- -----------------------------------------------------------------
ASSET PURCHASE AGREEMENT
------------------------
between
AMERICAN FINANCE GROUP, INC.
and
AFG CREDIT CORPORATION
------------------------
Dated as of
July 1, 1995
- -----------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS............1
1.1 Definitions.......................................................1
1.2 Other Definitional Provisions.........................................5
(a) Terms Used in Related Documents................................5
(b) Accounting Terms...............................................5
(c) "Hereof", etc..................................................5
ARTICLE II
SALE OF ORIGINAL ASSETS;
SALE OF ADDITIONAL ASSETS;..........................................6
2.1 Sale of Original Assets...............................................6
(a) Sale............................................................6
(b) Purchase Price..................................................6
(c) Recordation.....................................................6
(d) Marking of Original Leases......................................7
(e) Custody of Lease Files..........................................7
(f) Title to Equipment..............................................7
2.2 Contribution or Sale of Additional Assets.............................7
(a) Additional Sales and Contributions..............................7
(b) Purchase Price..................................................7
(c) Recordation.....................................................8
(d) Marking of Additional Leases....................................8
(e) Custody of Lease Files..........................................8
(f) Title to Equipment..............................................8
ARTICLE III
AFG TO ACT AS AGENT FOR AFG CREDIT;
ORIGINATION OF LEASES BY AFG CREDIT.............................9
3.1 Agency Agreement......................................................9
(a) Origination of AFG Credit Leases................................10
(b) Custody of Lease Files..........................................10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.......................................11
4.1 Representations and Warranties of AFG.................................11
(a) Representations and Warranties with Respect
to the Assets..................................................11
-1-
Page
(b) Representations and Warranties with Respect
to the AFG Credit Leases........................................12
(c) Representations and Warranties as to AFG........................13
4.2 Representations and Warranties of AFG Credit...........................15
(a) Organization and Good Standing..................................15
(b) Due Qualification...............................................15
(c) Due Authorization...............................................16
(d) No Conflict.....................................................16
(e) No Violation....................................................16
(f) All Consents Required...........................................16
4.3 Purchase of Ineligible Leases and Equipment by
AFG..................................................................16
4.4 Indemnification........................................................17
ARTICLE V
COVENANTS OF AFG AND AFG Credit.......................................17
5.1 AFG Covenants..........................................................17
(a) Lease Files.....................................................18
(b) Compliance with Law.............................................18
(c) Preservation of Ownership Interest..............................18
(d) Obligations with Respect to Leases..............................18
(e) No Bankruptcy Petition..........................................18
(f) Security Interests..............................................19
(g) Location of Records.............................................19
(h) Agency Relationship.............................................19
(i) Indemnification.................................................19
5.2 Consent to Assignment..................................................19
ARTICLE VI
CONDITIONS PRECEDENT............................................. 20
6.1 Conditions to AFG Credit's Obligations.................................20
(a) Representations and Warranties..................................20
(b) Other Information...............................................20
(c) Obligations.....................................................20
(d) Corporate Proceedings...........................................20
6.2 Conditions to AFG's Obligations........................................20
(a) Representations and Warranties..................................21
(b) Corporate Proceedings...........................................21
ARTICLE VII
TERMINATION................................................. 21
7.1 Termination............................................................21
7.2 Effect of Termination..................................................21
-2-
ARTICLE VIII
MISCELLANEOUS PROVISIONS........................................... 22
8.1 Amendment............................................................22
8.2 Governing Law........................................................22
8.3 Notice...............................................................22
8.4 Severability of Provisions...........................................22
8.5 Assignment...........................................................22
8.6 Further Assurances...................................................22
8.7 No Waiver; Cumulative Remedies.......................................23
8.8 Counterparts.........................................................23
8.9 Third-Party Beneficiaries............................................23
8.10 Merger and Integration..............................................23
8.11 Headings............................................................23
8.12 Schedules and Exhibits..............................................23
Exhibits
Exhibit A Form of Assignment for Original Assets
Exhibit B Form of Assignment for Additional Assets
Schedules
1. Original Lease Schedule
2. Portfolio Parameters Schedule
-3-
Page
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of July 1, 1995 (this
"Agreement"), is entered into between American Finance Group, Inc. ("AFG"), a
Delaware corporation, and AFG Credit Corporation ("AFG Credit"), a Delaware
corporation.
AFG in the ordinary course of its business originates
equipment and other leases, and purchases equipment and other leases originated
by other Persons, in the United States and abroad.
AFG desires, on the date hereof, to transfer the Original
Leases, its interests in the related Equipment and other assets (as such
capitalized terms are defined pursuant to Article I below) to AFG Credit upon
the terms and conditions set forth in this Agreement.
It is contemplated that, from time to time after the date
hereof, AFG and AFG Credit may agree that AFG will transfer additional Leases,
its interests in the related Equipment and other assets to AFG Credit upon the
terms and conditions set forth in this Agreement.
It is contemplated that, following such transfers, AFG, in its
capacity as Servicer pursuant to the Pooling and Servicing Agreement and
Indenture of Trust, will continue to administer and service the Leases and
Equipment transferred to AFG Credit.
AFG and AFG Credit desire that from time to time on or after
the date hereof, AFG Credit will purchase Property and originate equipment and
other leases, and that in connection therewith AFG will act as agent on behalf
of AFG Credit, as principal, upon the terms and conditions set forth in this
Agreement.
It is contemplated that, following such origination of leases
by AFG Credit, AFG, in its capacity as Servicer pursuant to the Pooling and
Servicing Agreement and Indenture of Trust, will continue to administer and
service the leases and Equipment originated by AFG Credit.
In consideration of the mutual covenants set forth in this
Agreement, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, AFG and AFG Credit agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. (a) Capitalized terms used in this Agreement
shall have the respective meanings assigned to such terms in the Pooling and
Servicing Agreement (as defined in this Section 1.1) unless otherwise defined
herein.
-4-
Page
(b) Whenever used in this Agreement, the following words and
phrases will have the following meanings:
"Additional Assets" shall mean all right, title and interest
of AFG in, to, and under (i) the Additional Leases (including AFG's
obligations under the Additional Leases) and all monies due or to
become due thereunder after the related Additional Cut-Off Date and all
Collections in respect thereof, (ii) the related Equipment, (iii) the
related Lease Files, (iv) the Insurance Policies and any Insurance
Proceeds related to the Additional Leases and (v) all income and
proceeds of the foregoing or relating thereto.
