Exhibit 10.2
GENERAL CONTINUING GUARANTY
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THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of February 9,
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2001, is executed and delivered by each of the Guarantors (as defined below), in
favor of Foothill Capital Corporation, a California corporation ("Guarantied
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Party"), with reference to the following:
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WHEREAS, MicroStrategy Incorporated, a Delaware corporation ("Parent")
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and MicroStrategy Services Corporation, a Delaware corporation ("Borrower"), and
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Guarantied Party are, contemporaneously herewith, entering into that certain
Loan and Security Agreement (the "Loan Agreement");
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WHEREAS, Parent, Aventine, Incorporated, a Delaware corporation,
MicroStrategy Capital Corporation, a Delaware corporation, and MicroStrategy
Management Corporation, a Delaware corporation (each a "Guarantor" and
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collectively, the "Guarantors"), are all Affiliates of Borrower, and each
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Guarantor will benefit from Guarantied Party's agreement to make financial
accommodations to Borrower; and
WHEREAS, in order to induce Guarantied Party to extend financial
accommodations to Borrower pursuant to the Loan Agreement, and in consideration
thereof, and in consideration of any loans or other financial accommodations
heretofore or hereafter extended by Guarantied Party to Borrower, whether
pursuant to the Loan Agreement or otherwise, each Guarantor has agreed to
guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor
hereby agrees, in favor of Guarantied Party, as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise
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defined herein shall have the meanings ascribed to them in the Loan Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"Borrower" shall have the meaning set forth in the recitals to
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this Guaranty.
"Guarantied Obligations" shall mean: the due and punctual payment
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of the principal of, and interest (including, any and all interest which,
but for the application of the provisions of the Bankruptcy Code, would
have accrued on such amounts) on, any and all premium on, and any and all
fees, costs, and expenses (including, any and all fees, costs, and expenses
which, but for the application of the provisions of the Bankruptcy Code,
would have accrued on such amounts) incurred in connection with or on the
Indebtedness owed by Borrower to Guarantied Party pursuant to the terms of
the Loan Documents.
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"Guarantied Party" shall have the meaning set forth in the
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preamble to this Guaranty.
"Guarantor" or "Guarantors" shall have the respective meaning set
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forth in the preamble to this Guaranty.
"Guaranty" shall have the meaning set forth in the preamble to
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this Guaranty.
"Indebtedness" shall mean any and all obligations, indebtedness,
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or liabilities of any kind or character owed by Borrower to Guarantied
Party and arising directly or indirectly out of or in connection with the
Loan Agreement or the other Loan Documents, including all such obligations,
indebtedness, or liabilities, whether for principal, interest (including
any and all interest which, but for the application of the provisions of
the Bankruptcy Code, would have accrued on such amounts), premium,
reimbursement obligations, fees, costs, expenses (including attorneys
fees), or indemnity obligations, whether heretofore, now, or hereafter
made, incurred, or created, whether voluntarily or involuntarily made,
incurred, or created, whether secured or unsecured (and if secured,
regardless of the nature or extent of the security), whether absolute or
contingent, liquidated or unliquidated, or determined or indeterminate,
whether Borrower is liable individually or jointly with others, and whether
recovery is or hereafter becomes barred by any statute of limitations or
otherwise becomes unenforceable for any reason whatsoever, including any
act or failure to act by Guarantied Party.
"Loan Agreement" shall have meaning set forth in the recitals to
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this Guaranty.
"Parent" shall have meaning set forth in the recitals to this
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Guaranty.
(b) Construction. Unless the context of this Guaranty clearly
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requires otherwise, references to the plural include the singular, references to
the singular include the plural, the part includes the whole, the terms
"include" and "including" are not limiting, and the term "or" has the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms refer to this Guaranty as a whole
and not to any particular provision of this Guaranty. Any reference in this
Guaranty to any of the following documents includes any and all alterations,
amendments, restatements, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: the Loan Agreement; this Guaranty; and the
other Loan Documents. Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against Guarantied Party or a Guarantor,
whether under any rule of construction or otherwise. On the contrary, this
Guaranty has been reviewed by each Guarantor, Guarantied Party, and their
respective counsel, and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of Guarantied Party and each Guarantor.
