Exhibit 10.2


 


UNCONDITIONAL GUARANTY


 


For and in consideration of
certain loans by SILICON VALLEY BANK,
a California-chartered bank, with its principal place of business at
3003 Tasman Drive, Santa Clara, California 95054 and with a loan
production office located at One Newton Executive Park, Suite 200, 2221
Washington Street, Newton, Massachusetts 02462 (“Bank”) to CLEARSTORY SYSTEMS, INC., a Delaware
corporation (hereinafter, the “Borrower”), which loans were made pursuant to a
certain Loan and Security Agreement between Borrower and Bank dated August 25,
2005, as may be amended from time to time (hereinafter, the “Agreement”), the
undersigned guarantor SCP PRIVATE EQUITY
PARTNERS II, L.P., a Delaware limited partnership (“Guarantor”), hereby
unconditionally and irrevocably guarantees the prompt and complete payment of
all amounts that Borrower owes to Bank under the Agreement and performance by
Borrower of Borrower’s Obligations under the Agreement, as may be amended from
time to time, in strict accordance with its terms.  All terms used herein but not defined shall
have the meaning ascribed to such term in the Agreement.


 


1.                                       If Borrower does not perform its
Obligations under the Agreement and an Event of Default shall have occurred and
is continuing, Guarantor will, within twenty-one (21) days of receipt of demand
from Bank, immediately pay all amounts due (including, without limitation, all
principal, interest,  and fees) and
satisfy all Borrower’s Obligations under the Agreement.


 


2.                                       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).  Guarantor  waives benefit of any statute of limitations
affecting its liability.  Guarantor’s
liability is not contingent on the genuineness or enforceability of the
Agreement.


 


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


 


4.                                       As long as the Credit Extensions
remain outstanding and the Agreement has not been terminated, Guarantor waives
to the extent not prohibited by law:


 


(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 non-judicial sale) without affecting Guarantor’s
liability.


 


(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 (other than the defense of payment or performance).


 


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


 


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(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 or notices of
nonperformance. Guarantor is responsible for being and keeping itself informed
of Borrower’s financial condition. 
Unless Guarantor requests particular information, Bank has no duty to
provide information to Guarantor.


 


5.                                       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 (to the extent
not prohibited by law) and any others arising from Bank’s election to pursue
non-judicial foreclosure.


 


6.                                       If Borrower becomes insolvent or
is adjudicated bankrupt or files a petition for reorganization or similar
relief under the United States Bankruptcy Code, or if a petition is filed
against Borrower and/or any Obligation under the Agreement is terminated or
rejected,  or any Obligation of Borrower
is modified or if Borrower ‘s Obligations are avoided Guarantor’s liability
will not be affected and its liability will continue.  If Bank must 
return any payment because of the insolvency, bankruptcy or
reorganization of Borrower, Guarantor or any other guarantor, this Guaranty
will remain effective or be reinstated.


 


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


 


8.                                       Guarantor will pay Bank’s
reasonable attorneys’ fees and other costs and expenses incurred enforcing this
Guaranty. This Guaranty may not be waived, revoked or amended without Bank’s
prior  written consent.  If any provision of this Guaranty is
unenforceable, all other provisions remain effective.  This Guaranty represents the entire agreement
among the parties about this guaranty. 
No prior dealings, no usage of trade, and no parol or extrinsic evidence
may 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 other
guaranties Bank obtains.


 


9.                                       Guarantor represents and warrants
that, as of the date hereof, (i) it has taken all action necessary to  authorize execute, deliver and perform this
Guaranty; (ii) execution, delivery and performance of this Guaranty do not
conflict with any organizational documents or agreements to which it is a
party; 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 good
standing in its state of organization, and continue to qualify in each
jurisdiction in which the failure to qualify could have a material adverse
effect on the financial condition, operations or business.  Maintain all licenses, approvals, and
agreements, the loss of which could have a material adverse effect on its
financial condition, operations or business.


 


(b)                                 Comply with all statutes and regulations if
non-compliance could adversely affect its financial condition, operations or
business.