"Addition Date" shall have the meaning set forth in Section
2.2(a) of this Agreement.
"Additional Lease Schedule" shall have the meaning set forth
in Section 2.2(d) of this Agreement.
"Additional Cut-Off Date" shall mean each date as of which an
Additional Lease is to be contributed or sold to AFG Credit.
"Additional Leases" shall mean the Leases listed on any
Additional Lease Schedule created pursuant to Section 2.2(d) of this
Agreement.
"AFG Credit Assets" shall mean all right, title and interest
of AFG Credit in, to, and under (i) the AFG Credit Leases (including
AFG Credit's obligations under the AFG Credit Leases) and all monies
due or to become due thereunder after the related Origination Cut-Off
Date and all Collections in respect thereof, (ii) the related
Equipment, (iii) the related Lease Files, (iv) the Insurance Policies
and any Insurance Proceeds related to the AFG Credit Leases and (v) all
income and proceeds of the foregoing or relating thereto.
"AFG Credit Lease" shall mean each agreement, including, as
applicable, schedules, subschedules, summary schedules, supplements and
amendments to a master lease, that is entered into by AFG as agent on
behalf of AFG Credit as lessor thereunder, and pursuant to which AFG
Credit, as lessor, leases specified assets to a Lessee at a specified
monthly or quarterly or semi-annual rental, and which is identified in
the AFG Credit Lease Schedule; provided, that, from and after the date
on which an AFG Credit Lease is purchased from AFG Credit by AFG
pursuant to Section 4.3 of this Agreement or an AFG Credit Lease is
otherwise transferred by AFG Credit to AFG, such AFG Credit Lease shall
no longer be an AFG Credit Lease for purposes of this Agreement.
-5-
"AFG Credit Lease Schedule" shall have the meaning set forth
in Section 3.2(a) of this Agreement.
"Assets" shall mean the Original Assets and any
Additional Assets.
"Assignee" shall mean, at any time, any Person to whom the
Assets and the AFG Credit Assets have been assigned, whether absolutely
or by way of the grant of a security interest therein under any then
existing Transfer Agreement and to which AFG Credit's rights under this
Agreement have been assigned, and shall initially refer to AFG Master
Trust created pursuant to the Pooling and Servicing Agreement.
"Business Day" shall mean each day which is neither a
Saturday, a Sunday nor any other day on which banking institutions in
New York, New York, or San Francisco, California are authorized or
obligated by law or required by executive order to be closed.
"Closing Date" shall mean _____ __, 1995.
"Cut-Off Date" shall mean _____ __, 1995.
"Equipment" shall mean the assets (including office or other
equipment) leased to a Lessee pursuant to a Lease or AFG Credit Lease,
as the case may be, and/or, unless the context otherwise requires, a
security interest in such assets.
"Filing Locations" shall mean the States of California
and Massachusetts.
"Ineligible Lease" shall have the meaning set forth in Section
4.3 of this Agreement.
"Lease" shall mean each agreement, including, as applicable,
schedules, subschedules, summary schedules, supplements and amendments
to a master lease, pursuant to which the Originator, as lessor, leases
specified assets to a Lessee at a specified monthly or quarterly or
semi-annual rental, and which is identified in the Lease Schedule,
including all Original Leases and Additional Leases; provided, that,
from and after the date on which a Lease is repurchased by AFG pursuant
to Section 4.3 of this Agreement or a Lease is otherwise transferred by
AFG Credit to AFG, such Lease shall no longer be a Lease for purposes
of this Agreement.
"Lease Files" shall mean, with respect to each Lease and each
AFG Credit Lease, the fully executed original counterpart (for UCC
purposes) of such Lease, the original certificate of title or other
title document with respect to
-6-
the related Equipment (if applicable), and otherwise such documents, if
any, that AFG keeps on file in accordance with its customary
procedures, indicating ownership of such Equipment.
"Lease Schedule" shall mean the Original Lease Schedule and
all Additional Lease Schedules, as amended to show the deletion of
Leases repurchased by AFG pursuant to Section 4.3 or otherwise
transferred by AFG Credit to AFG.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel (including internal counsel) to AFG, and who shall
be reasonably acceptable to AFG Credit.
"Original Assets" shall mean all right, title and interest of
AFG in, to, and under (i) the Original Leases (including AFG's
obligations under the Original Leases) and all monies due or to become
due thereunder after the Cut-Off Date and all Collections in respect
thereof, (ii) the related Equipment, (iii) the related Lease Files,
(iv) the Insurance Policies and any Insurance Proceeds related to the
Original Leases and (v) all income and proceeds of the foregoing or
relating thereto.
"Original Leases" shall mean the Leases listed on the Original
Lease Schedule attached hereto.
"Original Lease Schedule" shall have the meaning set forth in
Section 2.1(d) of this Agreement.
"Origination Cut-Off Date" shall mean each date as of which an
AFG Credit Lease is to be originated by AFG as agent on behalf of AFG
Credit as lessor thereunder.
"Pooling and Servicing Agreement" shall mean, at any time, any
agreement then in effect pursuant to which any Person has agreed to
service the Assets (as such agreement is then in effect), and shall
initially refer to the Pooling and Servicing Agreement and Indenture of
Trust dated as of the date hereof, among AFG Credit, AFG, as Servicer,
and the Trustee.
"Property" shall mean any interest in any kind of property or
asset, whether real, personal or mixed, whether tangible or intangible.
"Responsible Officer" shall mean, with respect to AFG and AFG
Credit, any officer of such entity with direct responsibility for the
administration of this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular
subject. The term "Responsible Officer", when used herein with
-7-
respect to any Person other than either AFG or AFG Credit, shall mean
an officer or employee of such Person corresponding to any officer or
employee described in the preceding sentence.
"Servicer" shall mean, at any time, any Person then acting as
servicer under a servicing agreement, and shall initially refer to AFG
in its capacity as servicer under the Pooling and Servicing Agreement.
