Exhibit 10.1
GUARANTEE
THIS GUARANTEE, dated as of March 8, 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).
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 Heller Affordable Housing Florida,
Inc., a Florida corporation, HAHF Trust I, a Delaware business trust; and HAHF
Trust I, a Delaware business trust (collectively, the "Master Lessor") and
Master Lease;
WHEREAS, in order to induce the Beneficiaries to enter into the
Master Lease, the Guarantors are executing and delivering this Guarantee to
Master Lessor (collectively, along with its successors and permitted assigns,
the "Beneficiaries"):
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 Leasee 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 Leasee 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 port of such amount pursuant to the
provisions of the Master Lease or am 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 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
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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 ObIigation 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, 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
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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 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 limitation any of the other teams or provisions hereof, in
order to hold the Guarantors liable hereunder, there shall be no obligation on
the part of any Beneficiary at any 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
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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 wider 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 fradulent 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 nor been made
notwithstanding any termination of this Guarantee or the Master Lease. The
liability of the Guarantors shall not he 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 $34,500,000 or the Guaranteed Amount (as hereinafter
defined) (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).
ARTICLE III
COVENANTS
Each Guarantor hereby covenants, for the benefit of each
Beneficiary, as follows:
SECTlON 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 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
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to take with respect thereto; provided 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 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.
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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 in 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.
SECTION 3.08 Payment of Dividends, Each Guarantor agrees not to pay
any dividends or make any other distribution on its capital interests during the
term of this Guarantee except with the consent of the Beneficiary; provided,
however, the Guarantors agree not to request the Beneficiary's consent to such
distributions more than once a fiscal quarter; provided, that, for all tax years
ending on or after December 31, 2001. the Guarantors, if required, may
distribute to its owners amounts solely to compensate such owners for U.S.
federal income tax liability generated by their ownership interest in any
Guarantor. Such amount in no event will exceed 39.5% of the taxable income
allocated to such owner.
SECTION 3.09 Agreements with Affiliates. Each Guarantor agrees not
to amend, modify or terminate any of the agreements with its Affiliates set
forth on Schedule I attached hereto, or to enter into any agreement with any
Affiliate except as set forth on Exhibit A hereto, except to the extent such
amendment, modification, or termination or this Agreement does not (i) affect
the assets held by any Guarantor in an adverse manner, (ii) increase any fees
payable for any liability of any Guarantor, or (iii) create a new fee or
liability by any Guarantor to such Affiliate.
SECTION 3.10 Stipulated Value. The Guarantors may not acquire or
invest in additional assets unless (a) the Guarantors jointly hold not less than
$7,000,000 in cash and cash equivalents (as such terms are defined under GAAP),
and (b) the Stipulated Value (as defined below) as calculated immediately prior
to such asset acquisition or investment (after giving effect to such investment
or asset acquisition in the calculation) is equal to the lesser of $40 million
($40,000,000) or the Guaranteed Amount (as defined below).
(a) Stipulated Value means the sum of the net book values (defined
as determined by GAAP unless otherwise noted) of each individual Asset reduced
by its corresponding non-recourse debt ("NBV'), with no such NBV for an
individual asset being less than zero, included in each Category of Assets set
forth below multiplied by the Adjustment Percentage reduced by all Recourse
Indebtedness of the Guarantors.
Category of Assets Adjustment Percentage
------------------ ---------------------
(i) Unencumbered cash, cash
equivalents, and accounts receivable 100
front affiliates where cash is held by
such affiliate and remitted within 15
days
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Category of Assets Adjustment Percentage
------------------ ---------------------
(ii) Present Value (at a discount rate
of 10%) of the difference between the
contractual rents payable on any
equipment lease and the contractual
non-recourse debt service
requirements in connection with
such equipment lease rents 90
(iii) The cost of any contract acquired to
manage equipment leasing assets, or
the cost of equity interests in
equipment leasing funds, less any
non-recourse debt incurred to
acquire such contract or equity
interest (without duplication) 82.5
(iv) The NBV (which NBV at the date
hereof is deemed to be $20,000,000)
of any residual interests on any
equipment currently under lease 75
(v) The NBV (which NBV at the date
hereof is deemed to be $2,700,000)
of any residual interests on any
equipment no longer under lease 50
(vi) The NBV of existing real estate
investments 40
(vii) The NBV of real estate investments
made after the date hereof 10
For purposes of the above:
(A) any investment or asset acquisitions alter the date hereof
will be valued at cost.