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2. Guarantied Obligations. Each Guarantor, individually and
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collectively, jointly and severally, hereby irrevocably and unconditionally
guaranties to Guarantied Party, as and for its own debt, until final and
indefeasible payment thereof has been made, (a) the payment of the Guarantied
Obligations, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of such Guarantor that the
guaranty set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Borrower of all of the agreements, conditions, covenants, and
obligations of Borrower contained in the Loan Agreement and under each of the
other Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
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arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, each Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that (a) no such revocation shall be effective until written notice thereof has
been received by Guarantied Party, (b) no such revocation shall apply to any
Guarantied Obligations in existence on such date (including any subsequent
continuation, extension, or renewal thereof, or change in the interest rate,
payment terms, or other terms and conditions thereof), (c) no such revocation
shall apply to any Guarantied Obligations made or created after such date to the
extent made or created pursuant to a legally binding commitment of Guarantied
Party in existence on the date of such revocation, (d) no payment by any
Guarantor, Borrower, or from any other source, prior to the date of such
revocation shall reduce the maximum obligation of such Guarantor hereunder, and
(e) any payment by Borrower or from any source other than such Guarantor
subsequent to the date of such revocation shall first be applied to that portion
of the Guarantied Obligations as to which the revocation is effective and which
are not, therefore, guarantied hereunder, and to the extent so applied shall not
reduce the maximum obligation of such Guarantor hereunder.
4. Performance Under this Guaranty. In the event that Borrower fails to
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make any payment of any Guarantied Obligations, on or before the due date
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section 2 hereof in the manner
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provided in the Loan Agreement or the other Loan Documents, as applicable, each
Guarantor immediately shall cause such payment to be made or each of such
obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
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obligation of each Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions. Each Guarantor agrees that it is
directly, jointly and severally with any other guarantor of the Guarantied
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Obligations, liable to Guarantied Party, that the obligations of such Guarantor
hereunder are independent of the obligations of Borrower or any other guarantor,
and that a separate action may be brought against such Guarantor, whether such
action is brought against Borrower or any other guarantor or whether Borrower or
any other guarantor is joined in such action. Each Guarantor agrees that its
liability hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by Guarantied Party of whatever remedies it may have
against Borrower or any other guarantor, or the enforcement of any lien or
realization upon any security Guarantied Party may at any time possess. Each
Guarantor agrees that any release which may be given by Guarantied Party to
Borrower or any other guarantor shall not release such Guarantor. Each Guarantor
consents and agrees that Guarantied Party shall be under no obligation to
marshal any property or assets of Borrower or any other guarantor in favor of
such Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6. Waivers.
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(a) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans or
other financial accommodations made or extended under the Loan Agreement,
or the creation or existence of any Guarantied Obligations; (iii) notice of
the amount of the Guarantied Obligations, subject, however, to such
Guarantor's right to make inquiry of Guarantied Party to ascertain the
amount of the Guarantied Obligations at any reasonable time; (iv) notice of
any adverse change in the financial condition of Borrower or of any other
fact that might increase such Guarantor's risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to any
instrument among the Loan Documents; (vi) notice of any Default or Event of
Default under the Loan Agreement; and (vii) all other notices (except if
such notice is specifically required to be given to such Guarantor under
this Guaranty or any other Loan Documents to which such Guarantor is a
party) and demands to which such Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, each Guarantor
waives the right by statute or otherwise to require Guarantied Party to
institute suit against Borrower or to exhaust any rights and remedies which
Guarantied Party has or may have against Borrower. In this regard, each
Guarantor agrees that it is bound to the payment of each and all Guarantied
Obligations, whether now existing or hereafter arising, as fully as if such
Guarantied Obligations were directly owing to Guarantied Party by such
Guarantor. Each Guarantor further waives any defense arising by reason of
any disability or other defense (other than the defense that the Guarantied
Obligations shall have been fully and finally performed and indefeasibly
paid in full in cash) of Borrower or by reason of the cessation from any
cause whatsoever of the liability of Borrower in respect thereof.
