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EXHIBIT 10.2
SUBLEASE GUARANTY
THIS GUARANTY is made as of September 14, 2000 by Xxxxx Xx, a married
woman, and XXXXX XXXXX CHE, a married man (each a "Guarantor") in favor of
Xxx Pharmaceuticals, Inc., a California corporation ("Sublandlord").
W I T N E S S E T H:
1. For valuable consideration, receipt of which is acknowledged, and
to induce Sublandlord to enter into the Sublease with Maxsilk, Inc., a
California corporation ("Sublessee"), Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Sublandlord, and agrees fully
to pay, perform and discharge, as and when payment, performance and discharge
are due, all of the covenants, obligations and liabilities of Sublessee under
the Sublease and all amendments, modifications, renewals, extensions,
supplements, substitutions and replacements of the Sublease (the "Guaranteed
Obligations"). Each individual Guarantor under this Guaranty shall be jointly
and severally liable for the Guaranteed Obligations. The obligations of
Guarantor under this Guaranty shall be absolute, unconditional and irrevocable
and shall continue and remain in full force and effect until all of the
Guaranteed Obligations have been fully paid, performed and discharged.
2. The obligations of Guarantor under this Guaranty shall not be
affected, modified or impaired by the occurrence of any of the following
events, whether or not with notice to, or the consent of, Guarantor: (a) the
waiver, surrender, compromise, settlement, release or termination of any or
all of the Guaranteed Obligations; (b) the failure to give notice to
Guarantor of the occurrence of an event of default under the Guaranteed
Obligations; (c) the extension of the time for the payment, performance or
discharge of any or all of the Guaranteed Obligations; (d) the amendment or
modification (whether material or otherwise) of the Sublease or the
Guaranteed Obligations in any respect; (e) any failure, omission, delay or
lack on the part of Sublandlord to enforce, assert or exercise any right,
power or remedy conferred on Sublandlord under the Sublease; (f) the
voluntary or involuntary liquidation, dissolution, sale or other disposition
of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition with creditors or
adjustment of debts, or other similar proceedings affecting Sublessee or
Guarantor or any of the assets of either of them; (g) the release or
discharge by operation of law of Sublessee from the payment, performance or
discharge of any or all of the Guaranteed Obligations; (h) the release or
discharge by operation of law of Guarantor from any or all of the obligations
of Guarantor under this Guaranty; or (i) the invalidity or unenforceability
of any or all of the Guaranteed Obligations. Guarantor acknowledges that
Sublandlord would not enter into the Sublease without this Guaranty and the
Sublandlord is relying on this Guaranty.
3. The obligations of Guarantor under this Guaranty are independent of
the Guaranteed Obligations. Guarantor agrees that Sublandlord shall have the
right to proceed against Guarantor directly and independently of Sublessee. A
separate action may be brought and prosecuted against Guarantor whether or
not an action is brought against Sublessee or
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Sublessee is joined in any such action. Guarantor authorizes Sublandlord and
Sublessee, without notice to, demand of, or consent from Guarantor and
without releasing or affecting Guarantor's liability under this Guaranty,
from time to time to amend, modify, renew, extend, supplement or replace the
Sublease or the Guaranteed Obligations or otherwise change the terms of the
Sublease or the Guaranteed Obligations, to take and hold security for the
Guarateed Obligations, and to enforce, waive, surrender, impair, compromise
or release any such security or any or all of the Guaranteed Obligations or
any person or entity liable for any or all of the Guaranteed Obligations.
Guarantor shall be and remain bound under this Guaranty notwithstanding any
such act or omission by Sublessee or Sublandlord. Guarantor waives all rights
to require Sublandlord to proceed against Sublessee, to proceed against or
exhaust any security held by Sublandlord, or to pursue any other remedy in
Sublandlord's power. Sublandlord shall have the right to exercise any right
or remedy it may have against Sublessee or any security held by Sublandlord.
Guarantor waives the right, if any, to the benefit of, or to direct the
application of, any security held by Sublandlord. Guarantor waives (a) any
defense arising out of any alteration of the Guaranteed Obligations, (b) any
defense arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or other right or remedy of Guarantor against
Sublessee or any security held by Sublandlord, and (c) any defense arising by
reason of any disability or other defense of Sublessee or by reason of the
cessation or reduction from any cause whatsoever of the liability of
Sublessee other than full payment, performance and discharge of the
Guaranteed Obligations. The cessation or reduction of the liability of
Sublessee for any reason other than full payment, performance and discharge
of the Guaranteed Obligations shall not release or affect in any way the
liability of Guarantor under this Guaranty.
