AMENDED AND RESTATED GUARANTEE
THIS AMENDED AND RESTATED GUARANTEE, dated as of December __,
2000 (this "Guarantee") is made, jointly and severally, by AFG Investment Trust
A, AFG Investment Trust B, AFG Investment Trust C and AFG Investment Trust D,
each a Delaware business trust (each, a "Guarantor" and together, the
"Guarantors") in favor of the Beneficiaries (as defined below) and amends,
restates and supersedes in its entirety the original Guarantee dated March 7,
2000 between the parties hereto (the "Original Guarantee").
WITNESSETH:
WHEREAS, Echelon Commercial LLC a Delaware limited liability
company (the "Master Lessee"), is a party to and has undertaken payment and
performance obligations under the Amended and Restated Master Lease Agreement
("Master Lease"), dated as of March 7, 2000 between Xxxxxx Affordable Housing of
Florida, Inc., a Florida corporation, HAHF Trust I, a Delaware business trust,
and HAHF Trust II, a Delaware business trust (collectively, the "Master Lessor")
and Master Lessee;
WHEREAS, in order to induce the Beneficiaries to enter into
the Master Lease, the Guarantors executed and delivered the Original Guarantee
to Master Lessor (collectively, along with its successors and permitted assigns,
the "Beneficiaries");
WHEREAS, the Beneficiaries and the Guarantor have agreed that
it is in their mutual interest to make certain modifications to the Original
Guarantee as set forth herein;
NOW, THEREFORE, for value received, each Guarantor hereby
agrees with and for the benefit of the Beneficiaries as follows:
ARTICLE I
DEFINED TERMS
Unless the context shall otherwise require, capitalized terms
used herein but not otherwise defined herein shall have the meanings assigned
thereto in the Master Lease.
ARTICLE II
GUARANTEE AND INDEMNITIES
SECTION 2.01 Guarantee of Obligations Under Master Lease.
(a) The Guarantors irrevocably and unconditionally, jointly
and severally guarantee to each of the Beneficiaries the due, complete and
punctual performance and observance of all payment obligations of the Master
Lessee under the Master Lease, and the due, complete and punctual performance
of, and compliance with, each and all other obligations, covenants and
agreements of the Master Lessee under the Master Lease (in each case, including
any and all indemnities and liabilities for breach of covenant or warranty now
or hereafter incurred by the Master Lessee to any Beneficiary arising pursuant
or with respect to the Master Lease), in each case strictly in accordance with
the terms thereof (all such obligations and other
covenants, indemnities and agreements being referred to herein as the
"Obligations"). The Guarantors agree to pay upon demand any and all expenses
(including reasonable attorneys' fees and disbursements) that may be paid or
incurred by any Beneficiary in enforcing any rights with respect to, or
collecting, any or all payments due pursuant to the terms of the Master Lease
and/or enforcing any rights with respect to, or collecting against, the
Guarantor under this Guarantee (whether pursuant to this Section 2.01(a) or any
other provision hereof).
(b) In the event that Master Lessee fails to pay, perform or
observe duly, completely and punctually any Obligation when and as the same
shall be due and payable, or required to be observed or performed, as the case
may be, in accordance with the terms of the Master Lease, the Guarantors shall
forthwith pay, perform and observe such Obligation or cause the same forthwith
to be paid, performed or observed, regardless of whether or not any Beneficiary
or anyone on behalf of any of them shall have instituted any suit, action or
proceeding or exhausted its remedies or taken any steps to enforce any rights
against Master Lessee or any other Person or entity to compel any such
performance or observance or to collect all or any part of such amount pursuant
to the provisions of the Master Lease or at law or in equity, or otherwise, and
regardless of any other condition or contingency.
SECTION 2.02 Unconditional Obligations. This Guarantee is a
primary obligation of each Guarantor independent of the obligations of the
Master Lessee under the Master Lease, and is an unconditional, absolute, present
and continuing obligation and guarantee of payment and performance (and not
merely of collection) and the validity and enforceability of this Guarantee
shall be absolute and unconditional irrespective of, and, shall not be impaired,
affected or in any way conditioned or contingent upon (a) the making of a
demand, the institution of suit or the taking of any other action to enforce
performance or observance by Master Lessee of the Obligations; (b) the validity,
regularity or enforceability of the Master Lease or any of the Obligations or
any collateral security, other guarantee, if any, or credit support therefor or
right of offset with respect thereto at any time or from time to time held by
any Beneficiary; (c) any defense, setoff or counterclaim (other than the defense
of prior payment or performance) that may at any time be available to or be
asserted by Master Lessee or any Guarantor against any Beneficiary; (d) any
attempt to collect from Master Lessee or any other entity or to perfect or
enforce any security; or (e) upon any other action, occurrence or circumstance
whatsoever. The Guarantors waive any requirement that any Beneficiary shall have
instituted any suit, action or proceeding or exhausted its remedies or taken any
steps to enforce any rights against Master Lessee or any other Person or entity
to compel any such performance or to collect all or any part of such amount
pursuant to the provisions of the Master Lease or at law or in equity, or
otherwise, and regardless of any other condition or contingency.
