exv10w22w4



 






EXHIBIT 10.22.4




UNCONDITIONAL GUARANTY




     For and in consideration of the loan by COMERICA BANK, successor by merger to COMERICA
BANK-CALIFORNIA (“Bank”) to MANTAS, INC. (“Borrower”), which loan is made pursuant to an Amended
and Restated Loan and Security Agreement dated as of December 15, 2002, as amended from time to
time, including without limitation by that certain First Amendment to Amended and Restated Loan and
Security Agreement dated as of March 19, 2004 and that certain Second Amendment to Amended and
Restated Loan and Security Agreement (the “Second Amendment”) dated as of the date hereof
(collectively, the “Agreement”), and acknowledging that Bank would not enter into the Second
Amendment without the benefit of this Guaranty, the undersigned SAFEGUARD DELAWARE, INC.
(“Guarantor”) hereby unconditionally and irrevocably guarantees the prompt and complete payment of
all amounts that Borrower owes to Bank and performance by Borrower of the Agreement, in strict
accordance with its respective terms. All terms used without definition in this Guaranty shall
have the meaning assigned to them in the Agreement. Guarantor’s maximum liability under this
Guaranty shall not exceed a principal amount of $5,000,000 plus interest and fees accrued in
connection with the enforcement of the Agreement or this Guaranty.



     1. If Borrower does not pay any amount or perform its obligations in strict accordance with
the Agreement, Guarantor shall immediately pay all amounts due thereunder (including, without
limitation, all principal, interest, and fees) and otherwise to proceed to complete the same and
satisfy all of Borrower’s obligations under the Agreement.



     2. If there is more than one guarantor, the obligations hereunder are joint and several, and
whether or not there is more than one guarantor, the obligations hereunder are independent of the
obligations of Borrower and any other person or entity, and a separate action or actions may be
brought and prosecuted against Guarantor whether action is brought against Borrower or whether
Borrower be joined in any such action or actions. Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof, to the extent permitted
by law. Guarantor’s liability under this Guaranty is not conditioned or contingent upon the
genuineness, validity, regularity or enforceability of the Agreement.



     3. Guarantor authorizes Bank, without notice or demand and without affecting its liability
hereunder, from time to time to (a) renew, extend, or otherwise change the terms of the Agreement
or any part thereof; (b) take and hold security for the payment of this Guaranty or the Agreement,
and exchange, enforce, waive and release any such security; and (c) apply such security and direct
the order or manner of sale thereof as Bank in its sole discretion may determine.



     4. Guarantor waives any right to require Bank to (a) proceed against Borrower , any guarantor
or any other person; (b) proceed against or exhaust any security held from Borrower; or (c) pursue
any other remedy in Bank’s power whatsoever. Bank may, at its election, exercise or decline or
fail to exercise any right or remedy it may have against Borrower or any security held by Bank,
including without limitation the right to foreclose upon any such security by judicial or
nonjudicial sale, without affecting or impairing in any way the liability of Guarantor hereunder.
Guarantor waives any defense arising by reason of any disability or other defense of Borrower or by
reason of the cessation from any cause whatsoever of the liability of Borrower. Guarantor waives
any setoff, defense or counterclaim that Borrower may have against Bank. Guarantor waives any
defense arising out of the absence, impairment or loss of any right of reimbursement or subrogation
or any other rights against Borrower. Until all of the amounts that Borrower owes to Bank have
been paid in full, Guarantor shall have no right of subrogation or reimbursement, contribution or
other rights against Borrower, and Guarantor waives any right to enforce any remedy that Bank now
has or may hereafter have against Borrower. Guarantor waives all rights to participate in any
security now or hereafter held by Bank. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or
additional indebtedness. Guarantor assumes the responsibility for being and keeping itself
informed of the financial condition of Borrower and of all other circumstances bearing upon the
risk of nonpayment of any indebtedness or nonperformance of any obligation of Borrower, warrants to
Bank that it will keep so informed, and agrees that absent a request for particular information by
Guarantor, Bank shall not have any duty to advise Guarantor of information known to Bank regarding
such



 









 







condition or any such circumstances. Guarantor waives the benefits of California Civil Code
sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433.



     5. Guarantor acknowledges that, to the extent Guarantor has or may have certain 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. Without limiting the generality of the
foregoing, Guarantor waives any and all benefits and defenses under California Code of Civil
Procedure Sections 580a, 580b, 580d and 726, to the extent they are applicable.



