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ACQUISITION LOAN AGREEMENT
Dated as of January __, 1995
by and between
AQUARIUS ACQUISITION, L.P.,
Borrower,
and
NOMURA ASSET CAPITAL CORPORATION,
Lender
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ACQUISITION LOAN AGREEMENT ("Agreement"), dated as of January
__, 1995, by and between AQUARIUS ACQUISITION, L.P., a Delaware limited
partnership ("Borrower"), having an office at 2 World Financial Center, Building
B, New York, New York 10281 and NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation ("Lender"), having an office at 2 World Financial Center, Building
B, New York, New York 10281-1198.
R E C I T A L S :
A. Lender, through certain affiliates, owns an indirect
interest in Winthrop Financial Associates, a Limited Partnership ("WFA"), a
Maryland limited partnership. A partnership wholly-owned by WFA is the managing
general partner of Springhill Lake Investors Limited Partnership (the
"Partnership"), a Maryland limited partnership which owns partnership interests
in a series of operating partnerships that collectively own the apartment and
mixed use complex known as Springhill Lake Apartments, located in Greenbelt,
Maryland.
B. Pursuant to an Offer to Purchase dated January __, 1995
(the "Tender Offer"), Borrower has offered to purchase from limited partners of
the Partnership all the outstanding limited partnership interests therein (each,
a "Unit") and, in the event more than 50.5% of all Units outstanding shall be
tendered to Borrower in response to the Tender Offer, Borrower has agreed to
fund certain loans (each, a "Unit Loan") to the owners of Units to be secured by
a portion of such owner's Units.
C. Lender has agreed to finance, on the terms and subject
to the conditions herein set forth, the acquisition by Borrower of Units and the
making of Unit Loans by Borrower pursuant to the Tender Offer.
A G R E E M E N T :
The parties agree as follows:
ARTICLE 1
Definitions
The following terms shall have the respective meanings set forth
below:
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"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with
that Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or otherwise. Neither Lender nor any parent or Subsidiary of Lender shall be
treated as an Affiliate of Borrower solely by virtue of its being Lender or a
parent or Subsidiary of Lender.
"Aggregate Acquisition Cost" means, with respect to the
acquisition of Units and the making of Unit Loans pursuant to the Tender Offer,
the sum of (i) the aggregate purchase price or other consideration payable by
Borrower to acquire Units pursuant to the Tender Offer, plus (ii) the total
principal amount of all Unit Loans funded or to be funded by Borrower at the
Closing of the Tender Offer, plus (iii) the aggregate amount of all reasonable
transaction costs paid or payable by Borrower in connection with such purchases
and such funding of Unit Loans and otherwise in respect of the Tender Offer.
"Applicable Rate" means a rate of interest per annum equal to
the sum of 3% plus 30-day LIBOR.
"Available Cash" means those amounts of cash of Borrower which
are determined, from time to time, by Borrower not to be necessary to satisfy
present or future claims or obligations of Borrower (excluding amounts owing in
respect of the Loan).
"Available Cash Attributable to Capital Transactions" means, in
respect of any Interest Period, the amount of Available Cash generated during
such Interest Period in excess of the amount of Available Cash From Operations
generated during such Interest Period.
"Available Cash From Operations" means, in respect of any
Interest Period, the amount of Available Cash generated during such Interest
Period from all sources other than Capital Transactions.
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"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as now or hereafter in effect, or any successor statute.
"Borrower" has the meaning set forth in the introductory
paragraph to this Agreement.
"Business Day" means any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New York, the City
of Boston, Massachusetts or in the City of London, England or is a day on which
banking institutions located in such State or City are authorized or required
by law or other governmental action to close.
"Capital Transaction" means any sale, transfer or financing
transaction involving any asset of Borrower or any other Person in which
Borrower owns any interest directly or indirectly and which transaction results
in equity distributions or other payments to Borrower or any Affiliate of
Borrower.
