Exhibit 10.4
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AGREEMENT TO ASSIGN PROPERTY
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AGREEMENTS AND OTHER ASSETS
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This Agreement to Assign Property Agreements and Other Assets (this
"Agreement") is entered into as of September __, 1997, by and between Terramics
Management Company, a Pennsylvania corporation ("Terramics"), Terramics Property
Associates, a Pennsylvania limited partnership ("TPA"), Terramics Property
Company, a Pennsylvania corporation ("TPC") and Xxxxxxxx Properties Acquisition
Partners, L.P., a Delaware limited partnership ("Xxxxxxxx"):
RECITALS:
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A. Terramics is a party to those certain Property Management Agreements
and Development Agreements listed or described on Exhibit A attached hereto
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(collectively, the "Property Agreements"), pursuant to which Terramics was
retained by the owners of the real properties described in the Property
Agreements (the "Properties") to provide property management services and
development services on the terms and conditions set forth therein. Terramics
owns the furniture, fixture and equipment described on Exhibit B attached hereto
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(the "FF&E").
B. Pursuant to the terms of those certain Contribution Agreements dated as
of even date herewith (the "Contribution Agreements") by and between each of the
limited partnerships described on Exhibit C hereto (the "Partnerships"), certain
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partners thereof and Xxxxxxxx Properties Acquisition Partners, L.P. ("PPAP"),
PPAP has agreed to acquire effective as of the closing date of the Contribution
Agreements (the "Closing Date") (i) all of the partnership interests in the
Partnerships owning real property in the State of New Jersey other than the
limited partnership interests owned in the Partnerships by OTR, an Ohio general
partnership acting on behalf of The State Teachers Retirement System of Ohio
("OTR"), and (ii) the leasehold estates owned by the Partnerships which lease
real property in the Commonwealth of Pennsylvania. On the Closing Date and
immediately prior to the consummation of the transactions described in the
Contribution Agreements, PPAP will acquire the 89.999% limited partnership
interests owned by OTR in the Partnerships pursuant to an Agreement to Acquire
Limited Partnership Interests dated September __, 1997 (the "OTR Agreement")
between OTR and PPAP.
C. Simultaneously with the consummation of the transactions described in
the Contribution Agreements, for the consideration described below, Xxxxxxxx
desires to acquire, and Terramics desires to contribute to Xxxxxxxx, the
Property Agreements and FF&E, and Terramics, TPA and TPC desire to contribute to
Xxxxxxxx the name "Terramics" and variations thereof (with the understanding,
however, that (i) affiliates of the Partnership and/or the partners thereof will
have the continuing right to use such tradename solely in connection with the
current name of the entity or entities owning any of the Excluded Assets (as
defined in the Contribution Agreements) or the Non-Included Assets (as defined
in the Contribution Agreements) and for regulatory or
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statutory compliance with respect to any of such assets or entities owning such
assets and (ii) Partnerships and/or the partners thereof shall have the
continuing right to use such trade name solely in connection with the collection
of accounts receivable [provided, from and after the Closing Date, no such party
may pursue existing tenants of the Properties for delinquent rents without
Xxxxxxxx' prior written consent], the prosecution of the claims and the
maintenance of any defense which are related to the Excluded Partnership
Property and Liabilities [as defined in the Contribution Agreement executed in
connection with the New Jersey Properties] and for regulatory or statutory
compliance with respect to any previously owned assets) and goodwill owned by
Terramics, TPA desires to contribute to Xxxxxxxx all of TPA's goodwill and
franchise value (the "TPA Assets") and TPC desires to contribute to Xxxxxxxx the
personal property described on Exhibit D attached hereto (the "TPC Assets") (the
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Property Agreements, FF&E, the rights of Terramics, TPA and TPC to the use of
the name "Terramics" [subject to the exclusions described above], the TPA Assets
and the TPC Assets are herein collectively called the "Terramics Assets").
