exv10w4



 





Exhibit 10.4



GUARANTY




                    For and in consideration of the loan by COMERICA BANK (“Bank”) to ALLIANCE
CONSULTING GROUP ASSOCIATES, INC. and ALLIANCE HOLDINGS, INC. (collectively,
“Borrower”), which loan is made pursuant to a Loan and Security Agreement dated
as of September 25, 2003, as amended from time to time, including without
limitation by that certain First Amendment to Loan and Security Agreement dated
as of December 12, 2003, that certain Second Amendment to Loan and Security
Agreement dated as of May 27, 2004, that certain Third Amendment to Loan
Documents dated as of August 9, 2004, and that certain Fourth Amendment to Loan
Documents dated as of the date hereof (collectively, the “Agreement”), and
acknowledging that Bank would not enter into the Agreement without the benefit
of this Guaranty, each of the undersigned guarantors (each a “Guarantor”;
collectively, the “Guarantors”) 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 and any other agreements
between Borrower and Bank, executed and/or delivered in connection with the
Agreement as amended from time to time (collectively referred to as the
“Agreements”), in strict accordance with their respective terms. All terms
used without definition in this Guaranty shall have the meaning assigned to
them in the Agreement.



                    1.           Each Guarantor guarantees to Bank payment of all amounts due under the
Agreements (collectively, the “Obligations”) provided that no demand shall be
made by Bank against Guarantors under this Guaranty until such time as Bank has
accelerated all of the Obligations pursuant to the terms of the Agreements,
provided that acceleration shall not be necessary where it is delayed or
restricted by any law or judicial order, including a stay under the United
States Bankruptcy Code or other insolvency law.



                    2.           Subject to Section 1, the obligations hereunder are joint and several
and 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
a Guarantor whether action is brought against Borrower or whether Borrower be
joined in any such action or actions. Each Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof, to the extent permitted by law. Guarantors’ liability under this
Guaranty is not conditioned or contingent upon the genuineness, validity,
regularity or enforceability of the Agreements.



                    3.           Each Guarantor authorizes Bank, without notice or demand and without
affecting its liability hereunder, from time to time to (a) agree with Borrower
to renew, extend, or otherwise change the terms of the Agreements or any part
thereof; (b) take and hold security for the payment of this Guaranty or the
Agreements, 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.           Subject to Section 1, above, each 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 Guarantors hereunder. Each
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. Each Guarantor waives any setoff, defense or
counterclaim that Borrower may have against Bank. Each 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, Guarantors
shall have no right of subrogation or reimbursement, contribution or other
rights against Borrower, and each Guarantor waives any right to enforce any
remedy that Bank now has or may hereafter have against Borrower. Each
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. Guarantors assume the responsibility for being
and keeping themselves 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, warrant to Bank that they will
keep so informed, and agree that absent a request for particular information by
Guarantors, Bank shall not have any duty to advise Guarantors of information
known to Bank regarding such condition or any such circumstances. Each
Guarantor waives the benefits of California Civil Code sections 2809, 2810,
2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433.



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                    5.           Each Guarantor acknowledges that, to the extent such 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 Guarantors against its obligations under this Guaranty. Each
Guarantor waives that defense and any others arising from Bank’s election to
pursue non-judicial foreclosure. Without limiting the generality of the
foregoing, each 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 Agreements are terminated or
rejected or any obligation of Borrower is modified or abrogated, or if
Borrower’s obligations are otherwise avoided for any reason, Guarantors agree
that their 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, a Guarantor, any
other guarantor, or otherwise, as though such payment had not been made.



                    7.           Guarantors agree 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
Guarantors’ 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.



                    8.           Each 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.



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



                                  9.1.           Guarantor shall maintain its corporate existence, remain in good
standing in the state of its organization, 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.



                                  9.2.           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.



                                  9.3.           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.



                                  9.4.           Guarantor shall not transfer, assign, encumber or otherwise dispose
of any shares of capital stock or other equity interest Guarantor may now have
or hereafter acquire in Borrower, other than stock options issued in the normal
course of business to its employees.



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                    10.           This Guaranty shall be governed by the laws of the State of
California, without regard to conflicts of laws principles. EACH 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. Each 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 Agreements.



                    11.           REFERENCE PROVISION.



                    If and only if the jury trial waiver set forth in Section 10 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.



                                  11.1.           Each controversy, dispute or claim (each, a “Claim”) between the
parties arising out of or relating to this Agreement, any security agreement
executed by a Guarantor in favor of Bank, or any other document, instrument or
agreement executed by a 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.



                                  11.2.           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



                                  11.3.           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.



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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.



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 Guarantors have executed this Guaranty
as of this 30th day of September, 2004.



	 	 	 	 	 
	 	 	SAFEGUARD DELAWARE, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Steve Grenfell
	

	 	 	 	
 
	

	 	Title:
	 	Vice President
	

	 	 	 	
 
	 
	 	 	 	 
	 	 	SAFEGUARD DELAWARE, INC.
	 	 	Attn: CFO
	 	 	800 The Safeguard Building
	 	 	435 Devon Park Drive
	 	 	Wayne, PA 19087
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	SAFEGUARD SCIENTIFICS (DELAWARE), INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Steve Grenfell
	

	 	 	 	
 
	

	 	Title:
	 	Vice President
	

	 	 	 	
 
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	SAFEGUARD SCIENTIFICS (DELAWARE), INC.
	 	 	Attn: CFO
	 	 	800 The Safeguard Building
	 	 	435 Devon Park Drive
	 	 	Wayne, PA 19087








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