Exhibit 10.2


 


BORROWER:  CXR LARUS CORPORATION


 


GUARANTOR: EMRISE CORPORATION


 


GUARANTY


 


To:          BRIDGE
BANK, N.A.


 


1.     The
Guaranty.  For valuable
consideration, the undersigned (“Guarantor”) hereby unconditionally guarantees
and promises to pay promptly to Bridge Bank, N.A. (“Lender”), or order, in
lawful money of the United States, any and all Indebtedness of CXR LARUS
CORPORATION (“Borrower”) to Lender when due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter.  The liability of Guarantor under this
Guaranty is not limited as to the principal amount of the Indebtedness
guaranteed and includes, without limitation, liability for all interest, fees,
indemnities (including, without limitation, hazardous waste indemnities), and
other costs and expenses relating to or arising out of the Indebtedness.  The liability of Guarantor is continuing and
relates to any Indebtedness, including that arising under successive
transactions which shall either continue the Indebtedness or from time to time
renew it after it has been satisfied. 
This Guaranty is cumulative and does not supersede any other outstanding
guaranties, and the liability of Guarantor under this Guaranty is exclusive of
Guarantor’s liability under any other guaranties signed by Guarantor.  If more than one individual or entity sign
this Guaranty, their obligations under this Guaranty shall be joint and
several.


 


2.     Definitions.  As used herein:


 


(a)   “Borrower”
means the individual or the entity named in Paragraph 1 of this Guaranty
and, if more than one, then any one or more of them.


 


(b)   “Guarantor”
means the individual or the entity signing this Guaranty and, if more than one,
then any one or more of them, jointly and severally.


 


(c)   “Indebtedness”
means any and all debts, liabilities, and obligations of Borrower to Lender,
now or hereafter existing, whether voluntary or involuntary and however
arising, whether direct or indirect or acquired by Lender by assignment,
succession, or otherwise, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, held or to be held by
Lender for its own account or as agent for another or others, whether Borrower
may be liable individually or jointly with others, whether recovery upon such debts,
liabilities, and obligations may be or hereafter become barred by any statute
of limitations, and whether such debts, liabilities, and obligations may be or
hereafter become otherwise unenforceable. 
Indebtedness includes, without limitation, any and all obligations of
Borrower to Lender for reasonable attorneys’ fees and all other costs and
expenses incurred by Lender in the collection or enforcement of any debts,
liabilities, and obligations of Borrower to Lender.


 


3.     Obligations
Independent.  The obligations
hereunder are independent of the obligations of Borrower or any other
guarantor, and a separate action or actions may be brought and prosecuted
against Guarantor whether action is brought against Borrower or any other
guarantor or whether Borrower or any other guarantor be joined in any such
action or actions.  Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone
else.


 


4.     Rights of
Lender.  Guarantor authorizes Lender,
without notice or demand and without affecting its liability hereunder, from
time to time to: (a) renew, compromise, extend, accelerate, or otherwise
change the time for payment, or otherwise change the terms, of the Indebtedness
or any part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of the Indebtedness; (b) receive
and hold security for the payment of this Guaranty or any Indebtedness and
exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose
of any such security; (c) apply such security and direct the order or
manner of sale thereof as Lender in its discretion may determine; and (d) release
or substitute any Guarantor or any one or more of any endorsers or other
guarantors of any of the Indebtedness.


 


5.     Guaranty
to be Absolute.  Guarantor agrees
that until the Indebtedness has been paid in full and any commitments of Lender
or facilities provided by Lender with respect to the Indebtedness have been
terminated, Guarantor shall not be released by or because of the taking, or
failure to take, any action that might in any manner or to any extent vary the
risks of Guarantor under this Guaranty or that, but for this paragraph, might
discharge or otherwise reduce, limit, or modify Guarantor’s obligations under
this Guaranty.  Guarantor waives and
surrenders any defense to any liability under this Guaranty based upon any such
action, including but not limited to any action of Lender described in the 


 


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immediately preceding paragraph of this Guaranty.  It is the express intent of Guarantor that
Guarantor’s obligations under this Guaranty are and shall be absolute and
unconditional.


