EXHIBIT 10.2
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GUARANTY
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THIS GUARANTY is made as of the 11th day of May, 2004, by POLYSTICK U.S.
CORPORATION, a New York corporation (the "Guarantor") to and in favor of D.
EMERALD INVESTMENTS LTD., an Israeli corporation ("Emerald").
WHEREAS, the Guarantor is a significant stockholder of GSV, Inc., a
Delaware corporation ("GSV");
WHEREAS, pursuant to a Purchase Agreement of even date herewith (the
"Purchase Agreement"), Emerald is purchasing from GSV (i) a two-year 8%
convertible promissory note in the principal amount of $200,000 (the
"Convertible Note"), and (ii) a warrant to purchase up to 1,142,857 shares of
common stock, par value $.001 per share ("Common Stock"), of GSV, at a price of
$.70 per share;
WHEREAS, the Guarantor, as a significant stockholder of GSV, will derive
substantial benefit from the consummation of the Purchase Agreement and the
closing of the transactions contemplated therein, and
WHEREAS, it is a condition precedent to the closing of the Purchase
Agreement that the Guarantor executes and delivers this Guaranty to Emerald,
pursuant to which the Guarantor will guarantee to Emerald and its successors and
assigns that all of GSV's obligations under the Convertible Note that may become
due and payable under the terms and conditions thereof will be promptly paid in
full when due.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Guarantor, intending to be legally bound,
represents, warrants, covenants and agrees as follows:
1. Guaranty. (a) The Guarantor absolutely, irrevocably and unconditionally
hereby guarantees to Emerald and its successors and assigns that all of GSV's
obligations under the Convertible Note (the "Obligations"), as such instrument
may be amended, modified or supplemented from time to time, will be paid
promptly in full when due. This Guaranty shall be a guaranty of payment and not
of collection, and the Guarantor hereby agrees that its obligations hereunder
shall be primary and unconditional, irrespective of any action to enforce the
same or any other circumstances that might otherwise constitute a legal or
equitable discharge to the Guarantor. Guarantor further agrees to pay Emerald's
expenses (including attorney's fees) paid or incurred in endeavoring to enforce
this Guaranty or the payment of the Obligations.
(b) The Guarantor hereby (i) waives diligence, presentment, dishonor,
notice of dishonor, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of GSV, any right to receive notice of any
change, amendment, modification or supplementation to the Convertible Note, any
right to require demand for payment or a proceeding first against GSV, protest,
notice and all other demands or notices whatsoever, all rights to subrogation or
to demand any payment from GSV until the indefeasible payment in full of all the
Obligations, and (ii) covenants that this Guaranty will not be discharged except
by payment in full of the Obligations.
This Guaranty shall be enforceable without Emerald having to proceed
first against GSV (any right to require Emerald to take action against GSV being
hereby expressly waived) or against any security for the payment of the
Obligations.
This Guaranty shall be binding upon and enforceable against Guarantor
and the legal representatives, successors and assigns of Guarantor. The
liability of Guarantor hereunder is primary and unconditional.
This Guaranty shall be irrevocable, absolute and unconditional and shall
remain in full force and effect as to Guarantor until such time as all of the
Obligations shall have been paid and satisfied in full. No delay or failure on
the part of Emerald in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by Emerald of any right or
remedy shall preclude other or further exercise thereof or the exercise of any
other right or remedy.
This Guaranty shall remain in full force and effect, and Guarantor shall
continue to be liable for the payment of the Obligations in accordance with the
original terms of the documents and instruments evidencing and securing the
same, notwithstanding the commencement of any bankruptcy, reorganization or
other debtor relief proceeding by or against GSV, and notwithstanding any
modification, discharge or extension of the Obligations, any modification or
amendment of any document or instrument evidencing or securing any of the
Obligations, or any stay of the exercise by Emerald of any of its rights and
remedies against GSV with respect to any of the Obligations, which may be
effected in connection with any such proceeding, whether permanent or temporary,
and notwithstanding any assent thereto by Emerald.
2. Certain Rights. Emerald may at any time and from time to time without
the consent of the Guarantor, without incurring any responsibility to the
Guarantor and without impairing or releasing any of the obligations of the
Guarantor hereunder, upon or without any terms or conditions and in whole or in
part:
(a) renew, alter or change the interest rate, manner, time, place or
terms of payment or performance of any of the Obligations, or any liability
incurred directly or indirectly in respect thereof, whereupon the Guaranty
herein made shall apply to the Obligations as so changed, extended, renewed or
altered, provided that Emerald provided the Guarantor a notice thereupon. In the
event that Emerald failed to provide such notice to the Guarantor, the Guarantor
shall continue being liable to the Obligations before such renewal, alteration
or change was made;
(b) exercise or refrain from exercising any rights against GSV or any
other person (including the Guarantor) or otherwise act or refrain from acting
with regard to the Convertible Note, the Obligations or this Guaranty;
(c) settle or compromise any of the Obligations, any security thereof or
any liability (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or subordinate the payment of all or any part
thereof to the payment of any liability of GSV (whether or not then due) to
creditors of GSV other than Emerald and the Guarantor.