(c) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) any rights to assert against Guarantied Party any
defense (legal or equitable), set-off, counterclaim, or claim which such
Guarantor may now or at any time hereafter have against Borrower or any
other party liable to Guarantied Party; (ii) any defense, set-off,
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counterclaim, or claim, of any kind or nature, arising directly or indirectly
from the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guarantied Obligations or any security therefor; (iii) any
defense arising by reason of any claim or defense based upon an election of
remedies by Guarantied Party including any defense based upon an election of
remedies by Guarantied Party under the provisions of (S)(S) 580d and 726 of the
California Code of Civil Procedure, or any similar law of California or any
other jurisdiction; (iv) the benefit of any statute of limitations affecting
such Guarantor's liability hereunder or the enforcement thereof, and any act
which shall defer or delay the operation of any statute of limitations
applicable to the Guarantied Obligations shall similarly operate to defer or
delay the operation of such statute of limitations applicable to such
Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations (excluding
any Guarantied Obligations with respect to the Warrant and the Registration
Rights Agreement) have been fully, finally, and indefeasibly paid in full in
cash: (i) each Guarantor hereby postpones any right of subrogation such
Guarantor has or may have as against Borrower with respect to the Guarantied
Obligations; (ii) in addition, each Guarantor hereby postpones any right to
proceed against Borrower or any other Person, now or hereafter, for
contribution, indemnity, reimbursement, or any other suretyship rights and
claims (irrespective of whether direct or indirect, liquidated or contingent),
with respect to the Guarantied Obligations; and (iii) in addition, each
Guarantor also hereby postpones any right to proceed or to seek recourse against
or with respect to any property or asset of Borrower.
(e) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE
MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES
ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE
(S)(S) 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845,
2847, 2848, 2849, AND 2850, CALIFORNIA CODE OF CIVIL PROCEDURE (S)(S) 580a,
580b, 580c, 580d, AND 726, AND CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL
CODE.
(f) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY THE GUARANTIED PARTY, EVEN
THOUGH THAT ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT
TO SECURITY FOR A GUARANTIED OBLIGATION, HAS DESTROYED SUCH GUARANTOR'S RIGHTS
OF SUBROGATION AND REIMBURSEMENT AGAINST BORROWER BY THE OPERATION OF SECTION
580d OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR OTHERWISE.
7. Releases. Each Guarantor consents and agrees that, without notice
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to or by such Guarantor and without affecting or impairing the obligations of
such Guarantor hereunder, Guarantied Party may, by action or inaction,
compromise or settle, extend the period of
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duration or the time for the payment, or discharge the performance of, or may
refuse to, or otherwise not enforce, or may, by action or inaction, release all
or any one or more parties to, any one or more of the terms and provisions of
the Loan Agreement or any of the other Loan Documents or may grant other
indulgences to Borrower in respect thereof, or may amend or modify in any manner
and at any time (or from time to time) any one or more of the Loan Agreement or
any of the other Loan Documents, or may, by action or inaction, release or
substitute any other guarantor, if any, of the Guarantied Obligations, or may
enforce, exchange, release, or waive, by action or inaction, any security for
the Guarantied Obligations or any other guaranty of the Guarantied Obligations,
or any portion thereof.
8. No Election. Guarantied Party shall have the right to seek recourse
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against each Guarantor to the fullest extent provided for herein and no election
by Guarantied Party to proceed in one form of action or proceeding, or against
any party, or on any obligation, shall constitute a waiver of Guarantied Party's
right to proceed in any other form of action or proceeding or against other
parties unless Guarantied Party has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by Guarantied Party under any document or instrument evidencing the
Guarantied Obligations shall serve to diminish the liability of a Guarantor
under this Guaranty except to the extent that Guarantied Party finally and
unconditionally shall have realized indefeasible payment by such action or
proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be
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considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Guarantied Party are no longer subject to any right on the part of
any person whomsoever, including Borrower, Borrower as a debtor in possession,
or any trustee (whether appointed under the Bankruptcy Code or otherwise) of any
Borrower's assets to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, all or any
portion of such payments to Guarantied Party is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in full
force and effect as if said payment or payments had not been made and each
Guarantor shall be liable for the full amount Guarantied Party is required to
repay plus any and all costs and expenses (including reasonable attorneys fees)
paid by Guarantied Party in connection therewith.