 


6.     Guarantor’s
Waivers of Certain Rights and Certain Defenses.  Guarantor waives: (a) any right to
require Lender to proceed against Borrower, proceed against or exhaust any
security for the Indebtedness, or pursue any other remedy in Lender’s power
whatsoever; (b) any defense arising by reason of any disability or other
defense of Borrower, or the cessation from any cause whatsoever of the
liability of Borrower; (c) any defense based on any claim that Guarantor’s
obligations exceed or are more burdensome than those of Borrower; and (d) the
benefit of any statute of limitations affecting Guarantor’s liability
hereunder.  No provision or waiver in
this Guaranty shall be construed as limiting the generality of any other waiver
contained in this Guaranty.


 


7.     Waiver of
Subrogation.  Until the Indebtedness
has been paid in full and any commitments of Lender or facilities provided by
Lender with respect to the Indebtedness have been terminated, Guarantor waives
any right of subrogation, reimbursement, indemnification, and contribution
(contractual, statutory, or otherwise) including, without limitation, any claim
or right of subrogation under the Bankruptcy Code (Title 11, United States
Code) or any successor statute, arising from the existence or performance of
this Guaranty, and Guarantor waives any right to enforce any remedy which
Lender now has or may hereafter have against Borrower, and waives any benefit
of, and any right to participate in, any security now or hereafter held by
Lender.


 


8.     Waiver of
Notices.  Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, notices of intent to accelerate,
notices of acceleration, notices of any suit or any other action against
Borrower or any other person, any other notices to any party liable on the
Indebtedness (including Guarantor), notices of acceptance of this Guaranty, and
notices of the existence, creation, or incurring of new or additional
Indebtedness.


 


9.     General
Partner Liability and Waivers of Other Rights and Defenses.


 


(a)   If
Borrower is a partnership and Guarantor is a general partner of that
partnership, then Guarantor shall not be liable under this Guaranty for any
portion of the Indebtedness which is secured by real property; provided,
however, that Guarantor shall remain liable under partnership law for all the
Indebtedness.


 


(b)   Guarantor
waives any rights and defenses that are or may become available to Guarantor by
reason of Sections 2787 to 2855, inclusive, of the California Civil Code.


 


(c)   Guarantor
waives all rights and defenses that Guarantor may have because any of the
Indebtedness is secured by real property. 
This means, among other things:  (i) Lender
may collect from Guarantor without first foreclosing on any real or personal
property collateral pledged by Borrower; and (ii) if Lender forecloses on
any real property collateral pledged by Borrower:  (1) the amount of the Indebtedness may
be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and
(2) Lender may collect from Guarantor even if Lender, by foreclosing on
the real property collateral, has destroyed any right Guarantor may have to
collect from Borrower.  This is an
unconditional and irrevocable waiver of any rights and defenses Guarantor may
have because any of the Indebtedness is secured by real property.  These rights and defenses include, but are
not limited to, any rights or defenses based upon Section 580a, 580b,
580d, or 726 of the California Code of Civil Procedure.


 


(d)   Guarantor
waives any right or defense it may have at law or equity, including California
Code of Civil Procedure Section 580a, to a fair market value hearing or
action to determine a deficiency judgment after a foreclosure.


 


10.   Security.  To secure all of Guarantor’s obligations
hereunder, Guarantor assigns and grants to Lender a security interest in all
moneys, securities, and other property of Guarantor now or hereafter in the
possession of Lender, all deposit accounts of Guarantor maintained with Lender,
and all proceeds thereof.  Upon default
or breach of any of Guarantor’s obligations to Lender, Lender may apply any
deposit account to reduce the Indebtedness, and may foreclose any collateral as
provided in the Uniform Commercial Code and in any security agreements between
Lender and Guarantor.