 


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(c)                                  Execute other instruments and take action
Bank 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 last
day of each quarter, Unencumbered Capital, in an amount equal to or greater
than three (3) times the aggregate outstanding Obligations; provided,
however, that if, at any time, Unencumbered Capital is less than three (3) times
the aggregate outstanding Obligations, Guarantor shall, as soon as possible but
in no event later than thirty (30) days thereafter, either (i) deposit and
maintain with Bank, at all times thereafter, cash in such amounts as Bank
determines will secure the full amount of the outstanding Obligations, or (ii) provide
Bank with an irrevocable letter of credit, on terms and conditions reasonably
acceptable to Bank in its sole discretion, from a financial institution
reasonably acceptable to Bank in its sole discretion, and in such amount as
Bank determines will secure the full amount of the outstanding Obligations.


 


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


 


(f)                                    Within sixty (60) days after the last day of
each quarter, Guarantor shall deliver to Bank a Compliance Certificate signed
by 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 (including
a Bank subsidiary) or in transit to any of them.  At any time after the occurrence and during
the continuance of an Event of Default, without demand or notice, Bank may set
off the same or any part thereof and apply the same to any liability or
obligation of Guarantor arising hereunder even though unmatured and regardless
of the adequacy of any other collateral securing the loan.  ANY AND ALL RIGHTS TO REQUIRE BANK TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE GUARANTOR, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.


 


12.                                 Massachusetts law governs this Guaranty
without regard to principles of conflicts of law.  Guarantor and Bank each submit to the
exclusive jurisdiction of the State and Federal courts in Massachusetts; provided,
however, that if for any reason Bank cannot avail itself of such courts in the
Commonwealth of Massachusetts, Guarantor accepts jurisdiction of the courts and
venue in Santa Clara County, California. 
GUARANTOR AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN
DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF
DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES
TO ENTER INTO THIS AGREEMENT.  EACH PARTY
HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.


 


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13.                                 Definitions. In this Guaranty:


 


“Callable Capital” is the remaining amount of capital,
excluding capital attributable to Defaulting Partners, which Guarantor would be
able to obtain from the General Partner and the Limited Partners, without
condition, upon proper issuance of capital call notices in accordance with the
Partnership Agreement.


 


“Defaulting Partner” is the General Partner or any Limited
Partner who has previously failed to comply with any portion of a capital call
made by the Guarantor or the General Partner (for any fund under General
Partner’s management) unless: (i) such failure has been cured, or (ii) the
Guarantor has substituted the Defaulting Partner with another partner, in
accordance with the Partnership Agreement, who is in compliance with all of the
terms of the Partnership Agreement.


 


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


 


“Limited Partners” means the limited partners set forth in the
Partnership 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 Agreement
dated as of June 15, 2000, as amended, by and among the Limited Partners
and the General Partner.


 


“Portfolio Company Obligations” are the aggregate amount of
Guarantor’s obligations from time to time under guarantees issued by
Guarantor  with respect to the
obligations of its portfolio companies (whether or not demand for payment has
been made thereunder).


 


“Responsible Officer” is Dennis Ferry, CFO.


 


“Unencumbered Capital” is Callable Capital minus the aggregate
amount of outstanding Portfolio Company Obligations.


 


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left blank]


 


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IN WITNESS WHEREOF, the
undersigned Guarantor has executed this Guaranty as an instrument under seal
under 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

  	
   

  
													



 


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EXHIBIT A


COMPLIANCE
CERTIFICATE


 


TO:         SILICON VALLEY BANK


FROM:   SCP PRIVATE EQUITY
PARTNERS II, L.P.


 


The undersigned authorized
officer of SCP PRIVATE EQUITY PARTNERS II, L.P. certifies that under the terms
and conditions of the Guaranty executed by the Guarantor (the “Guaranty”), (i) Guarantor
is in complete compliance for the period ending                            
with all required covenants except as noted below and (ii) there are no
Events of Default, and all representations and warranties in the Guaranty are
true and correct in all material respects on this date; provided however, that
those representations and warranties expressly referring to another date shall
be true and correct in all material respects only as of such date.  Attached are the required documents
supporting the certification.  The
Officer certifies that these are prepared in accordance with Generally Accepted
Accounting Principles (GAAP) consistently applied from one period to the next
except as explained in an accompanying letter or footnotes.  The Officer acknowledges that no borrowings
may be requested at any time or date of determination that Guarantor is not in
compliance with any of the terms of the Guaranty, and that compliance is
determined not just at the date this certificate is delivered.


 


Please indicate compliance status
by 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

  
													



 


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