AGREEMENTS:
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NOW, THEREFORE, in consideration of the foregoing premises and the
agreements herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Terramics, TPA and TPC the
parties agree as follows:
1. Closing Date/Purchase Price. On the Closing Date, Xxxxxxxx shall
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acquire, and Terramics, TPA and TPC shall contribute, the Terramics Assets for a
contribution value ("Contribution Value") of $5,004,400.00, which shall be
allocated among the Property Agreements identified on Exhibit A as Third Party
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Property Agreements, FF&E, the TPA Assets and the remainder of Terramics Assets
prior to the Closing Date in a manner reasonably acceptable to the parties
hereto. When all of the conditions set forth herein have been satisfied to the
consummation of the transactions described herein, the following shall occur and
the transactions contemplated hereby will be treated as a contribution of the
Terramics Assets by Terramics, TPA and TPC to Xxxxxxxx for federal income tax
purposes:
(i) $4,834,341.00 of the Contribution Value shall be paid by
issuing to Terramics or any Unit Recipient (as hereinafter defined) the number
of Units (as hereinafter defined) calculated by dividing $4,834,341.00 by $25.50
and rounding the resulting number of Units to the nearest integer (.50 rounded
down). Xxxxxxxx shall be entitled to a credit against the Contribution Value for
unearned distributions on Units for the period from the last distribution date
through the Closing Date.
(ii) Xxxxxxxx shall pay the balance of the Contribution Value, as
adjusted in the manner specified in Paragraph 16 below, to Terramics on the
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Closing Date by making a wire transfer of immediately available federal funds to
the account of Terramics or other applicable party as specified in writing by
Terramics.
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The term "Units", as used herein, shall mean "Partnership Units" in PPAP, as
defined and described in the Second Amended and Restated Agreement of Limited
Partnership of Xxxxxxxx Properties Acquisition Partners, L.P., as amended (the
"Partnership Agreement").
2. Assignment. On the Closing Date, Terramics shall assign, transfer and
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deliver to Xxxxxxxx all of Terramics' right, title and interest in, under and to
the Property Agreements attributable to the period from and after the Closing
Date pursuant to an Assignment and Assumption Agreement (the "Assignment").
Without limiting the generality of the foregoing, the Assignment shall include:
(a) The right to collect, receive and retain all sums which may
become due or which Terramics may now or hereafter be entitled to demand or
claim arising or issuing from or out of the Property Agreements including all
fees and payments due or to become due, which are earned and payable for the
period from and after the Closing Date;
(b) All claims, powers, privileges and remedies of Terramics under
the Property Agreements which are attributable for the period from and after the
Closing Date;
(c) All rights of Terramics under the Property Agreements which are
attributable for the period from and after the Closing Date to:
(i) exercise any remedies, powers, actions and elections
(including without limitation any election of remedies);
(ii) give or receive any notices, consents, waivers and
approvals;
(iii) accept any payments or prepayments from a third party;
(iv) exercise any right of termination of any of the Property
Agreements; and
(v) exercise the full power and authority to file and prosecute
any claims and to take any action which Xxxxxxxx may xxxx necessary or advisable
in connection with or under any Property Agreements, including without
limitation claims for damages arising out of or for breach of or default under
any Property Agreements and all rights of Terramics to receive the proceeds of
any insurance, indemnity, warranty or guaranty with respect to any of the
Property Agreements; and
(d) Pursuant to the Assignment, Terramics shall indemnify, defend and
hold Xxxxxxxx and its officers, directors, employees, agents, successors,
assigns and affiliates harmless from and against any and all claims,
liabilities, losses, damages, costs, settlements, awards and expenses (including
without limitation, reasonable attorneys' fees and costs, court costs and expert
witness fees) that Xxxxxxxx or any of such persons may incur by reason of or in
connection with or arising out of any claims or demands whatsoever that may be
asserted against Prentiss or any of such persons by any owner of any of the
Properties (individually, an "Owner" and
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collectively, the "Owners") or by any third party based on: (i) any obligations
to be performed or discharged by Terramics under any of the Property Agreements
prior to the Closing Date or relating to acts or omissions of Terramics, its
agents or employees which occur, accrue or arise under the Property Agreements
before the Closing Date, or (ii) any breach by Terramics, TPA or TPC of any of
the representations, warranties and covenants of Terramics, TPA or TPC contained
in this Agreement. Pursuant to the Assignment, Xxxxxxxx shall indemnify, defend
and hold Terramics and its officers, directors, employees, agents, successors,
assigns and affiliates harmless from and against any and all claims,
liabilities, losses, damages, costs, settlements, awards and expenses (including
without limitation, reasonable attorneys' fees and costs, court costs and expert
witness fees) that Terramics or any of such persons may incur by reason of or in
connection with or arising out of any claims or demands whatsoever that may be
asserted against Terramics or any of such persons by any Owner or by any third
party based on any obligations to be performed or discharged by Xxxxxxxx under
any of the Property Agreements from and after the Closing Date or relating to
acts or omissions arising and accruing under the Property Agreements from and
after the Closing Date.