"Transfer Agreement" shall mean, at any time, any then
existing agreement pursuant to which AFG Credit has assigned its rights
in the Assets and the AFG Credit Assets, whether absolutely or by way
of the grant of a security interest therein (as such agreement is then
in effect), and shall initially refer to the Pooling and Servicing
Agreement.
"Trustee" shall mean the institution executing the Pooling and
Servicing Agreement as trustee, or its successor in interest, or any
successor trustee appointed as therein provided.
"Warranty Purchase Price" shall mean, with respect to any
Lease or AFG Credit Lease and the related Equipment to be repurchased
or purchased, respectively, by AFG, (a) the amount set forth as such in
any then applicable Transfer Agreement, or (b) if no such amount is set
forth or no Transfer Agreement is then in effect, an amount agreed to
by AFG and AFG Credit as reflecting the fair market value therefor,
determined on the same basis as the purchase price for sales of
Original Leases and Additional Leases has been determined hereunder.
1.2 Other Definitional Provisions.
(a) Terms Used in Related Documents. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto or thereto unless otherwise defined
therein.
(b) Accounting Terms. As used in this Agreement or in any
certificate or other document made or delivered pursuant hereto, accounting
terms not defined in Section 1.1, and accounting terms partially defined in
Section 1.1 to the extent not defined, shall have the meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms herein are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained herein shall control.
(c) "Hereof", etc. The words "hereof"; "herein" and
"hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
-8-
particular provision of this Agreement; and Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement, unless otherwise specified.
ARTICLE II
SALE OF ORIGINAL ASSETS;
SALE OF ADDITIONAL ASSETS;
2.1 Sale of Original Assets.
(a) Sale. On the Closing Date, AFG will sell, assign, transfer
and convey to AFG Credit the Original Assets and will deliver to AFG Credit an
executed assignment substantially in the form of Exhibit A. Except for the
obligations of AFG pursuant to Section 4.3, the sale of the Original Assets will
be without recourse to AFG.
(b) Purchase Price. The purchase price for the Original Assets
shall be paid in immediately available funds on the Closing Date from AFG Credit
to AFG and shall be equal to the sum of (i) the sum of the discounted values of
the Original Leases, as estimated by AFG at the Cut-Off Date in accordance with
its normal valuation procedures, on a cumulative basis, plus (ii) the sum of the
anticipated residual values of each piece of Equipment related to an Original
Lease upon the expiration of each such Original Lease in accordance with its
terms (as such residual values are estimated by AFG on or about the date on
which each such Lease was created in accordance with its normal valuation
procedures), but not in excess of any purchase option price with respect thereto
set forth in each such Lease, on a cumulative basis.
(c) Recordation. AFG shall record and file, at its own
expense, financing statements (including any continuation statements with
respect to such financing statements when applicable) with respect to the
Original Assets meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect the sale of the Original
Leases from AFG to AFG Credit, and to deliver file-stamped copies of such
financing statements or continuation statements or other evidence of such
filings (which may, for purposes of this Section 2.1, consist of telephone
confirmations of such filings with the file-stamped copy to be provided to AFG
Credit as soon as practicable after receipt thereof by AFG) to AFG Credit (and
copies to the Assignee) on or prior to the Closing Date, and in the case of any
continuation statements filed pursuant to this Section 2.1(c), as soon as
practicable after receipt thereof by AFG.
-9-
(d) Marking of Original Leases. AFG shall, at its own expense,
on or prior to the Closing Date in the case of the Original Leases (A) indicate
in its books and records, including the appropriate computer files relating to
the Original Leases, that such Leases have been sold to AFG Credit pursuant to
this Agreement and stamp such Leases or otherwise mark such Leases with a legend
to the effect that such Leases have been assigned to the Assignee under the
Pooling and Servicing Agreement and (B) on or prior to the Closing Date, deliver
to AFG Credit a computer file or microfiche or written list (the "Original Lease
Schedule") containing a true and complete list of all Original Leases then being
sold to AFG Credit, identified by account number and by the Discounted Lease
Balance as of the Cut-Off Date. The Original Lease Schedule is attached to this
Agreement as Schedule 1.
(e) Custody of Lease Files. AFG shall, at its own expense, on
or prior to the Initial Closing Date in the case of the Original Leases deliver
to the Custodian the related Lease Files to be held by the Custodian in
accordance with the Custodian Agreement.
(f) Title to Equipment. AFG shall, at its own expense, on or
prior to the Closing Date in the case of the Original Leases, with respect to
any item of related Equipment with respect to which title thereto or a security
interest therein is required to be noted on a certificate of title or otherwise
recorded, take such steps as shall be necessary or appropriate, in the
reasonable judgement of AFG, to fully vest all right, title and interest in such
Equipment in the Assignee.
2.2 Contribution or Sale of Additional Assets.
(a) Additional Sales and Contributions. From time to time
after the date hereof, AFG Credit may request to purchase additional assets from
AFG, and AFG may agree to so sell, assign, transfer and convey such additional
assets. From time to time after the date hereof, in connection with a sale of
Additional Assets or otherwise, AFG may contribute to AFG Credit as a
contribution to capital, Additional Assets. The date on which any such sale or
contribution of any Additional Assets to be purchased by AFG Credit takes place
is herein referred to as an "Addition Date". On each Addition Date, AFG will
deliver to AFG Credit an executed assignment substantially in the form of
Exhibit B. Except for the obligations of AFG pursuant to Section 4.3, the sale
and contribution of the Additional Assets will be without recourse to AFG.
(b) Purchase Price. If AFG agrees to sell, assign, transfer
and convey any additional assets as described in Section 2.2(a) above, the
purchase price for any Additional Assets shall be payable in immediately
available funds on the Additional Closing Date from AFG Credit to AFG and shall
be equal to the sum
-10-
of (i) the sum of the discounted values of the Additional Leases, as estimated
by AFG at the related Additional Cut-Off Date in accordance with its normal
valuation procedures, on a cumulative basis, plus (ii) the sum of the
anticipated residual values of each piece of Equipment related to an Additional
Lease upon the expiration of each such Additional Lease in accordance with its
terms (as such residual values are estimated by AFG on or about the date on
which each such Lease was created in accordance with its normal valuation
procedures), but not in excess of any purchase option price with respect thereto
set forth in each such Lease, on a cumulative basis.
