EXHIBIT 10.49


 


GUARANTY


 


THIS
GUARANTY is given by BARE ESCENTUALS, INC, a Delaware corporation, (“Guarantor”)
and is of a certain Lease dated of even date here with (the “Lease”) between
CENTERPOINT II, LLP., (“Landlord”) and BARE ESCENTUALS BEAUTY, INC., a
Delaware  corporation (“Tenant”).


 


WITNESSETH:


 


WHEREAS,
at the instance and request of the Guarantor, Tenant is entering into the Lease
with Landlord for the Premises commonly known as 5271 Centerpoint Parkway,
Obetz, Ohio 43125, consisting of approximately 301,180 square feet (“Premises”).
A copy of the Lease is attached hereto as Exhibit A and incorporated herein by
this reference..


 


WHEREAS,
part of the consideration for the letting of said Premises by Landlord to
Tenant is Guarantor’s covenant to guarantee the payment of Rent and other
charges provided for in said Lease and the performance of all the other
provisions of the Lease through the Term of the Lease subject, however to the
limitation of liability described below; and


 


WHEREAS,
Guarantor will directly or indirectly benefit from the relative success of
Tenant and will therefore personally stand to benefit from the opportunity
provided to Tenant by such Lease.


 


NOW,
THEREFORE, in consideration of the foregoing and of the letting of the Premises
to Tenant, and of the sum of TEN AND NO/100 DOLLARS ($10.00) to Guarantor in
hand paid by Landlord, the receipt and sufficiency of which being hereby
acknowledged, Guarantor hereby covenants and agrees as follows:


 


1.             Terns which are defined in the
Lease shall have the same meaning herein as are therein set forth.


 


2.             (a) Guarantor guarantees to
Landlord, their successors or assigns, the prompt payment by Tenant of the
Rents reserved in the Lease and the performance by Tenant of all provisions and
covenants contained in said Lease through the full Term of the Lease. If any
Event of Default shall be made by Tenant, after all applicable notice and cure
periods, then Guarantor shall pay and hereby agrees to pay to Landlord, their
successors or assigns, such sum or sums of money as will be sufficient to make
up any such deficiency, and shall satisfy the provisions and covenants to be
performed by Tenant under the Lease; provided, however, that the liability of
the Guarantor shall not exceed the lesser of (1) the Rent that would be due for
the sixty (60) months immediately following the Event of Default or (2) the
Rent and other charges that would be due for the then unexpired balance of the
Term.


 


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(b)           Notwithstanding anything herein to
the contrary, if at the time Tenant effects a Permitted Transfer under the
Lease (i) there is no Event of Default under the Lease, and (ii) the assignee
or sublessee in the Permitted Transfer has a net worth equal to or in excess of
the net worth of Guarantor as of the date hereof, then Guarantor shall be
released of its obligations and liabilities 
under this Guaranty at such time as Tenant effects the  Permitted Transfer.


 


3.             So long as the Tenant is a
subsidiary or other affiliate of Guarantor, no notice of an Event of Default or
default by Tenant shall be required to be given to Guarantor but if the Tenant
ceases to be a subsidiary or other affiliate of Guarantor, then notice of the
default and an opportunity to cure the default shall be given to Guarantor in
the same manner as notices are given to Tenant under the Lease, addressed as
follows:


 


Bare
Escentuals, Inc.


71
Stevenson Street, 22nd Floor


San
Francisco, California  94105


Attn:  Chief Financial Officer


 


And
to:


 


Bare
Escentuals Beauty, Inc.


71
Stevenson Street, 22nd Floor


San
Francisco, California  94105


Attn:  Vice President  of Operations


 


And
to


 


Drinker
Biddle & Reath, LLP


191
North Wacker Drive, Suite 3700


Chicago,
Illinois  60606-1698


Attn:  Barnett P. Ruttenberg, Esq.


 


Upon
properly given notice from Guarantor, the address for notices to Guarantor may
be revised from time to time.


 


4.             Guarantor does further covenant and
agree to pay all of the expenses of Landlord, their successors or assigns,
including attorneys’ fees, incurred in enforcing this Guaranty.


 


5.             So long as the Tenant is a
subsidiary or other affiliate of Guarantor, Landlord shall not be required to
institute action or otherwise seek recovery from Tenant as a condition
precedent to the performance by Guarantor of its obligations under this
Guaranty.


 


6.             So long as the Tenant is a
subsidiary or other affiliate of Guarantor, Guarantor does further covenant and
agree that the Landlord may, from time to time, during the Term of this Lease,
modify, change or alter any of the terms of the Lease by agreement with Tenant,
any subsidiary, affiliate or other corporation to which Tenant may assign
Tenant’s interest in the


 


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Lease,
in accordance with the terms thereof, without notice to Guarantor and that
Guarantor shall not be relieved of its liabilities hereunder as a result of
such action, it being expressly agreed and understood that Guarantor will
recognize and be bound by any such modification, change or alteration as though
it had been part of the Lease as originally drawn.


 


7.             This Guaranty shall be governed and
controlled as to interpretation, enforcement validity, construction, effect and
in all other respects by the Laws, statutes and decisions of the state of Ohio,
without regard to the conflict of laws principles thereof. All actions or
proceedings arising directly, indirectly or otherwise in connection with, out
of, related to or from this Guaranty shall be litigated only in courts having a
situs within the county of Franklin, state of Ohio. The undersigned hereby
consents and submits to the jurisdiction of any local, state or federal court
located within said county and state. The undersigned hereby waives any right
it may have to transfer or change the venue of any litigation brought against
it by Landlord on this Guaranty in accordance with this section. Guarantor
hereby knowingly, voluntarily and intentionally waives the right it may have to
a trial by jury in any litigation based on or arising out of, under or in
connection with this Guaranty and any agreement contemplated to be executed in
conjunction herewith.


 


8.             Notwithstanding anything to the
contrary which may be contained herein and notwithstanding any payment or
performance by Guarantor pursuant to this Guaranty, So long as the Tenant is a
subsidiary or other affiliate of Guarantor, Guarantor hereby unconditionally
and irrevocably agrees that it (a) will not at any time assert against Tenant
any right or claim, at Law or in equity, to indemnification, reimbursement,
contribution, restitution or payment for or with respect to any and all amounts
Guarantor may pay or be obligated to pay to Landlord, and any and all other
obligations which Guarantor may perform, satisfy or discharge, under or with respect
to this Guaranty, (b) waives and releases all such rights and claims, at Law or
in equity, to indemnification, reimbursement, contribution, restitution or
payment which Guarantor may have now or at any time against Tenant, and (c)
will not assign or otherwise transfer any such right or claim to any other
person. Guarantor further unconditionally and irrevocably agrees that So long
as the Tenant is a subsidiary or other affiliate of Guarantor, it shall not be
entitled to be subrogated to any rights of Landlord against Tenant or any other
Guarantor of any amounts being guaranteed and shall have no right of
subrogation whatsoever, and waives any right to enforce any remedy which
Landlord now has or hereafter may have against Tenant and waives any defense
based upon an election of remedies by Landlord, which destroys or otherwise
impairs any subrogation rights of Guarantor and/or the right of Guarantor to
proceed against Tenant for reimbursement. This waiver shall cease and be of no
further force and effect on the date which is three hundred sixty-six (366)
days after the date of the last payment made by Tenant to Landlord under the
Lease.


 


9.             Guarantor hereby agrees that upon
the filing of a petition under any section or chapter of Title 11 of the United
States Code or under any similar federal or state bankruptcy law or statute by
or against Guarantor (said included bankruptcy filing as aforesaid is
hereinafter referred to as the “Bankruptcy Filing”), any automatic stay or
other injunction against Landlord resulting from the Bankruptcy Filing shall be
immediately and automatically modified and terminated with respect to Landlord,
without further notice, hearing or order of court, so that Landlord may proceed
to exercise its rights and remedies against any property pledged to 


 


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Landlord
to secure the Lease in accordance with applicable Law as if no such filing had
taken place. Guarantor further agrees that it will not contest (a) any motion
or application of Landlord made in any court of competent jurisdiction seeking
enforcement of this Paragraph or otherwise seeking modification or termination
of such automatic stay or other injunction in a manner consistent herewith or
(b) any motion or application of Landlord made in any court of competent
jurisdiction seeking the appointment of a receiver after the Bankruptcy Filing.
Guarantor acknowledges and agrees that Landlord is specifically relying upon
the covenants and agreements of Guarantor contained in this Paragraph and that
such covenants and agreements constitute a material inducement to Landlord’s
entering into the Lease.


 


IN
WITNESS WHEREOF, Guarantor has this 31 day of January, 2007, caused these
presents to be signed in his behalf.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  BARE ESCENTUALS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ Myles B.
  McCormick

  	
   

  
	
   

  	
   

  
	
   

  	
  ITS:

  	
  CFO/COO

  	
   

  
	
   

  	
   

  
	
   

  	
  NAME:

  	
  Myles
  McCormick

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
									



 


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EXHIBIT A


 


LEASE


 


 


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