GUARANTY
Exhibit
4.16
FOR VALUE RECEIVED, and in
order to induce the lenders (collectively,
the “Lenders”
and each a “Lender”) listed on
Schedule A
hereto 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 those
certain Senior Term Notes, dated as of the date of this Guaranty, executed by DAL in favor
of the Lenders (each as amended, restated or otherwise modified from time to
time, a “Note”
and collectively the “Notes”), and (b)
pursuant to the Senior Loan, Security and Pledge Agreement, dated as of the date
of this Guaranty, among the Lenders and DAL (as amended, restated or otherwise
modified from time to time, the “Loan Agreement”), the
undersigned (“Guarantor”) hereby
guarantees to the Lenders 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 each Lender under the Notes and the Loan
Agreement (the “Term
Loan Obligations”) and (ii) all reasonable costs, reasonable legal
expenses and reasonable attorneys’ and paralegals’ fees paid or incurred by any
Lender or the Secured Party Representative (such term as used herein is as
defined in the Loan Agreement) in endeavoring to collect all or any part of the
Term Loan 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 Lender with respect to the foregoing obligations, except to the extent
resulting from the negligence and/or misconduct of any Lender and/or any
affiliate of any Lender (collectively, the “Guaranteed
Obligations”). Guarantor acknowledges that each Lender is 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 Guaranteed 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 Agreement), any or all of the Guaranteed 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 Lender receives payment with respect to the Guaranteed Obligations
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 Lender or is
repaid by any Lender 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
any Lender, 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 any Lender with respect to the Guaranteed Obligations, from
whatever source derived, shall be taken and applied by the Lenders toward the
payment of the Guaranteed Obligations and in such order of application as
Lenders, may, in their 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 each
Lender.
Guarantor
acknowledges and agrees that this Guaranty is a legal, valid and binding
obligation of Guarantor, and is enforceable in accordance with its
terms. No Lender nor the Secured Party Representative 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 any Lender on any obligation guarantied here as a prerequisite to any
action by any or all of the Lenders against Guarantor.
1
No
release or discharge in whole or in part of any other guarantor of the
Guaranteed Obligations shall release or discharge Guarantor, unless and until
all of the Guaranteed Obligations shall have been indefeasibly fully
paid and discharged. So long as there are any Guaranteed Obligations,
Guarantor waives any right to revoke or terminate this Guaranty without the
express written consent of each Lender.
For so
long as there are any Guaranteed Obligations, Guarantor agrees to promptly
furnish to each Lender such financial information concerning Guarantor as any
Lender 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 any Lender undertaking, doing or omitting to do
any of the following (any or all of which may be done or omitted by any Lender
in its sole discretion, without notice to anyone irrespective of whether the
Guaranteed Obligations shall be increased or decreased thereby): (i) extend the
time of payment of the Guaranteed Obligations; (ii) renew the Guaranteed
Obligations or accept new notes of DAL; (iii) modify any of the terms and
conditions of the Guaranteed Obligations including, but not limited to, changing
the interest rate or rates applicable to the Guaranteed Obligations; (iv)
compromise, settle, surrender, release, discharge, refinance, exchange, sell, or
pledge the Guaranteed Obligations, or any collateral securing the Guaranteed
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
Guaranteed 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 Lender as set forth above.
Neither a
failure on the part of any or all of the Lenders 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 Guaranteed
Obligations, or of any instrument evidencing any of the Guaranteed
Obligations.
The
Guaranteed Obligations shall include interest, costs and fees owed by DAL to any
Lender pursuant to the terms of the Note and Loan Agreement accruing after the
filing of a bankruptcy petition by or against DAL under Xxxxx 00, Xxxxxx Xxxxxx
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 any
Lender, 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 Guaranteed 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 Guaranteed 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
Lender 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 Lender to the Guarantor against the amounts due
hereunder as any Lender may from time to time elect.
Each
Lender may assign any or all of the Guaranteed Obligations upon notice to the
Guarantor and in such event any assignee or holder of any or all of the
Guaranteed 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 Lender to
enforce this guaranty shall be superior to that of any assignee of any
Lender.
2
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 each Lender and each Lender’s
successors and assigns. Guarantor may not assign any of its
obligations under this Guaranty without the prior written consent of each
Lender, 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 NEW YORK 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 LENDER ARE ADVERSE PARTIES.
THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH LENDER 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
Lender.
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 any Lender shall be deemed to be originals
thereof.
TO INDUCE
EACH LENDER 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 NEW YORK, NEW YORK. 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 NEW YORK, NEW YORK, 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 ANY LENDER 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 EACH LENDER
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 THE
GUARANTEED OBLIGATIONS, OR OF ANY COLLATERAL THEREFOR.
3
GUARANTY
Dated as
of ______________________.
Guarantor:
By: __________________________
Name:
Title:
Address:
SIGNATURE
PAGE TO SENIOR GUARANTY
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SCHEDULE
A
Lenders
[______________]
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