**Exhibit 10.2**

 

**UNCONDITIONAL GUARANTY**

 

For and in consideration ofcertain loans by **SILICON VALLEY BANK**,a California-chartered bank, with its principal place of business at3003 Tasman Drive, Santa Clara, California 95054 and with a loanproduction office located at One Newton Executive Park, Suite 200, 2221Washington Street, Newton, Massachusetts 02462 (“Bank”) to**CLEARSTORY SYSTEMS, INC.**, a Delawarecorporation (hereinafter, the “Borrower”), which loans were made pursuant to acertain Loan and Security Agreement between Borrower and Bank dated August 25,2005, as may be amended from time to time (hereinafter, the “Agreement”), theundersigned guarantor**SCP PRIVATE EQUITYPARTNERS II, L.P.**, a Delaware limited partnership (“Guarantor”), herebyunconditionally and irrevocably guarantees the prompt and complete payment ofall amounts that Borrower owes to Bank under the Agreement and performance byBorrower of Borrower’s Obligations under the Agreement, as may be amended fromtime to time, in strict accordance with its terms.  All terms used herein but not defined shallhave the meaning ascribed to such term in the Agreement.

 

# 1.                                       If Borrower does not perform itsObligations under the Agreement and an Event of Default shall have occurred andis continuing, Guarantor will, within twenty-one (21) days of receipt of demandfrom Bank, immediately pay all amounts due (including, without limitation, allprincipal, interest,  and fees) andsatisfy all Borrower’s Obligations under the Agreement.

#  

# 2.                                       These obligations are independentof Borrower’s Obligations and separate actions may be brought against Guarantor(whether action is brought against Borrower or whether Borrower is joined inthe action).  Guarantor  waives benefit of any statute of limitationsaffecting its liability.  Guarantor’sliability is not contingent on the genuineness or enforceability of theAgreement.

#  

# 3.                                       Bank may, without notice toGuarantor and without affecting Guarantor’s obligations under thisGuaranty:  (a) renew, extend, orotherwise change the terms of the Agreement; (b) take security for thepayment of this Guaranty or the Agreement; (c) exchange, enforce, waiveand release any security; and (d) apply the security and direct itssale  as Bank, in its discretion,chooses. Notwithstanding the foregoing, any amendment in writing which (i) increasesthe maximum amount of principal that may be borrowed by the Borrower thereunderor (ii) shortens the maturity date thereof, may not be made without theGuarantor’s consent, which shall not be unreasonably withheld.

#  

# 4.                                       As long as the Credit Extensionsremain outstanding and the Agreement has not been terminated, Guarantor waivesto the extent not prohibited by law:

#  

## (a)                                  Any right to require Bank to: (i) proceedagainst Borrower or any other person; (ii) proceed against or exhaust anysecurity; or (iii) pursue any other remedy.  Bank may exercise or not exercise any rightor remedy it has against Borrower or any security it holds (including the rightto foreclose by judicial or non-judicial sale) without affecting Guarantor’sliability.

##  

## (b)                                 Any defenses from disability or other defenseof Borrower or from the cessation of Borrowers liabilities.

##  

## (c)                                  Any setoff, defense or counterclaim againstBank (other than the defense of payment or performance).

##  

## (d)                                 Any defense from the absence, impairment orloss of any right of reimbursement or subrogation or any other rights againstBorrower.  Until the Credit Extensionshave been paid and Bank’ s obligation to make Credit Extensions has terminated,Guarantor shall not exercise any right of subrogation or reimbursement againstBorrower in respect to any payment by Guarantor hereunder.

 

1

----

 

## (e)                                  Any right to enforce any remedy that Bank hasagainst Borrower.

##  

## (f)                                    Any rights to participate in any security held by Bank.

##  

## (g)                                 Any demands for performance or notices ofnonperformance. Guarantor is responsible for being and keeping itself informedof Borrower’s financial condition. Unless Guarantor requests particular information, Bank has no duty toprovide information to Guarantor.

