GUARANTY OF LEASE
THIS GUARANTY OF LEASE is made as of this 31 day of March, 1997, by METRIS
COMPANIES INC. ("Guarantor") to NOTTINGHAM VILLAGE, INC., a Maryland
corporation, its successors and assigns ("Landlord").
EXPLANATORY STATEMENT
A. METRIS DIRECT, INC., ("Tenant") and Landlord have agreed to enter into
a lease (the "Lease") for the use and occupancy of certain office space
containing approximately 51,600 square feet (the "Premises") located at 0000
Xxxxxxxxx Xxxxx, in the White Xxxxx Business Community (the "Center", as defined
in the Lease) in Baltimore County, Maryland.
B. The Landlord has refused to enter into the Lease with Tenant unless
the Guarantor guarantees the obligations of Tenant under the Lease in the manner
hereinafter set forth.
C. To induce the Landlord to enter into the Lease, which is made a part
hereof and which is dated, executed and delivered, or intended to be dated,
executed and delivered simultaneously herewith and as a part hereof, Guarantor
hereby agrees as follows.
GUARANTY
1. GUARANTY. The Guarantor hereby unconditionally and irrevocably
guarantees to the Landlord: (a) the due and punctual payment in full (and not
merely the collectibility) of as Rent, whether Basic Rent, Additional Rent or
otherwise, in each case when due and payable, whether on any installment payment
date or at the stated or accelerated maturity, all according to the terms of the
Lease; (b) the due and punctual payment in full (and not merely the
collectibility) of all other sums and charges which may at any time be due and
payable in accordance with the Lease, whether or not the same be designated as
rent and (c) the due and punctual performance of all of the other terms,
covenants and conditions contained in the Lease on the part of the Tenant.
2. GUARANTY UNCONDITIONAL. The Guarantor expressly agrees that the
Landlord may, in its sole and absolute discretion, without notice to or further
assent of the Guarantor and without in any way releasing, affecting or impairing
the obligations and liabilities of the Guarantor hereunder: (a) waive
compliance with, or any defaults under, or grant any other indulgences with
respect to, the Lease; (b) modify, amend, change or terminate any provisions of
the Lease; (c) grant extensions or renewals of or with respect to the Lease to
the extent contemplated by Section 3 of the Lease; (d) effect any release,
subordination, compromise or settlement in connection with the Lease; (e) agree
to the substitution, exchange, release or other
disposition of all or any part of the Deposit, if any, or any other security for
the performance of Tenant's obligations under the Lease; (f) make advances for
the purpose of performing any term or covenant contained in the Lease with
respect to which the Tenant shall be in default; (g) assign or otherwise
transfer the Lease or this Agreement or any interest therein or herein; (h) deal
in all respects with the Tenant or the then occupant of the Premises as if this
Agreement were not in effect. The obligations of the Guarantor under this
Agreement shall be unconditional, irrespective of the enforceability of the
Lease or any Deposit or other security given for the performance of Tenant's
obligations thereunder or in connection therewith, or any other circumstances
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
3. GUARANTY PRIMARY. The obligations and liability of the Guarantor
under this Agreement shall be primary, direct and immediate; shall not be
conditional or contingent upon pursuit by the Landlord of any remedies it may
have against the Tenant with respect to the Lease, whether pursuant to the terms
thereof or by law; and shall not be subject to any counterclaim, recoupment,
set-off, reduction or defense based upon any claim that the Guarantor may have
against the Tenant or the Landlord. Without limiting the generality of the
foregoing, the Landlord shall not be required to make any demand on the Tenant
and/or the then occupant of the Premises, or to pursue or exhaust its remedies
against the Premises, any Deposit or other security given for Tenant's
performance and/or against the Tenant or the then occupant of the Premises,
before, simultaneously with or after enforcing its rights and remedies hereunder
against the Guarantor. Any one or more successive and/or concurrent actions may
be brought hereon against the Guarantor either in the same action, if any,
brought against the Tenant and/or the then occupant of the Premises or in
separate actions, as often as the Landlord may deem advisable.
4. WAIVERS BY GUARANTOR. The Guarantor hereby unconditionally and
irrevocably waives: (a) presentment and demand for payment of any sums due from
Tenant under the Lease, whether or not denominated as Rent, and protest of
non-payment; (b) notice of acceptance of this Agreement and of presentment,
demand and protest; (c) notice of any default under this Agreement or the Lease
and notice of all indulgences; (d) demand for observance, performance, or
enforcement of any terms or provisions of this Agreement or the Lease; (e) any
right or claim of right to cause a marshalling of the assets of the Tenant; and
(f) all other notices and demands otherwise required by law which the Guarantor
may lawfully waive.
5. REIMBURSEMENT FOR EXPENSES. If, after Notice to Guarantor, the
Landlord shall commence any action or proceeding for the enforcement of this
Agreement, the Guarantor shall reimburse the Landlord promptly upon demand, for
all expenses incurred in connection therewith, including, without limitation,
reasonable attorneys' fees.
6. SUBORDINATION, SUBROGATION. If the Guarantor shall advance any
sums to the Tenant or if the Tenant shall hereafter become indebted to
Guarantor, such sums and indebtedness shall be subordinate in all respects to
the amounts then or thereafter due and owing
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to the Landlord under the Lease. Nothing herein contained shall be construed to
give the Guarantor any right of subrogation in and to the Lease or all or any
part of the Landlord's interest therein. If the Guarantor is or becomes an
"insider" (as defined from time to time in Section 101 of the United States
Bankruptcy Code) with respect to the Tenant, then such Guarantor irrevocably and
absolutely waives any and all rights of subrogation, contribution,
indemnification, reimbursement or any similar rights against the Tenant with
respect to this Agreement, whether such rights arise under an express or implied
contract or by operation of law. It is the intention of the parties hereto that
any such Guarantor shall not be deemed to be a "creditor" (as defined in Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code) of the Tenant by reason of the
existence of this Agreement in the event that the Tenant becomes a debtor in any
proceeding under the Federal Bankruptcy Code.
7. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that it has a financial interest in the Tenant, that it has been given
a copy of and has examined or has had an opportunity to examine the Lease, that
it has full power, authority and legal right to execute and deliver this
Agreement, and that this Agreement is a binding legal obligation of the
Guarantor.
9. GOVERNING LAW. The provisions of this Agreement shall be
construed, interpreted and enforced in accordance with the laws of the State of
Maryland as the same may be in effect from time to time.
10. CONSENT TO JURISDICTION. The Guarantor irrevocably submits to the
jurisdiction of any state or federal court sitting in the State of Maryland over
any suit, action, or proceeding arising out of or relating to this Agreement.
The Guarantor irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action, or proceeding brought in any such court and any claim that
any such suit, action, or proceeding brought in any such court has been brought
in an inconvenient forum. Final judgment in any such suit, action, or proceeding
brought in any such court shall be conclusive and binding upon the Guarantor and
may be enforced in any court to whose jurisdiction the Guarantor is subject, by
a suit upon such judgment provided that service of process is effected upon the
Guarantor in a manner specified in this Agreement or as otherwise permitted by
applicable law.
11. SERVICE OF PROCESS. The Guarantor hereby consents to process
being served in any suit, action, or proceeding instituted in connection with
this Agreement by (a) the mailing of a copy thereof by certified mail, postage
prepaid, return receipt requested, to it at its address designated herein and
(b) serving a copy thereof upon the Tenant, the agent hereby designated and
appointed by the Guarantor as the Guarantor's agent for service of process. The
Guarantor irrevocably agrees that such service shall be deemed in every respect
to be effective service of process in any such suit, action, or proceeding.
Nothing in this Agreement shall affect the right of the Landlord to serve
process in any manner otherwise permitted by law and nothing in this Agreement
will limit the right of the Landlord otherwise to bring proceedings against the
Guarantor in the courts of any other appropriate jurisdiction or jurisdictions.
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12. WAIVER OF JURY TRIAL. THE GUARANTOR, AND, BY ITS ACCEPTANCE OF
THIS GUARANTY, THE LANDLORD, HEREBY JOINTLY AND SEVERALLY, WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO WHICH ANY OF THEM MAY BE PARTIES, ARISING OUT OF
OR IN ANY WAY PERTAINING TO THIS AGREEMENT OR THE LEASE. It is agreed and
understood that this waiver constitutes a waiver of trial by jury of all claims
against all parties to such actions or proceedings, including claims against
parties who are not parties to this Agreement. This waiver is knowingly,
willingly and voluntarily made by the Guarantor, and the Guarantor hereby
represents and warrants that no representations of fact or opinion have been
made by any individual to induce this waiver of trial by jury or to in any way
modify or nullify its effect. The Guarantor further represents and warrants that
it has been represented in the signing of this Agreement and in the making of
this waiver by legal counsel, selected of its own free will, and that it has had
the opportunity to discuss this waiver with counsel.