"Closing Date" means the date on which Borrower shall acquire
Units and shall (in the event more than 50.5% of the Units are tendered
pursuant to the Tender Offer) fund Unit Loans pursuant to the Tender Offer.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute or statutes to the Internal Revenue Code
of 1986.
"Collateral" has the meaning set forth in the Pledge and
Security Agreement.
"Event of Default" has the meaning set forth in Article 7.
"Governmental Authority" means any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Interest Period" means the period commencing with the
acquisition of the Units and funding of the Loan and ending on the last day of
the calendar month in which such funding occurs and each subsequent calendar
month, or portion thereof, prior to repayment in full of all principal,
interest and other amounts owing in respect of the Loan.
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"Lender" has the meaning set forth in the introductory
paragraph to this Agreement.
"Lien" means any lien, mortgage, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other
title retention agreement or any lease in the nature thereof).
"Loan" has the meaning set forth in Section 2.01.
"Loan Documents" means (i) this Agreement, (ii) the Note
and(iii) the Pledge and Security Agreement.
"Maturity Date" has the meaning set forth in Section 2.03.
"Note" means a Note of Borrower in the form of Exhibit B
hereto.
"Obligations" means all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing by
Borrower to Lender pursuant to the terms of this Agreement or any other Loan
Document.
"Partners" means the partners from time to time of Borrower.
"Partnership" has the meaning set forth in the Recitals.
"Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
"Pledge and Security Agreement" means the Pledge and Security
Agreement in the form of Exhibit C hereto.
"Subsidiary" with respect to any Person, means any corporation
or other entity of which a majority of (i) the voting power of the voting
equity securities or (ii) the outstanding equity interest is owned, directly or
indirectly, by such Person.
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"Taxes" has the meaning set forth in Section 4.06.
"30-day LIBOR" means such rate of interest from time to time
appearing on Telerate page 3750 or, if such rate is unavailable, a substitute
indicator of such rate selected by Lender in its reasonable discretion.
ARTICLE 2
Acquisition Loan
Section 2.01. Commitment. Subject to the terms and conditions
of this Agreement, Lender hereby commits to advance to Borrower, in one or more
advances, on, prior to or after, the Closing Date an acquisition loan (the
"Loan") to finance the purchase of Units, to fund Unit Loans (if more than
50.5% of the Units are tendered pursuant to the Tender Offer) and to pay all
reasonable expenses related thereto and to the Tender Offer. The principal
amount of the Loan shall be equal to the lesser of $25,000,000 and the
Aggregate Acquisition Cost.
Section 2.02. Notice of Borrowing. Borrower shall deliver to
Lender a Notice of Borrowing substantially in the form of Exhibit A hereto not
later than 10:00 a.m. on the Business Day immediately preceding the Closing
Date and each other date on which Borrower wishes to requisition funds
hereunder, which Notice of Borrowing shall set forth the amount to be funded on
such date, together with funding instructions. Upon timely receipt of a Notice
of Borrowing from Borrower and satisfaction of all other conditions precedent
in this Agreement, Lender shall not later than 3:00 p.m. on the requested
funding date advance to Borrower the amount requested in such Notice of
Borrowing.
Section 2.03. Term. The entire principal amount of the Loan,
together with any accrued interest and other amounts payable under the Loan
Documents, shall be due on the date (the "Maturity Date") that is the tenth
anniversary of the Closing Date.
Section 2.04. Conditions. Lender's obligation to fund any
amount of the Loan shall be subject to the following conditions:
(a) each representation and warranty set forth in the Loan
Documents shall be true and correct in all material respects;
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(b) there shall not have occurred and be continuing any
Event of Default or event which, with the passage of time, the giving of notice
or both, would constitute an Event of Default;
(c) Borrower shall have executed and delivered to Lender
the Note;
(d) Borrower shall have executed and delivered to Lender the
Pledge and Security Agreement, together with any supplements thereto requested
by Lender and shall have filed or cause to be filed all UCC-1 financing
statements therein contemplated to be filed in the Pledge and Security
Agreement; and
(e) there shall not have occurred any material adverse
change in the business, prospects, assets or financial condition of Borrower
since the date of this Agreement.