 

# 5.                                       Guarantor acknowledges that, tothe extent Guarantor has or may have rights of subrogation or reimbursementagainst Borrower for claims arising out of this Guaranty, those rights may beimpaired or destroyed if Bank elects to proceed against any real propertysecurity of Borrower by non-judicial foreclosure.  That impairment or destruction could, undercertain judicial cases and based on equitable principles of estoppel, give riseto a defense by Guarantor against its obligations under this Guaranty.  Guarantor waives that defense (to the extentnot prohibited by law) and any others arising from Bank’s election to pursuenon-judicial foreclosure.

#  

# 6.                                       If Borrower becomes insolvent oris adjudicated bankrupt or files a petition for reorganization or similarrelief under the United States Bankruptcy Code, or if a petition is filedagainst Borrower and/or any Obligation under the Agreement is terminated orrejected,  or any Obligation of Borroweris modified or if Borrower ‘s Obligations are avoided Guarantor’s liabilitywill not be affected and its liability will continue.  If Bank must return any payment because of the insolvency, bankruptcy orreorganization of Borrower, Guarantor or any other guarantor, this Guarantywill remain effective or be reinstated.

#  

# 7.                                       So long as Credit Extensionsremain outstanding and Bank’s obligation to make Credit Extensions has not beenterminated, Guarantor subordinates any indebtedness of Borrower it holds toBank; and during the continuance of any Event of Default, Guarantor willcollect, enforce and receive payments as Bank’s trustee and will pay Bank thosepayments without reducing or affecting its liability under this Guaranty(provided that notwithstanding any Event of Default, Guarantor may retain suchpayments for its own account to the extent permitted under the Agreement).

#  

# 8.                                       Guarantor will pay Bank’sreasonable attorneys’ fees and other costs and expenses incurred enforcing thisGuaranty. This Guaranty may not be waived, revoked or amended without Bank’sprior  written consent.  If any provision of this Guaranty isunenforceable, all other provisions remain effective.  This Guaranty represents the entire agreementamong the parties about this guaranty. No prior dealings, no usage of trade, and no parol or extrinsic evidencemay supplement or vary this Guaranty. Bank may assign this Guaranty. This Guaranty benefits Bank, its successors and assigns.  This Guaranty is in addition to any otherguaranties Bank obtains.

#  

# 9.                                       Guarantor represents and warrantsthat, as of the date hereof, (i) it has taken all action necessary to  authorize execute, deliver and perform thisGuaranty; (ii) execution, delivery and performance of this Guaranty do notconflict with any organizational documents or agreements to which it is aparty; and (iii) this Guaranty is a valid and binding obligation,enforceable against Guarantor according to its terms.

#  

# 10.                                 Guarantor will do all of the following:

#  

## (a)                                  Maintain its legal existence, remain in goodstanding in its state of organization, and continue to qualify in eachjurisdiction in which the failure to qualify could have a material adverseeffect on the financial condition, operations or business.  Maintain all licenses, approvals, andagreements, the loss of which could have a material adverse effect on itsfinancial condition, operations or business.

##  

## (b)                                 Comply with all statutes and regulations ifnon-compliance could adversely affect its financial condition, operations orbusiness.

 

2

----

 

## (c)                                  Execute other instruments and take actionBank reasonably requests to effect the purposes of this Agreement.

##  

## (d)                                 Beginning with the quarter ending September 30,2005, the Guarantor shall maintain, at all times to be tested as of the lastday of each quarter, Unencumbered Capital, in an amount equal to or greaterthan three (3) times the aggregate outstanding Obligations; provided,however, that if, at any time, Unencumbered Capital is less than three (3) timesthe aggregate outstanding Obligations, Guarantor shall, as soon as possible butin no event later than thirty (30) days thereafter, either (i) deposit andmaintain with Bank, at all times thereafter, cash in such amounts as Bankdetermines will secure the full amount of the outstanding Obligations, or (ii) provideBank with an irrevocable letter of credit, on terms and conditions reasonablyacceptable to Bank in its sole discretion, from a financial institutionreasonably acceptable to Bank in its sole discretion, and in such amount asBank determines will secure the full amount of the outstanding Obligations.