SECTION 2.03 Amendments, etc., With Respect to the
Obligations. The Guarantors shall remain obligated hereunder and this Guarantee
shall remain in full force and effect without any reservation of rights against
the Guarantors and without notice to or further assent by the Guarantors,
notwithstanding that (a) any demand for payment or performance or observance of
any of the Obligations made by any Beneficiary may be rescinded by such
Beneficiary and any of the other Obligations continue to be in effect; (b) the
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by any Beneficiary; (c) the Master
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Lease, or any collateral security document or other guarantee or document
executed and delivered in connection therewith or related thereto, may be
amended, modified, supplemented or terminated, in accordance with its terms, as
the parties thereto may deem advisable; (d) any collateral security, guarantee
or right to offset held by any Beneficiary for the payment or performance or
observance of the Obligations may be sold, exchanged, waived, surrendered or
released; or (e) any default with respect to any Obligation may be waived by any
Beneficiary. No Beneficiary shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. For purposes
hereof, "demand" shall include the commencement and continuance of any legal
proceedings.
The Guarantors hereby ratify and confirm any such extension,
renewal, change, sale, release, waiver, surrender, exchange, modification,
amendment, impairment, substitution, settlement, adjustment or compromise and
agrees that the same shall be binding upon it, and hereby waive to the fullest
extent permitted by Applicable Law any and all defenses, counterclaims or
offsets which it might or could have by reason thereof, it being understood that
the Guarantors shall at all times be bound by this Guarantee and remain liable
hereunder.
SECTION 2.04 The Guarantors' Obligations Not Affected. The
Guarantors expressly agree that the duties and obligations of the Guarantors
under this Guarantee shall remain in full force and effect, without the
necessity of any reservation of rights against the Guarantors or notice to or
further assent by the Guarantors at any time and from time to time, in whole or
in part, and without regard to, and shall not be impaired, released, discharged,
terminated or affected by any of the following actions or the occurrence of any
of the following:
(a) any extension, modification, amendment or renewal of,
termination, addition or supplement to, or deletion from, any of the terms of or
indulgence with respect to, or substitutions for, or the taking of any action or
the giving of any consent with respect to, the Obligations or any part thereof
or the Master Lease or other agreement relating thereto at any time;
(b) any failure, refusal or omission to enforce any right,
power or remedy with respect to the Obligations or any part thereof or the
Master Lease or other agreement relating thereto;
(c) any waiver of any right, power or remedy or of any default
with respect to the Obligations or any part thereof or the Master Lease or other
agreement relating thereto or to provide for any insurance on the Property, or
to establish or maintain the priority or perfection of any interest in the
Property;
(d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral
security or other guarantees with respect to the Obligations or any part
thereof, or any other obligation of any Person with respect to the Obligations
or any part thereof;
(e) the lack of genuineness, unenforceability, impossibility
of performance or invalidity of the Obligations or any part thereof or the lack
of genuineness, unenforceability,
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impossibility of performance or invalidity of the Master Lease or other
agreement relating thereto or the power or authority or lack of power or
authority of the Master Lessee to execute and deliver the Master Lease or to
perform any of its obligations thereunder or the existence or continuance of the
Master Lessee or any other Person as a legal entity;
(f) any change in the ownership of the Master Lessee or the
insolvency, bankruptcy or any other change in the legal status of the Master
Lessee or any rejection, modification or release of the obligations of the
Master Lessee or those of any Person under the Master Lease as a result of any
bankruptcy, reorganization, insolvency or similar proceeding;
(g) the change in or the imposition of any Applicable Law or
other governmental act that does or might impair, delay or in any way affect the
validity, enforceability, or the payment when due, of the Obligations to the
extent not prohibited by Applicable Law or otherwise;
(h) the existence of any claim, counterclaim, setoff or other
rights that the Guarantors may have at any time against the Master Lessee or any
other Person in connection herewith or with an unrelated transaction;
(i) any merger or consolidation of the Master Lessee or any
Guarantor into or with any other Person, or any sale, release or transfer of any
or all of the assets of the Master Lessee or any Guarantor to any other Person;
(j) the rights, powers or privileges any Beneficiary may now
or hereafter have against any Person or collateral;
(k) any assignment of the Master Lease or subletting of the
Property or any part thereof or any transfer, sale or other disposition or any
destruction of the Property or any failure of title with respect to any interest
in the Property;
(l) the failure of any Guarantor to receive any benefit from
or as a result of its execution, delivery and performance of this Guarantee; or
(m) any other action, omission, occurrence or circumstance
whatsoever which may in any manner or to any extent constitute a legal or
equitable defense of any Guarantor or vary the risk, prejudice any rights of
subrogation, limit the recourse or effect a discharge of any Guarantor hereunder
as a matter of law or otherwise;
provided, however, that the specific enumeration of the above-mentioned acts,
failures or omissions shall not be deemed to exclude any other acts, failures or
omissions, that are not specifically mentioned above, it being the purpose and
intent of this paragraph that the obligations of the Guarantors hereunder shall
be absolute and unconditional and shall not be discharged, impaired or varied
except by the payment, observance or performance to the appropriate Beneficiary
of the Master Lessee's obligations under the Master Lease, and then only to the
extent of such payments, observance or performance.