ARTICLE 3
Interest
Section 3.01. Interest Rate. The Loan shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) during each Interest Period at a rate per annum equal to the Applicable
Rate as determined by Lender at approximately 10:00 a.m. on the first Business
Day of such Interest Period.
Section 3.02. Method of Payment. Interest for each Interest
Period shall be payable on the last day of each Interest Period; provided,
however, that so long as there shall not have occurred and be continuing any
Event of Default, until the Maturity Date, payment of interest on and principal
of the Loan need be paid in cash only to the extent of Available Cash. To the
extent interest for an Interest Period is not paid currently in cash, it shall
compound monthly and, to the maximum extent permitted by law, accrue interest
until paid in full.
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ARTICLE 4
Prepayments and Payments
Section 4.01. Mandatory Prepayments of Loan.
(a) Upon the occurrence and during the continuance of an
Event of Default, Lender shall be entitled to demand immediate payment in full
of all principal and accrued interest in respect of the Loan and exercise all
available remedies to collect amounts outstanding in respect thereof.
(b) On the date of receipt by Borrower or any Person
controlled by Borrower of Available Cash Attributable to Capital Transactions,
Borrower shall prepay the Loan in the amount of such Available Cash
Attributable to Capital Transactions.
(c) If not sooner paid, Borrower shall pay to Lender on the
Maturity Date, without setoff, deduction or defense of any kind or character,
all principal, interest and other amounts of whatever kind or character
outstanding under the Loan Documents.
Section 4.02. Voluntary Prepayments. Borrower shall have the
right to prepay the Loan in whole or in part from time to time, without premium
or penalty, on the following terms and conditions: (i) Borrower shall give
Lender written notice of its intent to prepay the Loan and the amount of such
prepayment, which notice shall be given by Borrower at least one Business Day
prior to the date of such prepayment; and (ii) each partial prepayment of the
Loan shall be in an aggregate principal amount of at least $100,000 and
integral multiples of $100,000 in excess of that amount.
Section 4.03. Application of Proceeds. All prepayments
hereunder shall include payment of accrued interest on the principal amount so
prepaid and shall be applied to payment of interest before application to
principal.
Section 4.04. Manner and Time of Payment. All payments of
principal, interest and fees hereunder and under the Note shall be made without
defense, setoff or counterclaim and in same day funds and delivered to Lender
not later than 12:00 Noon (New York time) on the date due at its office located
at 2 World Financial Center, Building B, New York, New York for the account of
Lender; funds received by Lender after that time
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shall be deemed to have been paid by Borrower on the next succeeding Business
Day.
Section 4.05. Payments on Non-Business Days. Whenever any
payment to be made hereunder or under the Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or under the Note or of fees
hereunder, as the case may be.
Section 4.06. Taxes.
(a) No Withholding. Any and all payments by Borrower
hereunder shall be made free and clear of and without deduction for any and all
current or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding taxes imposed on the net
income of Lender and franchise taxes imposed on Lender by the United States or
any jurisdiction under the laws of which Lender is organized or has its
principal office or lending office or any political subdivision or taxing
authority thereof or therein (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, "Taxes"). If any Taxes are
required to be deducted from or in respect of any sum payable hereunder to
Lender, the sum payable shall be increased by the amount necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.06) Lender shall receive an amount
equal to the sum it would have received had no such deductions been made.
(b) Documentary and Similar Taxes. Borrower agrees to pay
any current or future stamp, intangible or documentary taxes or any other
excise or property taxes, charges or similar levies that arise from any payment
made hereunder or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter
referred to as "Other Taxes").
(c) Survival. Without prejudice to the survival of any
other agreement contained herein, the agreements and obligations contained in
this Section 4.06 shall survive the payment in full of the principal of,
interest on, and all other amounts from time to time owing in respect of the
Loan.