(c) Recordation. In connection with any sale or contribution
of Additional Assets, AFG shall record and file, at its own expense, financing
statements (including any continuation statements with respect to such financing
statements when applicable) with respect to the Additional Assets meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect the sale or contribution of the Additional Leases from
AFG to AFG Credit, and to deliver file-stamped copies of such financing
statements or continuation statements or other evidence of such filings (which
may, for purposes of this Section 2.2, consist of telephone confirmations of
such filings with the file-stamped copy to be provided to AFG Credit as soon as
practicable after receipt thereof by AFG) to AFG Credit (and copies to the
Assignee) on or prior to the Addition Date, and in the case of any continuation
statements filed pursuant to this Section 2.2(c), as soon as practicable after
receipt thereof by AFG.
(d) Marking of Additional Leases. In connection with any
contribution or sale of Additional Assets, AFG shall, at its own expense, on or
prior to the Addition Date (A) indicate in its books and records, including the
appropriate computer files relating to the Additional Leases, that such Leases
have been sold or contributed to AFG Credit pursuant to this Agreement and stamp
such Leases or otherwise mark such Leases with a legend to the effect that such
Leases have been assigned to the Assignee under a Transfer Agreement and (B) on
or prior to the Addition Date, deliver to AFG Credit a computer file or
microfiche or written list (an "Additional Lease Schedule") containing a true
and complete list of all Additional Leases then being sold or contributed to AFG
Credit, identified by account number and by the Discounted Lease Balance as of
the related Additional Cut-Off Date. Each Additional Lease Schedule shall be
attached to the related assignment as a schedule thereto.
(e) Custody of Lease Files. AFG shall, at its own expense, on
or prior to the related Addition Date in the case of the Additional Leases
deliver to the Custodian the related Lease Files to be held by the Custodian in
accordance with the Custodian Agreement.
-11-
(f) Title to Equipment. AFG shall, at its own expense, on or
prior to the related Addition Date in the case of Additional Leases, with
respect to any item of related Equipment with respect to which title thereto or
a security interest therein is required to be noted on a certificate of title or
otherwise recorded, take such steps as shall be necessary or appropriate, in the
reasonable judgement of AFG, to fully vest all right, title and interest in such
Equipment in the Assignee.
ARTICLE III
AFG TO ACT AS AGENT FOR AFG CREDIT;
ORIGINATION OF LEASES BY AFG CREDIT
3.1 Agency Agreement.
(a) Appointment of Agent. AFG and AFG Credit contemplate that
from time to time on or after the date hereof, AFG and AFG Credit may agree that
AFG Credit will purchase Property and originate equipment and other leases with
Lessees, and that in connection therewith, AFG will act as agent on behalf of
AFG Credit as principal. AFG Credit hereby appoints AFG to act as its agent and
grants to AFG the power and authority to act on its behalf and to take whatever
actions are deemed by AFG to be necessary in connection with such purchases of
Property and origination of leases by AFG Credit. AFG hereby accepts such
appointment as agent on the terms and conditions and for the purposes set forth
herein.
(b) Duties of Agent. AFG, as agent for AFG Credit, will be
wholly responsible for performing such functions as are necessary in connection
with all matters relating to the purchase of Property by AFG Credit and the
origination of the AFG Credit Leases by AFG Credit, including reviewing and
preparing contracts, certificates, legal opinions and other instruments and
performing due diligence, providing and receiving all notices and other
documentation and otherwise fulfilling all ongoing duties and responsibilities
that may be required under any documents that are entered into by AFG Credit
through AFG, as its agent, and fulfilling and complying with, in all material
respects, all obligations on the part of the "lessor" to be fulfilled or
complied with under or in connection with each AFG Credit Lease.
(c) Power of Attorney. In connection with the appointment of
AFG to act as agent on its behalf, AFG Credit hereby appoints AFG to act as AFG
Credit's attorney-in-fact for the purposes of entering into purchase or similar
agreements with vendors in connection with the purchase by AFG Credit of
Property, entering into the AFG Credit Leases with Lessees with respect to the
leasing of Equipment by AFG Credit, and executing any certificates, reports,
filings, instruments or other documents incident to the foregoing. AFG and AFG
Credit hereby
-12-
agree that the power of attorney granted hereby shall be limited to those
documents incident to the specific transactions to be entered into by AFG as
agent for AFG Credit as contemplated by Section 3.1(a). AFG Credit will execute
such powers of attorney as are requested by AFG to evidence the appointment of
AFG as its attorney-in-fact.
3.2 The AFG Credit Leases.
(a) Origination of AFG Credit Leases. AFG and AFG Credit
contemplate that from time to time on or after the date hereof, AFG and AFG
Credit may agree that AFG Credit will originate leases as lessor and that AFG
will act as agent on AFG Credit's behalf in connection therewith pursuant to the
agency relationship established in Section 3.1(a) above. The date on which any
such origination of an AFG Credit lease takes place is herein referred to as an
"Origination Date". In connection with the origination of the AFG Credit Leases
by AFG as agent for AFG Credit, AFG shall, at its own expense, on or prior to
the Origination Date, deliver to AFG Credit a computer file or microfiche or
written list (an "AFG Credit Lease Schedule") containing a true and complete
list of all AFG Credit Leases then being originated by AFG as agent on behalf of
AFG Credit, identified by account number and by the Discounted Lease Balance as
of the related Origination Cut-Off Date.
(b) Custody of Lease Files. AFG shall, at its own expense, on
or prior to the related Origination Date in the case of the AFG Credit Leases
deliver to the Custodian the related Lease Files to be held by the Custodian in
accordance with the Custodian Agreement.
(c) Criteria for AFG Credit Leases. AFG agrees that it will,
in evaluating and selecting Lessees to be parties to the AFG Credit Leases,
utilize the same credit guidelines, eligibility and other criteria that it
customarily utilizes in selecting lessees for Leases that AFG enters into as
lessor on its own behalf.
3.3 Payment; Compensation.
(a) Purchase of Property by AFG Credit. AFG Credit hereby
authorizes AFG, as agent on its behalf, to pay to the vendor thereof the full
purchase price of any Property purchased by AFG as agent on behalf of AFG Credit
pursuant to Section 3.1. AFG shall promptly notify AFG Credit and send AFG
Credit an invoice for any such payments made by AFG on AFG Credit's behalf. AFG
Credit hereby agrees to reimburse AFG, promptly upon receipt of an invoice,
fully for any amounts paid by AFG, as agent on behalf of AFG Credit, to a vendor
for the purchase of Property by AFG Credit pursuant to this Article III.