##  

## (e)                                  Guarantor shall deliver to Bank: (i) assoon as available, but no later than sixty (60) days after the last day of eachquarter (except for the quarter ending December 31st), a company preparedconsolidated balance sheet and income statement covering Guarantor’sconsolidated operations during the period certified by a Responsible Officerand in a form acceptable to Bank; and (ii) as soon as available, but nolater than one hundred twenty (120) days after the last day of Guarantor’sfiscal year, audited consolidated financial statements of Guarantor preparedunder GAAP, consistently applied, together with an unqualified opinion on thefinancial statements from an independent certified public accounting firmreasonably acceptable to Bank.

##  

## (f)                                    Within sixty (60) days after the last day ofeach quarter, Guarantor shall deliver to Bank a Compliance Certificate signedby a Responsible Officer in the form of **Exhibit A**.

##  

# 11.                                 Guarantor hereby grants to Bank, a lien,security interest and right of setoff as security for all Obligations to Bank,whether now existing or hereafter arising upon and against all deposits,credits, collateral and property, now or hereafter in the possession, custody,safekeeping or control of Bank or any entity under the control of Bank (includinga Bank subsidiary) or in transit to any of them.  At any time after the occurrence and duringthe continuance of an Event of Default, without demand or notice, Bank may setoff the same or any part thereof and apply the same to any liability orobligation of Guarantor arising hereunder even though unmatured and regardlessof the adequacy of any other collateral securing the loan.  ANY AND ALL RIGHTS TO REQUIRE BANK TOEXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICHSECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCHDEPOSITS, CREDITS OR OTHER PROPERTY OF THE GUARANTOR, ARE HEREBY KNOWINGLY,VOLUNTARILY AND IRREVOCABLY WAIVED.

#  

# 12.                                 Massachusetts law governs this Guarantywithout regard to principles of conflicts of law.  Guarantor and Bank each submit to theexclusive jurisdiction of the State and Federal courts in Massachusetts; provided,however, that if for any reason Bank cannot avail itself of such courts in theCommonwealth of Massachusetts, Guarantor accepts jurisdiction of the courts andvenue in Santa Clara County, California. GUARANTOR AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIMOR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOANDOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OFDUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIESTO ENTER INTO THIS AGREEMENT.  EACH PARTYHAS REVIEWED THIS WAIVER WITH ITS COUNSEL.

 

3

----

 

# 13.                                 Definitions. In this Guaranty:

#  

# “**Callable Capital**” is the remaining amount of capital,excluding capital attributable to Defaulting Partners, which Guarantor would beable to obtain from the General Partner and the Limited Partners, withoutcondition, upon proper issuance of capital call notices in accordance with thePartnership Agreement.

#  

# “**Defaulting Partner**” is the General Partner or any LimitedPartner who has previously failed to comply with any portion of a capital callmade by the Guarantor or the General Partner (for any fund under GeneralPartner’s management) unless: (i) such failure has been cured, or (ii) theGuarantor has substituted the Defaulting Partner with another partner, inaccordance with the Partnership Agreement, who is in compliance with all of theterms of the Partnership Agreement.

#  

# “**General Partner**” means the general partner of the Guarantor.

#  

# “**Limited Partners**” means the limited partners set forth in thePartnership Agreement, as the same may be amended from time to time.

#  

# “**Obligations**” has the meaning set forth in the Agreement.

#  

# “**Partnership Agreement**” is that certain Limited Partnership Agreementdated as of June 15, 2000, as amended, by and among the Limited Partnersand the General Partner.

#  

# “**Portfolio Company Obligations**” are the aggregate amount ofGuarantor’s obligations from time to time under guarantees issued byGuarantor  with respect to theobligations of its portfolio companies (whether or not demand for payment hasbeen made thereunder).

#  

# “**Responsible Officer**” is Dennis Ferry, CFO.

#  

# “**Unencumbered Capital**” is Callable Capital minus the aggregateamount of outstanding Portfolio Company Obligations.

#  

# *[The remainder of this page is intentionallyleft blank]*

 

4

----

 

IN WITNESS WHEREOF, theundersigned Guarantor has executed this Guaranty as an instrument under sealunder the laws of the Commonwealth of Massachusetts, as of this 25 day of August,2005.

