Exhibit 10.2
GUARANTY
GUARANTY (the
“Guaranty”), dated as of February 11, 2008, by
Sontra Medical, Inc., a Delaware corporation with an address of 10
Forge Parkway, Franklin, MA 02038 (the “Guarantor”), in
favor of the Purchasers identified in the Purchase Agreement (as
defined below) (collectively, “Secured Parties”).
WHEREAS, the Guarantor is a
subsidiary or affiliate of Echo Therapeutics, Inc. (the
“Borrower”); and
WHEREAS, in accordance with a certain
senior convertible note, dated as of the date hereof (the
“Notes”), executed by the Borrower, and certain related
agreements between the Borrower and the Secured Parties
(collectively, as amended, restated, or extended from time to time,
the “Loan Documents”), the Secured Parties have agreed
to loan to the Borrower up to Two Million, Two Hundred Ninety Two
Thousand, Four Hundred Fifty Nine Dollars ($2,292,459) (the
“Loan”); and
WHEREAS, the Secured Parties’
willingness to extend the loan is conditioned upon the Guarantor
executing and delivering this Guaranty; and
WHEREAS, the aforesaid Loan will be
beneficial to the Guarantor inasmuch as the proceeds of the Loan to
the Borrower will indirectly benefit the Guarantor;
NOW, THEREFORE, in order to induce
the Secured Parties to make the Loan to the Borrower pursuant to
the Loan Documents, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the
Guarantor, the Guarantor hereby agrees as follows:
1. Guaranty of Payment and
Performance. The Guarantor hereby guarantees to the Secured
Parties the full and punctual payment when due (whether at
maturity, by acceleration or otherwise), and the performance, of
all liabilities, agreements and other obligations of the Borrower
to the Secured Parties, whether direct or indirect, absolute or
contingent, due or to become due, secured or unsecured, now
existing or hereafter arising or acquired (whether by way of
discount, letter of credit, lease, loan, overdraft or otherwise),
including without limitation all obligations under the Loan
Documents (collectively, the “Obligations”). This
Guaranty is an absolute, unconditional and continuing guaranty of
the full and punctual payment and performance of the Obligations
and not of their collectibility only and is in no way conditioned
upon any requirement that the Secured Parties first attempt to
collect any of the Obligations from the Borrower or resort to any
security or other means of obtaining their payment. Should the
Borrower default in the payment or performance of any of the
Obligations, the obligations of the Guarantor hereunder shall
become immediately due and payable to the Secured Parties, without
demand or notice of any nature, all of which are expressly waived
by the Guarantor. Payments by the Guarantor hereunder may be
required by the Secured Parties on any number of occasions.
2. Guarantor’s
Agreement to Pay. The Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to the
Secured Parties, on demand, all reasonable costs and expenses
(including court costs and reasonable legal expenses) incurred or
expended by the
1
Secured
Parties in connection with enforcement of this Guaranty, together
with interest on amounts recoverable under this Guaranty from the
time such amounts become due under this Guaranty until payment, at
the rate per annum equal to the default rate set forth in the
Notes; provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall
be reduced to such maximum permitted amount.
3. Unlimited Guaranty.
The liability of the Guarantor hereunder shall be unlimited to the
extent of the Obligations and the other obligations of the
Guarantor hereunder (including, without limitation, under
Section 2 above).
4. Waivers by Guarantor;
Secured Party’s Freedom to Act. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance
with their respective terms regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Secured Parties with respect
thereto. The Guarantor waives presentment, demand, protest, notice
of acceptance, notice of Obligations incurred and all other notices
of any kind, all defenses which may be available to Borrower by
virtue of any valuation, stay, moratorium law or other similar law
now or hereafter in effect, any right to require the marshalling of
assets of the Borrower, and all suretyship defenses generally.
Without limiting the generality of the foregoing, the Guarantor
agrees to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and agrees
that the obligations of the Guarantor hereunder shall not be
released or discharged, in whole or in part, or otherwise affected
by (i) the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against the Borrower;
(ii) any extensions or renewals of any Obligation;
(iii) any rescissions, waivers, amendments or modifications of
any of the terms or provisions of any agreement evidencing,
securing or otherwise executed in connection with any Obligation
(provided, that, the obligations of the Guarantor hereunder shall
be appropriately modified to reflect any amendment or modification
of the Obligations); (iv) the substitution or release of any
entity primarily or secondarily liable for any Obligation;
(v) the adequacy of any rights any Secured Party may have
against any collateral or other means of obtaining repayment of the
Obligations; (vi) the impairment of any collateral securing
the Obligations, including without limitation the failure to
perfect or preserve any rights a Secured Party might have in such
collateral or the substitution, exchange, surrender, release, loss
or destruction of any such collateral; or (vii) any other act
or omission which might in any manner or to any extent vary the
risk of