Without limiting any of the other terms or provisions hereof,
in order to hold the Guarantors liable hereunder, there shall be no obligation
on the part of any Beneficiary at any
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time to enforce or attempt to enforce any right or remedy against the Master
Lessee or any other Person or to resort, in any manner or form, to any
collateral, property or estates or any other rights or remedies whatsoever.
Without limiting the foregoing, it is understood that repeated and successive
demands may be made and recoveries may be had hereunder but without duplication
of payment as and when, from time to time, the Master Lessee shall default under
the terms of any of the Master Lease and that notwithstanding the recovery
hereunder for or in respect of any given default by the Master Lessee under the
Master Lease, this Guarantee shall remain in full force and effect and shall
apply to each and every subsequent default. Each and every default in any
payment, observance or performance of any Obligation of the Master Lessee under
the Master Lease shall give rise to a separate claim and cause of action
hereunder, and separate claims or suits may be made and brought, as the case may
be, hereunder as each such default occurs.
SECTION 2.05 Waiver by the Guarantors. The Guarantors
unconditionally waive and release, to the fullest extent permitted by Applicable
Law, any and all (a) notice of the acceptance of this Guarantee by any
Beneficiary and of any change in the financial condition of the Master Lessee;
(b) notices of the creation, renewal, extension or accrual of any Obligation or
any of the matters referred to in Section 2.04 hereof or any notice of or proof
of reliance by any of the Beneficiaries upon this Guarantee or acceptance of
this Guarantee (the Obligations, and any of them, shall conclusively be deemed
to have been created, contracted, incurred, renewed, extended, amended or waived
in reliance upon this Guarantee and all dealings between the Master Lessee or
the Guarantors and each Beneficiary shall be conclusively presumed to have been
had or consummated in reliance upon this Guarantee); (c) notices which may be
required by statute, rule of law or otherwise, now or hereafter in effect, to
preserve intact any rights of any of the Beneficiaries against the Guarantors;
(d) the right to interpose all substantive and procedural defenses to the law of
guarantee, indemnification and suretyship, except the defenses of prior payment
or prior performance by the Master Lessee or the Guarantors of the Obligations;
(e) all rights, defenses and remedies accorded by Applicable Law to guarantors
or sureties, including any extension of time conferred by any law now or
hereafter in effect; (f) any right or claim of right to cause a marshaling of
the assets of the Master Lessee or to cause any Beneficiary to proceed against
the Master Lessee or any collateral held by any Beneficiary at any time or in
any particular order; (g) rights to the enforcement, assertion or exercise by
any of the Beneficiaries of any right, power, privilege or remedy conferred
herein or in the Master Lease or otherwise; (h) requirements of promptness or
diligence on the part of any of the Beneficiaries; (i) notices of the sale,
transfer or other disposition of any right, title to or interest in the Master
Lease; (j) demand of payment by any Beneficiary or any other Person from the
Master Lessee or any other Person indebted or in any manner liable on or for the
Obligations hereby guaranteed; (k) presentment for payment by any Beneficiary or
any other Person of the Obligations, protest thereof and notice of dishonor to
any party; or (l) other circumstances whatsoever (except the defenses of prior
payment or prior performance by the Master Lessee or the Guarantors of the
Obligations) which might otherwise constitute a legal or equitable discharge,
release or defense of a guarantor or surety, or which might otherwise limit
recourse against the Guarantors. No failure to exercise and no delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof, or the exercise of any other power, privilege or right. The rights and
remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
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SECTION 2.06 Payments. All payments hereunder shall be made in
compliance with Section 7.15.