(e) Notwithstanding anything in this Agreement to the contrary,
Terramics is not assigning to Xxxxxxxx any profits payable to the owners of the
Excluded Assets or the Non-Included Assets or ownership interests in the
Excluded Assets or the Non-Included Assets. Xxxxxxxx will be entering into
Rights of First Opportunities Agreements with the owners of the Excluded Assets
on the Closing Date (the "Rights of First Opportunities Agreements").
3. Additional Documents. Terramics agrees to execute and deliver on the
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Closing Date, at its cost, upon request by Xxxxxxxx, any documents necessary to
cause the specific assignment of any particular Property Agreement, a special
warranty xxxx of sale conveying to Xxxxxxxx the FF&E and remaining Terramics
Assets and any other documents whatsoever, the execution of which are necessary
or desirable in the reasonable judgment of Xxxxxxxx to carry out the purposes of
this Agreement. In addition, TPA and TPC agree to execute and deliver on the
Closing Date, at their cost, a special warranty xxxx of sale conveying to
Xxxxxxxx the TPA Assets and the TPC Assets.
4. Consent of Owners. Terramics agrees to obtain on or before the Closing
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Date the written consent of each Owner to the Assignment of the Property
Agreements by obtaining a written Consent to Assignment in substantially the
form of Exhibit E attached hereto.
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5. Future Payments. Terramics agrees to notify all of the Owners that all
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payments to be made under the Property Agreements from and after the Closing
Date shall be made directly to Xxxxxxxx. In the event and to the extent that
Terramics receives any payments from any of the Owners after the Closing Date
which are attributable to the period commencing on the Closing Date, Terramics
agrees to hold such proceeds in trust for Xxxxxxxx and to forward to Xxxxxxxx
promptly the full amount of any such payments received by Terramics without any
offset, holdback or other reduction. In addition, if Terramics shall at any
time become aware of any default or breach by any Owner under any of the
Property Agreements, Terramics shall advise Xxxxxxxx promptly thereof.
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6. Representations and Warranties.
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(a) Terramics represents and warrants to Xxxxxxxx that:
(i) The copies of the Property Agreements delivered to
Xxxxxxxx are true, correct and complete. Terramics has good title to its
interest in each of the Property Agreements, the FF&E and the remaining
Terramics Assets, free and clear of all liens and security interests and has
full right, power and authority to assign and transfer the same, subject to any
required consent of an Owner or PQ Corporation in the case of the Property
Agreements;
(ii) No other person or entity has any right, title, interest
or option or claim in or to any of the Property Agreements (other than the
rights of the Owners), the FF&E or the remaining Terramics Assets, and Terramics
has not previously sold, assigned, mortgaged, pledged or otherwise transferred
or encumbered any of its right, title or interest therein;
(iii) The Property Agreements are in full force and effect, and
have not been cancelled or terminated by either Terramics or the applicable
Owner;
(iv) No default on the part of Terramics exists under any
Property Agreement and no event has occurred and is continuing and no condition
exists that constitutes or would constitute a default under any obligation of
Terramics under any Property Agreement either with or without notice or lapse of
time or both. To the best knowledge of Terramics, no material default on the
part of any Owner or any other party to any Property Agreement exists under any
Property Agreement, and no condition exists that constitutes or would constitute
a default by any Owner or any other party under any Property Agreement either
with or without notice or lapse of time or both.