 


11.   Subordination.  Any obligations of Borrower to Guarantor, now
or hereafter existing, including but not limited to any obligations to
Guarantor as subrogee of Lender or resulting from Guarantor’s performance under
this Guaranty, are hereby subordinated to the Indebtedness.  In addition to Guarantor’s waiver of any
right of subrogation as set forth in this Guaranty with respect to any
obligations of Borrower to Guarantor as subrogee of Lender, Guarantor agrees
that, if Lender so requests, Guarantor shall not demand, take, or receive from
Borrower, by setoff 


 


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or in any other manner, payment of any other obligations
of Borrower to Guarantor until the Indebtedness has been paid in full and any
commitments of Lender or facilities provided by Lender with respect to the
Indebtedness have been terminated.  If
any payments are received by Guarantor in violation of such waiver or
agreement, such payments shall be received by Guarantor as trustee for Lender
and shall be paid over to Lender on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.  Any
security interest, lien, or other encumbrance that Guarantor may now or
hereafter have on any property of Borrower is hereby subordinated to any
security interest, lien, or other encumbrance that Lender may have on any such
property.


 


12.   Revocation
of Guaranty.


 


(a)   Guarantor
absolutely, unconditionally, knowingly, and expressly waives any right to
revoke this Guaranty as to future Indebtedness and, in light thereof, all
protection afforded Guarantor under Section 2815 of the California Civil
Code.  Guarantor fully realizes and
understands that, upon execution of this agreement, Guarantor will not have any
right to revoke this Guaranty as to any future Indebtedness and, thus, may have
no control over such Guarantor’s ultimate responsibility for the
Indebtedness.  If, contrary to the
express intent of this agreement, any such revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees
that:  (a) no such revocation shall
be effective until written notice thereof has been received by Lender; (b) no
such revocation shall apply to any Indebtedness 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 Indebtedness made or
created after such date to the extent made or created pursuant to a legally
binding commitment of Lender which is, or is believed in good faith by Lender
to be, in existence on the date of such revocation; (d) no payment by
Borrower, or from any other source, prior to the date of such revocation shall
reduce the obligations 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 obligations,
if any, as to which the revocation by such Guarantor is effective (and which
are not, therefore, guarantied by such Guarantor hereunder), and, to the extent
so applied, shall not reduce the obligations of such Guarantor hereunder.


 


(b)   In the
event of the death of a Guarantor, the liability of the estate of the deceased
Guarantor shall continue in full force and effect as to (i) the
Indebtedness existing at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Borrower
after the date of the death of the deceased Guarantor pursuant to a commitment
made by Lender to Borrower prior to the date of such death.  As to all surviving Guarantors, this Guaranty
shall continue in full force and effect after the death of a Guarantor, not
only as to the Indebtedness existing at that time, but also as to the
Indebtedness thereafter incurred by Borrower to Lender.


 


(c)   Guarantor
acknowledges and agrees that this Guaranty may be revoked only in accordance
with the foregoing provisions of this paragraph and shall not be revoked simply
as a result of any change in name, location, or composition or structure of
Borrower, the dissolution of Borrower, or the termination, increase, decrease,
or other change of any personnel or owners of Borrower.


 


13.   Reinstatement
of Guaranty.  If this Guaranty is
revoked, returned, or cancelled, and subsequently any payment or transfer of
any interest in property by Borrower to Lender is rescinded or must be returned
by Lender to Borrower, this Guaranty shall be reinstated with respect to any
such payment or transfer, regardless of any such prior revocation, return, or
cancellation.


 


14.   Stay of
Acceleration.  In the event that
acceleration of the time for payment of any of the Indebtedness is stayed upon
the insolvency, bankruptcy, or reorganization of Borrower or otherwise, all
such Indebtedness guaranteed by Guarantor shall nonetheless be payable by
Guarantor immediately if requested by Lender.