SECTION 2.07 Reinstatement. This Guarantee shall continue to
be effective, or be reinstated, as the case may be, if at any time payment, in
whole or in part, of any of the Obligations is invalidated, voided, declared to
be fraudulent or preferential, set aside, rescinded or must otherwise be repaid,
restored or returned to a trustee, receiver or any other Person by any
Beneficiary upon the bankruptcy, insolvency, reorganization, arrangement,
adjustment, composition, dissolution, liquidation, or the like, of the Master
Lessee or the Guarantors, or as a result of, the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to the
Master Lessee or the Guarantors or any substantial part of such Person's
respective property, or otherwise, all as though such payment had not been made
notwithstanding any termination of this Guarantee or the Master Lease. The
liability of the Guarantors shall not be reduced or discharged, in whole or in
part, by any payment to any Beneficiary from any source that is thereafter
repaid, returned or refunded in whole or in part by reason of the assertion of a
claim of any kind relating thereto, including, but not limited to, any claim for
breach of contract, breach of warranty, preference, illegality, invalidity or
fraud asserted by any account debtor or by any other Person.
SECTION 2.08 Expenses. If the Guarantors fail to pay any
amount hereunder when due, the Guarantor shall pay interest, on demand, on such
amount at the Overdue Rate, to such Beneficiary entitled thereto. The Guarantors
further agree to pay to any Beneficiary any and all reasonable out-of-pocket
costs and expenses (including reasonable attorneys' fees and disbursements)
incurred by such Beneficiary in connection with enforcing its rights under the
Master Lease and/or this Guarantee.
SECTION 2.09 Limitation. The maximum liability under this
Guarantee will be the lesser of $7,000,000 or the Guaranteed Amount (plus in
either case, any interest on any amounts sought to be recovered hereunder, and
fees and expenses related to the enforcement of this Guarantee as provided in
Section 2.08 hereof). As used herein, "Guaranteed Amount" means 125% of the
total of Lease Balance plus Recourse Debt less amounts held in the Cash
Collateral Account.
ARTICLE III
COVENANTS
Each Guarantor hereby covenants, for the benefit of each
Beneficiary, as follows:
SECTION 3.01 Information. Each Guarantor will deliver to the
Beneficiaries:
(a) promptly after the filing thereof, copies of all reports
on Forms 10-K, 10-Q and 8-K (or their equivalents), which such Guarantor shall
have filed with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended;
(b) as soon as possible and in any event within ten (10)
Business Days after a Responsible Employee of such Guarantor obtains knowledge
of the occurrence of each Event of Default or each event that, with the giving
of notice or time elapse, or both, would constitute an
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Event of Default continuing on the date of such statement, a statement of the
authorized officer setting forth details of such Event of Default or event and
the action that the Guarantor proposes to take with respect thereto; provided,
however, that the Guarantor shall not be obligated to give notice of any Event
of Default which is remedied within ten (10) Business Days after such
Responsible Employee first obtains knowledge;
(c) promptly upon becoming aware thereof, written notice of
the commencement or existence of any proceeding against the Guarantor or any
Affiliate of the Guarantor by or before any court or governmental agency that
might, in the reasonable judgment of the Guarantor, result in a Material Adverse
Effect on the business, operations or financial conditions of the Guarantor or
the ability of the Guarantor to perform its obligations hereunder or under the
Master Lease;
(d) as soon as possible and in any event within ten (10)
Business Days after the occurrence of any violation or alleged violation of an
Environmental Law by Guarantor or Master Lessee, a statement of an authorized
officer setting forth the details of such violation and the action which the
Guarantor proposes to take with respect thereto; and
(e) from time to time such additional information regarding
the business, properties, condition or operations, financial or otherwise, of
such Guarantor as the Beneficiaries may reasonably request.
SECTION 3.02 Compliance with Laws. The Guarantors will comply
in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder).
SECTION 3.03 Further Assurances. Each Guarantor will promptly
execute and deliver to the Beneficiaries such further documents, instruments and
assurances and take such further action as the Beneficiaries from time to time
reasonably may request in order to carry out the intent and purpose of this
Guarantee and to establish and protect the rights and remedies created or
intended to be created in favor of the Beneficiaries hereunder.