(v) All fees payable to Terramics and all other sums due to
Terramics under the Property Agreements through the last day of the calendar
month which has most recently ended have been collected in full, except as
disclosed on Exhibit F hereto, and no demand for any refund or reimbursement of
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any such payment or any payment previously received by Terramics has been
delivered or threatened by any Owner or successor thereto; provided, Terramics
is reserving the right to compensation and/or any preferential distributions for
the period prior to the Closing Date attributable to Okehocking Associates.
(vi) To the knowledge of Terramics, none of the Owners has any
offset, deduction, counterclaim or other basis for decreasing or failing to pay
any fee or other payment required to be made under the Property Agreements.
(vii) No fees or other amounts payable to Terramics under the
Property Agreements have been paid more than thirty (30) days in advance.
(viii) In the event all or a portion of the Contribution Value is
to be paid by issuing Units, Terramics represents, warrants and covenants as
follows:
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(1) Terramics and any direct or indirect owner of
Terramics which will receive Units (a "Unit Recipient") is an "accredited
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investor" within the meaning of Rule 501(a) promulgated under the Securities Act
of 1933, as amended (the "Securities Act"). Terramics and each Unit Recipient
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understands the risks of, and other considerations relating to, the purchase of
the Units. Terramics and each Unit Recipient, by reason of its business and
financial experience, together with the business and financial experience of
those persons, if any, retained by it to represent or advise it with respect to
its investment in the Units, has such knowledge, sophistication and experience
in financial and business matters and in making investment decisions of this
type, that it (1) is capable of evaluating the merits and risks of an investment
in PPAP and of making an informed investment decision, (2) is capable of
protecting its own interests or has engaged representatives or advisors to
assist it in protecting its interests and (3) is capable of bearing the economic
risk of such investment.
(2) The Units to be issued to Terramics and each Unit
Recipient will be acquired by Terramics and each Unit Recipient for its own
account for investment only and not with a view to, or with any intention of, a
distribution or resale thereof, in whole or in part, or the grant of any
participation therein until the Units are redeemed for Common Stock of Xxxxxxxx
Properties Trust (the "Company") following the lock-up period specified in the
Registration Rights Agreement (as hereinafter defined) and this Agreement in
accordance with the Partnership Agreement and the Registration Rights Agreement.
Terramics confirms that all documents, records, and books pertaining to
investment in PPAP and requested by Terramics or any Unit Recipient have been
made available or delivered to Terramics and such Unit Recipient. Terramics and
each Unit Recipient has had an opportunity to ask questions of and receive
answers from PPAP, or from a person or persons acting on PPAP's behalf,
concerning the terms and conditions of the transaction contemplated by this
Agreement and its acquisition of Units. Terramics and each Unit Recipient has
relied upon, and is making its investment decisions, solely upon such
information as has been provided to Terramics and such Unit Recipient by PPAP.
Neither Terramics nor any Unit Recipient was formed for the specific purpose of
acquiring an interest in PPAP.