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Section 4.07. Increased Costs. If, by reason of (A) the
introduction of or any change in or in the interpretation of any law or
regulation, or (B) the compliance with any guideline or request from any
central bank or other governmental authority or quasi-governmental authority
exercising control over banks or financial institutions generally (whether or
not having the force of law), in each case after the date hereof:
(i) Lender shall be subject to any tax, duty or other charge
with respect to the Loan or its obligation to make a portion of the Loan, or
shall change the basis of taxation of payments to Lender of the principal of or
interest on the Loan or its obligation to make a portion of the Loan (except
for changes in the rate of tax on the overall net income of Lender imposed by
the jurisdiction in which Lender's principal executive office is located); or
(ii) any reserve (including, without limitation, any imposed
by the Board of Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by Lender shall be imposed or deemed applicable or any other
condition affecting the Loan or its obligation to make a portion of the Loan
shall be imposed on Lender;
and as a result thereof there shall be any increase in the cost to Lender of
agreeing to make or making, funding or maintaining the Loan, or there shall be
a reduction in the amount received or receivable by Lender, then Borrower shall
from time to time, upon written notice from and demand by Lender, pay to
Lender, within five Business Days after the date specified in such notice and
demand, additional amounts sufficient to indemnify Lender against such
increased cost or such reduction. A certificate as to the amount of such
increased cost, submitted to Borrower by Lender, shall, except for manifest
error, be final, conclusive and binding for all purposes. In determining such
amount, Lender shall use any method of averaging and attribution that it (in
its reasonable discretion) shall deem applicable.
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ARTICLE 5
Representations and Warranties
In order to induce Lender to enter into this Agreement and to
make the Loan, Borrower represents and warrants to Lender that the following
statements are true, correct and complete:
Section 5.01. Organization and Powers. Borrower is a limited
partnership duly organized, validly existing and in good standing under the
laws of the State of Delaware. Borrower has all requisite partnership power
and authority to own and operate its properties, to carry on its business as
now conducted and proposed to be conducted, to enter into each Loan Document to
which it is a party and to carry out the transactions contemplated hereby and
thereby.
Section 5.02. Authorization of Borrowing. The execution,
delivery and performance of the Loan Documents and the issuance, delivery and
payment of the Note and the grant and continuation of the security interests in
the Collateral pursuant to the Pledge and Security Agreement have been duly
authorized by all necessary action by Borrower.
Section 5.03. Binding Obligation. This Agreement is, and the
Note and the other Loan Documents when executed and delivered will be, the
legally valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
Section 5.04. Security Interests. On and as of the Closing
Date, the Pledge and Security Agreement creates, as security for the
obligations purported to be secured thereby, a valid and enforceable security
interest in and Lien on all of the Collateral, which Lien shall be a first
priority Lien. No filings or recordings are required in order to perfect the
Liens created under the Pledge and Security Agreement except for filings or
recordings which on or before the date of execution and delivery of the Pledge
and Security Agreement have been made.
Section 5.05. Partners Authorized. The Partners are (i)
Partnership Acquisition Trust I, a Delaware Business Trust,
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that holds a 1% general partnership interest in Borrower, (ii) Property
Acquisition Trust I, a Delaware Business Trust that holds a 74% limited
partnership interest in Borrower and (iii) WFA as holder of a 25% limited
partnership interest in Borrower. Each of the Partners is duly organized and
validly existing under the laws of the state of its organization and has all
requisite power to enter into and perform its obligations contemplated in the
limited partnership agreement of the Partnership.
ARTICLE 6
Covenants
Borrower covenants and agrees that, until payment in full of
the Loan and all other amounts owing under the Loan Documents, Borrower shall
perform all covenants in this ARTICLE 6.
Section 6.01. Existence, etc. Borrower will at all times
preserve and keep in full force and effect its partnership existence and those
of each of its Subsidiaries and controlled Affiliates; provided, however, that
the existence of any such Subsidiary or controlled Affiliates may be terminated
if such termination is in the best interest of Borrower and is not otherwise
materially disadvantageous to Lender.
Section 6.02. Payment of Taxes and
Claims; Tax Consolidation.
