EXHIBIT 10.31
LEASE GUARANTY AGREEMENT
FOR VALUE RECEIVED and in consideration for, and as an inducement to
THE XXXXXX, CHURCHWARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW
YORK (hereinafter referred to as "Lessor"), to make and enter into that certain
lease (the "Lease") dated as of the 8th day of July, 1998 with The End, Inc., a
California corporation (hereinafter referred to as "Lessee"), with respect to
certain space located in the building known as 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, the undersigned guarantor, THE CHILDREN'S BROADCASTING CORPORATION, having
its address at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 (hereinafter
referred to as "Guarantor") does hereby unconditionally guarantee the full and
prompt performance and observance of all of the payments, condiditons, covenants
and agreements therein provided to be paid, performed and observed by Lessee,
its successors and assigns, and agrees to pay all of Lessor's expenses,
including reasonable attorney fees, incurrred in enforcing said obligations, or
incurred in enforcing this guaranty. Guarantor further agrees that its liability
under this guaranty shall be continuing, absolute, uncondtional 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 or without having commenced any action against or having obtained any
judgment against Lessee, any assignee of Lessee or any other guarantor.
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
by the creating of or any compromise, settlement, release, renewal, extension,
indulgence, change in or modificaiton of any of the obligations and liabilitites
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) or by any
redelivery, repossession, surrender or destruction of the leased premises in
whole or in part, or by any failure, neglect or omission on the part of the
Lessor to realize upon any obligations or liabilities of the Lessee. 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 following:
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.
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,
genuiness, 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 be Guarantor, (f) or any other
circumstance which might otherwise constitute a legal or equitable discharege or
defense of a surety or 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.
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 Lessee, or by any waiver by Lessor of any
notice under the provisions of the Lease, or by any fialure to give notice
required or permitted thereunder. 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 Lessor be required first to look to, enforce or
exhaust such other or additional security, collateral, or guaranty.
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
whatsover 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 permite the execution of every such power as though no such laws were in
force.
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 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 Agreement of Lease, or
hereafter existing at law or in equity, and may be exercised from time to time
as often as deemed expendient, separately or concurrently.
Guarantor expressly agrees that if Lessee shall be (a) merged with or
into or consolidated or amalgamated with anothor 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 expresly released in writing from its guaranty hereunder by
Lessor.
Guarantor expressly agrees that the obligations covered by this
guaranty include all obligations and liabilities of Lessee to Lessor under the
Lease now exising 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 liabilites of every kind,
nature and description, suffered or incurred by Lessor arising in ay manner out
of, or in any way connected with, or growing out of said obligations and
liabilities under the Lease to Lessor.
The Lessor may without any notice whatsoever to anyone, sell, assign or
transfer all of its right, title, and interest as Lessor under said Agreement of
Lease or all of its right, title and interest in and to the rents and other sums
at any time due and and to become due thereunder, and in such event each and
every immediate and successive assignee or transfer 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, if not first otherwise made or given when
forwarded by mail, telegraph, cable, telephone or otherwise to the last address
or phone number of Guarantor appearing on the books of Lessor with the same
effect as if the same was actually delivered to, and received by, Guarator in
person.
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 be 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 modigy 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.
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 intrument and the 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 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 8th day of July, 1998.
THE CHILDREN'S BROADCASTING CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
