GUARANTY
Exhibit 4.20
GUARANTY
FOR VALUE RECEIVED, and in
order to induce the LAW OFFICES
OF XXXXX X. XXXXX, P.A., a professional association licensed to practice
law in the State of Florida (“Noteholder” or “DJS”), PROFESSIONAL TITLE AND ABSTRACT
COMPANY OF FLORIDA, INC., a Florida corporation (“PTA”), and DEFAULT SERVICING, INC., a
Florida corporation (“DSI”) to enter into
financial accommodations with DAL GROUP, LLC, a Delaware
limited liability company (with any successor in interest, including, without
limitation, any successor by merger or by operation of law, herein collectively
referred to as “DAL”) (a) under that
certain Term Note executed by DAL in favor
of Noteholder (as amended, restated or otherwise modified from time to time, the
“Note”), and
(b) pursuant to DAL’s obligations to pay the Post Closing Cash to DJS, PTA and
DSI, as defined in and pursuant to, the Contribution and Membership Interest
Purchase Agreement, dated as of the date of this Guaranty, the undersigned
(“Guarantor”)
hereby guarantees to DJS, PTA, DSI and their respective successors and assigns,
(i) the prompt and full payment when due, by acceleration or otherwise, of all
sums now or any time hereafter due from DAL to Noteholder under the Note (the
“Term Note
Obligations”) and from DAL to each of DJS, PTA and DSI with respect to
the Post Closing Cash (the “Post Closing Cash
Obligations”) and (ii) all reasonable costs, reasonable legal expenses
and reasonable attorneys’ and paralegals’ fees paid or incurred by any of DJS,
PTA or DSI in endeavoring to collect all or any part of the Term Note
Obligations and Post Closing Cash Obligations, or in enforcing any of their
rights in connection with any collateral therefore, or in enforcing this
Guaranty, or in defending against any defense, counterclaim, setoff or cross
claim based on any act or omission by any of DJS, PTA or DSI with respect to the
foregoing obligations, except to the extent resulting from the negligence and/or
misconduct of DJS, PTA, DSI and/or any affiliate of DJS, PTA and/or DSI
(collectively, the “Guaranteed
Obligations”). Guarantor acknowledges that each of DJS, PTA and DSI are
relying on the execution and delivery of this Guaranty in extending or
continuing to extend the financial accommodations to or for the benefit of
DAL.
This
Guaranty shall remain in effect until all of the Obligations shall have been
fully and indefeasibly paid, performed and discharged. Upon the occurrence and
during the continuance of an Event of Default (as defined in the Loan, Security
and Pledge Agreement by and among DAL, DJS, PTA and DSI dated as of the date of
this Guaranty (as amended, restated or otherwise modified from time to time, the
“Loan
Agreement”)), any or all of the Term Note Obligations and Post-Closing
Cash Obligations may be accelerated, with or without notice, as provided in the
Loan Agreement. Notwithstanding the occurrence of any such event,
this Guaranty shall continue and remain in full force and effect.
To the
extent any of DJS, PTA or DSI receive payment with respect to the Term Note
Obligations or the Post Closing Cash Obligations, as the case may be, and all or
any part of such payment is subsequently invalidated, declared to be fraudulent
or preferential, set aside, required to be repaid by any of DJS, PTA or DSI or
is repaid by DJS, PTA or DSI pursuant to a settlement agreement, to a trustee,
receiver or any other person or entity, whether under any bankruptcy law or
otherwise (a “Returned
Payment”), this Guaranty shall continue to be effective or shall be
reinstated, as the case may be, to the extent of such payment or repayment by
DJS, PTA or DSI, and the indebtedness or part thereof intended to be satisfied
by such Returned Payment shall be revived and continued in full force and effect
as if said Returned Payment had not been made.
All
payments received by DJS, with respect to the Term Note Obligations or DJS, PTA
or DSI, with respect to the Post Closing Cash Obligations, from whatever source
derived, shall be taken and applied by DJS, PTA or DSI, as the case may be,
toward the payment of the relevant Obligations and in such order of application
as DJS, PTA or DSI, as the case may be, may, in its sole discretion, from time
to time elect. As further security, any and all debts and liabilities
now or hereafter arising and owing to the Guarantor by DAL are hereby
subordinated to the claims of DJS, PTA and DSI.