-13-
(b) Compensation of Agent. AFG and AFG Credit hereby agree
that as compensation for acting hereunder as agent for AFG Credit, AFG, as
Servicer, will retain the right to service the AFG Credit Leases pursuant to the
Pooling and Servicing Agreement and shall be entitled to receive the Servicing
Fee payable thereunder with respect to the AFG Credit Leases.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of AFG. AFG makes the
following representations and warranties for the benefit of AFG Credit and any
Assignee, on which AFG Credit relies in purchasing the Original Assets and any
Additional Assets, in accepting any contribution of any Additional Assets, and
in purchasing any Property and originating any AFG Credit Leases through AFG as
its agent pursuant to Article III hereof. Unless otherwise indicated, such
representations and warranties, with respect to the Original Assets, are as of
the Closing Date, with respect to any Additional Assets, are deemed to be made
as of the related Addition Date, and with respect to the AFG Credit Leases and
the assets subject thereto, are deemed to be made as of the related Origination
Date, and in each case will survive the contribution and/or sale of the Original
and Additional Leases and related Equipment to AFG Credit, the origination of
the AFG Credit Leases by AFG Credit, and the transfer of an interest in the
Leases and the AFG Credit Leases to any Assignee. Upon discovery by AFG or AFG
Credit or its assignee of a breach of any of the representations and warranties
contained in this Section 4.1, the party discovering such breach shall give
prompt written notice to the other.
(a) Representations and Warranties with Respect to the
Assets. As to the Assets:
(i) as of the Cut-Off Date, the Original Lease Schedule is
an accurate and complete listing in all material respects of all the
Original Leases and the information contained therein with respect to
the identity of such Leases and the amounts owing thereunder is true
and correct in all material respects as of the Cut-Off Date;
(ii) each Original Lease is an Eligible Lease;
(iii) each Original Lease and the related Equipment has been
transferred to AFG Credit or its Assignee free and clear of any Lien of
any Person (other than Permitted Liens) and is in compliance, in all
material respects, with all Requirements of Law applicable to AFG or
the Originator thereof;
-14-
(iv) with respect to each Original Lease, all material
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by AFG in connection with the transfer of such Lease
and the related Equipment to AFG Credit or its Assignee have been duly
obtained, effected or given and are in full force and effect;
(v) as of the Closing Date, the Original Leases
satisfy the criteria set forth on the Portfolio Parameters
Schedule attached to this Agreement as Schedule 2;
(vi) as of any Additional Cut-Off Date, the related
Additional Lease Schedule is an accurate and complete listing in all
material respects of all the Additional Leases being transferred on the
related Addition Date and the information contained therein with
respect to the identity of such Leases and the amounts owing thereunder
is true and correct in all material respects as of the related
Additional Cut-Off Date;
(vii) each such Additional Lease is an Eligible Lease;
(viii) each such Additional Lease and the related Equipment
has been transferred to AFG Credit or its Assignee free and clear of
any Lien of any Person (other than Permitted Liens) and is in
compliance, in all material respects, with all Requirements of Law
applicable to AFG or the Originator thereof;
(ix) with respect to each such Additional Lease, all
material consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by AFG in connection with the
transfer of such Lease and the related Equipment to AFG Credit or its
Assignee have been duly obtained, effected or given and are in full
force and effect; and
(x) as of any Addition Date, the addition of the related
Additional Leases does not cause any of the criteria set forth on the
Portfolio Parameters Schedule attached to this Agreement as Schedule 2
to be untrue; and
(xi) as of any Addition Date, AFG is not insolvent and
will not be rendered insolvent by selling or contributing the related
Additional Leases to AFG Credit.
(b) Representations and Warranties with Respect to the
AFG Credit Leases. As to the AFG Credit Leases:
(i) each AFG Credit Lease is an Eligible Lease;
-15-
(ii) each AFG Credit Lease satisfies all of the same
eligibility and other criteria as the Original Leases and the
Additional Leases being sold or to be sold by AFG to AFG Credit
pursuant to Article II of this Agreement;
(iii) AFG will not record any of the AFG Credit Assets on
its own books and will take no actions that are inconsistent with all
right, title and interest of AFG Credit or any Assignee in and to the
AFG Credit Assets;
(iv) as of any Origination Date, the addition of the
related AFG Credit Lease does not cause any of the criteria set forth
on the Portfolio Parameters Schedule attached to this Agreement as
Schedule 2 to be untrue, unless, with respect to any of the Individual
Lessee Excess Concentration Amount, the Industry Excess Concentration
Amount, the SemiAnnual Lease Excess Concentration Amount or the
Equipment Excess Concentration Amount, the Rating Agency Condition
shall have been satisfied with respect thereto; and
(v) each AFG Credit Lease is in compliance, in all
material respects, with all Requirements of Law applicable to the
Originator thereof (if other than AFG Credit).