13. VOIDABLE PREFERENCE: FRAUDULENT CONVEYANCE. If at any time any
payment, or portion thereof, made by, or for the account of the Guarantor on
account of any of the obligations and liabilities hereunder is set aside by any
court or trustee having jurisdiction as a voidable preference or fraudulent
conveyance or must otherwise be restored or returned by the Landlord under any
insolvency, bankruptcy or other federal and/or state laws or as a result of any
dissolution, liquidation or reorganization of the Tenant or upon, or as a result
of, the appointment of any receiver, intervenor or conservator of, or trustee or
similar officer for, the Tenant or any substantial part of its properties or
assets, the Guarantor hereby agrees that this Agreement shall continue and
remain in full force and effect or be reinstated, as the case may be, all as
though such payment(s) had not been made.
14. NOTICES. Notice, demand, request or other communication which
either party may desire to give to the other with respect to this Agreement,
shall be deemed to have been properly given if in writing and delivered by hand,
sent by overnight courier or mailed by certified mail, postage prepaid,
addressed as follows: if to the Landlord, then at the Landlord's Notice Address
set forth in the Lease: if to the Guarantor, then at the addresses set forth
below its signature in this Agreement. Any of the parties hereto may designate a
change of address by notice in writing to the other parties. Whenever in this
Agreement the giving of notice by mail or otherwise is required, the giving of
such notice may be waived in writing by the person or persons entitled to
receive such notice.
15. REMEDIES CUMULATIVE. All rights and remedies afforded to the
Landlord by reason of this Agreement, the Lease, or by law are separate and
cumulative and the exercise of one shall not in any way limit or prejudice the
exercise of any other such rights or remedies. Every right, power and remedy
given by this Agreement to the Landlord shall be concurrent and may be pursued
separately, successively or together against the Guarantor; and each such right,
power and remedy may be exercised from time to time as often as the Landlord may
deem expedient. No delay or omission by the Landlord in exercising any such
right or remedy shall operate as a waiver thereof. No waiver of any rights and
remedies hereunder, and no modification or amendment hereof, shall be deemed
made by the Landlord unless in writing and
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duly signed by the Landlord. Any such written waiver shall apply only to the
particular instance specified therein and shall not impair the further exercise
of such right or remedy or of any other right or remedy of the Landlord and no
single or partial exercise of any right or remedy hereunder shall preclude any
other or further exercise thereof or any other right or remedy.
16. SEVERABILITY. If any provision (or any part of any provision)
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision (or remaining part of the affected
provision) of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision (or part thereof) had never been
contained herein but only to the extent it is invalid, illegal or unenforceable.
17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of, and be enforceable by, the Landlord and its successors and assigns as
Landlord under the Lease, and shall be binding upon, and enforceable against,
the Guarantor and its successors and assigns.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original for all purposes,
but all such counterparts shall together constitute one and the same instrument.
WITNESS the signature and seal of the Guarantor as of the day and year
first above written.
GUARANTOR:
METRIS COMPANIES INC.
Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx (seal)
----------------------- -----------------------
Address:
000 Xxxxx Xxxxxxx 000, Xxxxxxxxxxx Xxxxx, Xxxxx
0000, Xx. Xxxxx Xxxx, Xxxxxxxxx, 00000-0000
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ACKNOWLEDGMENTS
STATE OF MINNESOTA, COUNTY OF HENNEPIN, TO WIT:
I HEREBY CERTIFY that on this 28TH day of March, 1997, before me, the
undersigned authority, personally appeared XXXX X. XXXXXXXX, and such person
made acknowledgment to be the duly authorized officer of METRIS COMPANIES INC.,
the within named Guarantor, and that such person, as such officer or official,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the Guarantor as such officer or
official.
WITNESS my hand and official seal.
[SEAL]
/s/ Xxxxxxx X. Xxxx
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Notary Public
My Commission Expires: 1-31-2000
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