 


15.   No Deductions.  All payments by Guarantor hereunder shall be
paid in full, without setoff or counterclaim or any deduction or withholding
whatsoever, including, without limitation, for any and all present and future
taxes.  In the event that Guarantor or
Lender is required by law to make any such deduction or withholding, Guarantor
agrees to pay on behalf of Lender such amount directly to the appropriate
person or entity, or if the Guarantor cannot legally comply with the foregoing,
Guarantor shall pay to Lender such additional amounts as will result in the
receipt by Lender of the full amount payable hereunder.  Guarantor shall promptly provide Lender with
evidence of payment of any such amount made on Lender’s behalf.


 


16.   Information
Relating to Borrower.  Guarantor
acknowledges and agrees that it shall have the sole responsibility 


 


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for, and has adequate means of, obtaining from Borrower
such information concerning Borrower’s financial condition or business operations
as Guarantor may require, and that Lender has no duty, and Guarantor is not
relying on Lender, at any time to disclose to Guarantor any information
relating to the business operations or financial condition of Borrower.


 


17.   Borrower’s
Authorization.  Where Borrower is a
corporation, partnership, trust, or limited liability company, it is not
necessary for Lender to inquire into the powers of Borrower or of the officers,
directors, partners, members, managers, or agents acting or purporting to act
on its behalf, and any Indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder, subject to any
limitations on Guarantor’s liability set forth herein.


 


18.   Information
Relating to Guarantor.  Guarantor
authorizes Lender to verify or check any information given by Guarantor to
Lender, check Guarantor’s credit references, verify employment, and obtain
credit reports. Guarantor acknowledges and agrees that the authorizations
provided in this paragraph apply to any individual general partner of Guarantor
and to Guarantor’s spouse and any such general partner’s spouse if Guarantor or
such general partner is married and lives in a community property state.


 


19.   Guarantor’s
Covenants.  Until the Indebtedness
has been paid in full and any commitments of Lender or facilities provided by
Lender with respect to the Indebtedness have been terminated and each and every
term, covenant, and condition of this Guaranty is fully performed, Guarantor
agrees:


 


(a)   to provide
the following financial information and statements in form and content
acceptable to Lender, and such additional information as requested by Lender
from time to time:


 


(i)    if Guarantor is a business entity, Guarantor’s
annual financial statements upon request of Lender. These financial statements
must be audited, (with an opinion satisfactory to Lender) by a Certified Public
Accountant (“CPA”) acceptable to Lender;


 


(ii)   if Guarantor is a business entity, Guarantor’s
quarterly financial statements upon request of Lender.  These financial statements must be certified
and dated by an authorized financial officer of Guarantor;


 


(iii)  if Guarantor is an individual or a trust,
Guarantor’s annual financial statements upon request of Lender.  Such statements must be in form satisfactory
to Lender and be certified and dated by Guarantor and show Guarantor’s
financial condition.  Such statements must include,
without limitation, a listing of all assets and liabilities, a listing of all
sources of income and of the uses of income, the amount and sources of
contingent liabilities, identification of joint owners as to listed assets, and
an annual projection of sources and uses of income;


 


(iv)  if Guarantor is an individual or a trust,
additional information as requested by Lender from time to time regarding the
financial condition of any corporations, partnerships, limited liability
companies, or other entities in which Guarantor owns, directly or indirectly, a
material interest; and


 


(v)   copies of Guarantor’s federal income tax
return (with all forms K-1 attached) together with a statement of any
contributions made by Guarantor to any subchapter S corporation or trust, and,
if requested by Lender, copies of any extensions of the filing date.


 


20.   Taxes.  Guarantor represents and warrants that it is
organized and resident in the United States of America.  If Guarantor must make a payment under this
Guaranty, Guarantor represents and warrants that it will make the payment from
one of its U.S. resident offices to a U.S. office of Lender so that no
withholding tax is imposed on the payment. 
If notwithstanding the foregoing, Guarantor makes a payment under this
Guaranty to which withholding tax applies, then Guarantor shall pay any taxes
(other than taxes on net income (a) imposed by the country or any
subdivision of the country in which Lender’s principal office or actual lending
office is located and (b) measured by the United States taxable income
Lender would have received if all payments under or in respect of this Guaranty
were exempt from taxes levied by Guarantor’s country) that are at any time
imposed on any such payments under or in respect of this Guaranty including,
but not limited to, payments made pursuant to this paragraph.  Further, Guarantor shall also pay to Lender,
on demand, all additional amounts that Lender specifies as necessary to
preserve the after-tax yield Lender would have received if such taxes had not
been imposed.


