11, 2003, with the
Kirk Corporation for the sale of a portion of the Real Property (the "HDLP/Kirk
Parcel") and certain real estate owned by PFR (the "PFR Parcel").
HDLP and PFR
shall share the proceeds, net of all customary closing costs and expenses, of
such sale based on the relative acreage of (a) the portion of the HDLP/Kirk
Parcel that is zoned for residential use to (b) the PFR Parcel.
Payments of any
release prices to lenders who hold mortgages that encumber either parcel shall
be paid from the net proceeds otherwise payable to the owner of the parcel being
released.
For example, if the residentially zoned portion of the HDLP/Kirk
Parcel is 146.2 acres and the PFR parcel is 7.8 acres, HDLP's share will be
94.94% and PFR's share will be 5.06%.
If the net proceeds are $18,000,000 and
PFR's mortgage is $850,000, PFR's share will be $910,800 of which $850,000 will
be used to obtain the release, leaving $60,800 of proceeds.
HDLP's share would
be $17,089,200 from which the balance of the Beal Loan would be repaid.
6.
CONDITIONS PRECEDENT TO CLOSING.
6.1
CONDITIONS TO SELLERS' OBLIGATIONS. THE
OBLIGATIONS OF SELLERS HEREUNDER REQUIRED TO BE PERFORMED ON THE CLOSING DATE
SHALL BE SUBJECT TO THE SATISFACTION OR AT SELLERS' ELECTION, WAIVER, AT OR
PRIOR TO THE CLOSING, OF THE FOLLOWING CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF HGPI
AND PURCHASERS CONTAINED IN THIS AGREEMENT SHALL HAVE BEEN TRUE AND CORRECT WHEN
MADE AND SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS THOUGH MADE ON AND AS OF THE
CLOSING DATE.
(B)
PURCHASERS SHALL HAVE PERFORMED AND COMPLIED
IN ALL MATERIAL RESPECTS WITH ALL COVENANTS CONTAINED IN THIS AGREEMENT TO BE
PERFORMED AND COMPLIED WITH BY PURCHASERS AT OR PRIOR TO THE CLOSING.
(C)
THE CONSENT OF THE LENDER TO THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL HAVE BEEN OBTAINED, AND ANY AND ALL
CONDITIONS THAT MUST BE SATISFIED UNDER THE BEAL MORTGAGE LOAN DOCUMENTS FOR
TRANSFER AND ASSIGNMENT OF THE SUBJECT PARTNERSHIP INTERESTS AS CONTEMPLATED
HEREBY SHALL HAVE BEEN SATISFIED.
(D)
PURCHASERS SHALL HAVE, AT PURCHASERS'
OPTION, DELIVERED TO SELLERS EITHER (I) EVIDENCE OF EITHER THE RELEASE OF
SELLERS AND ALL AFFILIATES OF SELLERS (OTHER THAN THE PARTNERSHIPS), EFFECTIVE
AS OF THE CLOSING DATE, FROM ALL GUARANTIES AND OTHER OBLIGATIONS UNDER,
PURSUANT TO AND WITH RESPECT TO THE BEAL MORTGAGE LOAN DOCUMENTS AND THE BEAL
NET PROFITS ASSIGNMENT, OR (II) AN UNCONDITIONAL INDEMNIFICATION AGREEMENT IN A
FORM REASONABLY ACCEPTABLE TO SELLERS PURSUANT TO WHICH PURCHASERS AGREE TO
JOINTLY AND SEVERALLY INDEMNIFY SELLERS AND ALL AFFILIATES OF SELLERS FROM AND
AGAINST ALL LOSSES SUFFERED OR INCURRED BY REASON OF SUCH GUARANTIES OR OTHER
OBLIGATIONS, INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES, WITH SUCH
INDEMNIFICATION OBLIGATIONS TO BE GUARANTEED BY HGPI ON THE SAME TERMS AS THE
GUARANTEE PROVIDED FOR IN SECTION 8.12 BELOW.
(E)
ALL GOVERNMENTAL AND REGULATORY APPROVALS
AND CLEARANCES AND ALL THIRD-PARTY CONSENTS NECESSARY