(c) Representations and Warranties as to AFG. As to
AFG:
(i) Organization and Good Standing. AFG is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware, with all requisite corporate power and authority
to own its properties and to conduct its business as presently
conducted and to enter into and perform its obligations pursuant to
this Agreement;
(ii) Due Qualification. AFG is qualified to do business as
a foreign corporation, is in good standing, and has obtained all
licenses and approvals as required under the laws of, all states in
which the ownership or lease of its property, the performance of its
obligations pursuant to this Agreement or the other conduct of its
business requires such qualification, standing, license or approval,
except to the extent that the failure to so qualify, maintain such
standing or be so licensed or approved would not, in the aggregate,
materially and adversely affect the ability of AFG to comply with this
Agreement or to perform its obligations hereunder or adversely effect
the enforceability of the Leases;
(iii) Power and Authority. AFG has the corporate power and
authority to execute and deliver this Agreement and to carry out its
terms. AFG has duly authorized the execution,
-16-
delivery, and performance of this Agreement by all requisite
corporate action;
(iv) No Violation. The consummation of the transactions
contemplated by, and the fulfillment of the terms of, this Agreement by
AFG (with or without notice or lapse of time) will not (i) conflict
with, result in any breach of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation or by-laws
of AFG, or any term of any indenture, agreement, mortgage, deed of
trust or other instrument to which AFG is a party or by which it is
bound, (ii) result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, or (iii)
violate any law, regulation, order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority applicable to AFG
or any of its properties;
(v) No Consent. No consent, approval, authorization,
order, registration, filing, qualification, license or permit of or
with any Governmental Authority having jurisdiction over AFG or any of
its properties is required to be obtained by or with respect to AFG in
order for AFG to enter into this Agreement or perform its obligations
hereunder;
(vi) Valid Contribution and Sale; Binding Obligations. The
sale of the Original Assets constitutes, and each contribution and sale
of any Additional Assets will constitute, a valid transfer to AFG
Credit or its assignee of all right, title and interest of AFG in, to
and under the Assets, and such property will be held by AFG Credit or
its assignee free and clear of any Lien of any Person claiming through
or under AFG or its Affiliates, except for Permitted Liens; and this
Agreement constitutes a legal, valid and binding obligation of AFG,
enforceable against AFG in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (whether considered in a suit at law
or in equity);
(vii) No Proceedings. There are no proceedings or
investigations pending, or, to the best of AFG's knowledge, threatened
against AFG, before any Governmental Authority (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or (iii)
seeking any determination or ruling that might (in the reasonable
judgment of AFG) materially and adversely affect the
-17-
performance by AFG of its obligations under, or the validity
or enforceability of, this Agreement;
(viii) Bulk Sales. The execution, delivery and
performance of this Agreement do not require compliance with
any "bulk sales" law by AFG;
(ix) Fair Consideration. The consideration received by AFG
in exchange for the transfer of the Assets on the date hereof and on
each Addition Date is fair consideration having value equivalent to or
in excess of the value of the Assets transferred on each such date; and
the consideration received by AFG in exchange for performing the
services as agent for AFG Credit pursuant to Article III hereof is fair
consideration;
(x) Principal Place of Business. AFG's principal place of
business is in the State of California, City and County of San
Francisco;
(xi) Ability to Perform. At the date hereof, AFG does not
believe, nor does it have any reasonable cause to believe, that it
cannot perform each and every covenant contained in this Agreement; and
(xii) Transfer Taxes. The sale, transfer, assignment and
conveyance of the Assets by AFG described in this Agreement will not
result in the imposition of any tax Lien or any liability of AFG Credit
for any tax on such sale, transfer, assignment and conveyance.
4.2 Representations and Warranties of AFG Credit. AFG
--------------------------------------------
Credit makes the following representations and warranties on
which AFG relies in selling the Original Assets, contributing and
selling any Additional Assets and purchasing Property and acting
as agent on behalf of AFG Credit in connection with the purchase
of Property and the origination of the AFG Credit Leases by AFG
Credit. Such representations and warranties speak as of the
Closing Date and each Addition Date and Origination Date, but
shall survive the contribution and/or sale of the Leases and
related Equipment to AFG Credit, the origination of the AFG
Credit Leases, and the grant of a security interest to the Leases
and to the AFG Credit Leases and the related Equipment to any
Assignee. Upon discovery by AFG or AFG Credit or its assignee of
a breach of any of the representations and warranties contained
in this Section 4.2, the party discovering such breach shall give
prompt written notice to the others.
(a) Organization and Good Standing. AFG Credit is a
corporation duly organized and validly existing in good standing under the laws
of the State of Delaware, and has full corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and
-18-
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement and the Pooling and Servicing Agreement;
(b) Due Qualification. AFG Credit is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained or will obtain all necessary licenses and
approvals, in each jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would have a material adverse effect on its ability to
perform its obligations hereunder;
(c) Due Authorization. The execution and delivery of
this Agreement and the Pooling and Servicing Agreement and the
consummation of the transactions provided for herein and therein
have been duly authorized by AFG Credit by all necessary
corporate action on the part of AFG Credit;
(d) No Conflict. The execution and delivery of this Agreement
and the Pooling and Servicing Agreement, the performance of the transactions
contemplated hereby and thereby and the fulfillment of the terms hereof and
thereof will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which AFG Credit is a party or by which it or any
of its property is bound;
(e) No Violation. The execution and delivery of this Agreement
and the Pooling and Servicing Agreement, the performance of the transactions
contemplated hereby and thereby and the fulfillment of the terms hereof and
thereof will not conflict with or violate, in any material respect, any
Requirements of Law applicable to AFG Credit;
(f) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement, and the
fulfillment of or terms hereof, have been obtained.
4.3 Purchase of Ineligible Leases and Equipment by AFG. In the
event of a breach of any representation or warranty set forth in Section 4.1(a)
with respect to a Lease or Section 4.1(b) with respect to an AFG Credit Lease
(each such Lease or AFG Credit Lease, an "Ineligible Lease"), within 60 days of
the receipt by AFG of written notice of such breach given by AFG Credit, AFG
shall repurchase each such Lease or purchase each such AFG Credit Lease to which
such breach relates on the terms and conditions set forth below; provided,
however, that no such repurchase or purchase shall be required to be made with
respect
-19-
to such Ineligible Lease (and such Lease or AFG Credit Lease, as the case may
be, shall cease to be an Ineligible Lease) if, on any day within such 60 day
period, the representations and warranties in subsection 4.1(a) or 4.1(b), as
the case may be, with respect to such Ineligible Lease shall then be true and
correct in all material respects with respect to such Ineligible Lease as if
such Ineligible Lease had been sold or contributed to AFG Credit or originated
by AFG Credit, as the case may be, on such day. With respect to each repurchase
or purchase of an Ineligible Lease, as the case may be, required to be made
pursuant to this Section 4.3, AFG shall repurchase or purchase, as the case may
be, and AFG Credit shall convey, without recourse, representation or warranty,
all of its right, title and interest in each Ineligible Lease. AFG shall be
obligated to repurchase or purchase, as the case may be, each such Ineligible
Lease. As payment for the Ineligible Leases, AFG shall, on the date of transfer
or retransfer, as the case may be, of such Ineligible Lease, (i) make a payment
to AFG Credit in immediately available funds in an amount equal to the Warranty
Purchase Price. Upon each repurchase or purchase, as the case may be, by AFG of
each such Ineligible Lease, AFG Credit shall automatically and without further
action be deemed to transfer, assign and set-over to AFG, without recourse,
representation or warranty, all the right, title and interest of AFG Credit in,
to and under such Ineligible Lease and all monies due or to become due with
respect thereto, the related Equipment and all proceeds of the Ineligible Lease
and Liquidation Proceeds and Insurance Proceeds relating thereto and all rights
to security for any such Ineligible Lease, and all proceeds and products of the
foregoing. AFG Credit shall execute such documents and instruments of transfer
and purchase or repurchase, as the case may be, as may be prepared by AFG and
take such other actions as shall reasonably be requested by AFG to effect the
purchase or repurchase, as the case may be, of such Ineligible Lease pursuant to
this subsection. The obligation of AFG to purchase or repurchase, as the case
may be, any Ineligible Lease and the indemnification provided for in Section 4.4
shall constitute the sole remedy respecting any breach of the representations
and warranties set forth in subsection 4.1(a) with respect to such Lease or
subsection 4.1(b) with respect to such AFG Credit Lease, as the case may be,
available to AFG Credit or the Assignee.
