Exhibit 10.2
UNCONDITIONAL GUARANTY
This continuing Unconditional Guaranty ("Guaranty") is entered into as
of March 8, 2006, by GlobalOptions Group, Inc., a Nevada corporation
("Guarantor") in favor of Silicon Valley Bank ("Bank").
RECITALS
A. Bank and GlobalOptions, Inc., a Delaware corporation
("Borrower"), have entered into a certain Amended and Restated Loan and Security
Agreement , dated February 3, 2006 (as may be further amended, restated, or
otherwise modified from time to time, the "Loan Agreement") pursuant to which
Bank has agreed to make certain advances of money and to extend certain
financial accommodations to Borrower (collectively, the "Loans"), subject to the
terms and conditions set forth therein. Capitalized terms used but not otherwise
defined herein shall have the meanings given them in the Loan Agreement.
B. In consideration of the agreement of Bank to make the Loans
to Borrower under the Loan Agreement, Guarantor is willing to guaranty the full
payment and performance by Borrower of all of its obligations thereunder and
under the other Loan Documents, all as further set forth herein.
C. Guarantor owns 100% of the outstanding capital stock of
Borrower and will obtain substantial direct and indirect benefit from the Loans
made by Bank to Borrower under the Loan Agreement.
NOW, THEREFORE, to induce Bank to enter into the Loan Agreement, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Guarantor hereby
represents, warrants, covenants and agrees as follows:
Section 1. GUARANTY.
1.1 Unconditional Guaranty of Payment. In consideration of the
foregoing, Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Bank the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of all Obligations.
Guarantor agrees that it shall execute such other documents or agreements and
take such action as Bank shall reasonably request to effect the purposes of this
Guaranty.
1.2 Separate Obligations. These obligations are independent of
Borrower's obligations and separate actions may be brought against Guarantor
(whether action is brought against Borrower or whether Borrower is joined in the
action).
1.3 Grant of Security Interest. As security for the liabilities and
obligations of Guarantor hereunder, Bank is hereby granted a continuing security
interest in all presently existing and later acquired property of Guarantor more
fully described and set forth in the Security Agreement executed between Bank
and Guarantor of even date herewith (the "Security Agreement").
Section 2. REPRESENTATIONS AND WARRANTIES.
Guarantor hereby represents and warrants that:
(a) Guarantor (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada;
(ii) is duly qualified to do business and is in good standing in every
jurisdiction where the nature of its business requires it to be so qualified
(except where the failure to so qualify would not have a material adverse effect
on Guarantor's condition, financial or otherwise, or on Guarantor's ability to
pay or perform the obligations hereunder); and (iii) has all requisite power and
authority to execute and deliver this Guaranty and each Loan Document executed
and delivered by Guarantor pursuant to the Loan Agreement or this Guaranty and
to perform its obligations thereunder and hereunder.
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(b) The execution, delivery and performance by
Guarantor of this Guaranty (i) are within Guarantor's powers and have been duly
authorized by all necessary action; (ii) do not contravene Guarantor's charter
documents or any law or any contractual restriction binding on or affecting
Guarantor or by which Guarantor's property may be affected; (iii) do not require
any authorization or approval or other action by, or any notice to or filing
with, any governmental authority or any other Person under any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which Guarantor
is a party or by which Guarantor or any of its property is bound, except such as
have been obtained or made; and (iv) do not result in the imposition or creation
of any Lien upon any property of Guarantor, other than the Lien created pursuant
to the Security Agreement.
(c) This Guaranty is a valid and binding obligation
of Guarantor, enforceable against Guarantor in accordance with its terms, except
as the enforceability thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally.
(d) There is no action, suit or proceeding affecting
Guarantor pending or threatened before any court, arbitrator, or governmental
authority, domestic or foreign, which may have a material adverse effect on the
ability of Guarantor to perform its obligations under this Guaranty.
(e) Guarantor's obligations hereunder are not subject
to any offset or defense against Bank or Borrower of any kind.
(f) To ensure the legality, validity, enforceability
or admissability into evidence of this Guaranty in each of the jurisdictions in
which Guarantor is incorporated or organized and any jurisdiction in which
Guarantor conducts business, it is not necessary that (i) this Guaranty be filed
or recorded with any court or other authority in such jurisdiction, (ii) any
other filings, notices, authorizations, approvals be obtained or other actions
taken, or (iii) any stamp or similar tax be paid on or with respect to this
Guaranty, or, if any of the foregoing actions are necessary, they have been duly
taken.