 

 
| ** ** | Date                                             | August 25,2005             | ** **  | **SCP PRIVATE EQUITY PARTNERS II, L.P.** |
|------------|--------------------------------------------------|---------------------------------|-------------|------------------------------------------|
|       | By: SCP Private Equity II General Partner, L.P., |
|       |                                             | its general partner             |
|       |                                             | By: SCP Private Equity II, LLC, |
|       |                                             |                            | its manager |                                     |
|       |                                             |                            |        |
|       |                                             |                            |        |
|       |                                             |                            | By:         | /S/ Thomas G. Rebar                      |   |
|       |                                             |                            | Name:       | Thomas G. Rebar                          |   |
|       |                                             |                            | Title:      | G Manager                                |   |
|            |                                                  |                                 |             |                                          |  |  |  |  |  |  |  |  |

 

5

----

 

**EXHIBIT A**

**COMPLIANCECERTIFICATE**

 

TO:         SILICON VALLEY BANK

FROM:   SCP PRIVATE EQUITYPARTNERS II, L.P.

 

The undersigned authorizedofficer of SCP PRIVATE EQUITY PARTNERS II, L.P. certifies that under the termsand conditions of the Guaranty executed by the Guarantor (the “Guaranty”), (i) Guarantoris in complete compliance for the period ending                            with all required covenants except as noted below and (ii) there are noEvents of Default, and all representations and warranties in the Guaranty aretrue and correct in all material respects on this date; provided however, thatthose representations and warranties expressly referring to another date shallbe true and correct in all material respects only as of such date.  Attached are the required documentssupporting the certification.  TheOfficer certifies that these are prepared in accordance with Generally AcceptedAccounting Principles (GAAP) consistently applied from one period to the nextexcept as explained in an accompanying letter or footnotes.  The Officer acknowledges that no borrowingsmay be requested at any time or date of determination that Guarantor is not incompliance with any of the terms of the Guaranty, and that compliance isdetermined not just at the date this certificate is delivered.

 

**Please indicate compliance statusby circling Yes/No under “Complies” column.**

 
| **Reporting Covenant**                                   | ** ** | **Required**               | ** ** | **Complies**            | ** ** |
|----------------------------------------------------------|------------|----------------------------|------------|-------------------------|------------|
| ** **                                               | ** ** | ** **                 | ** ** | ** **              | ** ** |
| Interim  financial statements for Guarantor              |       | Quarterly  within 60 days* |       | Yes   No |       |
| Annual  financial statements (CPA Audited) for Guarantor |       | FYE within  120 days       |       | Yes   No |       |
| Compliance  Certificate                                  |       | Quarterly  within 60 days  |       | Yes   No |       |

 

----

*except for the quarter-ending 12/31

 
| **Financial Covenant**                     | ** ** | **Required**                | ** ** | **Actual** | ** ** | **Complies**            | ** ** |
|--------------------------------------------|------------|-----------------------------|------------|------------|------------|-------------------------|------------|
| ** **                                 | ** ** | ** **                  | ** ** | ** ** | ** ** | ** **              | ** ** |
| Maintain at  all times (tested quarterly): | ** ** | ** **                  | ** ** | ** ** | ** ** | ** **              | ** ** |
| Minimum  Unencumbered Capital              |       | 3x  outstanding Obligations |       | :1.0       |       | Yes   No |       |

 
|                                             |       | **BANK USE ONLY**  |
|--------------------------------------------------|------------|--------------------|
| **Comments Regarding Exceptions:** See Attached. |       | Received by:       |   |   |
| Sincerely,                                       |       |               | AUTHORIZED SIGNER |
|                                             |       |               | Date: |   |   |
| SIGNATURE                                        |       |               |
|                                             |       |               | Verified: |   |   |
| TITLE                                            |       |               | AUTHORIZED SIGNER |
|                                             |       |               |   |
| DATE                                             | ** ** | Compliance Status: | Yes | No |
|                                                  |            |                    |  |  |  |  |  |  |  |  |  |  |

 

6

----