(3) Terramics and each Unit Recipient acknowledges that
(1) the Units to be issued to Terramics and each Unit Recipient have not been
registered under the Securities Act or state securities laws by reason of a
specific exemption or exemptions from registration under the Securities Act and
applicable state securities laws, (2) PPAP's reliance on such exemptions is
predicated in part on the accuracy and completeness of the representations and
warranties of Terramics and each Unit Recipient contained herein, and in the
Prospective Subscriber Questionnaires delivered to PPAP pursuant to Paragraph
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13(e) hereof, (3) such Units, therefore, cannot be resold unless registered
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under the Securities Act and applicable state securities laws, or unless an
exemption from registration is available, (4) there is no public market for such
Units, and (5) PPAP has no obligation or intention to register such Units for
resale under the Securities Act or any state securities laws or to take any
action that would make available any exemption from the registration
requirements of such laws. Terramics and each Unit Recipient hereby acknowledges
that because of the restrictions on transfer or assignment of such Units to be
issued hereunder which are set forth in this Agreement and in the Partnership
Agreement, Terramics and such Unit Recipient may have to bear the economic risk
of the investment commitment evidenced by this Agreement and any Units purchased
hereby for an indefinite period of time, and that, under the terms of the
Partnership Agreement of PPAP, as it will be in effect
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on the Closing Date, Units will not be redeemable at the request of the holder
thereof for Common Stock of the Company prior to the first (1st) anniversary of
their issuance.
(4) The address set forth for Terramics below is the
address of the Terramics' principal place of business or residence, as
applicable, and Terramics has no present intention of becoming a resident of any
country, state or jurisdiction other than the country and state in which
principal place of business or residence, as applicable, is sited.
(b) TPA represents and warrants as to the TPA Assets, and TPC
represents and warrants as to the TPC Assets, that each has good title thereto,
that no other person or entity has any right, title, interest, option or claim
therein, and that neither has sold, assigned, mortgaged, pledged, encumbered or
otherwise transferred such assets.
The representations and warranties set forth hereinabove shall survive the
closing of the transactions described in this Agreement (the "Closing") for a
period of one (1) year following the Closing Date.
7. Acceptance of Assignment. Xxxxxxxx hereby agrees to accept the
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Assignment of the Property Agreements on the Closing Date, and agrees to perform
and fulfill all the terms and conditions required to be performed by Terramics
thereunder from and after the Closing Date.
8. Attorneys' Fees. If any controversy, claim or dispute between
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the parties hereto arising out of or relating to this Assignment, or the breach
or enforcement thereof, results in any litigation, arbitration or any other
administrative or adversarial proceeding, the prevailing party shall be entitled
to recover from the non-prevailing party its expenses, including reasonable
attorneys' fees and costs, court costs and witness fees incurred in connection
with any related investigation.
9. Successors and Assigns. This Agreement shall bind and inure to
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the benefit of the parties and their respective successors and assigns.
10. Governing Law. This Assignment shall be governed by and construed and
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interpreted in accordance with the laws of the Commonwealth of Pennsylvania.
11. Entire Agreement. This Assignment and the exhibits hereto contain the
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entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous negotiations, correspondence,
understandings, letters of intent and agreements whether written or oral,
between or among the parties.
12. Subsequent Communications. Terramics shall deliver to Xxxxxxxx
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promptly all notices, reports, certificates and other communications received by
Terramics after the Closing Date relating to the Property Agreements or with
respect to the Properties that are subject to the Property Agreements. This
Paragraph shall survive the Closing Date.
13. Covenants of Terramics. Terramics covenants with Xxxxxxxx as
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follows:
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(a) From and after the date hereof through the Closing Date,
Terramics shall not modify, amend or terminate any of the Property Agreements or
convey any interest of Terramics in the FF&E or any of the remaining Terramics
Assets.
(b) Terramics shall perform all obligations to be performed by
Terramics under the Property Agreements from the date hereof to the Closing
Date.
(c) Terramics shall not accept any fee or other amount payable to
Terramics under the Property Agreements more than thirty (30) days in advance.
(d) Terramics shall diligently conduct its business and operations
with respect to the Terramics Assets owned by Terramics as presently conducted
and only in the ordinary course, as consistent with past practices.
