GUARANTY
Exhibit 10.35
Each of the entities listed on Schedule “A” attached hereto and forming a part hereof (each a “Guarantor” and collectively, the “Guarantors”), acknowledges and agrees that Paramount Group, Inc., as agent for PGREF I 0000 Xxxxxxxx Tower, L.P. (hereinafter called “Landlord”), having an office c/o Paramount Group, Inc., 0000 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 and WMG Acquisition Corp. (the “Tenant”) shall enter into that certain lease (as the same may hereafter be amended, the “Lease”) dated October 1, 2013, covering certain premises (the “Premises”) as more particularly described in the Lease in the building (the “Building”) known as 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx.
In order to induce Landlord to enter into the Lease and in consideration of Landlord’s entering into the Lease and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby guarantees, jointly and severally, unconditionally and absolutely, to Landlord, its successors and assigns (without requiring any notice of nonpayment or proof of notice or demand whereby to charge any Guarantor, all of which each Guarantor hereby expressly waives), the payment as and when due of Fixed Rent (as defined in the Lease), additional rent, charges, interest and damages payable by Tenant under the Lease and the payment of any and all other damages for which Tenant shall be liable by reason of any act or omission contrary to any of the covenants, agreements, terms, provisions or conditions of the Lease, including without limitation, such damages for which Tenant shall be liable pursuant to the terms of the Lease for failure to perform Tenant’s Work (as defined in the Lease), free and clear of all liens and other claims, charges and encumbrances. Each Guarantor represents and warrants that this Guaranty has been duly authorized by all necessary corporate action on such Guarantor’s part, has been duly executed and delivered by a duly authorized officer of each Guarantor, and constitutes such Guarantor’s valid and legally binding agreement in accordance with its terms. This Guaranty is a guaranty of payment only and not of performance.
As a further inducement to Landlord to enter into the Lease and in consideration thereof, each Guarantor hereby expressly covenants and acknowledges as follows:
1. The obligations hereunder of each Guarantor shall not be terminated or affected in any way or manner whatsoever by reason of Landlord’s resort, or Landlord’s omission to resort, to any summary or other proceedings, actions or remedies for the enforcement of any of Landlord’s rights under the Lease or with respect to the Premises thereby demised or by reason of any extensions of time or indulgences granted by Landlord, or by reason of the assignment or surrender of all or any part of the Lease or the term and estate thereby granted or all or any part of the Premises demised thereby except to the extent that Tenant is released in writing by Landlord from any obligation in connection with any such assignment or surrender. The liability of each Guarantor is coextensive with that of Tenant and also joint and several, and action or suit may be brought against any Guarantor and carried to final judgment and/or completion and recovery had, either with or without making Tenant a party thereto. Insofar as the payment by Tenant of any sums of money to Landlord is involved, this Guaranty is a guaranty of payment and not of collection and shall remain in full force and effect until payment in full to Landlord of all sums payable under this Lease. Each Guarantor waives any right to require that any action be brought against Tenant or to require that resort be had to any Security Deposit (as defined in the Lease) or to any other credit in favor of Tenant. Landlord shall be required to apply any Security Deposit held by it to the reduction of any of Guarantors’ obligations hereunder and the amount of any such Security Deposit as may be applied by Landlord shall be credited to the benefit of any Guarantor.
2. Each Guarantor acknowledges and agrees that this Guaranty and such Guarantor’s obligations under this Guaranty are and shall at all times continue to be absolute, present, primary and unconditional in all respects, and shall at all times be valid and enforceable irrespective of any other agreements or circumstances of any nature whatsoever which might otherwise constitute a defense to this Guaranty and the obligations of any Guarantor under this Guaranty or the obligations of any other person or party (including, without
limitation, Tenant) relating to this Guaranty or the obligations of any Guarantor hereunder or otherwise with respect to the Lease other than the defense of payment. The Guaranty sets forth the entire agreement and understanding of Landlord and each Guarantor, and each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense, set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of any Guarantor under this Guaranty or the obligations of any other person or party (including, without limitation, Tenant) relating to this Guaranty or the obligations of any Guarantor under the Guaranty or otherwise with respect to the Lease in any action or proceeding brought by Landlord with respect to the Lease or the obligations of any Guarantor under this Guaranty other than the defense of payment. Each Guarantor acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Guaranty or with respect to the obligations of such Guarantor under this Guaranty except as specifically set forth in this Guaranty.
3. If additional space shall be included in, or substituted for all or any part of, the Premises demised by the Lease, or if the Lease be modified by agreement between Landlord and Tenant in any other similar or dissimilar respect, the obligations hereunder of each Guarantor shall extend and apply to the payment as and when due of Fixed Rent, additional rent, charges and damages provided for thereunder and the payment of any and all other damages for which Tenant shall be liable by reason of any act or omission contrary to any of said covenants, agreements, terms, provisions or conditions with respect to any such additional space, or which under any supplemental indenture or new lease or modifications agreement, entered into for the purpose of expressing or confirming any such inclusion, substitution or modification.
4. Neither the giving nor the withholding by Landlord of any consent or approval provided for in the Lease shall affect in any way the obligations hereunder of any Guarantor.
5. Each of the undersigned waives and releases any claim (within the meaning of 11 U.S.C. § 101) which it may have against Tenant arising from a payment made by the undersigned under this Guaranty and agrees not to assert or take advantage of any subrogation rights to proceed against Tenant for reimbursement. It is expressly understood that the waivers and agreements of the undersigned set forth above constitute additional and cumulative benefits given to Landlord for its security and as an inducement for its entering into the Lease with Tenant. Neither any Guarantor’s obligation to make payment in accordance with the terms of this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner whatsoever by any impairment, modification, change, release, limitation or stay of the liability of Tenant or its estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the Bankruptcy Code of the United States or from the decision of any court interpreting any of the same, and each Guarantor shall be obligated under this Guaranty as if no such impairment, stay, modification, change, release or limitation had occurred. This Guaranty shall continue to be effective or shall be reinstated (as the case may be) if at any time payment of all or any part of any sum payable pursuant to the Lease is rescinded or otherwise required to be returned by Landlord upon the insolvency, bankruptcy, or reorganization of Tenant, all as though such payment to Landlord had not been made, regardless of whether Landlord contested the order requiring the return of such payment.
6. Until all the covenants and conditions in the Lease on the Tenant’s part to be performed and observed are fully performed and observed: (a) no Guarantor shall have any right of subrogation against the Tenant by reason of any payments, in compliance with the obligations of such Guarantor hereunder; (b) each Guarantor waives any right to enforce any remedy which such Guarantor now or hereafter shall have against the Tenant by reason of any one or more payment with the obligations of any Guarantor hereunder; and (c) each Guarantor subordinates any liability or indebtedness of the Tenant now or hereafter held by such Guarantor to the obligations of the Tenant to the Landlord under the Lease.
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7. This Guaranty, and all of the terms hereof, shall be binding on each Guarantor and the successors, assigns, and legal representatives of Guarantor.
8. Each Guarantor hereby waives the right to trial by jury in any action or proceeding that may hereafter be instituted by Landlord against such Guarantor in respect of this Guaranty.
9. All of Landlord’s rights and remedies under the Lease or under this Guaranty are intended to be distinct, separate and cumulative, and no such right or remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the others; provided, however, that Landlord agrees that it may not proceed against any Guarantor hereunder unless and until a default by Tenant under the Lease has occurred and is continuing beyond the expiration of any applicable notice and cure period contained in the Lease (unless Landlord is prohibited by applicable legal requirements from sending any default notice in which event, the expiration of any applicable notice and cure period shall not be required).
10. This Guaranty shall be deemed to have been made in the State of New York, and each Guarantor consents to the jurisdiction of the courts of the State of New York, and the rights and liabilities of Landlord and each Guarantor shall be determined in accordance with the laws of the State of New York. Each Guarantor agrees that it will be conclusively bound by the judgment in any action by Landlord against Tenant (wherever brought) as if such Guarantor were a party to such action, even though such Guarantor is not joined as a party in such action. In addition, if any Guarantor cannot be effectively served with process pursuant to the laws of the State of New York because such Guarantor does not have sufficient contacts with New York or for any other reason, then such Guarantor agrees that effective service of process upon Tenant shall constitute effective service of process upon such Guarantor as well.
11. Each Guarantor will pay to Landlord all Landlord’s actual, reasonable out-of-pocket expenses, including, but not limited to, reasonable attorneys’ fees and expenses, in enforcing this Guaranty.
12. A Guarantor shall automatically be released from this Guaranty and its obligations hereunder upon (i) the sale or other disposition of all of the equity interests of such Guarantor to a person other than Tenant or another Guarantor, or (ii) consummation of any other transaction or designation as a result of which such Guarantor is released from its guarantee of the obligations of Tenant under the Credit Agreement, dated as of November 1, 2012 (as amended by the Incremental Commitment Amendment, dated as of May 9, 2013, and as further amended, restated, extended, refinanced, replaced, refunded, supplemented or otherwise modified in writing from time to time) among Tenant as the borrower thereunder, the lenders party thereto and Credit Suisse AG, as administrative agent. Landlord will, at such Guarantor’s expense, execute and deliver to such Guarantor such documents as such Guarantor shall reasonably request to evidence the release of such Guarantor from this Guaranty.
13. Each Guarantor agrees to be jointly and severally liable for Guarantor’s obligations hereunder without preference or distinction among them.
14. Notwithstanding anything contained herein to the contrary, this Guaranty shall apply only to the obligations of Tenant and any Guarantor which have accrued on or before August 1, 2021, provided however, any such claims which have accrued on or before August 1, 2021, must be asserted on or before October 1, 2021 by Landlord by written notice to Guarantors, such notice to be delivered to Guarantors at the address for Tenant notices pursuant to Section 11.01(a) of the Lease. For avoidance of doubt, this Guaranty shall not be applicable to, or valid with respect to, any obligations of Tenant under the Lease or any obligations of any Guarantor hereunder occurring from and after August 1, 2021 and Landlord acknowledges and agrees
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that it has no right to rely on this Guaranty for such purposes. This Guaranty shall terminate and have no further force and effect from and after October 1, 2021 (other than as to claims asserted prior to such date in accordance with and subject to the terms of this Guaranty).
15. Each Guarantor, and by its acceptance of this Guaranty, the Landlord, hereby confirms that it is the intention of all such persons that this Guaranty and the obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of, and not otherwise be in violation of, the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Landlord and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount that can be guaranteed by such Guarantor under applicable law and that will otherwise result in the obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
16. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share (based, to the maximum extent permitted by law, on the respective Adjusted Net Worths (as defined below) of the Guarantors on the date the respective payment is made) of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder that has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and conditions of paragraph 6 above. The provisions of this paragraph 16 shall in no respect limit the obligations and liabilities of any Guarantor to the Landlord, and each Guarantor shall remain liable to the Landlord for the full amount guaranteed by such Guarantor hereunder. In this Guaranty, “Adjusted Net Worth” means, of any Guarantor at any time, the greater of (x) $0 and (y) the amount by which the fair saleable value of such Guarantor’s assets on the date of the respective payment hereunder exceeds its debts and other liabilities (including contingent liabilities, but without giving effect to any of its obligations under this Guaranty) on such date.
17. This Guaranty is being executed and delivered by all of the Guarantors contemporaneously with the execution and delivery of the Lease.
Date: October 1, 2013
[SIGNATURE PAGES TO FOLLOW]
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GUARANTORS:
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| GUARANTORS (cont’d): | ||
| WARNER MUSIC INC. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Executive Vice President, General Counsel & Secretary | |
| 615 MUSIC LIBRARY, LLC | ||
| By: Six-Fifteen Music Productions, Inc., its Sole Member | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| ARTIST ARENA INTERNATIONAL, LLC | ||
| By: Artist Arena LLC, its Sole Member and Manager | ||
| By: Warner Music Inc., its Sole Member | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| ALTERNATIVE DISTRIBUTION ALLIANCE | ||
| By: Warner Music Distribution LLC, its Managing Partner | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| MAVERICK RECORDING COMPANY | ||
| By: SR/MDM Venture Inc., its Managing Partner | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
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| GUARANTORS (cont’d): | ||
| NON-STOP CATACLYSMIC MUSIC, LLC | ||
| NON-STOP INTERNATIONAL PUBLISHING, LLC | ||
| NON-STOP OUTRAGEOUS PUBLISHING, LLC | ||
| By: Non-Stop Music Publishing, LLC, their Sole Member | ||
| By: Non-Stop Music Holdings, Inc., its Manager | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| NON-STOP MUSIC LIBRARY, L.C. | ||
| NON-STOP MUSIC PUBLISHING, LLC | ||
| NON-STOP PRODUCTIONS, LLC | ||
| By: Non-Stop Music Holdings, Inc., their Sole Member | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
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Schedule “A”
List of Guarantors
| Name of Company |
Jurisdiction of Incorporation | |||
| 1. | X. X. Xxxxxxx Co. |
Delaware | ||
| 2. | Arms Up Inc. |
Delaware | ||
| 3. | Atlantic/MR Ventures Inc. |
Delaware | ||
| 4. | Atlantic Recording Corporation |
Delaware | ||
| 5. | Big Beat Records Inc. |
Delaware | ||
| 6. | Cafe Americana Inc. |
Delaware | ||
| 7. | Xxxxxxxx Music Company, Inc. |
Delaware | ||
| 8. | Xxxx Music, Inc. |
New York | ||
| 9. | Cotillion Music, Inc. |
Delaware | ||
| 10. | CRK Music Inc. |
Delaware | ||
| 11. | E/A Music, Inc. |
Delaware | ||
| 12. | Eleksylum Music, Inc. |
Delaware | ||
| 13. | Elektra/Chameleon Ventures Inc. |
Delaware | ||
| 14. | Elektra Entertainment Group Inc. |
Delaware | ||
| 15. | Elektra Group Ventures Inc. |
Delaware | ||
| 16. | FHK, Inc. |
Tennessee | ||
| 17. | Fiddleback Music Publishing Company, Inc. |
Delaware | ||
| 18. | Foster Frees Music, Inc. |
California | ||
| 19. | Insound Acquisition Inc. |
Delaware | ||
| 20. | Intersong U.S.A., Inc. |
Delaware | ||
| 21. | J. Ruby Productions, Inc. |
California | ||
| 22. | Jadar Music Corp. |
Delaware | ||
| 23. | LEM America, Inc. |
Delaware | ||
| 24. | London-Sire Records Inc. |
Delaware | ||
| 25. | Maverick Partner Inc. |
Delaware | ||
| 26. | XxXxxxxx Music Inc. |
Delaware | ||
| 27. | Mixed Bag Music, Inc. |
New York | ||
| 28. | MM Investment Inc. |
Delaware | ||
| 29. | Nonesuch Records Inc. |
Delaware | ||
| 30. | Non-Stop Music Holdings, Inc. |
Delaware | ||
| 31. | Octa Music, Inc. |
New York | ||
| 32. | Pepamar Music Corp. |
New York | ||
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| Name of Company |
Jurisdiction of Incorporation | |||
| 33. | Rep Sales, Inc. |
Minnesota | ||
| 34. | Revelation Music Publishing Corporation |
New York | ||
| 35. | Rhino Entertainment Company |
Delaware | ||
| 36. | Rick’s Music Inc. |
Delaware | ||
| 37. | Rightsong Music Inc. |
Delaware | ||
| 38. | Roadrunner Records, Inc. |
New York | ||
| 39. | Ryko Corporation |
Delaware | ||
| 40. | Rykodisc, Inc. |
Minnesota | ||
| 41. | Rykomusic, Inc. |
Minnesota | ||
| 42. | Sea Chime Music, Inc. |
California | ||
| 43. | Six-Fifteen Music Productions, Inc. |
Tennessee | ||
| 44. | SR/MDM Venture Inc. |
Delaware | ||
| 45. | Xxxxx-Xxxxxxxx, Inc. |
Wyoming | ||
| 46. | Super Hype Publishing, Inc. |
New York | ||
| 47. | The All Blacks U.S.A., Inc. |
Delaware | ||
| 48. | Xxxxx Boy Music, Inc. |
New York | ||
| 49. | Xxxxx Xxxxxxx Publishing Group, Inc. |
Delaware | ||
| 50. | T.Y.S., Inc. |
New York | ||
| 51. | Unichappell Music Inc. |
Delaware | ||
| 52. | Xxxxxx Music Inc. |
New York | ||
| 53. | Warner Alliance Music Inc. |
Delaware | ||
| 54. | Warner Brethren Inc. |
Delaware | ||
| 55. | Warner Bros. Music International Inc. |
Delaware | ||
| 56. | Warner Bros. Records Inc. |
Delaware | ||
| 57. | Warner/Xxxxxxxx Music, Inc. |
Delaware | ||
| 58. | Warner/Xxxxxxxx Music (Services), Inc. |
New Jersey | ||
| 59. | Warner/Xxxxxxxx Production Music, Inc. |
Delaware | ||
| 60. | Warner Custom Music Corp. |
California | ||
| 61. | Warner Domain Music Inc. |
Delaware | ||
| 62. | Warner-Elektra-Atlantic Corporation |
New York | ||
| 63. | Warner Music Discovery Inc. |
Delaware | ||
| 64. | Warner Music Inc. |
Delaware | ||
| 65. | Warner Music Latina Inc. |
Delaware | ||
| 66. | Warner Music SP Inc. |
Delaware | ||
| 67. | Xxxxxx Xxxxxxxxx Music Inc. |
Delaware | ||
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| Name of Company |
Jurisdiction of Incorporation | |||
| 68. | WarnerSongs, Inc. |
Delaware | ||
| 69. | Warner Special Products Inc. |
Delaware | ||
| 70. | Warner Strategic Marketing Inc. |
Delaware | ||
| 71. | Warner-Xxxxxxxxx Publishing Corp. |
California | ||
| 72. | Warprise Music Inc. |
Delaware | ||
| 73. | WB Gold Music Corp. |
Delaware | ||
| 74. | WB Music Corp. |
California | ||
| 75. | WBM/House of Gold Music, Inc. |
Delaware | ||
| 76. | W.B.M. Music Corp. |
Delaware | ||
| 77. | WBR/QRI Venture, Inc. |
Delaware | ||
| 78. | WBR/Ruffnation Ventures, Inc. |
Delaware | ||
| 79. | WBR/SIRE VENTURES INC. |
Delaware | ||
| 80. | WEA Europe Inc. |
Delaware | ||
| 81. | WEA Inc. |
Delaware | ||
| 82. | WEA International Inc. |
Delaware | ||
| 83. | Wide Music, Inc. |
California | ||
| 84. | Alternative Distribution Alliance |
New York | ||
| 85. | 615 Music Library, LLC |
Tennessee | ||
| 86. | Artist Arena International, LLC |
New York | ||
| 87. | Artist Arena LLC |
New York | ||
| 88. | Asylum Records LLC |
Delaware | ||
| 89. | Atlantic/143 L.L.C. |
Delaware | ||
| 90. | Atlantic Mobile LLC |
Delaware | ||
| 91. | Atlantic Pix LLC |
Delaware | ||
| 92. | Atlantic Productions LLC |
Delaware | ||
| 93. | Atlantic Scream LLC |
Delaware | ||
| 94. | BB Investments LLC |
Delaware | ||
| 95. | Bulldog Island Events LLC |
New York | ||
| 96. | Bute Sound LLC |
Delaware | ||
| 97. | Cordless Recordings LLC |
Delaware | ||
| 98. | East West Records LLC |
Delaware | ||
| 99. | Ferret Music Holdings LLC |
Delaware | ||
| 100. | Ferret Music LLC |
New Jersey | ||
| 101. | Ferret Music Management LLC |
New Jersey | ||
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| Name of Company |
Jurisdiction of Incorporation | |||
| 102. | Ferret Music Touring LLC |
New Jersey | ||
| 103. | Foz Man Music LLC |
Delaware | ||
| 104. | Fueled by Ramen LLC |
Delaware | ||
| 105. | Lava Records LLC |
Delaware | ||
| 106. | Maverick Recording Company |
California | ||
| 107. | Non-Stop Cataclysmic Music, LLC |
Utah | ||
| 108. | Non-Stop International Publishing, LLC |
Utah | ||
| 109. | Non-Stop Music Library, L.C. |
Utah | ||
| 110. | Non-Stop Music Publishing, LLC |
Utah | ||
| 111. | Non-Stop Outrageous Publishing, LLC |
Utah | ||
| 112. | Non-Stop Productions, LLC |
Utah | ||
| 113. | P & C Publishing LLC |
New York | ||
| 114. | Rhino/FSE Holdings, LLC |
Delaware | ||
| 115. | Rhino Name & Likeness Holdings, LLC |
Delaware | ||
| 116. | T-Boy Music, L.L.C. |
New York | ||
| 117. | T-Girl Music, L.L.C. |
New York | ||
| 118. | The Biz LLC |
Delaware | ||
| 119. | Xxxxx.xxx LLC |
Delaware | ||
| 120. | Warner Music Distribution LLC |
Delaware | ||
| 121. | Warner Music Nashville LLC |
Tennessee | ||
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