SUBORDINATED
LIMITED RECOURSE GUARANTY AGREEMENT
This
Subordinated Limited Recourse Guaranty Agreement (this “
Guaranty ”) is made and entered into this 20
th
day of
February, 2009, by and between each signatory hereto identified as
a Guarantor (each a “ Guarantor ” and
collectively, the “ Guarantors ”), in favor of
BMO Capital Markets Corp. (“ BCM ”), as
Collateral Agent (the “ Collateral Agent ”) on
behalf of the Secured Parties. Terms used herein and not defined
herein have the meaning set forth in the Receivables Financing
Agreement (as defined below) or the Security Agreement (as defined
below).
Whereas,
Palisades Acquisition XVI, LLC (the “ Borrower
”) entered into the Receivables Financing Agreement, dated as
of March 2, 2007 (as amended, supplemented or otherwise
modified from time to time, the “ Receivables Financing
Agreement ”) among the Borrower, Palisades Collection,
L.L.C., as servicer (the “ Servicer ”), Fairway
Finance Company, LLC (the “ Lender ”), BCM, as
administrator, the Collateral Agent and Bank of Montreal (“
BMO ”), as liquidity agent, pursuant to which the
Lender has advanced funds to the Borrower secured by the collateral
(the “ Borrower Collateral ”) identified in the
Security Agreement, dated as of March 2, 2007 (as amended
supplemented or otherwise modified from time to time, the “
Security Agreement ”).
Whereas,
in order to induce the Lender and the Collateral Agent to enter
into the Fourth Amendment to the Receivables Financing Agreement,
dated as of the date hereof, the Guarantors have agreed to enter
into this Guaranty in favor of the Collateral Agent, with recourse
under this Guaranty being limited as set forth in this Guaranty and
a subordinated Guarantor Security Agreement dated as of the date
hereof among Guarantors and the Collateral Agent, as collateral
agent for the Secured Parties, (as amended, modified, supplemented
and restated from time to time, the “ Guarantor Security
Agreement ”).
Whereas,
to obtain the consent of Guarantors’ existing senior secured
creditors to enter into the Guaranty and the Guarantor Security
Agreement, the Collateral Agent has agreed to enter into the
Subordination and Intercreditor Agreement of this date among the
Collateral Agent, as collateral agent for the Secured Parties, and
Israel Discount Bank of New York, as collateral agent for itself
and the senior secured creditors (as amended, modified,
supplemented and restated from time to time, the “
Intercreditor Agreement ”; and, together with this
Guaranty and the Guarantor Security Agreement, the “
Guarantor Security Documents ”).
1. The
Guarantors, jointly and severally, hereby unconditionally and
irrevocably guarantee payment of the principal and interest on all
Loans under the Receivables Financing Agreement and the Lender
Note, including, without limitation, all reasonable costs and
expenses of enforcement and collection, including attorneys’
fees of the Borrower to the Secured Parties under the Receivables
Financing Agreement and the other Transaction Documents (the
“ Guaranteed Obligations ”); provided
however that the aggregate liability of all of the Guarantors
to the Secured Parties under the Guarantor Security Documents,
except as set forth in this
Section 1
below, shall not exceed Eight Million and 00/100 Dollars
($8,000,000) (the “Aggregate Liability”) and the
Secured Parties’ sole recourse for any Guaranteed Obligations
shall be to the collateral (the “ Collateral ”)
identified in the Guarantor Security Agreement or to the extent
provided in paragraph 2 below, a Letter of Credit; provided,
further, notwithstanding anything to the contrary in this Guaranty
or in any other Transaction Document, so long as the Intercreditor
Agreement is in effect or any Senior Indebtedness has not been Paid
in Full, the Secured Parties shall not take any action to enforce
any of the obligations of any Guarantor (or otherwise seek any
remedy or recourse) under any Guarantor Security Document except in
accordance with Section 7(a) of the Intercreditor Agreement as in
effect on the date hereof (or such revised Section 7(a) after the
date hereof that has been consented to by the Guarantors in
writing) (the “Standstill”). In addition, to the
Aggregate Liability, the Guarantors shall additionally be liable
for (a) the reasonable costs and expenses of enforcement and
collection under the Guarantor Security Documents (including,
without limitation, reasonable attorneys’ fees) upon demand
that remains unsatisfied in full (subject to the Standstill) after
thirty (30) days and (b) if the Collateral Agent has
taken action to exercise remedies with respect to the Collateral,
any amounts owed the Collateral Agent or the Secured Party pursuant
to Section 5(c) of the Guarantor Security Agreement.
For
purposes of this Agreement, “Senior Indebtedness” means
Senior Indebtedness as defined in the Intercreditor Agreement as in
effect on the date hereof or such revised definition after the date
hereof that has been consented to by the Guarantors in writing. For
purposes of this Agreement, “Paid in Full” means Paid
in Full as defined in the Intercreditor Agreement as in effect on
the date hereof or such revised definition after the date hereof
that has been consented to by the Guarantors in writing.