(e) Within ten (10) days following the date hereof, Terramics shall
deliver to PPAP a definitive list of all Unit Recipients to receive Units at the
Closing. Terramics and each other Unit Recipient shall deliver to PPAP within
ten (10) days following the date hereof a completed and duly executed
Prospective Subscriber Questionnaire in substantially the form attached hereto
as Exhibit H, which Questionnaires shall confirm to the satisfaction of PPAP
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that each Unit Recipient is an "accredited" investor within the meaning of Rule
501(a) promulgated under the Securities Act. Within ten (10) days following the
date hereof, Terramics shall deliver to PPAP definitive instructions regarding
issuance of Units to Terramics and the Unit Recipients. Terramics and each Unit
Recipient shall also deliver to PPAP, upon PPAP's reasonable request, such other
information, certificates and materials as PPAP may reasonably request in
connection with offering the Units without registration under the Securities Act
and the securities laws of applicable states and other jurisdictions.
(f) In connection with the issuance of Units to Terramics and any
Unit Recipient, Terramics shall deliver to PPAP within ten (10) days following
the date hereof, at Terramics' sole cost and expense, prepared as of the date of
this Agreement, depreciation and amortization schedules for the assets
constituting the Terramics Assets, as kept for tax purposes, showing original
basis, accumulated depreciation or amortization, original useful life of such
assets, remaining useful life of such assets and the date(s) when such assets
were placed in service.
(g) From the date of this Agreement until the Closing, and then so
long as Terramics or any Unit Recipient holds any Units, Terramics and each such
Unit Recipient shall notify PPAP in writing promptly upon any change in the
identity or number of its partners or of its indirect partners as identified
pursuant to this Agreement, and shall provide the information called for in
subparagraph (f) above with respect to any such change. In addition, so long as
Terramics or any Unit Recipient holds any Units, without the prior written
consent of PPAP, Terramics and each Unit Recipient shall not (i) admit
additional partners, (ii) permit the transfer of interests in Terramics and/or
each Unit Recipient to a look-through entity (as defined herein) or (iii) permit
any transfer of interests in Terramics and/or such Unit Recipients if, as a
result of the admissions or transfers described in (i) through (iii) the number
of direct or indirect beneficial owners in Terramics and such Unit Recipients
would increase. Terramics and each Unit Recipient shall use their best efforts
to secure the compliance
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of any look-through entities that hold direct or indirect interests of Terramics
and such Unit Recipients with the requirements of this subparagraph as if such
requirements applied directly to such entities. Terramics and each Unit
Recipient acknowledge that the provisions of this subparagraph are imposed to
aid PPAP in avoiding taxation as a corporation for federal income tax purposes,
agrees that monetary damages may be insufficient to remedy the potential harm
caused by any breach of the provisions of this subparagraph, and agree that
injunctive relief, including specific performance or another equitable remedy
would be an appropriate remedy. The provisions of this subparagraph shall
survive the Closing.
(h) Terramics acknowledges that each Unit Recipient shall be bound by
and subject to all terms of the Partnership Agreement. At or prior to the
Closing, Terramics shall deliver to PPAP a Limited Partner Signature Page in
substantially the form attached hereto as Exhibit I executed by each Unit
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Recipient.
TPC and TPA covenant that, from and after the date hereof through the Closing
Date, neither will convey any interest in the TPA Assets or TPC Assets nor grant
any lien or security interest thereon.
14. Conditions to Closing of Xxxxxxxx. The obligations of Xxxxxxxx
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under this Agreement are, at the option of Xxxxxxxx, subject to satisfaction, at
or prior to the Closing, of the following conditions ("Xxxxxxxx' Conditions
Precedent") (any one or more which may be waived, but only by an instrument in
writing signed by Xxxxxxxx):
(a) The representations and warranties of Terramics, TPA and TPC
shall be true and correct in all material respects on and as of the Closing
Date.
(b) Terramics shall have fully performed and complied in all material
respects with all obligations to be performed and complied with by Terramics on
or before the Closing under the Property Agreements.