(a) Borrower will, and will cause each of its Subsidiaries
and controlled Affiliates to, pay all taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its franchises, business, income or property before any material penalty
accrues thereon, and all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a material Lien upon any of its
material properties or assets, prior to the time when any material penalty or
fine shall be incurred with respect thereto; provided, however, that no such
charge or claim need be paid if being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if such reserve or
other appropriate provision, if any, as shall be required in conformity with
generally accepted accounting principles shall have been made therefor.
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(b) Borrower will not, and will not permit any of its
Subsidiaries or controlled Affiliates to, file or consent to the filing of any
consolidated income tax return with any Person (other than any of their
respective Subsidiaries or controlled Affiliates or such other Person as may be
reasonably acceptable to Lender).
Section 6.03. Insurance. Borrower will maintain such
insurance in respect of its operations and properties as is customarily
maintained by similar Persons owning similar properties and having a similar
business. Borrower will furnish to Lender, upon reasonable request,
information as to the insurance carried, and will not cancel any such insurance
without the consent of Lender.
Section 6.04. Compliance with Laws, etc. Borrower will, and
will cause its Subsidiaries and controlled Affiliates to, comply with the
requirements of all applicable laws, including environmental laws, rules,
regulations and orders of any Governmental Authority noncompliance with which
would materially adversely affect the business, properties, assets, operations
or condition (financial or otherwise) of Borrower.
Section 6.05. Security Interests.
(a) Borrower shall perform any and all acts and execute any
and all documents (including, without limitation, the execution, amendment or
supplementation of any financing statement and continuation statement or other
statement) for filing under the provisions of the Uniform Commercial Code as in
effect in any applicable jurisdiction and the rules and regulations thereunder,
or any other statute, rule or regulation of any applicable federal, state or
local jurisdiction, which are reasonably necessary or advisable, from time to
time, in order to grant, continue and maintain in favor of Lender a valid and
perfected first priority Lien on the Collateral.
(b) Borrower agrees to secure the Obligations with a pledge
and/or security interest in all of its assets as constituted from time to time.
In furtherance of such agreement, Borrower shall deliver or cause to be
delivered to Lender from time to time such security documents, pledge
agreements, assignments, consents, authorizations, approvals and orders in form
and substance satisfactory to Lender as Lender shall deem reasonably necessary
or advisable to grant Liens on any Collateral acquired by Borrower after the
Closing Date and/or to perfect or continue such Liens for the benefit of
Lender.
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(c) Borrower shall pay all reasonable expenses incurred by
Borrower or Lender (including Lender's counsel fees and filing fees) in
connection with Borrower's agreements in this Section 6.05.
ARTICLE 7
Events of Default
Section 7.01 Events of Default. The occurrence of any of the
following conditions shall be an "Event of Default":
(a) Failure to Make Payment at Maturity. Failure to pay
all amounts owing in respect of the Obligations on the Maturity Date;
(b) Failure To Make Payments When Due. Failure to apply
Available Cash to pay any installment of principal or interest when due (other
than any such installment due on the Maturity Date), or to pay for 5 days after
the day when due any other amount due under this Agreement;
(c) Breach of Warranty. Any representation or warranty made
by Borrower hereunder or under any of the other Loan Documents shall be false
in any material respect on the date as of which made;
(d) Other Defaults Under Agreement or Loan Documents.
Borrower shall default in the performance of or compliance with any material
covenant contained in this Agreement or any other Loan Document other than
those referred to above in Sections 7.01(b) or (c) and such default shall not
have been remedied or waived within 30 days after receipt of notice from Lender
of such default;
(e) Failure of Security. The Pledge and Security Agreement
shall, at any time, cease to be in full force and effect or shall be declared
null and void, or the legality, validity or enforceability thereof shall be
contested by Borrower or Lender shall not have or cease to have a valid and
perfected Lien in the Collateral for any reason other than the failure of
Lender to take any action within its control, or shall fail to perform or
observe in any material respect any term of the Pledge and Security Agreement;
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(f) Sale of Assets, Merger. Borrower shall sell all or
substantially all of its assets or merge with any other Person;
(g) Change of Control. Lender shall, for any reason, cease to
control Borrower; or
(h) Insolvency or Bankruptcy Proceedings. The commencement by
or on behalf of Borrower or against Borrower or the general partner of Borrower
of any insolvency of bankruptcy proceeding (which proceeding, in the case of an
involuntary proceeding, remains undismissed for a period exceeding 60 days)
relating to Borrower.