SECTION 3.04 Preservation of Existence, Etc. Each Guarantor
will preserve and maintain its existence and all rights, privileges and
franchises necessary and desirable in the normal conduct of its business and the
performance of its obligations hereunder and under the Master Lease; provided
that a Guarantor may consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, if either the Guarantor shall be the continuing Delaware
business trust (if other than the Guarantor) formed by such consolidation or
into which the Guarantor is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Guarantor substantially as an entirety
shall expressly assume, by an assumption agreement executed and delivered to the
Beneficiaries, the performance of the Guarantor's obligations hereunder and
under the Master Lease.
SECTION 3.05 Payment of Taxes. Each Guarantor shall promptly
pay when due all Taxes owing by the Guarantors where such failure could
reasonably be expected to have
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a Material Adverse Effect, except for such Taxes that are being contested in
good faith by appropriate proceedings and adequate reserves shall have been set
aside therefor.
SECTION 3.06 Books and Records. Each Guarantor shall maintain
its books and financial statements in accordance with GAAP, and permit the
Beneficiaries to make or cause to be made inspections and audits of any books,
records and papers of such Guarantor and to make extracts therefrom at all such
reasonable times and as often as any such Person may reasonably require.
SECTION 3.07 Employee Benefit Plans. Each Guarantor shall
maintain each Plan as to which it may have liability, in compliance with all
Applicable Laws.
ARTICLE IV
RIGHTS OF THE PARTIES
SECTION 4.01 Concerning the Beneficiaries. The Guarantors
acknowledge that no Beneficiary shall have any obligation to perform any duty,
covenant or condition hereunder. The Guarantors further acknowledge and agree
that the rights of the Beneficiaries in and to any payments hereunder in respect
of obligations assigned by the Master Lessee shall not be subject to any
defense, setoff, or recoupment or reduction of any kind for any reason (whether
asserted by counterclaim or otherwise) whatsoever, including, without
limitation, any other indebtedness or liability, howsoever and whenever arising,
of the Master Lessee to the Guarantors or to any other Person or for any cause
whatsoever, it being the intent hereof that the Guarantors shall be
unconditionally and absolutely obligated to pay the Beneficiaries all amounts
due hereunder for so long as the Master Lease is in effect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS
SECTION 5.01 Representations and Warranties of the Guarantors.
Each Guarantor hereby represents and warrants as of the date hereof as follows:
(a) Status. Each Guarantor (i) is a duly organized and validly
existing business trust in good standing under the laws of the State of Delaware
and (ii) has the power and authority to own its properties and to conduct the
business in which it is currently engaged.
(b) Power and Authority. The Guarantor has the power and
authority to execute, deliver and carry out the terms and provisions of this
Guarantee and has taken all necessary action to authorize the execution,
delivery and performance of this Guarantee and has duly executed and delivered
this Guarantee and, assuming the due authorization, execution and delivery
thereof on the part of each other party thereto, this Guarantee constitutes a
legal, valid and binding obligation enforceable against it in accordance with
its terms, except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights generally and by equitable principles whether enforcement is
sought by proceedings in equity or at law and except as the same may be limited
by certain circumstances under law or court decisions in respect of provisions
providing for indemnification of a party with respect to liability where such
indemnification is contrary to public policy.
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(c) No Legal Bar. Neither the execution, delivery and
performance by each Guarantor of this Guarantee nor compliance with the terms
and provisions hereof and thereof, nor the consummation by such Guarantor of the
transactions contemplated herein and therein (i) will result in a violation by
such Guarantor of any provision of any Applicable Law that would have a Material
Adverse Effect (A) the validity or enforceability of this Guarantee, or (B) the
consolidated financial position, business or consolidated results of operations
of such Guarantor or the ability of such Guarantor to perform its obligations
under this Guarantee, (ii) will conflict with or result in any breach which
would constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or assets
of such Guarantor pursuant to the terms of any indenture, loan agreement or
other agreement for borrowed money to which the Guarantor is a party or by which
it or any of its property or assets is bound or to which it may be subject, or
(iii) will violate any provision of the declaration of trust or governing
instrument of such Guarantor.
(d) Litigation. There are no actions, suits or proceedings
pending or, to the knowledge of any Guarantor, threatened (i) that are
reasonably likely to have a Material Adverse Effect on the Property or on the
ability of such Guarantor to perform its obligations under the Guarantee or (ii)
that question the validity of the Guarantee or the rights or remedies of the
Beneficiaries with respect to the Guarantor or the Property under the Master
Lease.
(e) Governmental Approvals. No Governmental Action by any
Governmental Authority having jurisdiction over any Guarantor or the Property is
required to authorize or is required in connection with (i) the execution,
delivery and
performance by the Guarantor under the Guarantee, or (ii) the
legality, validity, binding effect or enforceability against the Guarantor under
the Guarantor.
