GUARANTY
EXHIBIT 99.2
For and in consideration of the loan by COMERICA BANK (“Bank”) to MANTAS, INC. ( “Borrower”),
which loan is made pursuant to a 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 Loan
Extension dated as of December 14, 2003, that certain First Amendment to Amended and Restated Loan
and Security Agreement dated as of March 19, 2004, that certain Second Amendment to Amended and
Restated Loan and Security Agreement dated as of March 31, 2004, that certain Third Amendment to
Amended and Restated Loan and Security Agreement dated as of January 28, 2005, that certain Fourth
Amendment to Amended and Restated Loan and Security Agreement dated as of March 14, 2005, that
certain letter agreement dated January 28, 2006, and that certain Fifth Amendment and Consent to
Amended and Restated Loan and Security Agreement 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. Guarantor’s maximum liability under this Guaranty shall not
exceed a principal amount of $3,500,000 plus interest and fees accrued in connection with the
enforcement of the Agreement or this Guaranty.
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
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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.
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.
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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.
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 Xxxxx County, California for purposes of this Guaranty and the Agreements.
11. REFERENCE PROVISION. In the event the Jury Trial Waiver set forth above is not
enforceable, the parties elect to proceed under this Judicial Reference Provision.
11.1. With the exception of the items specified in clause 12.2, below, any controversy,
dispute or claim (each, a “Claim”) between the parties arising out of or relating to this Agreement
or any other document, instrument or agreement between the undersigned parties (collectively in
this Section, the “Comerica Documents”), will be resolved by a reference proceeding in California
in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure
(“CCP”), or their successor sections, which shall constitute the exclusive remedy for the
resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except
as otherwise provided in the Comerica Documents, venue for the reference proceeding will be in the
state or federal court in the county or district where the real property involved in the action, if
any, is located or in the state or federal court in the county or district where venue is otherwise
appropriate under applicable law (the “Court”).
11.2. The matters that shall not be subject to a reference are the following: (i) nonjudicial
foreclosure of any security interests in real or personal property, (ii) exercise of self-help
remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv)
temporary, provisional or ancillary remedies (including, without limitation, writs of attachment,
writs of possession, temporary restraining orders or preliminary injunctions). This reference
provision does not limit the right of any party to exercise or oppose any of the rights and
remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent
jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition
to, any of those items does not waive the right of any party to a reference pursuant to this
reference provision as provided herein.
11.3. The referee shall be a retired judge or justice selected by mutual written agreement of
the parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to
the referee selected by the Presiding Judge of the Court (or his or her representative).
11.4. The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.
11.5. The referee will have power to expand or limit the amount and duration of discovery.
The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause shown, no party shall be entitled to “priority” in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and all other
discovery shall be responded to within fifteen (15) 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.
11.6. 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 hearings, the order of
presentation of evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the referee, except for trial,
shall be conducted without a court reporter, except that when
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any party so requests, a court reporter will be used at any hearing conducted before the
referee, and the referee will be provided a courtesy copy of the transcript. The party making such
a request shall have the obligation to arrange for and pay the court reporter. Subject to the
referee’s power to award costs to the prevailing party, the parties will equally share the cost of
the referee and the court reporter at trial.
11.7. The referee shall be required to determine all issues in accordance with existing case
law and the statutory laws of the State of California. The rules of evidence applicable to
proceedings at law in the State of California will be applicable to the reference proceeding. The
referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that
will be binding on the parties and rule on any motion which would be authorized in a court
proceeding, including without limitation motions for summary judgment or summary adjudication. The
referee shall issue a decision at the close of the reference proceeding which disposes of all
claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision
shall be entered by the Court as a judgment or an order in the same manner as if the action had
been tried by the Court and any such decision will be final, binding and conclusive. The parties
reserve the right to appeal from the final judgment or order or from any appealable decision or
order entered by the referee. The parties reserve the right to findings of fact, conclusions of
laws, a written statement of decision, and the right to move for a new trial or a different
judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
11.8. 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 reference procedure will be resolved and determined by arbitration. The arbitration
will be conducted by a retired judge or justice, 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 set forth above shall apply to any such arbitration proceeding.
11.9. THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR
IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER COMERICA DOCUMENTS.
12. This Agreement is intended to and does completely amend and restate, without novation,
that certain Unconditional Guaranty dated as of March 31, 2004 given by SAFEGUARD DELAWARE, INC. to
Bank.
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IN WITNESS WHEREOF, the undersigned Guarantors have executed this Guaranty as of this
28th day of February, 2006.
SAFEGUARD DELAWARE, INC. |
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By: | /s/ Xxxxxxxxxxx X. Xxxxx | |||
Title: Vice President | ||||
SAFEGUARD DELAWARE, INC. Attn: CFO 800 The Safeguard Building 000 Xxxxx Xxxx Xxxxx Xxxxx, XX 00000 |
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SAFEGUARD SCIENTIFICS (DELAWARE), INC. |
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By: | /s/ Xxxxxxxxxxx X. Xxxxx | |||
Title: Vice President | ||||
SAFEGUARD SCIENTIFICS (DELAWARE), INC. Attn: CFO 800 The Safeguard Building 000 Xxxxx Xxxx Xxxxx Xxxxx, XX 00000 |
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