(g) Neither Guarantor nor its property has any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under applicable law.
(h) The incurrence of Guarantor's obligations under
this Guaranty will not cause Guarantor to (i) become insolvent; (ii) be left
with unreasonably small capital for any business or transaction in which
Guarantor is presently engaged or plans to be engaged; or (iii) be unable to pay
its debts as such debts mature.
(i) Guarantor covenants, warrants, and represents to
Bank that all representations and warranties contained in this Guaranty shall be
true at the time of Guarantor's execution of this Guaranty, and shall continue
to be true so long as this Guaranty remains in effect. Guarantor expressly
agrees that any misrepresentation or breach of any warranty whatsoever contained
in this Guaranty shall be deemed material.
Section 3. GENERAL WAIVERS. Guarantor waives:
(a) Any right to require Bank to (i) proceed against
Borrower or any other person; (ii) proceed against or exhaust any security or
(iii) pursue any other remedy. Bank may exercise or not exercise any right or
remedy it has against Borrower or any security it holds (including the right to
foreclose by judicial or nonjudicial sale) without affecting Guarantor's
liability hereunder.
(b) Any defenses from disability or other defense of
Borrower or from the cessation of Borrowers liabilities.
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(c) Any setoff, defense or counterclaim against Bank.
(d) Any defense from the absence, impairment or loss
of any right of reimbursement or subrogation or any other rights against
Borrower. Until Borrower's obligations to Bank have been paid, Guarantor has no
right of subrogation or reimbursement or other rights against Borrower.
(e) Any right to enforce any remedy that Bank has
against Borrower.
(f) Any rights to participate in any security held by
Bank.
(g) Any demands for performance, notices of
nonperformance or of new or additional indebtedness incurred by Borrower to
Bank. Guarantor is responsible for being and keeping itself informed of
Borrower's financial condition.
(h) The benefit of any act or omission by Bank which
directly or indirectly results in or aids the discharge of Borrower from any of
the Obligations by operation of law or otherwise.
(i) The benefit of California Civil Code Section 2815
permitting the revocation of this Guaranty as to future transactions and the
benefit of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848,
2849, 2850, 2899 and 1432 with respect to certain suretyship defenses.
Section 4. REINSTATEMENT. Notwithstanding any provision of the Loan
Agreement to the contrary, the liability of Guarantor hereunder shall be
reinstated and revived and the rights of Bank shall continue if and to the
extent that for any reason any payment by or on behalf of Guarantor or Borrower
is rescinded or must be otherwise restored by Bank, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, all as though such
amount had not been paid. The determination as to whether any such payment must
be rescinded or restored shall be made by Bank in its sole discretion; PROVIDED,
HOWEVER, that if Bank chooses to contest any such matter at the request of
Guarantor, Guarantor agrees to indemnify and hold harmless Bank from all costs
and expenses (including, without limitation, reasonable attorneys' fees) of such
litigation. To the extent any payment is rescinded or restored, Guarantor's
obligations hereunder shall be revived in full force and effect without
reduction or discharge for that payment.
Section 5. NO WAIVER; AMENDMENTS. No failure on the part of Bank to
exercise, no delay in exercising and no course of dealing with respect to, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. This Guaranty may
not be amended or modified except by written agreement between Guarantor and
Bank, and no consent or waiver hereunder shall be valid unless in writing and
signed by Bank.
Section 6. COMPROMISE AND SETTLEMENT. No compromise, settlement,
release, renewal, extension, indulgence, change in, waiver or modification of
any of the Obligations or the release or discharge of Borrower from the
performance of any of the Obligations shall release or discharge Guarantor from
this Guaranty or the performance of the obligations hereunder.
Section 7. NOTICE. Any notice or other communication herein required or
permitted to be given shall be in writing and may be delivered in person or sent
by facsimile transmission, overnight courier, or by United States mail,
registered or certified, return receipt requested, postage prepaid and addressed
as follows:
If to Guarantor: GlobalOptions Group, Inc.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
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Fax:
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If to Bank: Silicon Valley Bank
0000 Xxxxxx Xxxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: 000.000.0000
or at such other address as may be substituted by notice given as
herein provided. Every notice, demand, request, consent, approval, declaration
or other communication hereunder shall be deemed to have been duly given or
served on the date on which personally delivered or sent by facsimile
transmission or three (3) Business Days after the same shall have been deposited
in the United States mail. If sent by overnight courier service, the date of
delivery shall be deemed to be the next Business Day after deposited with such
service.