(f) Investment Company Act. No Guarantor is an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act.
(g) Public Utility Holding Company Act. No Guarantor is a
"holding company" or a "subsidiary company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Company Act of 1935, as amended.
(h) Financial Statements. The consolidated balance sheet of
each Guarantor as at December 31, 1998, and the related consolidated statements
of income and cash flows of each Guarantor for the fiscal year then ended,
accompanied by an opinion of Ernst & Young LLP, independent accountants, and the
consolidated balance sheet of such Guarantor as at September 30, 1999, and the
related consolidated statements of income and cash flows of the Guarantor for
the nine months then ended, duly certified by the chief financial officer of the
Guarantor, copies of which have been furnished to the Beneficiaries, fairly
present, subject, in the case of said balance sheet as at September 30, 1999,
and said statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the consolidated financial condition of the
Guarantor as at such dates and the consolidated results of the operations of the
Guarantor for the periods ended on such dates, all in accordance with GAAP
consistently
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applied. Since September 30, 1999, no event has occurred which could have a
Material Adverse Effect.
(i) Defaults. No Default or Event of Default or similar event
has occurred and is continuing hereunder or under any material bond, debenture,
note or other evidence of indebtedness or material mortgage, deed of trust,
indenture or loan agreement or other instrument to which any Guarantor is a
party or is subject to or bound.
(j) Tax Returns. Each Guarantor has filed or caused to be
filed all Federal, state, local and foreign tax returns required to have been
filed by it and has paid or caused to be paid all taxes shown to be due and
payable on such returns or on any assessments received by it, except taxes that
are being contested in good faith by appropriate proceedings and for which the
Guarantor shall have set aside on its books adequate reserves.
(k) No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of any
Guarantor to the Beneficiaries in connection with the negotiation of this
Guarantee or the Master Lease or included therein or delivered pursuant thereto
contained, contains or will contain any misstatement of a material fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading. Notwithstanding the foregoing, any financial
projections provided by any Guarantor based upon assumptions believed to be
reasonable at the time by the management of such Guarantor and are not intended
to be guarantees of future results.
(l) Investment. No Guarantor has made a cash investment in the
Master Lessee, its parent, or any related transaction, it being understood,
however, that the Guarantors may advance all or a portion of the security
deposit with respect to a related transaction, provided the security deposit is
returned to the Guarantors within five (5) business days of the Commencement
Date.
ARTICLE VI
GUARANTEE EVENTS OF DEFAULT
SECTION 6.01 Guarantee Events of Default. If any of the
following events ("Guarantee Events of Default") shall occur and be continuing:
(a) The Guarantor shall fail to make any payment of any amount
when due hereunder to any Beneficiary; or
(b) Any representation or warranty made by the Guarantor under
or in connection with Article V of this Guarantee shall prove to have been
incorrect in any material respect when made or deemed made and such materiality
is continuing; or
(c) The Guarantor shall fail to perform or observe any term,
covenant or agreement contained in Article III, and such failure shall remain
unremedied for thirty (30) days after written notice thereof shall have been
given to the Guarantor by the Beneficiaries; provided,
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however, that if such failure is capable of cure but cannot be cured by payment
of money or cannot be cured by diligent efforts within such thirty (30) day
period but such diligent efforts shall be properly commenced within the cure
period and the Guarantor is diligently pursuing, and shall continue to pursue
diligently, remedy of such failure, the cure period shall be extended for an
additional period of time as may be necessary to cure, not to exceed an
additional forty-five (45) days or to extend beyond the Expiration Date; or
(d) The Guarantor shall (i) admit in writing its inability to
pay its debts generally as they become due, (ii) file a petition under the
United States bankruptcy laws or any other applicable insolvency law or statute
of the United States of America or any State or Commonwealth thereof, (iii) make
a general assignment for the benefit of its creditors, (iv) consent to the
appointment of a receiver of itself or the whole or any substantial part of its
property, (v) fail to cause the discharge of any custodian, trustee or receiver
appointed for the Guarantor or the whole or a substantial part of its property
within sixty (60) days after such appointment, or (vi) file a petition or answer
seeking or consenting to reorganization under the United States bankruptcy laws
or any other applicable insolvency law or statute of the United States of
America or any State or Commonwealth thereof; or
(e) Insolvency proceedings or a petition under the United
States bankruptcy laws or any other applicable insolvency law or statute of the
United States of America or any State or Commonwealth thereof shall be filed
against the Guarantor and not dismissed within sixty (60) days from the date of
its filing, or a court of competent jurisdiction shall enter an order or decree
appointing, without the consent of the Guarantor, a receiver of the Guarantor or
the whole or a substantial part of any of its property and such order or decree
shall not be vacated or set aside within ninety (90) days from the date of the
entry thereof; or
(f) An event of default, as defined in any agreement,
mortgage, indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any indebtedness for borrowed money of the
Guarantor in a principal amount in excess of $5,000,000, whether such
indebtedness now exists or shall hereafter be created, shall happen and be
continuing, if the effect of such default is to accelerate the maturity of such
indebtedness, unless the Guarantor is diligently and in good faith contesting
such default in appropriate proceedings; provided, however, any default on the
non-recourse debt shall not constitute a default hereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 No Waiver; Cumulative Remedies. The failure or
delay of any Beneficiary in exercising any right or remedy granted it hereunder
shall not operate as a waiver of such right or remedy or be construed to be a
waiver of any breach of any of the terms and conditions hereof or to be an
acquiescence therein. Each and every right, power and remedy herein specifically
given to each Beneficiary shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed as a waiver of
the right to exercise at the same time or thereafter
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any other right, power or remedy. A waiver by a Beneficiary of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that such Beneficiary or any other Beneficiary would otherwise
have.