 


21.   Change
of Status.  Guarantor shall not enter
into any consolidation, merger, or other combination unless Guarantor is the
surviving business entity.  Further,
Guarantor shall not change its legal structure unless (a) 


 


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Guarantor obtains the prior written consent of
Lender and (b) all Guarantor’s obligations under this Guaranty are assumed
by the new business entity.


 


22.   Notices.  All notices required under this Guaranty
shall be personally delivered or sent by first class mail, postage prepaid, or
by overnight courier, to the addresses on the signature page of this
Guaranty, or sent by facsimile to the fax numbers listed on the signature page,
or to such other addresses as Lender and Guarantor may specify from time to
time in writing.  Notices sent by (a) first
class mail shall be deemed delivered on the earlier of actual receipt or on the
fourth business day after deposit in the U.S. mail, postage prepaid,
(b) overnight courier shall be deemed delivered on the next business day,
and (c) telecopy shall be deemed delivered when transmitted.


 


23.   Successors
and Assigns.  This Guaranty (a) binds
Guarantor and Guarantor’s executors, administrators, successors, and assigns,
provided that Guarantor may not assign its rights or obligations under this
Guaranty without the prior written consent of Lender, and (b) inures to
the benefit of Lender and Lender’s indorsees, successors, and assigns.  Lender may, without notice to Guarantor and
without affecting Guarantor’s obligations hereunder, sell, assign, grant
participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part.  Guarantor agrees that Lender may disclose to
any assignee or purchaser, or any prospective assignee or purchaser, of all or
part of the Indebtedness any and all information in Lender’s possession
concerning Guarantor, this Guaranty, and any security for this Guaranty.


 


24.   Amendments,
Waivers, and Severability.  No
provision of this Guaranty may be amended or waived except in writing.  No failure by Lender to exercise, and no
delay in exercising, any of its rights, remedies, or powers shall operate as a
waiver thereof, and no single or partial exercise of any such right, remedy, or
power shall preclude any other or further exercise thereof or the exercise of
any other right, remedy, or power.  The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision of this Guaranty.


 


25.   Costs
and Expenses.  Guarantor agrees to
pay all reasonable attorneys’ fees, including allocated costs of Lender’s
in-house counsel, and all other costs and expenses which may be incurred by
Lender (a) in the enforcement of this Guaranty or (b) in the
preservation, protection, or enforcement of any rights of Lender in any case
commenced by or against Guarantor or Borrower under the Bankruptcy Code (Title
11, United States Code) or any similar or successor statute.


 


26.   Governing
Law and Jurisdiction.  This Guaranty
shall be governed by and construed under the laws of the State of
California.  Guarantor irrevocably (a) submits
to the non-exclusive jurisdiction of any federal or state court sitting in the
State of California in any action or proceeding arising out of or relating to
this Guaranty and (b) waives to the fullest extent permitted by law any
defense asserting an inconvenient forum in connection therewith.  Service of process by Lender in connection
with such action or proceeding shall be binding on Guarantor if sent to
Guarantor by registered or certified mail at its address specified below.


 


27.   Waiver
of Jury Trial.  EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.  EACH PARTY
REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER, HAS DETERMINED FOR
ITSELF THE NECESSITY TO REVIEW THE SAME WITH ITS LEGAL COUNSEL, AND KNOWINGLY
AND VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL.