Section 7.02 Remedies. If an Event of Default shall have
occurred and be continuing, then (A) upon the occurrence of and during the
continuance of any Event of Default described in Section 7.02(h), the unpaid
principal amount of and accrued interest on the Loan shall, notwithstanding the
provisions of the proviso set forth in Section 3.02, automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Borrower
and (B) upon the occurrence of and during the continuance of any other Event of
Default, Lender may, by written notice to Borrower, declare the Loan to be, and
the same shall forthwith become, due and payable, together with accrued
interest thereon. Whether or not the Loan or other obligations hereunder shall
have been accelerated or become due as set forth above, upon the occurrence and
during the continuance of any Event of Default, Lender may exercise any remedy
available under the Loan Documents or applicable law in respect thereof
(including, without limitation, foreclosure of the Liens in respect of the
Collateral).
ARTICLE 8
Miscellaneous
Section 8.01. Amendments and Waivers. Neither this Agreement
nor any other Loan Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is evidenced by a writing signed by Borrower and Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on Borrower in
any case shall entitle Borrower to any further notice or demand in similar or
other circumstances.
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Section 8.02. Notices. Any notice or communication required
or permitted by this Agreement shall be deemed delivered for every purpose
hereunder if given in writing, addressed to the receiving party's address set
forth below, and either (i) delivered by hand, (ii) sent by tested telex or
telecopied with the transmission confirmed, (iii) sent by overnight courier, or
(iv) sent by certified mail or registered mail, return receipt requested,
postage prepaid, as follows:
To Borrower: Aquarius Acquisition, L.P.
2 World Financial Center
Building B
New York, New York 10281-1198
Attn: Daniel S. Abrams
To Lender: Nomura Asset Capital Corporation
2 World Financial Center
Building B
New York, New York 10281-1198
Attn: Brian Pilcher
Section 8.03. Survival of Warranties and Certain Agreements.
All agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement, the making and repayment of the Loan
and other disbursements hereunder and the execution and delivery of the Note.
Section 8.04. Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of Lender in the exercise of any
power, right or privilege under any Loan Document shall impair such power,
right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other right, power or privilege. All rights and remedies existing under any
Loan Document are cumulative to and not exclusive of, any rights or remedies
otherwise available.
Section 8.05. Severability. In case any provision in or
obligation under this Agreement or the other Loan Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not, to the extent permitted by
law, in any way be affected or impaired thereby.
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Section 8.06. Headings. Section and subsection headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose or be given any
substantive effect.
Section 8.07. Applicable Law. THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAWS.
Section 8.08. Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER WITH RESPECT TO THIS
AGREEMENT OR THE NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT SUBJECT TO RIGHT OF APPEAL. NOTHING HEREIN
SHALL LIMIT THE RIGHT OF LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION.
Section 8.09. Counterparts; Effectiveness. This Agreement and
any amendments, waivers, consents or supplements may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, and all of
which counterparts together shall constitute the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
Section 8.10. Exculpation. This Agreement has been executed
by Borrower, and not individually by any officer or employee of Borrower or of
Borrower's general partner, and none of the officers or shareholders of
Borrower or of Borrower's general partner, individually, shall be bound or have
any personal liability hereunder. Lender and its successors in interest shall
look solely to the assets and general credit of Borrower for satisfaction of
any liability of Borrower in respect of this Agreement and will not seek
recourse or commence any action against any officers or employees of Borrower
or of Borrower's general partner, or any of their personal assets for the
performance or payment of any obligation hereunder.
17
Section 8.11. Waiver of Jury Trial. Each of Borrower and
Lender hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or related to any of the Loan Documents or the negotiation,
administration, performance or enforcement thereof.
