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SUBORDINATED LIMITED RECOURSE GUARANTY AGREEMENT

Guarantee Agreement

SUBORDINATED LIMITED RECOURSE GUARANTY AGREEMENT | Document Parties: ASTA FUNDING INC | Asta Commercial, LLC | Palisades Acquisition XIII, LLC | Palisades Acquisition XIV, LLC | Palisades Acquisition XV, LLC | Palisades Acquisition XVI, LLC | Palisades Acquisition XVII, LLC | Palisades Acquisition XVIII, LLC | Palisades Collection, LLC | Subordinated Limited | Sylvan Acquisition I, LLC | Vativ Recovery Solutions, LLC | Ventura Services, LLC You are currently viewing:
This Guarantee Agreement involves

ASTA FUNDING INC | Asta Commercial, LLC | Palisades Acquisition XIII, LLC | Palisades Acquisition XIV, LLC | Palisades Acquisition XV, LLC | Palisades Acquisition XVI, LLC | Palisades Acquisition XVII, LLC | Palisades Acquisition XVIII, LLC | Palisades Collection, LLC | Subordinated Limited | Sylvan Acquisition I, LLC | Vativ Recovery Solutions, LLC | Ventura Services, LLC

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Title: SUBORDINATED LIMITED RECOURSE GUARANTY AGREEMENT
Governing Law: New York     Date: 2/20/2009
Industry: Misc. Financial Services     Sector: Financial

SUBORDINATED LIMITED RECOURSE GUARANTY AGREEMENT, Parties: asta funding inc , asta commercial  llc , palisades acquisition xiii  llc , palisades acquisition xiv  llc , palisades acquisition xv  llc , palisades acquisition xvi  llc , palisades acquisition xvii  llc , palisades acquisition xviii  llc , palisades collection  llc , subordinated limited , sylvan acquisition i  llc , vativ recovery solutions  llc , ventura services  llc
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Exhibit 10.23

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).

BACKGROUND

     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,

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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, exch


 
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