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Guarantor
acknowledges and agrees that this Guaranty is a legal, valid and binding
obligation of Guarantor, and is enforceable in accordance with its
terms. Neither DJS, PTA nor DSI shall be required at any time, as a
condition of Guarantor’s Obligations hereunder, to resort to payment from DAL or
other persons or entities whatsoever, or any of their properties or estates, or
resort to any collateral or pursue or exhaust any other rights or remedies
whatsoever. Specifically, but without limiting the foregoing, Guarantor waives
any right to have DAL or any other guarantor joined in a suit brought against
Guarantor on this Guaranty and also any right to require DJS, PTA or DSI to sue
DAL on any obligation guarantied here as a prerequisite to any action by any or
all of DJS, PTA or DSI against Guarantor.
No
release or discharge in whole or in part of any other guarantor of the
Obligations shall release or discharge Guarantor, unless and until all of the
Obligations shall have been indefeasibly fully paid and
discharged. So long as there are any Obligations, Guarantor waives
any right to revoke or terminate this Guaranty without the express written
consent of Noteholder.
For so
long as there are any Obligations, Xxxxxxxxx agrees to promptly furnish to DJS,
PTA or DSI such financial information concerning Guarantor as any of DJS, PTA or
DSI may from time to time reasonably request.
Guarantor's
obligations under this Guaranty shall in no way be modified, affected, impaired,
reduced, reduced or released by DJS, PTA or DSI undertaking, doing or omitting
to do any of the following (any or all of which may be done or omitted by any of
DJS, PTA or DSI in their sole discretion, without notice to anyone irrespective
of whether the Obligations shall be increased or decreased thereby): (i) extend
the time of payment of the Obligations; (ii) renew the Obligations or accept new
notes of DAL; (iii) modify any of the terms and conditions of the Obligations
including, but not limited to, changing the interest rate or rates applicable to
the Obligations; (iv) compromise, settle, surrender, release, discharge,
refinance, exchange, sell, or pledge the Obligations, or any collateral securing
the Obligations, or fail, neglect or omit to realize upon, or to enforce or
exercise any liens or rights of appropriation or other rights with respect to,
the Obligations or any security or collateral therefor or any claims against any
person or persons primarily or secondarily liable thereon; (v) fail, neglect or
omit to perfect, protect, secure or insure any of security interests, liens, or
encumbrances of the properties or interests in properties subject thereto; or
(vi) any change in DAL’s name or the merger of DAL into another
entity. The Guarantor hereby consents to all acts of commission or
omission of each of DJS, PTA or DSI as set forth above.
Neither a
failure on the part of any or all of DJS, PTA or DSI to exercise nor any delay
in exercising any right, remedy or power hereunder shall operate as a waiver
thereof and Guarantor’s Obligations hereunder shall be enforceable irrespective
of the genuineness, validity, regularity or enforceability of the Obligations,
or of any instrument evidencing any of the Obligations.
The
Obligations shall include interest, costs and fees owed by DAL to any of DJS,
PTA or DSI pursuant to the terms of the Note and Loan Agreement accruing after
the filing of a bankruptcy petition by or against DAL under Title 11, United
States Code, even though such interest, costs and fees may not be allowable, in
whole or in part, due to such bankruptcy case.
Guarantor
hereby waives all suretyship defenses and any rights to interpose any defense of
any nature which Guarantor may have or which may exist between and among DJS,
PTA or DSI, DAL and/or Guarantor with respect to Guarantor’s obligations under
this Guaranty, or which DAL may assert on the underlying debt, including but not
limited to failure of consideration, breach of warranty, fraud, discharges of
DAL or any other Guaranty in bankruptcy, payment (other than cash payment in
full of the Obligations), statute of frauds, bankruptcy, lack of legal capacity,
statute of limitations, accord and satisfaction, and usury. The
Guaranty expressly agrees that Guarantor shall be and shall remain liable for
any deficiency remaining after foreclosure of any security interest securing the
Obligations, whether or not the liability of DAL or any other obligor for such
deficiency is discharged pursuant to statute, judicial decision or
otherwise.