4.4 Indemnification. In addition to any remedy pursuant to
Section 4.3, AFG agrees to indemnify, defend and hold AFG Credit harmless from
and against any out of pocket expense (including interest, penalties, reasonable
attorneys' fees and amounts paid in settlement) to which AFG Credit or the
Assignee may become subject insofar as such expense arises solely out of or is
based solely upon the untruth of any representation or warranty of AFG set forth
in Section 4.1. The obligations of AFG under this Section 4.4 will be considered
to have been relied upon by AFG Credit and the Assignee and will survive the
execution, delivery, and performance of this Agreement regardless
-20-
of any investigation made by AFG Credit or the Assignee or on
their behalf.
ARTICLE V
COVENANTS OF AFG AND AFG Credit
5.1 AFG Covenants. AFG covenants and agrees with AFG Credit as
follows for the benefit of AFG Credit and any Assignee:
(a) Lease Files. AFG will comply with the provisions
of the Custodian Agreement insofar as such provisions are
applicable to it.
(b) Compliance with Law. AFG will comply, in all material
respects, with all laws and regulations of any Governmental Authority
applicable to AFG, the Leases or the AFG Credit Leases and the related
Equipment and Lease Files or any part thereof; provided that AFG may
contest any such law or regulation in any reasonable manner which will
not materially and adversely affect the value of (or the rights of AFG
Credit or the Assignee, with respect to) the Assets or the AFG Credit
Assets.
(c) Preservation of Ownership Interest. AFG will execute and
file such financing and continuation statements and any other documents
reasonably requested by AFG Credit to be filed or which may be required
by any law or regulation of any Governmental Authority to preserve and
protect fully the interest of AFG Credit and the Assignee in, to and
under the Assets and the AFG Credit Assets.
(d) Obligations with Respect to Leases. AFG will duly fulfill
and comply with, in all material respects, all obligations on the part
of the "lessor" to be fulfilled or complied with under or in connection
with each Lease, and will do nothing to impair the rights of AFG Credit
in, to and under the Assets. AFG, as agent for AFG Credit, will duly
fulfill and comply with, in all material respects, all obligations on
the part of the "lessor" to be fulfilled or complied with under or in
connection with each AFG Credit Lease and will do nothing to impair the
rights of AFG Credit in, to and under the AFG Credit Assets. AFG will
perform such obligations under the Leases and AFG Credit Leases and
will not change or modify the Leases or AFG Credit Leases, except as
otherwise provided in the Pooling and Servicing Agreement and except
insofar as any such failure to perform, change or modification would
not materially and adversely affect the value of (or the rights of AFG
Credit or the Assignee, with respect to) the Leases or the AFG Credit
Leases, or the related Equipment.
-21-
(e) No Bankruptcy Petition. AFG agrees that, prior to the date
that is one year and one day after the termination of this Agreement
pursuant to Section 7.1 herein, it will not institute against AFG
Credit, or join any other Person in instituting against AFG Credit, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United
States or any state of the United States. This Section 5.1(e) will
survive the termination of this Agreement.
(f) Security Interests. Except as otherwise herein provided,
AFG will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Lease
or related Equipment, whether now existing or hereafter transferred to
AFG Credit, or any interest therein. AFG will immediately notify AFG
Credit and the Assignee of the existence of any Lien on any Lease or
related Equipment; and AFG shall defend the right, title and interest
of AFG Credit in, to and under the Leases and the related Equipment,
against all claims of third parties; provided, however, that nothing in
this subsection 5.1(f) shall prevent or be deemed to prohibit AFG from
suffering to exist upon any of the Leases Permitted Liens.
(g) Location of Records. AFG (i) shall not move outside the
State of California the location of its chief executive office without
45 days' prior written notice to AFG Credit and (ii) will promptly take
all actions required (including but not limited to all filings and
other acts necessary or advisable under the UCC of each relevant
jurisdiction) in order to continue the first priority perfected
ownership interest of the Assignee in the Leases. AFG will give AFG
Credit prompt notice of a change within the State of California of the
location of its chief executive office.
(h) Agency Relationship. AFG (i) shall not take any actions on
behalf of AFG Credit that are outside the scope of or are in violation
of the agency agreement set forth herein, and (ii) when acting as agent
for AFG Credit, will fully disclose this fact to the related Equipment
vendor or Lessee, as applicable.
(i) Indemnification. AFG agrees to indemnify, defend and hold
AFG Credit and the Assignee harmless from and against any and all loss,
liability, damage, judgment, claim, deficiency, or expense (including
interest, penalties, reasonable attorneys' fees and amounts paid in
settlement) to which AFG Credit or the Assignee may become subject
insofar as such loss, liability, damage, judgment, claim, deficiency or
expense arises out of or is based upon a breach by AFG of its covenants
contained in this Section
-22-
5.1. The obligations of AFG under this Section 5.1(i) will be
considered to have been relied upon by AFG Credit and the Assignee and
will survive the execution, delivery, and performance of this Agreement
regardless of any investigation made by AFG Credit or the Assignee or
on their behalf.