     6. If Borrower becomes insolvent or is adjudicated bankrupt or files a petition for
reorganization, arrangement, composition or similar relief under any present or future provision of
the United States Bankruptcy Code, or if such a petition is filed against Borrower, and in any such
proceeding some or all of any indebtedness or obligations under the Agreement are terminated or
rejected or any obligation of Borrower is modified or abrogated, or if Borrower’s obligations are
otherwise avoided for any reason, Guarantor agrees that Guarantor’s liability hereunder shall not
thereby be affected or modified and such liability shall continue in full force and effect as if no
such action or proceeding had occurred. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if any payment must be returned by Bank upon the insolvency,
bankruptcy or reorganization of Borrower, Guarantor, any other guarantor, or otherwise, as though
such payment had not been made.



     7. Any indebtedness of Borrower now or hereafter held by Guarantor is hereby subordinated to
any indebtedness of Borrower to Bank; and such indebtedness of Borrower to Guarantor shall be
collected, enforced and received by Guarantor as trustee for Bank and be paid over to Bank on
account of the indebtedness of Borrower to Bank but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty.



     8. Upon Bank’s request, Guarantor agrees to complete and sign a financial statement on Bank’s
form. Guarantor agrees to pay reasonable attorneys’ fees and all other costs and expenses which
may be incurred by Bank in the enforcement of this Guaranty. No terms or provisions of this
Guaranty may be changed, waived, revoked or amended without Bank’s prior written consent. Should
any provision of this Guaranty be determined by a court of competent jurisdiction to be
unenforceable, all of the other provisions shall remain effective. This Guaranty, together with
any agreements (including without limitation any security agreements or any pledge agreements)
executed in connection with this Guaranty, embodies the entire agreement among the parties hereto
with respect to the matters set forth herein, and supersedes all prior agreements among the parties
with respect to the matters set forth herein. No course of prior dealing among the parties, no
usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement,
modify or vary any of the terms hereof. There are no conditions to the full effectiveness of this
Guaranty. Bank may assign this Guaranty without in any way affecting Guarantor’s liability under
it. This Guaranty shall inure to the benefit of Bank and its successors and assigns. This
Guaranty is in addition to the guaranties of any other guarantors and any and all other guaranties
of Borrower’s indebtedness or liabilities to Bank.



     9. Guarantor represents and warrants to Bank that (i) Guarantor has taken all necessary and
appropriate action to authorize the execution, delivery and performance of this Guaranty, (ii)
execution, delivery and performance of this Guaranty do not conflict with or result in a breach of
or constitute a default under Guarantor’s Certificate of Incorporation or Bylaws or other
organizational documents or agreements to which it is party or by which it is bound, and (iii) this
Guaranty constitutes a valid and binding obligation, enforceable against Guarantor in accordance
with its terms.



     10. Guarantor covenants and agrees that Guarantor shall do all of the following:



          10.1. Guarantor shall maintain its corporate existence, remain in good standing in the state
of its incorporation, and continue to qualify in each jurisdiction in which the failure to so
qualify could have a material adverse effect on the financial condition, operations or business of
Guarantor. Guarantor shall maintain in force all licenses, approvals and agreements, the loss of
which could have a material adverse effect on its financial condition, operations or business.



 









 





          10.2. Guarantor shall comply with all statutes, laws, ordinances, directives, orders, and
government rules and regulations to which it is subject if non-compliance with such laws could
adversely affect the financial condition, operations or business of Guarantor.



          10.3. At any time and from time to time Guarantor shall execute and deliver such further
instruments and take such further action as may reasonably be requested by Bank to effect the
purposes of this Guaranty.



     11. This Guaranty shall be governed by the laws of the State of California, without regard to
conflicts of laws principles. GUARANTOR WAIVES ANY RIGHT 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 THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. Guarantor submits to the exclusive jurisdiction of the state and federal courts
located in Santa Clara County, California for purposes of this Guaranty and the Agreement



     12. Guarantor represents and warrants to Bank that (i) it is the General Partner of Safeguard
99 Capital L.P., Safeguard 2000 Capital L.P. and Safeguard 2001 Capital L.P., all of which own
capital stock of Borrower and (ii) the financial statements of Guarantor and its Affiliates
provided to Bank are true and correct in all material respects.



     13. By acceptance of this Guaranty, Bank agrees that it will not make Credit Extensions to
Borrower under the Agreement in excess of a principal amount of $5,000,000. If Bank makes any
Credit Extensions in excess of such amount, this Guaranty shall be valid only to the extent of
Credit Extensions in a principal amount of $5,000,000 plus interest and fees.



     14. Reference Provision. If and only if the jury trial waiver set forth in Section 11 of this
Agreement is invalidated for any reason by a court of law, statute or otherwise, the reference
provisions set forth below shall be substituted in place of the jury trial waiver. So long as the
jury trial waiver remains valid, the reference provisions set forth in this Section shall be
inapplicable.