2. If
a Guarantor provides an irrevocable stand-by letter of credit (a
“ Letter of Credit ”) issued by a financial
institution with a rating of at least A- by S&P and A3 by
Moody’s in favor of the Collateral Agent, in form and
substance reasonably satisfactory to the Collateral Agent, the
Administrator and BMO, pursuant to which the Collateral Agent may
draw on such Letter of Credit under the same circumstances it may
exercise its rights or remedies under the Guarantor Security
Agreement or in accordance with this Section 2, then the
recourse to Guarantors hereunder shall be reduced by the amount of
such Letter of Credit; provided, further, if such Letter of Credit
is in an amount equal to the Aggregate Liability, the guarantee
provided hereunder by the Guarantors shall be automatically
released and the security interest and lien granted under the
Guarantor Security Agreement shall be released as set forth in the
Guarantor and Security Agreement; provided, however, that if such
Letter of Credit is not replaced at least 10 Business Days
(i) prior to the expiration thereof or (ii) after written
notice to the Guarantors that the Letter of Credit Provider is
downgraded below A- by S&P or A3 by Moody’s (the
“L/C Downgrade”), then the Collateral Agreement may
draw the full amount of such Letter of Credit to be placed in a
cash collateral account mutually acceptable to the Collateral Agent
and the Guarantors, under the exclusive control of the Collateral
Agent and not subject to any other security interest, that permits
the investment in Permitted Investments selected by the Collateral
Agent (the “Cash Collateral Account”). Notwithstanding
the foregoing, if any Guarantor has suffered an Event of
Bankruptcy, the Collateral Agent shall not be required to notify
the Guarantors of such downgrade of the Letter of Credit Provider
before drawing on such Letter of Credit. The Collateral Agent and
its directors, officers, agents or employees shall not be liable
for any loss incurred with respect to Permitted
Investments.
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3. Subject
to the Intercreditor Agreement and other restrictions set forth
herein, Guarantors, jointly and severally, agree that the
Guaranteed Obligations shall be due and payable from the Collateral
in accordance with the Guarantor Security Agreement when the
Guaranteed Obligations or any portion thereof is due to be paid by
the Borrower to the Collateral Agent or any Secured Party, whether
at stated maturity, by declaration, acceleration or otherwise. Such
Collateral Agent shall deposit amounts collected from the
disposition of the Collateral into the Collection Account for
application in accordance with Section 4.2 of the Receivables
Financing Agreement. Notwithstanding the foregoing, Collateral
Agent, on behalf of the Secured Parties, shall not pursue any
rights or remedies against any Guarantor unless the Collateral
Agent, in its sole discretion, has determined that the value of the
Borrower Collateral is less than the amount of the Obligations
under the Transaction Documents.
4. Each
Guarantor warrants to the Collateral Agent that: (i) no other
agreement, representation or special condition exists between such
Guarantor and the Collateral Agent or any Secured Party regarding
the liability of such Guarantor hereunder, nor does any
understanding exist between such Guarantor and the Collateral Agent
or any Secured Party that the obligations of such Guarantor
hereunder are or will be other than as set forth herein; and
(ii) as of the date hereof, such Guarantor has no defense
whatsoever to any action or proceeding that may be brought to
enforce this Guaranty.
5. So
long as any Obligations are outstanding (which, for purposes of
clarification, means until the Obligations are indefeasibly paid in
full in cash), each Guarantor subordinates, in favor of the
Collateral Agent, any of the following rights of such Guarantor
against the Borrower: (i) any right of such Guarantor to be
subrogated in whole or in part to any right or claim with respect
to any Obligations or any portion thereof to the Collateral Agent
or any Secured Party which might otherwise arise from payment by
such Guarantor to the Collateral Agent or any Secured Party on the
account of the Obligations or any portion thereof; and
(ii) any right of such Guarantor to require the marshalling of
assets of the Borrower or any other Person which might otherwise
arise from payment by such Guarantor to the Collateral Agent or any
Secured Party on account of the Obligations or any portion thereof.
If any amount shall be paid to such Guarantor in violation of the
preceding sentence, such amount shall be deemed to have been paid
to such Guarantor for the benefit of, and held in trust for the
benefit of, the Collateral Agent and shall forthwith be paid to the
Collateral Agent to be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of the
Receivables Financing Agreement. Each Guarantor acknowledges that
it will receive direct and indirect benefits from the financing
arrangements contemplated by the Receivables Financing Agreement
and that the waivers set forth in this Section 5 are knowingly made
in contemplation of such benefits.
6. Except
as set forth in the last sentence of Section 3 above, each
Guarantor waives promptness and diligence by the Collateral Agent
or any Secured Party with respect to its rights under the
Receivables Financing Agreement or any of the other Transaction
Documents, including, but not limited to, this Guaranty.
7. Each
Guarantor waives any and all notice with respect to:
(i) acceptance by the Collateral Agent or any Secured Party of
this Guaranty; (ii) the provisions of any note,
3
instrument
or agreement relating to the Guaranteed Obligations; and
(iii) any default in connection with the Guaranteed
Obligations.
8. Each
Guarantor waives any presentment, demand, notice of dishonor or
nonpayment, protest, and notice of protest in connection with the
Guaranteed Obligations.
9. Each
Guarantor agrees that the Collateral Agent or any Secured Party may
from time to time and as many times as the Collateral Agent or any
Secured Party, in its sole discretion, deems appropriate, do any of
the following without notice to such Guarantor and without
adversely affecting the validity or enforceability of this
Guaranty: (i) release, surrender, exchange, compromise, or
settle the Guaranteed Obligations or any portion thereof;
(ii) change, renew, or waive the terms of the Guaranteed
Obligations or any portion thereof; (iii) change, renew, or
waive the terms, including without limitation, the rate of interest
charged to the Borrower or Guarantors, of any note, instrument, or
agreement relating to the Guaranteed Obligations or any portion
thereof; (iv) grant any extension or indulgence with respect
to the payment to the Collateral Agent or any Secured Party of the
Guaranteed Obligations or any portion thereof; (v) enter into any
agreement of forbearance with respect to the Guaranteed Obligations
or any portion thereof; (vi) release, surrender,
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