(c) Terramics, TPA and TPC shall deliver to Xxxxxxxx certificates
dated as of the Closing Date and executed by Terramics, TPA and TPC stating that
the representations and warranties made in this Agreement are accurate in all
material respects as of the Closing Date and that all covenants, agreements and
conditions required by this Agreement to be performed by Terramics, TPA and TPC
have been performed on or prior to the Closing Date.
(d) The closing of the transactions contemplated by the Contribution
Agreements and the OTR Agreement shall have occurred prior to or simultaneously
with the Closing.
(e) Terramics, TPA and TPC shall deliver to Xxxxxxxx any other
documents, instruments or agreements reasonably necessary to effectuate the
transactions contemplated by this Agreement.
15. Conditions to Closing of Terramics. The obligations of Terramics, TPA
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and TPC under this Agreement are, at the option of Terramics, TPA and TPC,
subject to the
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satisfaction, at or prior to the Closing, of the following conditions (the
"Terramics' Conditions Precedent") (any one or more of which may be waived, but
only by an instrument in writing signed by Terramics):
(a) Xxxxxxxx shall fully perform and comply with all covenants, terms
and agreements to be performed or complied with by it on or before the Closing
under this Agreement.
(b) Xxxxxxxx shall deliver to Terramics a certificate dated as of the
Closing Date and executed by Xxxxxxxx stating that all covenants, agreements and
conditions required by this Agreement to be performed by Xxxxxxxx have been
performed on or prior to the Closing Date.
(c) Xxxxxxxx shall deliver to Terramics the following:
(i) An amendment to the Partnership Agreement to be executed
by Terramics or the Unit Recipients specifying the number of Units to be issued
to Terramics or such Unit Recipients in partial payment of the Contribution
Value;
(ii) A Registration Rights Agreement in the form of Exhibit G
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executed by the Terramics with respect to the Units to be issued to Terramics or
the Unit Recipients on the Closing Date; and
(iii) Any other documents, instruments or agreements reasonably
necessary to effectuate the transactions contemplated by this Agreement.
16. Closing and Prorations. The Closing contemplated herein shall close on
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the same date as the closing of the transactions contemplated in the
Contribution Agreements. At the Closing, all revenues and expenses with respect
to the Property Agreements and applicable to the period of time before and after
Closing, determined in accordance with sound accounting principles consistently
applied, shall be allocated between Terramics and Xxxxxxxx as provided herein.
Terramics shall be entitled to all revenue and shall be responsible for all
expenses payable under the Property Agreements for the period of time up to but
not including the Closing Date, and Xxxxxxxx shall be entitled to all revenue
payable under the Property Agreements and shall be responsible for all expenses
for the period of time from, after and including the Closing Date. If accurate
allocations cannot be made at Closing because current bills are not obtainable,
the parties shall allocate such revenue or expenses at Closing on the best
available information, subject to adjustment upon receipt of the final xxxx or
other evidence of the applicable revenue or expense. The obligation to make the
adjustment shall survive the Closing of the transaction contemplated by this
Agreement. Any revenue received or expense incurred by Terramics or Xxxxxxxx
with respect to the Property Agreements after the Closing Date shall be promptly
allocated in the manner described herein and the parties shall promptly pay or
reimburse any amount due. The proration provisions of this Agreement shall
survive the closing of the transaction contemplated hereby for a period of six
(6) months.
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IN WITNESS WHEREOF, this Assignment has been duly executed by the parties
hereto as of the date and year first above written.
TERRAMICS MANAGEMENT COMPANY, a
Pennsylvania corporation
By:
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Name:
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Title:
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TERRAMICS PROPERTY ASSOCIATES, a
Pennsylvania limited partnership
By:
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Name:
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Title: General Partner
TERRAMICS PROPERTY COMPANY, a
Pennsylvania corporation
By:
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Name:
-----------------------------------
Title:
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Address:
c/o Terramics Property Company
0000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
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XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc.
By:
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Name:
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Title:
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Address:
0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Document #53244 v.3
013072-0056
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