4. If Sublessee 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 Federal Bankruptcy Code, or if
such a petition is filed against Sublessee, or Sublessee makes a general
assignment for the benefit of creditors, and in any such proceeding any or
all of the Guaranteed Obligations are terminated or rejected or any or all of
the Guaranteed Obligations are modified or abrogated, 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 preceeding had occurred. This Guaranty shall continue to be effective or
be reinstated, as the case may be, if any payment of the Guaranteed
Obligations must be returned by Sublandlord upon the insolvency, bankruptcy
or reorganization of Sublessee, Guarantor, or otherwise, as though such
payment had not been made. No payment or performance by Guarantor shall give
Guarantor any right of subrogation to any rights or remedies of Sublandlord
against Sublessee. Guarantor waives all rights of subrogation to any rights
or remedies of Sublandlord against Sublessee and Guarantor waives all other
rights of subrogation or reimbursement with respect to Sublessee that might
otherwise arise from the performance of this Guaranty by Guarantor.
5. Guarantor assumes the responsibility for being and keeping
Guarantor informed of the financial condition of Sublessee and of all other
circumstances bearing upon the risk of failure to pay, perform or discharge
any of the Guaranteed Obligations which diligent inquiry would reveal, and
Guarantor agrees that Sublandlord has no duty to advise Guarantor of
information known to Sublandlord regarding such condition or any such
circumstance.
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Guarantor acknowledges that repeated and successive demands may be made and
payments or performance made hereunder in response to such demands as and
when, from time to time, Sublessee defaults in the payment, performance or
discharge of the Guaranteed Obligations. Notwithstanding any such payments
and performance hereunder, this Guaranty shall remain in full force and
effect and shall apply to any and all subsequent defaults by Sublessee. It is
not necessary for Sublandlord to inquire into the capacity, authority or
powers of Sublessee or the partners, directors, officers, employees or agents
acting or purporting to act on behalf of Sublessee, and all of the Guaranteed
Obligations made or created in reliance upon the purported exercise of such
powers shall be guaranteed hereunder. Guarantor hereby subordinates all
indebtedness of Sublessee to Guarantor now or hereafter held by Guarantor to
all indebtedness of Sublessee to Sublandlord. If requested by Sublandlord,
Guarantor shall collect, enforce and receive all such indebtedness of
Sublessee to Guarantor as trustee for Sublandlord and Guarantor shall pay
such indebtedness to Sublandlord on account of the indebtedness of Sublessee
to Sublandlord, but without otherwise reducing or affecting in any manner the
liability of Guarantor under this Guaranty.
6. Guarantor waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor
and notices of acceptance of this Guaranty. Guarantor agrees to pay all costs
and expenses, including reasonable attorneys' fees, which are incurred by
Sublandlord in the enforcement of this Guaranty. Guarantor hereby expressly,
irrevocably, fully and forever releases, waives and relinquishes any and all
right to trial by jury and any and all right to receive punitive, exemplary
and consequential damages from Sublandlord (or any past, present or future
board member, trustee, director, officer, employee, agent, representative, or
advisor of Sublandlord) in any claim, demand, action, suit, proceeding or
cause of action in which Sublandlord and Guarantor are parties, which in any
way (directly or indirectly) arises out of, results from or related to any of
the Guaranteed Obligations or the enforcement of this Guaranty, in each case
whether now existing or hereafter arising and whether based on contract or
tort or any other legal basis. If any provision of this Guaranty is held to
be invalid or unenforceable, the validity or enforceability of the other
provisions of this Guaranty shall not be affected. This Guaranty may not be
amended or modified in any respect except by a written agreement signed by
Guarantor and Sublandlord. As used in this Guaranty, the singular shall
include the plural. This Guaranty shall bind and inure to the benefit of
Guarantor and Sublandlord and their personal representatives, heirs,
successors and assigns. This Guaranty shall be governed by and construed in
accordance with the laws of the state in which the Project is located.
7. Each Guarantor agrees that nothing contained herein shall
prevent Sublessor from suing on the Sublease or from exercising any rights
available to it thereunder and that the exercise of any of the aforesaid
rights shall not constitute a legal or equitable discharge of such Guarantor.
Without limiting the generality of the foregoing, each Guarantor hereby
expressly waives any and all benefits under California Civil Code Sections
2809, 2810, 2845, 2847, 2848, 2849, 2850, and the second sentence of
California Civil Code Section 2822(a)(but only until Sublessor has been paid
in full the obligations owed by Sublessee under the Lease). In addition, each
Guarantor agrees that Sublessor (not Sublessee) shall have the right to
designate the portion of Sublessee's obligations under the Sublease that is
satisfied by a partial payment by Sublessee.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of
the date specified in the Sublease.
By /s/ XXXXX XX
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XXXXX XX
By /s/ XXXXX XXXXX CHE
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XXXXX XXXXX CHE
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