunding any prepaid rent or
security deposits to tenants, and (iii) for damages and claims for indemnities
under clause *, which, in the aggregate, exceeds $ * (i.e., damages and claims
against the Partnership in excess of $ * ). If a Claim (as hereafter defined)
arises out of an act or omission of The Taubman Company Limited Partnership
("TTC"), in its capacity as property manager of the Fairlane Town Center, TRG
agrees that if such event constitutes a breach of the Management Agreement,
dated March 14, 1989, between TTC and the Partnership or otherwise is an event
for which TTC is liable under the Management Agreement, TRG will cause the
Partnership to pursue diligently the Partnership's rights against TTC, failing
which PacTel shall have the right to act as the agent of the Partnership to
pursue its rights against TTC and to pursue, without TRG's consent or
concurrence, all of the Partnership's remedies against TTC.
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
* Text omitted and separately filed with the Securities and Exchange Commission.
- 13 -
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 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.
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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 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) The indemnities and obligations under clause (a) of
Section 4.1 and clause (a) of Section 4.2 with respect to any misrepresentation
or breach of representation
- 15 -
or warranty shall survive the Closing until the second (2nd) anniversary of the
Closing Date. Such indemnities and obligations shall automatically expire on the
second (2nd) anniversary of the Closing Date, unless a party has made a claim in
writing with respect thereto prior to the second (2nd) anniversary of the
Closing Date, in which case such indemnities and obligations shall survive,
solely with respect to such claim, until the third (3rd) anniversary of the
Closing Date, at which time such indemnities and obligations shall automatically
expire, unless a party has filed a lawsuit or, in the case of a third-party
Claim, given notice to the Obligated Party pursuant to Section 4.3 with respect
thereto prior to the third (3rd) anniversary of the Closing Date (and if such
lawsuit is filed or notice given, such indemnities and obligations, solely with
respect to such Claim in such lawsuit or notice, shall survive until the lawsuit
or Claim is resolved, at which time such indemnities and obligations shall
automatically expire).
(b) The indemnities and obligations set forth in clause (b) of
Section 4.1 and clause (b) of Section 4.2 shall survive the Closing for a
period of five (5) years following the Closing Date. Such indemnities and
obligations shall automatically expire at the end of such five (5) year
period unless a party has made a claim in writing with respect thereto
prior to the expiration of such five (5) year period, in which case such
indemnities and obligations shall survive, solely with respect to such
claim, for an additional one (1) year period after such five (5) year
period, at which time such indemnities and obligations shall automatically
expire, unless a party has filed a lawsuit or, in the case of a
third-party Claim, given notice to the Obligated Party pursuant to Section
4.3 with respect thereto prior to the end of such additional one (1) year
period (and if such lawsuit is filed or notice given, such indemnities and
obligations, solely with respect to such claim in such lawsuit or notice,
shall survive until the lawsuit or
- 16 -
claim is resolved, at which time such indemnities and obligations shall
automatically expire).
(c) Notwithstanding the foregoing, the indemnity obligations under
clause (b) of Section 4.2 with respect to PacTel's obligations under the
Assignment of Partnership Interest shall survive the Closing indefinitely.
(d) The indemnities and obligations set forth in clause (c) of
Section 4.2 shall survive the Closing for a period of three (3) years following
the Closing Date. Such indemnities and obligations shall automatically expire at
the end of such three (3) year period unless a party has made a claim in writing
with respect thereto prior to the expiration of such three (3) year period, in
which case such indemnities and obligations shall survive, solely with respect
to such claim, for an additional one (1) year period after such three (3) year
period, at which time such indemnities and obligations shall automatically
expire, unless a party has filed a lawsuit or, in the case of a third-party
Claim, given notice to the Obligated Party pursuant to Section 4.3 with respect
thereto prior to the end of such additional one (1) year period (and if such
lawsuit is filed or notice given, such indemnities and obligations, solely with
respect to such claim in such lawsuit or notice, shall survive until the lawsuit
or claim is resolved, at which time such indemnities and obligations shall
automatically expire).
Section 4.5 Limitation on PacTel's Liability for Indemnity.
Notwithstanding anything contained herein to the contrary, PacTel's total
liability to TRG for any indemnity obligation of PacTel under clause * of
Section 4.2 above shall be limited to the aggregate sum of * Dollars ($ * ).
* Text omitted and separately filed with the Securities and Exchange Commission.
- 17 -
ARTICLE V
PRORATIONS AND ADJUSTMENTS
--------------------------
The Partnership currently makes its distributions to its partners as of
the 15th of each calendar month. If the Closing Date occurs on the 15th of a
month, PacTel shall be deemed to own the PacTel Interest on such date and
therefore be entitled to the Partnership distribution on such date. No closing
adjustments or prorations shall be made with respect to the PacTel Interest.
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:
- 18 -
If to TRG, to:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Suite 100
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to PacTel to:
Pacific Telesis Group
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
The Yarmouth Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
Sheppard, Mullin, ▇▇▇▇▇▇▇ & Hampton, LLP
Four ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Story, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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
- 19 -
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.
(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 aptions 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.
- 20 -
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 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.
- 21 -
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 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
- 22 -
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.
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/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: SENIOR VICE PRESIDENT
---------------------------------
"PacTel"
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP, a Delaware limited partnership
By: /S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Authorized Signatory
---------------------------------
"TRG"
- 23 -
