Exhibit 10.2
GUARANTY
THIS GUARANTY ("Guaranty"), dated as of August 8, 1997, is made BETWEEN:
(1) ADVANCED TISSUE SCIENCES, INC., a Delaware corporation (the "U.S.
GUARANTOR"), and
(2) THE CHASE MANHATTAN BANK (the "BANK").
WHEREAS:
The Bank may extend credit to DermEquip L.L.C., a Delaware limited liability
company (the "COMPANY"). In order to induce the Bank to extend credit to the
Company, the U.S. Guarantor has agreed to guarantee the indebtedness and other
obligations of the Company to the Bank. Accordingly, the U.S. Guarantor
hereby agrees as follows:
1. GUARANTY
--------
The U.S. Guarantor hereby guarantees to the Bank the full and prompt
payment when due (whether at stated maturity, declaration, acceleration,
demand or otherwise) and performance of all indebtedness, liabilities
and other obligations of the Company to the Bank under or in connection
with the Loan Agreement dated as of August 8, 1997 (the "LOAN
AGREEMENT"), between the Company and the Bank (the "OBLIGATIONS").
The U.S. Guarantor acknowledges and agrees that, with respect to all
obligations to pay money, such guaranty shall be a guaranty of payment
and not of collection. If the Company shall default in the due and
punctual performance of any of the Obligations or in the full and
timely payment of any amounts owed in respect of the Obligations, the
U.S. Guarantor will forthwith perform or cause to be performed such
Obligations and will forthwith make full payment of any amount due with
respect thereto as its sole cost and expense. The liabilities and
obligations of the U.S. Guarantor to the Bank pursuant to this
Section 1 shall be unconditional and irrevocable and shall not be
conditioned or contingent upon the pursuit of any remedies against
the Company or any other person or entity ("Person"). The U.S.
Guarantor hereby waives any right, whether legal or equitable,
statutory or non-statutory, to require the Bank to proceed against or
take any action against or pursue any remedy with respect to the
Company or any other Person or make presentment or demand for
performance or give any notice of nonperformance before the Bank may
enforce rights against the U.S. Guarantor hereunder and, to the fullest
extent permitted by law, any other defenses or benefits that may be
derived from or afforded by applicable law limiting the liability of
or exonerating guarantors or sureties, or which may conflict with
the terms of this Section 1. The unconditional obligation of the U.S.
Guarantor hereunder will not be affected, impaired or released by any
extension, waiver, amendment or thing whatsoever which would release a
guarantor or surety (other than performance).
2. CONTINUING GUARANTY
-------------------
The U.S. Guarantor agrees that this Guaranty is a continuing guaranty
relating to any Obligations, including Obligations which may exist
continuously or which may arise from time to time under successive
transactions, and the U.S. Guarantor expressly acknowledges that this
Guaranty shall remain in full force and effect until such time as all
the Obligations are satisfied notwithstanding that there may be
periods in which no Obligations exist.
3. REPRESENTATIONS; COVENANTS
--------------------------
The U.S. Guarantor represents and warrants to the Bank that (i) the U.S.
Guarantor is a corporation duly organized, validly existing and in good
standing under the law of the State of Delaware in the United States of
America, and has all requisite power and authority to execute, deliver
and perform its obligations under this Guaranty; (ii) the execution,
delivery and performance by the U.S. Guarantor of this Guaranty have
been duly authorized by all necessary corporate action of the U.S.
Guarantor; and (iii) this Guaranty constitutes the legal, valid and
binding obligation of the U.S. Guarantor, enforceable against the U.S.
Guarantor in accordance with its terms.
4. NOTICES
-------
All notices and other communications provided for hereunder shall be in
writing (including by facsimile) and shall be mailed, sent or delivered
(i) if to Bank, 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxx XX0X 0XX, attn.
Xxxxxxx Xxxxxx, telefax 0000-000-0000; and (ii) if to the U.S.
Guarantor, 10933 North Xxxxxx Xxxxx Road, La Jolla, California, XXX,
00000, attn. Xxxxxxx X. Xxxxxxx, Vice President, Finance and
Administration, telefax (000) 000-0000, or at or to such other address
or facsimile number as such party shall have designated in a written
notice to the other party. All such notices and communications shall
be effective upon receipt.
5. NO WAIVER
---------
No failure on the part of the Bank to exercise, and no delay in
exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
of any such right, remedy, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights and remedies under this Guaranty are
cumulative and not exclusive of any rights, remedies, powers and
privileges that may otherwise be available to the Bank.
6. BINDING EFFECT; AMENDMENTS
--------------------------
This Guaranty shall be binding upon the U.S. Guarantor and its successors
and assigns, and enure to the benefit of and be enforceable by the Bank
and its successors, endorsees, transferees and assigns. This Guaranty
may not be amended except by a writing signed by the U.S. Guarantor and
the Bank. No waiver of any rights of the Bank under any provision of
this Guaranty or consent to any departure by the U.S. Guarantor
therefrom shall be effective unless in writing and signed by the Bank.
7. LAW
---
This Guaranty shall be governed by and construed in accordance with
laws of the State of California.
8. MULTIPLE GUARANTORS; JOINT AND SEVERAL LIABILITY
------------------------------------------------
This Guaranty shall be joint and several notwithstanding that any other
person (including without limitation, the U.K. Guarantor as defined in
the Loan Agreement) is bound by any other guarantee of the Obligations.
IN WITNESS WHEREOF, the U.S. Guarantor has executed and delivered this
Guaranty, as of the date first above written.
ADVANCED TISSUE SCIENCES, INC.
By: -------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
THE CHASE MANHATTAN BANK
By: ---------------------------------------------
Name:
Title:
