UNCONDITIONAL GUARANTY
Exhibit
10.2
This continuing Unconditional Guaranty
(“Guaranty”) is entered into as of March 31, 2008, by GlobalOptions Group, Inc.
(“Guarantor”), in favor of Silicon Valley Bank (“Bank”).
Recitals
A. Concurrently
herewith, Bank, GlobalOptions, Inc., a Delaware corporation (“Global”), and The
Bode Technology Group, Inc., a Delaware corporation (“Bode”) (Global and Bode
are jointly and severally, individually and collectively, referred to herein as
“Borrower”), are entering into that certain Loan and Security Agreement dated as
of even date herewith (as 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
is the parent of Global, which is the parent of Bode, and Guarantor 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).
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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 Delaware; (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.
(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.
(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)
The financial statements of Guarantor, dated as of December 31, 2008 (audited),
copies of which have been furnished to Bank, fairly present the financial
position and results of operations for Guarantor for the dates and periods
purported to be covered thereby, all in accordance with GAAP, and there has been
no material adverse change in the financial position or operations of Guarantor
since the date of such financial statements.
(g) To
ensure the legality, validity, enforceability or admissibility 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.
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(h) 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.
(i)
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.
(j)
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.
(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.
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Section
4. Real Property Security
Waiver. Guarantor acknowledges that, to the extent Guarantor
has or may have rights of subrogation or reimbursement against Borrower for
claims arising out of this Guaranty, those rights may be impaired or destroyed
if Bank elects to proceed against any real property security of Borrower by
non-judicial foreclosure. That impairment or destruction could, under
certain judicial cases and based on equitable principles of estoppel, give rise
to a defense by Guarantor against its obligations under this
Guaranty. Guarantor waives that defense and any others arising from
Bank’s election to pursue non-judicial foreclosure. Guarantor waives
the benefits, if any, of any statutory or common law rule that may permit a
subordinating creditor to assert any defenses of a surety or guarantor, or that
may give the subordinating creditor the right to require a senior creditor to
marshal assets, and Guarantor agrees that it shall not assert any such defenses
or rights.
Section
5. 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
6. 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
7. 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
8. 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:
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If to
Guarantor: GlobalOptions
Group, Inc.
00 Xxxxxxxxxxx Xxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx,
CFO
Telephone No.:
000-000-0000
Facsimile
No.:
If to
Bank: Silicon
Valley Bank
One Newton Executive Park, Suite
200
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
00000
Attention: Ms. Xxxxx
Xxxxx
Telephone No.: (000)
000-0000
Facsimile No.: (000)
000-0000
with copies
to: Xxxxxx
& Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx
00000
Attention: Xxxxx X. Xxxxxxx,
Esquire
Telephone No.: (000)
000-0000
Facsimile No.: (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
9. 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
10. 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
11. 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
Loan 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.
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Section
12. 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
13. 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 Commonwealth of Massachusetts
without regard to principles thereof regarding conflict of laws.
Section
14. 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 brought in the STATE AND FEDERAL courts LOCATED IN
the Commonwealth of Massachusetts 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 COMMONWEALTH OF MASSACHUSETTS, 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
15. 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 15.
Signature
on next page
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GUARANTOR:
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By:
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/s/ Xxxxxx X. Xxxxxxxx | ||
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Name:
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Xxxxxx X. Xxxxxxxx | ||
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Title:
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Chairman and CEO | ||
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