 


28.           Reference
Provision.


 


(a)   The
parties prefer that any dispute between them be resolved in litigation subject
to a Jury Trial Waiver as set forth above, but the California Supreme Court has
held that pre-dispute Jury Trial Waivers not authorized by statute are
unenforceable. This Reference Provision will be applicable until: (i) the
California Supreme Court holds that a pre-dispute Jury Trial Waiver provision
is valid or enforceable; or (ii) the California 


 


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Legislature enacts a statute which becomes law,
authorizing pre-dispute Jury Trial Waivers of the type contained herein and, as
a result, such waivers become enforceable. 
In addition, this Reference Provision, if not already applicable as
otherwise provided herein, will become applicable, if a Court, contrary to a
choice of law provision contained herein, holds that the laws of the State of
California apply to the Loan Documents.


 


(b)   Other
than (i) nonjudicial foreclosure of security interests in real or personal
property,  (ii) the appointment of a
receiver or (iii) the exercise of other provisional remedies (any of which
may be initiated pursuant to applicable law), any controversy, dispute or claim
(each, a “Claim”) between the parties arising out of or relating to this
guaranty or any other document, instrument or agreement between the Bank and
the undersigned (collectively in this Section, the “Loan Documents”), will 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 (“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 Loan Documents, venue for the
reference proceeding will be in the Superior Court or Federal District Court in
the County or District where the real property, if any, is located or in a
County or District where venue is otherwise appropriate under applicable law
(the “Court”).


 


(c)   The
referee shall be a retired Judge or Justice selected by mutual written
agreement of the parties.  If the parties
do not agree, 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.  The referee shall be
appointed to sit with all the powers provided by law.  Pending appointment of the referee, the Court
has power to issue temporary or provisional remedies.


 


(d)   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 (a) set the matter for a status and trial-setting
conference within fifteen (15) days after the date of selection of the referee,
(b) if practicable, try all issues of law or fact within ninety (90) days
after the date of the conference and (c) report a statement of decision
within twenty (20) days after the matter has been submitted for decision.


 


(e)   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.


 


(f)    Except
as expressly set forth in this guaranty, 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 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.


 


(g)   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, provide all temporary
or provisional remedies, enter equitable orders that will be binding on the
parties and rule on any motion which would be authorized in a trial,
including without limitation motions for summary judgment or summary
adjudication.  The referee shall issue a
decision and pursuant to CCP §644 the referee’s 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.  The final
judgment or order or from any appealable decision or order entered by the
referee shall be fully appealable as provided by law.  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.


 


(h)   If the
enabling legislation which provides for appointment of a referee is repealed
(and no successor 


 


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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.


 


(i)    EACH
PARTY HERETO RECOGNIZES AND AGREES THAT ALL DISPUTES 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 OWN CHOICE, EACH PARTY KNOWINGLY
AND VOLUNTARILY AND FOR ITS BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL
APPLY TO ANY DISPUTE WHICH ARISES OUT OF OR IS RELATED TO THIS GUARANTY.


 


29.   Remedies.  All rights and remedies provided in this
Guaranty and any instrument or agreement referred to herein are cumulative and
are not exclusive of any rights or remedies otherwise provided by law.  Any single or partial exercise of any right
or remedy shall not preclude the further exercise thereof or the exercise of
any other right or remedy.


 


30.   Severability.  The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement referred to herein
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Guaranty or any instrument or agreement referred
to herein.


 


Executed this 22nd day of October, 2010.


 


 


	
   

  	
   

  	
  EMRISE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Carmine T. Oliva

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Carmine
  T. Oliva

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  



 


 


	
  Address for notices to Lender:

  	
   

  	
  Address for notices to Guarantor:

  
	
   

  	
   

  	
   

  
	
  BRIDGE BANK, NATIONAL ASSOCIATION

  	
   

  	
   

  
	
   

  	
   

  	
  2530 Meridian Parkway

  
	
  Attn: Lee Shodiss

  	
   

  	
   

  
	
  55 Almaden Boulevard

  	
   

  	
   

  
	
  San Jose, California 95113

  	
   

  	
  Durham,
  NC 27713

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tel: (408) 556-6502

  	
   

  	
   

  
	
  Fax: (408) 423-8514

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tel:

  	
  (408) 200-3040

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fax:

  	
  (408) 550-8340

  



 


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