Section 8. ENTIRE AGREEMENT. This Guaranty constitutes and contains the
entire agreement of the parties and supersedes any and all prior and
contemporaneous agreements, negotiations, correspondence, understandings and
communications between Guarantor and Bank, whether written or oral, respecting
the subject matter hereof.
Section 9. SEVERABILITY. If any provision of this Guaranty is held to
be unenforceable under applicable law for any reason, it shall be adjusted, if
possible, rather than voided in order to achieve the intent of Guarantor and
Bank to the extent possible. In any event, all other provisions of this Guaranty
shall be deemed valid and enforceable to the full extent possible under
applicable law.
Section 10. SUBORDINATION OF INDEBTEDNESS. Any indebtedness or other
obligation of Borrower now or hereafter held by or owing to Guarantor is hereby
subordinated in time and right of payment to all obligations of Borrower to
Bank, except as such indebtedness or other obligation is expressly permitted to
be paid under the Credit Agreement; and such indebtedness of Borrower to
Guarantor is assigned to Bank as security for this Guaranty, and if Bank so
requests shall be collected, enforced and received by Guarantor in trust for
Bank and to be paid over to Bank on account of the Obligations of Borrower to
Bank, but without reducing or affecting in any manner the liability of Guarantor
under the other provisions of this Guaranty. Any notes now or hereafter
evidencing such indebtedness of Borrower to Guarantor shall be marked with a
legend that the same are subject to this Guaranty and shall be delivered to
Bank.
Section 11. PAYMENT OF EXPENSES. Guarantor shall pay, promptly on
demand, all Expenses incurred by Bank in defending and/or enforcing this
Guaranty. For purposes hereof, "Expenses" shall mean costs and expenses
(including reasonable fees and disbursements of any law firm or other external
counsel and the allocated cost of internal legal services and all disbursements
of internal counsel) for defending and/or enforcing this Guaranty (including
those incurred in connection with appeals or proceedings by or against any
Guarantor under the United States Bankruptcy Code, or any other bankruptcy or
insolvency law, including assignments for the benefit of creditors,
compositions, extensions generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief).
Section 12. ASSIGNMENT; GOVERNING LAW. This Guaranty shall be binding
upon and inure to the benefit of Guarantor and Bank and their respective
successors and assigns, except that Guarantor shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent of
Bank, which may be granted or withheld in Bank's sole discretion. Any such
purported assignment by Guarantor without Bank's written consent shall be void.
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of California without regard to principles thereof regarding
conflict of laws.
Section 13. PERSONAL JURISDICTION. GUARANTOR HEREBY IRREVOCABLY AGREES
THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OF THE
AGREEMENTS, DOCUMENTS OR INSTRUMENTS DELIVERED IN CONNECTION HEREWITH MAY BE
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BROUGHT IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF CALIFORNIA AS
BANK MAY ELECT (PROVIDED THAT GUARANTOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE STATE OF
CALIFORNIA), AND, BY EXECUTION AND DELIVERY HEREOF, GUARANTOR ACCEPTS AND
CONSENTS TO, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS AND AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY
BANK IN WRITING, WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY GUARANTOR
AGAINST BANK. NOTHING HEREIN SHALL LIMIT THE RIGHT OF BANK TO BRING PROCEEDINGS
AGAINST GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. GUARANTOR HEREBY
WAIVES, TO THE FULL EXTENT PERMITTED BY LAW, ANY RIGHT TO STAY OR TO DISMISS ANY
ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON THE BASIS OF FORUM NON
CONVENIENS.
Section 14. WAIVER OF JURY TRIAL. EACH OF BANK AND GUARANTOR HEREBY
WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY
AND ANY RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.
GUARANTOR:
GLOBALOPTIONS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Ph.D.
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Name: Xxxxxx X. Xxxxxxxx, Ph.D.
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Title: Chairman and Chief Executive Officer
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