Exhibit 10.2


 


UNCONDITIONAL
GUARANTY

(Corporate)


 


For and in consideration of the loan by COMERICA BANK
(“Bank”) to COMMODORE RESOURCES (NEVADA), INC., LYRIS TECHNOLOGIES INC., and
UPTILT, INC.  (collectively, “Borrowers”),
which loan is made pursuant to a Loan and Security Agreement between Borrowers
and Bank dated as of September 30, 2005, as may be amended from time to
time (the “Agreement”), and acknowledging that Bank would not enter into the
Agreement without the benefit of this Guaranty, the undersigned guarantor (“Guarantor”)
hereby unconditionally and irrevocably guarantees the prompt and complete
payment of all amounts that Borrowers owe to Bank and performance by Borrowers
of the Agreement and any other agreements between Borrowers and Bank, 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.                                       If
a Borrower does not pay any amount or perform its obligations in strict
accordance with the Agreements, 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 such Borrower’s
obligations under the Agreements.


 


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 Borrowers and any other person
or entity, and a separate action or actions may be brought and prosecuted
against Guarantor whether action is brought against Borrowers or whether
Borrowers 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 Agreements.


 


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 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.                                       Guarantor
waives any right to require Bank to (a) proceed against Borrowers , any
guarantor or any other person; (b) proceed against or exhaust any security
held from Borrowers; 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
Borrowers 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 Borrowers or by reason of the
cessation from any cause whatsoever of the liability of Borrowers.  Guarantor waives any setoff, defense or
counterclaim that Borrowers 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 Borrowers.  Until
all of the amounts that Borrowers owe to Bank have been paid in full, Guarantor
shall have no right of subrogation or reimbursement, contribution or other
rights against Borrowers, and Guarantor waives any right to enforce any remedy
that Bank now has or may hereafter have against Borrowers.  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 Borrowers and
of all other circumstances bearing upon the risk of nonpayment of any
indebtedness or nonperformance of any obligation of Borrowers, 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 Borrowers 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 Borrowers by non-judicial 


 


1





















 


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
any 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 a 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 a Borrower is modified or abrogated, or if a 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 a Borrower, Guarantor, any other guarantor, or otherwise, as
though such payment had not been made.


 


7.                                       Any
indebtedness of Borrowers now or hereafter held by Guarantor is hereby
subordinated to any indebtedness of Borrowers to Bank; and such indebtedness of
Borrowers 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
Borrowers to Bank but without reducing or affecting in any manner the liability
of Guarantor under the other provisions of this Guaranty.


 


8.                                       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 a 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 Delaware,
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 and its subsidiaries taken as a whole.  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 materially 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.


 


10.4                           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 Borrowers or any other subsidiary.


 


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 Agreements.


 


12.                                 If
and only if the jury trial waiver set forth in Section 11 of this Guaranty
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.


 


12.1                           Mechanics.


 


(a)                                  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 Agreement 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 venue is otherwise
appropriate under applicable law (the “Court”).


 


(b)                                 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.  Each party shall have one peremptory challenge
pursuant to CCP §170.6.  Pending
appointment of the referee, the Court has power to issue temporary or
provisional remedies.


 


(c)                                  The
parties agree that time is of the essence in conducting the reference
proceedings.  Accordingly, the referee
shall be requested 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.  Any decision rendered by the referee will be
final, binding and conclusive, and judgment shall be entered pursuant to CCP
§644.


 


(d)                                 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, 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.


 





















 


12.2                           Procedures.  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.


 


12.3                           Application
of Law.  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 at the
close of the reference proceeding which disposes of all claims of the parties
that are the subject of the reference. 
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 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.


 


12.4                           Repeal.  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.


 


12.5                           THE
PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE
PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY, AND THAT THEY ARE IN
EFFECT WAIVING THEIR RIGHT TO TRIAL BY JURY IN AGREEING TO THIS REFERENCE
PROVISION.  AFTER CONSULTING (OR HAVING
HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS
REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF
OR IS RELATED TO THIS AGREEMENT OR THE LOAN DOCUMENTS.


 


IN WITNESS WHEREOF, the undersigned Guarantor
has executed this Guaranty as of this 5th day of
October, 2005.


 


 


	
   

  	
  J.L. HALSEY CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Burt

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CEO