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3. Assignments. This Guaranty shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
transferees. All obligations of the Guarantor hereunder shall be binding upon
its legal representative, successors and assigns.
4. Representations of Guarantor. The Guarantor represents, warrants and
agrees with Emerald as follows: (a) the execution, delivery and performance by
the Guarantor of this Guaranty (i) are within the corporate powers of the
Guarantor, (ii) have been duly authorized by all requisite corporate action on
the part of the Guarantor, and (iii) will not violate any provisions of the
Guarantor's Certificate of Incorporation (as amended), By-laws, any law now in
effect, any order of any court or other agency of government, or any agreement
or other instrument to which the Guarantor is a party or by which it or any of
its property is bound, or be in conflict with or result in a breach of, or
constitute (with or without the giving of notice or lapse of time, or both) a
default under any such agreement or other instrument; (b) the Guarantor has
received good, valuable and sufficient consideration for entering into and
performing this Guaranty; (c) the Guarantor accepts the full range of risk
encompassed within this Guaranty; and (d) the Guarantor is aware of the
financial and other terms of the Convertible Note and accepts the risk that GSV
may not be able to meet its obligations thereunder.
5. Modification of Guaranty. No amendment, modification, waiver or
discharge of this Guaranty or any provision hereof shall be valid or effective
unless (and only to the extent set forth) in writing and signed by the party
against whom enforcement is sought.
6. Remedies Cumulative, etc. No right, power or remedy conferred upon or
reserved to Emerald is exclusive of any other right, power or remedy, but each
and every such right, power and remedy shall be cumulative and concurrent.
7. Severability. Wherever possible, each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under applicable law,
but if one or more of the provisions contained herein shall be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Guaranty.
8. Limitation. Notwithstanding anything to the contrary herein, the sole
recourse of Emerald or any of its successors or assigns against the Guarantor
hereunder shall be limited to the exercise of its rights under that certain
Pledge Agreement of even date herewith (the "Pledge Agreement") made by the
Guarantor in favor of Emerald, and neither Emerald nor any of its successors or
assigns shall look for recourse to any other asset or property of the Guarantor
other than the collateral pledged to Emerald under the Pledge Agreement for
satisfaction of any claim or cause of action it may have at law or in equity
against the Guarantor under this Guaranty.
9. Jurisdiction. The Guarantor and Emerald each hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and the courts of the United States of America each
located in the Borough of Manhattan in the City of New York for any action,
suit, or proceeding for the interpretation or enforcement arising out of or
relating to this Guaranty (and agrees not to commence any litigation relating
hereto except in these courts), and further agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective address
set forth on the signature page hereof shall be effective service of process for
any such action, suit, or proceeding for the interpretation or enforcement
brought against it in any such court.
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10. Applicable Law. This Guaranty shall be construed in accordance with and
governed by the laws of the State of New York without giving effect to the
choice or conflict of law principles thereof.
11. Notices. All notices, consents, requests, demands and other
communications herein shall be in writing and shall be deemed duly given to any
party or parties (a) upon delivery to the address of the party or parties as
specified below if delivered in person or any courier or if sent by certified or
registered mail (return receipt requested); or (b) upon dispatch if transmitted
by confirmed telecopy or other means of confirmed facsimile transmissions, in
each case as addressed as follows:
If to the Guarantor:
Polystick U.S. Corporation
c/o GSV, Inc.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn.: Xx. Xxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Emerald:
D. Emerald Investments Ltd.
00 Xxxxxxx Xx-Xxxxxxx
Xxxxxxxxx, Xxxxxx
Attn.: Xx. Xxx Xxxxx
Fax: (972) (0) 0000000
With a copy to:
Kantor, Elhanani, Tal & Co.
Xxxxx Xxxxx
00-00 Xxxxxxxxxx Xxxx.
Xxx-Xxxx Xxxxxx 00000
Attention: Adv. Xxxx Xxxxx
Fax: (972) (0) 0000000
The parties hereto may designate such other address or facsimile number by
written notice in the aforesaid manner.
In WITNESS WHEREOF, the undersigned Guarantor has caused this Guaranty to
be duly executed and delivered as of the date first written above.
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POLYSTICK U.S. CORPORATION
By:
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Name: Xxxx Xxxxx
Title: President
Address: c/o GSV, Inc.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Agreed to and Accepted by:
D. EMERALD INVESTMENTS LTD.
By:
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Name: Xxx Xxxxx
Title: Manager
Address: 00 Xxxxxxx Xx-Xxxxxxx
Xxxxxxxxx, Xxxxxx
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