5.2 Consent to Assignment. AFG understands that AFG Credit
intends to assign all its right, title and interest in, to and under the Assets
and the AFG Credit Assets to the Assignee pursuant to the Pooling and Servicing
Agreement. AFG consents to the assignment of all or any portion of this
Agreement by AFG Credit to any such Assignee. AFG agrees that any such Assignee
(or, in each case, the Servicer or Trustee on its behalf) may exercise the
rights of AFG Credit hereunder and will be entitled to all of the benefits of
AFG Credit hereunder to the extent provided in the Pooling and Servicing or the
related Transfer Agreement, as applicable.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to AFG Credit's Obligations. The obligations of
AFG Credit to purchase the Original Assets on the Closing Date, to accept and/or
purchase, as the case may be, any Additional Assets on the related Addition
Date, and to originate any AFG Credit Leases on the related Origination Date are
subject to the satisfaction or waiver of the following conditions as of such
Closing Date, Addition Date or Origination Date, as applicable:
(a) Representations and Warranties. All representations and
warranties of AFG contained in this Agreement will be true and correct
in all material respects as of the Closing Date, such Addition Date,
and such Origination Date (except as otherwise specified herein), as if
each such representation or warranty were made as of the Closing Date,
such Addition Date or such Origination Date;
(b) Other Information. All information concerning the
Assets and the AFG Credit Assets provided to AFG Credit will
be true and correct as of the Cut-Off Date, the related
Additional Cut-Off Date or the related Origination Cut-Off
Date, as applicable, in all material respects;
(c) Obligations. AFG will have performed in all material
respects all obligations required to be performed by AFG on or prior to
the Closing Date, the related Addition Date, or the related Origination
Date, as applicable, pursuant to the provisions of this Agreement; and
-23-
(d) Corporate Proceedings. All corporate and legal proceedings
and all instruments in connection with the transactions contemplated by
this Agreement will be satisfactory in form and substance to AFG
Credit, and AFG Credit will have received from AFG such copies of
documents (including records of corporate proceedings, certificates of
Responsible Officers and Opinions of Counsel) relevant to the
transactions herein contemplated as AFG Credit may reasonably have
requested.
6.2 Conditions to AFG's Obligations. The obligations of AFG to
sell the Original Assets on the Closing Date, to contribute or sell any
Additional Assets as of any Addition Date, and to act as agent on behalf of AFG
Credit pursuant to Article III hereof as of any Origination Date will be subject
to the satisfaction or waiver of the following conditions as of the Closing
Date, such Addition Date or such Origination Date, as applicable:
(a) Representations and Warranties. All representations and
warranties of AFG Credit contained in this Agreement will be true and
correct in all material respects as of the Closing Date, such Addition
Date or such Origination Date (except as otherwise specified herein),
as if each such representation or warranty were made as of the Closing
Date, such Addition Date or such Origination Date;
(b) Corporate Proceedings. All corporate and legal proceedings
and all instruments in connection with the transactions contemplated by
this Agreement will be satisfactory in form and substance to AFG, and
AFG will have received from AFG Credit such copies of documents
(including records of corporate proceedings, certificates of
Responsible Officers, and Opinions of Counsel) relevant to the
transactions herein contemplated as AFG may reasonably have requested.
ARTICLE VII
TERMINATION
7.1 Termination. The respective obligations and
responsibilities of AFG and AFG Credit created by this Agreement and the agency
relationship established pursuant to Article III hereunder will terminate upon
the last to occur of (i) the maturity or other liquidation of all Leases and AFG
Credit Leases and (ii) the termination of all Transfer Agreements.
7.2 Effect of Termination. No termination, rejection or
failure to assume the executory obligations of this Agreement in the bankruptcy
of AFG or AFG Credit will be deemed to impair or affect the obligations
pertaining to any executed
-24-
contribution, executed sale or executed obligations, including breaches of
representations and warranties by AFG or AFG Credit prior to termination.
Without limiting the foregoing, prior to termination, the failure of AFG to pay
a Warranty Purchase Price will not render such contribution, sale or obligations
executory and the continued respective duties of AFG and AFG Credit pursuant to
Article V will not render an executed sale or contribution executory.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Amendment. This Agreement may be amended from time to time
by AFG and AFG Credit, without the consent of the Assignee, (i) to cure any
ambiguity, to revise any Exhibits or Schedules, to correct or supplement any
provisions herein or thereon or (ii) to add any other provisions with respect to
matters or questions raised under this Agreement which shall not be inconsistent
with the provisions of this Agreement; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of the Assignee.
8.2 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
8.3 Notice. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of AFG, to One Market Place, Suite 900, San Francisco, California
94105, Attn: _________ ____________, Chief Financial Officer, with a copy to
_______________________, and (b) in the case of AFG Credit, to One Market Place,
Suite 900, San Francisco, California 94105, Attn: ____________________, with a
copy to
- ------------------------.
8.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
8.5 Assignment. This Agreement may not be assigned by
AFG, without the prior written consent of AFG Credit and the
Assignee.
-25-
8.6 Further Assurances. AFG and AFG Credit agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Assignee more fully to
effect the purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements relating to the
Assets for filing under the provisions of the UCC of any applicable
jurisdiction.
8.7 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of AFG Credit or AFG, any right, remedy,
power or privilege under this Agreement will operate as a waiver of such right,
remedy, power or privilege; nor will any single or partial exercise of any
right, remedy, power or privilege under this Agreement preclude any other or
further exercise of such right, remedy, power or privilege. The rights,
remedies, powers and privileges provided under this Agreement are cumulative and
not exhaustive of any other rights, remedies, powers and privileges provided by
law.
8.8 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
8.9 Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, and their respective
successors and permitted assigns and will also, to the extent expressly provided
in this Agreement, inure to the benefit of the Servicer and the Assignee. Except
as otherwise provided in this Section 8.9, no other Person will have any right
or obligation hereunder.
8.10 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
8.11 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
8.12 Schedules and Exhibits. The Schedules and Exhibits
constitute a part of this Agreement and are incorporated into this Agreement for
all purposes.
-26-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
AMERICAN FINANCE GROUP, INC.
By:
Name:
Title:
AFG CREDIT CORPORATION
By:
Name:
Title: