EXHIBIT 10.4
LEASE GUARANTY AGREEMENT
FOR VALUE RECEIVED and in consideration for, and as an inducement to
The Xxxxxx, Church-Wardens and Vestrymen of Trinity Church in the City of New
York (hereinafter referred to as "Lessor"), to make and enter into that certain
Third Amendment To Lease dated as of September 1, 1992 amending the Lease dated
March 5, 1987, as to Lease dated as of the March 28, 1988 and the Second
Amendment to Lease dated as of April 1, 1989 (as so amended, including the Third
Amendment to Lease, the "Lease") between the Lessor, as landlord, and Della
Femina XxXxxxx, Inc. (formerly Della Femina, Xxxxxxxxx & Partners, Inc.), as
tenant (the "Lessee"), EURO RSCG S.A., a societe anonyme (corporation) organized
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under the French Company Law ("Guarantor") does hereby unconditionally guarantee
the full and prompt payment, performance and observance of all of the payments,
conditions, covenants and agreement provided in the Lease to be paid, performed
and observed by Lessee, its successors and assigns, and agrees to pay all of
Lessor's reasonable expenses, including reasonable attorneys' fees, incurred in
enforcing the Lease and/or this guaranty. Guarantor further agrees that its
liability under this guaranty shall be continuing, absolute, unconditional and
primary and that this guaranty shall remain in full force and effect until
Lessee shall have fully and satisfactorily discharged all of its obligations to
Lessor under the Lease and further that Lessor may, at Lessor's option, proceed
against Guarantor with our without having commenced any action against or having
obtained any judgment against Lessee or any assignee of Lessee.
Each and every default by the Lessee under the terms of the Lease
shall give rise to a separate cause of action hereunder, and separate suits may
be brought hereunder as each cause of action arises.
This guaranty and the liability hereunder shall in no wise be affected
or impaired by the creating of or any compromise, settlement, renewal,
extension, change in or modification of any of the obligations and liabilities
of the Lessee under the Lease (and the Lessor is hereby expressly authorized by
Guarantor to make the same from time to time without notice to anyone), provided
that Guarantors obligations shall not be increased by any such compromise,
settlement, renewal, extension, change or modification beyond the obligations
set forth in the Lease (as hereinbefore defined) except as may be specifically
agreed to in writing by Guarantor. This Guaranty and the liability hereunder
shall not be affected or impaired by any release or indulgence by Guarantor (and
the Lessor is hereby expressly authorized by Guarantor to make the same from
time-to-time without notice to anyone) irrespective of Guarantors agreement. In
order to hold Guarantor liable hereunder, there shall be no obligation on the
part of the Lessor at any time to resort for payment to the Lessee or to any
other persons or corporations, their properties or assets or to any security,
property or other rights or remedies whatsoever and the Lessor shall have the
right to enforce this guaranty irrespective of whether or not proceedings or
steps are pending, seeking resort to or realization upon or from any of the
foregoing.
All diligence in the collection of rentals by the Lessor from the
Lessee, and all notices of any default by the Lessee under the Lease and any and
all notices of acceptance of this guaranty or of reliance by Lessor upon this
guaranty are hereby expressly waived by Guarantor. The Lease shall be
conclusively presumed to have been created and contracted in reliance upon this
guaranty.
The payment by Guarantor of any amount pursuant to this guaranty shall
not in any wise entitle Guarantor (whether by way of subrogation or otherwise)
to any right of possession of the leased property or any other right, title or
interest under the Lease, except that if Guarantor shall cure a default within
the cure period provided in the Lease, it shall be deemed a cure by Lessee.
No act of commission or omission of any kind or at any time upon the
part of the Lessor in respect of any matter whatsoever shall in any way affect
or impair this guaranty.
Guarantor expressly agrees that its obligations under this guaranty
shall (1) be absolute and unconditional irrespective of (a) any insolvency,
bankruptcy or reorganization, or dissolution of Lessee, (b) the validity,
genuineness, regularity or enforceability of the obligations of Lessee contained
in the Lease, (c) the absence of any action to enforce such obligations, (d) any
waiver or consent with respect to any of the provisions of the Agreement of
Lease, (e) any amendment, modification, consolidation, extension or renewal of
the Lease, whether or not consented to by Guarantor, (f) or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, provided that Guarantors obligations hereunder
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shall not be increased by any amendment, modification, consolidation, extension
or renewal of the Lease beyond the obligations set forth in the Lease (as
hereinbefore defined) except as may be specifically agreed in writing by
Guarantor; and (2) constitute an absolute, unconditional, present and continuing
guaranty of performance and payment and not of collection and not be in any way
conditioned or contingent upon any attempt to enforce performance by, or to
collect from Lessee or any other condition or contingency.
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Guarantor expressly waives any and all presentment, demand, protest
and notice whatsoever, and (to the extent it may lawfully do so) the benefit of
any provision of law which is or might be in conflict with the terms of this
guaranty. The obligations of Guarantor shall not be affected by any action
taken by Lessor in the exercise of any right or power conferred by law or
otherwise, or by any failure or omission on the part of Lessor to enforce any
rights given by law or conferred thereby, or to take any other action
thereunder, or by any waiver of any such right or other action by Lessor or by
any action of Lessor in granting indulgence or extension to the Lessee, or by
any waiver by Lessor of any notice under the provisions of the Lease. No
proceedings taken for the enforcement of the Lease shall affect the obligations
of Guarantor hereunder; nor shall the giving, taking or enforcement of any other
additional security, collateral, or guaranty for the performance of Lessee under
the Lease operate to prejudice, waiver, or affect the security of this guaranty
of any rights, powers, or remedies hereunder; nor shall Lessee be required first
to look to, enforce or exhaust such other or additional security, collateral, or
guaranty.
Guarantor represents and warrants (a) that it is duly authorized,
under the laws of the Republic of France and all other applicable provisions of
law, to execute this guaranty, (b) that all corporate action necessary therefor
has been duly and effectively taken, (c) that the execution of this guaranty
will not result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, note, note agreement,
lease, deed, consent or other agreement or instrument to which Guarantor is a
party, or its certificate of incorporation, as amended, or By-laws, (d) that
this guaranty is a valid and legally binding instrument for the purposes herein
expressed, and (e) that it is the legal, valid, binding and enforceable
obligation of Guarantor in accordance with its terms.
To the extent that it may be lawful to do so, Guarantor expressly
agrees that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any appraisement,
valuation, stay, extension or redemption laws, now or at any time hereafter in
force, which may delay, prevent or otherwise affect Guarantor's payment and
performance under this guaranty, and Guarantor hereby expressly waives all
benefits or advantage of such laws and covenants that it will not hinder, delay
or impede the execution of any power granted Lessor hereunder, but will suffer
and permit the execution of every such power as though no such laws were in
force.
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Guarantor expressly agrees that no right, power or remedy in this
guaranty or in the Lease conferred upon Lessor is intended to be exclusive of
any other right, power or remedy, and each and every such right, power and
remedy shall, to the extent permitted by law, be cumulative and shall be in
addition to every other remedy given under this guaranty or the Lease, or
hereafter existing at law or in equity, and may be exercised from time to time
as often as deemed expedient, separately or concurrently.
Guarantor expressly agrees that if Lessee shall be (a) merged with or
into or consolidated or amalgamated with another person, firm, corporation or
other entity, or (b) dissolved voluntarily or involuntarily, Guarantor's
obligation of guaranty hereunder shall continue in full force and effect and
apply to the performance by all successors and assigns of the obligations of
Lessee under the Lease with the same force and effect as such guaranty as set
forth above with respect to Lessee, unless in connection with such sale,
assignment, transfer, merger, consolidation, amalgamation or dissolution,
Guarantor has been expressly released in writing from its guaranty hereunder by
Lessor.
Guarantor expressly agrees that it will not consolidate with any other
corporation or merge into any other corporation or suffer any voluntary
dissolution or sell or distribute its property and assets as, or substantially
as, an entirety to any other corporation (or other entity) unless the
corporation (or other entity) resulting from any such consolidation or merger or
dissolution or to which such sales or distributions shall have been made shall
immediately upon such consolidation, merger, dissolution, sale or distribution,
expressly assume the due and punctual performance of all the obligations and
liabilities of Guarantor hereunder and execute and deliver to Lessor a proper
instrument, in form satisfactory to Lessor, whereby such successor corporation
(or other entity) shall so assume all such obligations and liabilities;
provided, however, that no such sale shall release Guarantor from any of its
obligations or liabilities hereunder.
Guarantor expressly agrees that the obligations covered by this
guaranty include all obligations and liabilities of Lessee to Lessor under the
Lease now existing or hereafter coming into existence, and any renewals or
extensions, in whole or in part, of any of said obligations and liabilities
heretofore described, together with all damages, losses, costs, interest,
charges, expenses (including attorneys' fees), and liabilities of every kind,
nature and description, suffered or incurred by Lessor arising in any manner out
of, or in any way connected with, or growing out of said obligations and
liabilities under the Lease to Lessor, provided that Guarantor obligations
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hereunder shall not be increased by any renewal, extension, modification,
amendment or consolidation of the Lease beyond the obligations set forth in the
Lease (as hereinbefore defined) except as may be specifically agreed in writing
by Guarantor.
The Lessor may without any notice whatsoever to anyone, sell, assign
or transfer all of its right, title, and interest as Lessor under the Lease or
all of its right, title and interest in and to the rents and other sums at any
time due and to become due thereunder, and in such event each and every
immediate and successive assignee or transferee of the right, title and interest
of the Lessor shall have the right to enforce this guaranty by suit or otherwise
for the benefit of such assignee or transferee as fully as if such assignee or
transferee were herein by name specifically given such right, power and benefit.
This guaranty and every part thereof shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of the Lessor and
its successors and assigns.
Any notice to, or demand on, Guarantor elected to be given or made by
Lessor shall be deemed effective, when forwarded registered by mail or confirmed
facsimile transmission to Guarantor at the address set forth below:
EURO RSCG S.A.
0 Xxx xx X'Xxxxx
Xxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx
Attention: Xxxxxxx Xxxxxx
Chief Operating Officer
Finance
Facsimile Transmission Number: (1) 47.47.12.23
and to
EURO RSCG Holdings, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile Transmission Number: (000) 000-0000
Guarantor (a) hereby irrevocably submits itself to the jurisdiction of
the courts of the City of New York and the State of New York, and to the
jurisdiction of the United States District Court for the Southern District of
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New York, for the purposes of any suit, action or other proceeding arising out
of the Lease or this guaranty or the subject matters hereof or (b) to the extent
permitted by applicable law, hereby waives, and agrees not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of the above-named
courts, that its property is exempt or immune from execution, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that the Lease or the subject matter
hereof may not be enforced in or by such court. Guarantor hereby irrevocably
designates and appoints EURO RSCG Holdings, Inc., 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 as its attorney-in-fact to receive service of process in any
action, suit or proceeding with respect to any matter as to which it submits to
jurisdiction as set forth above, it being agreed that service upon such
attorney-in-fact shall constitute valid service upon the Guarantor or its
successors or assigns, provided that notice of such action, suit or proceeding
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is also given to EURO RSCG SA in the manner provided above. Final judgment
against the Guarantor in any suit shall be conclusive, and may be enforced in
other jurisdictions by suit on the judgment, a certified or true copy of which
shall be conclusive evidence of the fact and of the amount of any indebtedness
or liability the Guarantor therein described; provided always that the plaintiff
may at its option bring suit, or institute other judicial proceedings against,
the Guarantor or any of its assets in the courts of any country or place where
Guarantor or such assets may be found. The Guarantor further covenants and
agrees that so long as the Lease shall be in effect, Guarantor shall maintain a
duly appointed agent for the service of summonses and other legal processes in
New York City and shall give Lessor written notice of each agent so appointed.
Guarantor waives a trial by jury and the right to interpose
counterclaims or set-offs of any kind and description in any litigation arising
out of or relating to said obligations or said liabilities or the matters
contained in this guaranty. Lessor shall not by any act, delay, omission or
otherwise be deemed to have waived any of its rights or remedies hereunder and
no waiver shall be valid unless in writing, signed by Lessor and then only to
the extent therein set forth. The waiver by Lessor of any right or remedy
hereunder on any occasion shall not be construed as a bar to any right or remedy
which Lessor would otherwise have had on any future occasion. No executory
agreement shall be effective to change or modify or to discharge in whole or in
part this guaranty unless such executory agreement is in writing and signed by
Lessor. Guarantor shall be bound and liable hereunder.
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In the event any clause or provisions of this guaranty shall be
invalid or void for any reason, such invalid or void clause or provisions shall
not affect the whole of this instrument and balance of the provisions thereof
shall remain in full force and effect, subject to the terms of the Lease.
Whenever the context hereof shall require, the masculine pronoun
includes the feminine and neuter and the singular number includes the plural and
vice verse.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
This guaranty may not be amended orally and may be amended in writing
only if Lessor shall sign such instrument as a party thereto.
IN WITNESS WHEREOF, the undersigned has hereunto executed this
agreement this 15th day of April, 1993.
EURO RSCG S.A.
By:/s/ Alain de Pouzilhac
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Alain de Pouzilhac
Chairman of the
Board of Directors
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