SECTION 7.02 Notices. All notices, demands, declarations,
consents, directions, approvals, instructions, requests and other communications
required or permitted by the terms hereof shall be in writing and delivered (a)
personally; (b) by a nationally recognized overnight courier service; (c) by
mail (by registered or certified mail, return receipt requested, postage
prepaid); or (d) by facsimile (with confirmation of such transmission), in each
case directed to the address of such Person as indicated below:
If to the Guarantors:
AFG Investment Trust A,
AFG Investment Trust B,
AFG Investment Trust C, or
AFG Investment Trust D, as applicable
Equis Financial Group
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx
If to any Beneficiary:
Xxxxxx Affordable Housing of Florida, Inc.
c/x Xxxxxx EMX, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Any such notice shall be effective upon receipt or refusal. From time to time
any party may designate a new address for purposes of notice hereunder by
written notice to each of the other parties hereto in accordance with this
Section 7.02.
SECTION 7.03 Amendments and Waivers; Successors and Assigns.
(a) Neither this Guarantee nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the Guarantors and the Beneficiaries.
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(b) This Guarantee shall be binding upon the Guarantors and
their successors and permitted assigns and shall inure to the benefit of the
Beneficiaries and their respective successors and assigns permitted under the
Master Lease.
(c) The Guarantors shall not assign any of their obligations
hereunder without the express prior written consent of the Beneficiary.
SECTION 7.04 Severability. Any provision of or obligation
under this Guarantee that is determined by competent authority to be prohibited
and unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions or obligations hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision or obligation in any other jurisdiction. To
the extent permitted by Applicable Law, the Guarantors hereby waive any
provision of law that renders any provision or obligation hereof prohibited or
unenforceable in any respect.
SECTION 7.05 Termination. Subject to the provisions of Section
2.07 hereof, this Guarantee and the Guarantors' duties and obligations hereunder
shall remain in full force and effect and be binding in accordance with their
terms, until the earlier of (a) the date on which all Obligations and the
obligations of the Guarantors hereunder shall have been satisfied by payment and
performance in full; (b) the date on which the Master Lease terminates; or (c)
the date on which Full Collateralization occurs. If the Beneficiary releases the
Guarantor from any or all of the Guarantors' duties and obligations hereunder
owing to such Beneficiary, such release shall in no way effect the remaining
Guarantors' duties and obligations to the Beneficiaries hereunder.
SECTION 7.06 Entire Agreement. This Guarantee constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral between or among the Guarantors, and each Beneficiary with
respect to the subject matter hereof.
SECTION 7.07 Article Headings. The headings of the various
Articles and Sections of this Guarantee are for convenience of reference only
and shall not modify, define, expand or limit any of the terms or provisions
hereof.
SECTION 7.08 Jurisdiction. Any suit, action or proceeding,
whether at law or in equity, including any declaratory judgment or similar suit
or action, instituted by or against the Guarantors arising out of or relating in
any way to this Guarantee may be brought and enforced in the Supreme Court of
the State of New York, New York County, or of the United States District Court
for the Southern District of New York and the Guarantors irrevocably consent and
submit to the jurisdiction of each such court in respect of any suit, action or
proceeding. The Guarantors further irrevocably consent to the service of process
in any such suit, action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, return receipt requested, to the
Guarantors or to agents at the address as set forth in Section 7.02 or as set
forth below, respectively. The foregoing shall not limit the right of the
Beneficiaries to serve process in any other manner permitted by law or to bring
any action or proceeding, or to obtain execution of any judgment, in any other
jurisdiction.