(B) any writedowns of asset value required by GAAP will also be
required for purposes of determining Stipulated Value.
(C) Upon the sale of any asset included in (iv) or (v) above, the
book value of a Category of Assets will be reduced by the
actual amount of sales
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proceeds received for such asset multiplied by the Adjustment
Percentage for that Category of Assets.
Notwithstanding anything above to the contrary, the Guarantors may (i) invest up
to $2,500.000 into Equis Kirkwood LLC and (ii) invest up to $2,500,000 (net of
any non-recourse debt) pursuant to existing obligations under outstanding leases
or on improvements to existing equipment provided that such improvements are
incurred in connection with a sale or release of such equipment; provided that
upon consummation of such Investment, the Guarantors continue to hold not less
than $7,000,000 in cash and cash equivalents (as defined under GAAP).
(b) Guaranteed Amount means 125% of the total of Lease Balance plus
Recourse Debt less amounts held in the Cash Collateral Account
(c) Ten days prior to any asset acquisition or investment in excess
of $1,000,000 the Guarantors will deliver a certificate to Beneficiary, in a
form reasonably acceptable to it, evidencing compliance with this Section 3.10.
SECTION 3.11 Asset Acquisition Limitation. In no event will the
Guarantors acquire additional assets or make additional investments with an
aggregate purchase price in excess of $30,000,000 plus the amount by which
$34,500,000 exceeds the Guaranteed Amount For purposes of this section, if the
Guarantors make investments after the date hereof and later sell those
investments, the sale proceeds may be reinvested in addition to the limitation
set forth in the preceding sentence. The calculation of purchase price for
purposes of this Section shall include any indebtedness (whether with recourse
to any Guarantor or not) incurred to finance any portion of the purchase price
of any asset. No single asset may be acquired where the cash paid by the
Guarantor is greater than $5,000,000; however, an acquisition consisting of a
portfolio of individual assets, or an entity than owns individual assets, shall
be deemed to be an investment in each underlying asset rather than taken as a
whole. Notwithstanding any other restrictions in this agreement, any payments by
any Guarantor to Master Lessee shall not be deemed investments for purposes of
Sections 3.10 or 3.11 hereof
SECTION 3. Guarantees. In no event shall any Guarantor become liable
to any third party (including Affiliates) as guarantor, surety or any similar
arrangement (including any obligations to perform any obligations of such third
party under any contracts or agreements).
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
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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.
(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
(x) the validity or enforceability of this Guarantee, or (y) 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 rite Guarantor or the Property under the Master Lease.
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(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 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.
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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 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, 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
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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; or
(g) At any time the Guarantors shall hold less than Two Million
($2,000,000) in unencumbered cash and cash equivalents (as defined by GAAP), or
(h) At any time that the Guarantors shall have a combined book value
(as defined by GAAP) less than the lesser of $30,000,000 and the Guaranteed
Amount.
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 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 (i)
personally, (ii) by a nationally recognized overnight courier service, (iii) by
mail (by registered or certified mail, return receipt requested, postage
prepaid) or (iv) 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,
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AFG Investment Trust B,
AFG Investment Trust C, or
AFG Investment Trust D, as applicable
Equis Financial Group
88 Broad Street
Boston, MA 02110
Telephone No.: (617) 854-5800
Facsimile No.: (617) 695-0596
Attn: James A. Coyne
If to any Beneficiary:
Heller Affordable Housing of Florida, Inc.
c/o Heller EMX, Inc.
111 West 50th Street
New York, New York 10020
Attn: Senior Vice President
Telephone No.: (212) 408-0476
Facsimile No.: (212) 586-3017
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.
(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 uneforceable
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.
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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 (i) the date on which all Obligations and the
obligations of the Guarantors hereunder shall have been satisfied by payment and
performance in full, (ii) the date on which the Master Lease terminates, or
(iii) 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 heading 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.
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
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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.O8 and the Guarantors hereby waive any right they right 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 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.
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SECTION 7.15 Currency. All amounts payable hereunder shall be paid
in lawful currency of the United States of America.
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 ASIT CORPORATION
its Managing Trustee
By: /s/ [ILLEGIBLE]
-----------------------------
Its V.P.