          14.1. Each controversy, dispute or claim (each, a “Claim”) between the parties arising out of
or relating to this Agreement, any security agreement executed by Guarantor in favor of Bank, any
note executed by Guarantor in favor of Bank or any other document, instrument or agreement executed
by Guarantor with or in favor of Bank (collectively in this Section, the “Loan Documents”), other
than (i) all matters in connection with nonjudicial foreclosure of security interests in real or
personal property; or (ii) the appointment of a receiver or the exercise of other provisional
remedies (any of which may be initiated pursuant to applicable law) that are not settled in writing
within fifteen (15) days after the date on which a party subject to the Loan Documents gives
written notice to all other parties that a Claim exists (the “Claim Date”) shall be resolved by a
reference proceeding in California in accordance with the provisions of Section 638 et seq. of the
California Code of Civil Procedure, or their successor sections (“CCP”), which shall constitute the
exclusive remedy for the resolution of any Claim concerning the Loan Documents, including whether
such Claim is subject to the reference proceeding. Except as set forth in this section, the
parties waive the right to initiate legal proceedings against each other concerning each such
Claim. Venue for these proceedings shall be in the Superior Court in the County where the real
property, if any, is located or in a County where venue is otherwise appropriate under state law
(the “Court”). By mutual agreement, the parties shall select a retired Judge of the Court to serve
as referee, and if they cannot so agree within fifteen (15) days after the Claim Date, the
Presiding Judge of the Court (or his or her representative) shall promptly select the referee. A
request for appointment of a referee may be heard on an ex parte or expedited basis. The referee
shall be appointed to sit as a temporary judge, with all the powers for a temporary judge, as
authorized by law, and upon selection should take and subscribe to the oath of office as provided
for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). Each party
shall have one peremptory challenge pursuant to CCP §170.6. Upon being selected, the referee shall
(a) be requested to set the matter for a status and trial-setting conference within fifteen (15)
days after the date of selection and (b) if practicable, try any and all issues of law or fact and
report a statement of decision upon them within ninety (90) days of the date of selection. The
referee will have power to expand or limit the amount of discovery a party may employ. Any
decision rendered by the referee will be final, binding and conclusive, and judgment shall be
entered pursuant to CCP §644 in any court in the State of California having jurisdiction. The
parties shall complete all discovery no later than fifteen (15) days before the first trial date
established by the referee. The referee may extend such period in the event of a party’s refusal
to provide requested discovery for any reason whatsoever, including, without limitation, legal
objections raised to such



 









 







discovery or unavailability of a witness due to absence or illness. No party shall be
entitled to “priority” in conducting discovery. Either party may take depositions upon seven (7)
days written notice, and shall respond to requests for production or inspection of documents within
ten (10) days after service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whose decision shall be final and binding upon the
parties. Pending appointment of the referee as provided herein, the Superior Court is empowered to
issue temporary and/or provisional remedies, as appropriate.



          14.2. Except as expressly set forth herein, the referee shall determine the manner in which
the reference proceeding is conducted including the time and place of all hearings, the order of
presentation of evidence, and all other questions that arise with respect to the course of the
reference proceeding. Except for trial, all proceedings and hearings conducted before the referee
shall be conducted without a court reporter unless a party requests a court reporter. The party
making such a request shall have the obligation to arrange for and pay for the court reporter.
Subject to the referee’s power to award costs to the prevailing party, the parties shall equally
bear the costs of the court reporter at the trial and the
referee’s expenses.



          14.3. The referee shall determine all issues in accordance with existing California case and
statutory law. California rules of evidence applicable to proceedings at law will apply to the
reference proceeding. The referee shall be empowered to enter equitable as well as legal relief,
to provide all temporary and/or provisional remedies and to enter equitable orders that shall be
binding upon the parties. At the close of the reference proceeding, the referee shall issue a
single judgment at disposing of all the claims of the parties that are the subject of the
reference. The parties reserve the right (i) to contest or appeal from the final judgment or any
appealable order or appealable judgment entered by the referee and (ii) to obtain findings of fact,
conclusions of laws, a written statement of decision, and (iii) to move for a new trial or a
different judgment, which new trial, if granted, shall be a reference proceeding under this
provision.



          14.4. If the enabling legislation which provides for appointment of a referee is repealed (and
no successor statute is enacted), any dispute between the parties that would otherwise be
determined by the reference procedure herein described will be resolved and determined by
arbitration conducted by a retired judge of the Court, in accordance with the California
Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations
with respect to discovery as set forth in this Section shall apply to any such arbitration
proceeding.



     IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of March 31, 2004.


	 	 	 	 	 
	 	SAFEGUARD DELAWARE, INC.

 	 
	 	By:  	/s/ Christopher J. Davis
 	 
	 
	 	Title:  	Vice President