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SECTION 7.09 Waiver of Venue. The Guarantors hereby
irrevocably waives any option or objection that they may now or hereafter have
to the laying of venue of any action or proceeding arising under or relating to
this Guarantee in any court located in the County of New York, State of New
York, and hereby further irrevocably waives any claim that a court located in
the County of New York is not a convenient forum for any such action or
proceeding.
SECTION 7.10 Waiver of Jury Trial. THE GUARANTORS HEREBY WAIVE
THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THE MASTER LEASE OR ANY TRANSACTIONS
CONTEMPLATED THEREIN, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
THE GUARANTORS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE
BENEFICIARIES TO ENTER INTO A BUSINESS RELATIONSHIP, THAT THE BENEFICIARIES HAVE
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THE MASTER LEASE, AND THAT THE
BENEFICIARIES WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE
DEALINGS. THE GUARANTORS FURTHER WARRANT AND REPRESENT THAT THEY HAVE REVIEWED
THIS WAIVER WITH LEGAL COUNSEL, AND THAT THEY KNOWINGLY AND VOLUNTARILY WAIVE
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS GUARANTEE OR THE MASTER LEASE. IN THE EVENT OF
LITIGATION, THIS WAIVER MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
SECTION 7.11 Waiver of Immunity. The Guarantors hereby
irrevocably waive, to the fullest extent permitted by applicable United States
federal and state law, all immunity (whether on the basis of sovereignty or
otherwise) from jurisdiction, service of process, attachment (both before and
after judgment) and execution to which they might otherwise be entitled in any
action or proceeding relating in any way to this Guarantee in the courts
specified in Section 7.08 and the Guarantors hereby waive any right they might
otherwise have to raise or claim or cause to be pleaded any such immunity at or
in respect of any such action or proceeding.
SECTION 7.12 GOVERNING LAW. THIS GUARANTEE SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK (EXCLUDING ANY CONFLICT-OF-LAW RULES WHICH MIGHT LEAD TO THE
APPLICATION OF THE INTERNAL LAWS OF ANY OTHER JURISDICTION).
SECTION 7.13 Subordination. The Guarantors hereby acknowledge
and agree that any rights of the Guarantors hereunder, whether by way of
subrogation or otherwise, may not be enforced until all amounts due from the
Master Lessee under the Master Lease shall have
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been paid in full to the parties entitled thereto. The Guarantors agree (a) not
to take any action to hinder or delay the exercise of any right or remedy
granted to any Beneficiary under the Master Lease or any law applicable thereto
and (b) not to exercise or pursue any other rights, remedies, powers, privileges
or benefits of any kind hereunder (whether available to Guarantors hereunder or
at law or in equity) until such time as all amounts due from the Master Lessee
under the Master Lease have been paid in full to the parties entitled thereto.
SECTION 7.14 Survival. All warranties, representations and
covenants made by the Guarantors herein or in any certificate or other
instrument delivered by it or on its behalf under this Guarantee shall be
considered to have been relied upon by the Beneficiaries and shall survive the
execution and delivery of this Guarantee, regardless of any investigation made
by the Beneficiaries on behalf of any of them. All statements in any such
certificate or other instrument shall constitute warranties and representations
by the Guarantors hereunder.
SECTION 7.15 Currency. All amounts payable hereunder shall be
paid in lawful currency of the United States of America.
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SECTION 7.16 Counterparts. This Guarantee may be executed
simultaneously in two or more counterparts each of which shall be deemed an
original, and it shall not be necessary in making proof of this Guarantee to
produce or account for more than one such counterpart.
[Signature Page Follows]
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IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be
executed as of the day and year first set forth above.
AFG INVESTMENT TRUST A
AFG INVESTMENT TRUST B
AFG INVESTMENT TRUST C
AFG INVESTMENT TRUST D
By: AFG XXXX CORPORATION
its Managing Trustee
By:______________________
Its:
ACKNOWLEDGED AND AGREED:
XXXXXX AFFORDABLE HOUSING
OF FLORIDA, INC.
a Florida corporation
By: ________________________________
Name:
Title:
HAHF TRUST I
a Delaware business trust
By: _________________________________
Name:
Title:
HAHF TRUST II
a Delaware business trust
By: _________________________________
Name:
Title:
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