10. Financial Condition of Borrower. Each Guarantor represents and
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warrants to Guarantied Party that it is currently informed of the financial
condition of Borrower and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guarantied
Obligations. Each Guarantor further represents and warrants to Guarantied Party
that it has read and understands the terms and conditions of the Loan Agreement
and the other Loan Documents. Each Guarantor hereby covenants that it will
continue to keep itself informed of Borrower's financial condition, the
financial condition of other guarantors, if any, and of all other circumstances
which bear upon the risk of nonpayment or nonperformance of the Guarantied
Obligations.
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11. Payments; Application. All payments to be made hereunder by a
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Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by a Guarantor hereunder shall be applied as follows: first, to all reasonable
costs and expenses (including reasonable attorneys fees) incurred by Guarantied
Party in enforcing this Guaranty or in collecting the Guarantied Obligations;
second, to all accrued and unpaid interest, premium, if any, and fees owing to
Guarantied Party constituting Guarantied Obligations; and third, to the balance
of the Guarantied Obligations.
12. Attorneys Fees and Costs. Each Guarantor agrees to pay, on demand,
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all reasonable attorneys fees and all other reasonable costs and expenses which
may be incurred by Guarantied Party in the enforcement of this Guaranty or in
any way arising out of, or consequential to the protection, assertion, or
enforcement of the Guarantied Obligations (or any security therefor),
irrespective of whether suit is brought.
13. Notices. Unless otherwise specifically provided in this Guaranty, any
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notice or other communication relating to this Guaranty shall be made in
accordance with the terms of the Loan Agreement.
14. Cumulative Remedies. No remedy under this Guaranty, under the Loan
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Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given under this Guaranty, under the Loan Agreement, or any
other Loan Document, and those provided by law. No delay or omission by
Guarantied Party to exercise any right under this Guaranty shall impair any such
right nor be construed to be a waiver thereof. No failure on the part of
Guarantied Party to exercise, and no delay in exercising, any right under this
Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise
thereof or the exercise of any other right.
15. Severability of Provisions. Any provision of this Guaranty which is
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prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire
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agreement between the Guarantors and Guarantied Party pertaining to the subject
matter contained herein. This Guaranty may not be altered, amended, or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by each Guarantor and
Guarantied Party. Any such alteration, amendment, modification, waiver, or
consent shall be effective only to the extent specified therein and for the
specific purpose for which given. No course of dealing and no delay or waiver
of any right or default under this Guaranty shall be deemed a waiver of any
other, similar or dissimilar, right or default or otherwise prejudice the rights
and remedies hereunder.
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17. Successors and Assigns. This Guaranty shall be binding upon Guarantor
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and its successors and assigns and shall inure to the benefit of the successors
and assigns of Guarantied Party; provided, however, Guarantor shall not assign
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this Guaranty or delegate any of its duties hereunder without Guarantied Party's
prior written consent and any unconsented to assignment shall be absolutely
void. In the event of any assignment or other transfer of rights by Guarantied
Party, the rights and benefits herein conferred upon Guarantied Party shall
automatically extend to and be vested in such assignee or other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit
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of Guarantied Party and its successors and assigns and may not be relied on by
any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
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THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA. EACH
GUARANTOR AND GUARANTIED PARTY WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR
TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS SECTION 19.
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EACH GUARANTOR AND GUARANTIED PARTY HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH GUARANTOR AND GUARANTIED PARTY REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A
COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first written above.
MICROSTRATEGY INCORPORATED,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Financial Officer
AVENTINE, INCORPORATED,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: President
MICROSTRATEGY CAPITAL CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
MICROSTRATEGY MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
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