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IN WITNESS WHEREOF, this Agreement has been executed as of the
date first set forth above.
AQUARIUS ACQUISITION, L.P.
By: PARTNERSHIP ACQUISITION TRUST I
its General Partner
By:_________________________________
Name:
Title:
NOMURA ASSET CAPITAL CORPORATION
By:_________________________________
Name:
Title:
Exhibit A
FORM OF NOTICE OF BORROWING
Pursuant to that certain Acquisition Loan Agreement (the "Loan
Agreement"; capitalized terms used herein but not defined shall have the
meanings given such terms in the Loan Agreement), dated as of __, 1995,
by and between Aquarius Acquisition, L.P., a Delaware limited partnership
("Borrower"), and NOMURA ASSET CAPITAL CORPORATION, a Delaware corporation
("Lender"), this represents Borrower's notice that Lender shall advance to
Borrower $ on , 19 (the "Funding Date"). The
proceeds of this borrowing are to be deposited as follows:
The undersigned officer and Borrower certify that: (a) the
amount of the Loan to be funded on the Funding Date, together with all prior
fundings under the Loan Agreement, does not exceed the Aggregate Acquisition
Cost and (b) Borrower has performed in all material respects all agreements and
satisfied all conditions under the Loan Agreement required to be performed by
it on or before the date hereof.
Dated:
AQUARIUS ACQUISITION, L.P.
By: PARTNERSHIP ACQUISITION TRUST I
its General Partner
By:_________________________
Title:
Exhibit B
FORM OF RECOURSE TERM NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THIS
NOTE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT. THIS NOTE IS SUBJECT TO THE PROVISIONS OF
THE ACQUISITION LOAN AGREEMENT REFERRED TO HEREIN AND MAY NO T BE TRANSFERRED
BY THE HOLDER WITHOUT COMPLIANCE WITH THE APPLICABLE PROVISIONS THEREOF.
As of __, 1995 Principal Amount:
New York, New York $ ______________
Aquarius Acquisition, L.P., a limited partnership organized
under the laws of the State of Delaware ("Borrower"), for value received,
hereby promises to pay to NOMURA ASSET CAPITAL CORPORATION (together with any
permitted assignee or successor holder of this Note, "Lender"), in immediately
available funds by wire transfer to Lender's account at a bank in the United
States designated by Lender, on the date set forth in the Loan Agreement (as
hereinafter defined), in lawful money of the United States, the principal sum
of $25,000,000 or so much thereof as shall have been advanced hereunder.
Borrower also promises to pay interest on the unpaid principal
amount hereof in like money at said account from the date hereof until paid at
the rates and at the times provided in the Loan Agreement.
This Note is the Note referred to in the Acquisition Loan
Agreement, dated as of January __, 1995, by and between Borrower and Lender (as
amended or otherwise modified in accordance with its terms, the "Loan
Agreement") and is entitled to the benefits thereof and shall be subject to the
provisions thereof. This Note is also entitled to the benefits of the Pledge
and Security Agreement and any other Loan Documents (as such terms are defined
in the Loan Agreement). As provided in the Loan Agreement, this Note is
subject to mandatory and voluntary prepayment, in whole or in part.
In case an Event of Default (as defined in the Loan Agreement)
shall occur and be continuing, the principal of and
2
accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Loan Agreement.
Borrower expressly waives any presentment, demand, protest or
other notice of any kind in connection with this Note.
In the event Lender institutes any action for the enforcement
or collection of this Note or the enforcement of any of Lender's rights under
the Loan Agreement, Borrower shall pay on demand all costs and expenses of such
action, including, without limitation, legal fees.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
3
IN WITNESS WHEREOF, Borrower has caused this Note to be
executed in its partnership name by its general partner as of the date first
written above.
AQUARIUS ACQUISITION, L.P.
By: PARTNERSHIP ACQUISITION TRUST I
its General Partner
By:____________________________
Title:
4
Exhibit C
FORM OF PLEDGE AND SECURITY AGREEMENT