Any of
DJS, PTA or DSI may, without demand or notice of any kind to anyone, apply or
set off balances, credits, deposits, accounts, moneys or other indebtedness at
any time credited or due from any of DJS, PTA or DSI to the Guarantor against
the amounts due hereunder as any of DJS,
PTA or DSI may from time to time elect.
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Each of
DJS, PTA or DSI may assign any or all of the Obligations upon notice to the
Guarantor and in such event any assignee or holder of any or all of the
Obligations shall have the right to enforce this Guaranty, by suit or otherwise,
as if such assignee or holder is named in this Guaranty. For the
avoidance of doubt, the rights of each of DJS, PTA and DSI to enforce this
guaranty shall be superior to that of any assignee of any of DJS, PTA or
DSI.
This
Guaranty is a guaranty of payment and not of collection.
This
Guaranty shall be binding upon Guarantor and its heirs, executors, successors
and assigns, and shall inure to the benefit of the DJS, PTA or DSI and each of
their successors and assigns. Guarantor may not assign any of its
obligations under this Guaranty without the prior written consent of each of
DJS, PTA and DSI, any such purported assignment without such consent being null
and void, and which consent shall not be unreasonably withheld.
THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE. THE GUARANTOR, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES IRREVOCABLY THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDINGS COMMENCED BY OR
AGAINST THE GUARANTOR IN WHICH THE GUARANTY AND ANY OF DJS, PTA OR DSI ARE
ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH OF DJS, PTA AND
DSI IN GRANTING ANY FINANCIAL ACCOMMODATION TO DAL AND ACCEPTING THIS
GUARANTY.
Wherever
possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. No modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by Guarantor and each of DJS,
PTA and DSI.
Receipt
of an executed signature page to this Guaranty by facsimile or other electronic
transmission shall constitute effective delivery thereof. Electronic executed
copies of this Guaranty maintained by DJS, PTA or DSI shall be deemed to be
originals thereof.
TO INDUCE
EACH OF DJS, PTA AND DSI TO GRANT FINANCIAL ACCOMMODATIONS TO DAL, THE GUARANTOR
IRREVOCABLY AGREES THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT
OR IN CONSEQUENCE OF THIS GUARANTY SHALL BE INSTITUTED AND LITIGATED ONLY IN
COURTS HAVING SITUS IN THE COUNTY OF BROWARD, FLORIDA. THE GUARANTOR
HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL
COURT LOCATED AND HAVING ITS SITUS IN THE COUNTY OF BROWARD, FLORIDA, AND WAIVES
ANY OBJECTION BASED ON FORUM NON CONVENIENS. THE GUARANTOR HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS, AND CONSENTS TO THE SERVICE OF
PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR
AT THE ADDRESS INDICATED IN THE RECORDS OF DJS, PTA OR DSI IN THE MANNER
PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF COURT OR
OTHERWISE. FURTHERMORE, THE GUARANTOR WAIVES PRESENTMENT, DEMAND FOR
PAYMENT AND ALL NOTICES AND DEMANDS IN CONNECTION WITH THE DELIVERY, ACCEPTANCE,
PERFORMANCE OF THIS GUARANTY OR ENFORCEMENT OF THE RIGHTS OF DJS, PTA OR DSI
HEREUNDER, AND HEREBY CONSENTS TO, AND WAIVES NOTICE OF THE RELEASE, WITH OR
WITHOUT CONSIDERATION, OF DAL OR ANY OTHER PERSON RESPONSIBLE FOR PAYMENT OF
DAL’S OBLIGATIONS, OR OF ANY COLLATERAL THEREFOR.
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Dated as
of January ___, 2010
Guarantor:
By: __________________________
Name:
Title:
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BH01\1095408.1
ID\GMC
- 105780/0001
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