LEASE GUARANTY
Exhibit 10.2
LEASE GUARANTY
THIS LEASE GUARANTY ("Guaranty") is made by Encore Capital Group, Inc., a Delaware corporation ("Guarantor") in favor of LBA
–Realty Fund–Holding Co. I, LLC, a Delaware limited liability company ("Landlord") in connection with that certain lease dated
April 8, 2004 (the "Lease") pursuant to which Landlord is to lease to Midland Credit Management, Inc., a Kansas corporation
("Tenant") certain premises located in the Building at 0000 Xxxx Xxxxx xx Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Premises").
A. Landlord requires this Guaranty as a condition to its execution of the Lease and the performance of the obligations
to be performed under the Lease by Landlord.
B. Guarantor has agreed to provide this Guaranty to induce Landlord to enter into the Lease with Tenant and perform its
obligations under the Lease.
In consideration of Landlord's agreement to execute the Lease and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor does hereby agree with Landlord as follows:
1. The Lease is hereby incorporated into and made a part of this Guaranty by this reference.
2. Guarantor hereby unconditionally guarantees, as a primary obligor and not as a surety, without deduction by reason
of setoff, defense or counterclaim, the full and punctual payment of all sums of rent and other amounts payable under the Lease and
the full and punctual performance of all terms, covenants and conditions in the Lease to be kept, performed and/or observed by
Tenant. Guarantor's obligations under this Guaranty are continuing and unconditional.
3. Guarantor hereby agrees that, without the consent of or notice to Guarantor and without affecting any of the
obligations of Guarantor hereunder: (a) the Lease may be extended and any other term, covenant or condition of the Lease may be
amended, compromised, released or otherwise altered by Landlord and Tenant, and Guarantor does guarantee and promise to perform all
the obligations of Tenant under the Lease as so extended, amended, compromised, released or altered; (b) any guarantor of or party to
the Lease may be released, substituted or added; (c) any right or remedy under the Lease may be exercised, not exercised, impaired,
modified, limited, destroyed, or suspended; (d) Landlord or any other person may deal in any manner with Tenant, any guarantor, any
party to the Lease or any other person; (e) Landlord may permit Tenant to holdover the Premises beyond the Lease Term; and (f) all or
any part of the Premises or of Tenant's rights or liabilities under the Lease may be sublet, assigned or assumed. Without in any way
limiting the foregoing, Guarantor agrees not to unreasonably withhold its consent to any sublease, assignment of the Lease or other
modification of the Lease which is agreed to by Landlord and Tenant.
4. Guarantor hereby waives and agrees not to assert or take advantage of: (a) any right to require Landlord to proceed
against Tenant, or any other guarantor or person or to pursue any other security or remedy before proceeding against Guarantor; (b)
any defense based on the genuineness, validity, regularity or enforceability of the Lease; (c) any right or defense that may arise by
reason of the incapacity, lack of authority, death or disability of Tenant or any other person; and (d) any right or defense arising
by reason of the absence, impairment, modification, limitation, destruction or cessation (in bankruptcy, by an election of remedies,
or otherwise) of the liability of Tenant, of the subrogation rights of Guarantor or of the right of Guarantor to proceed against
Tenant for reimbursement. Without limiting the generality of the foregoing, Guarantor hereby waives any and all benefits of the
provisions of Sections 2809, 2810 and 2845 of the California Civil Code and any similar or analogous statutes of California or any
other jurisdiction.
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5. Guarantor hereby waives and agrees not to assert or take advantage of (a) any right or defense based on the absence
of any or all presentments, demands (including demands for performance), notices (including notices of any adverse change in the
financial status of Tenant, notices of any other facts which increase the risk to Guarantor, notices of non-performance and notices
of acceptance of this Guaranty) and protests of each and every kind; (b) the defense of any statute of limitations in any action
under or related to this Guaranty or the Lease; (c) any right or defense based on a lack of diligence or failure or delay by Landlord
in enforcing its rights under this Guaranty or the Lease; and (d) any other rights and defenses that are or may become available to
Guarantor by reason of Sections 2787 through 2855, inclusive, of the California Civil Code (however with respect to Guarantor's
rights under Sections 2847, 2848 and 2849, the foregoing waiver shall be applicable only until all of Tenant's obligations under this
Lease are fully performed).
6. Guarantor hereby waives and agrees not to assert or take advantage of any right to (a) exoneration if Landlord's
actions shall impair any security or collateral of Guarantor; (b) until all of Tenant's obligations under the Lease are fully
satisfied, any security or collateral held by Landlord; (c) require Landlord to proceed against or exhaust any security or collateral
before proceeding against Guarantor; (d) require Landlord to pursue any right or remedy for the benefit of Guarantor. Without
limiting the generality of the foregoing, Guarantor hereby waives any and all benefits of the provisions of Sections 2819, 2849
(until all of Tenant's obligations under the Lease as satisfied) and 2850 of the California Civil Code and any similar or analogous
statutes of California or any other jurisdiction.
7. Guarantor shall not, without the prior written consent of Landlord, commence, or join with any other person in
commencing, any bankruptcy, reorganization or insolvency proceeding against Tenant. Guarantor's obligations under this Guaranty
shall in no way be affected by any bankruptcy, reorganization or insolvency of Tenant or any successor or assignee of Tenant or by
any disaffirmance or abandonment of the Lease or any payment under this Guaranty by a trustee of Tenant in any bankruptcy proceeding
including, without limitation, any impairment, limitation, or modification of the liability of Tenant or the estate of Tenant in
bankruptcy, or of any remedy for the enforcement of Tenant's liability under the Lease resulting from the operation of any present or
future provision of any federal or state bankruptcy or insolvency law or other statute or from the decision of any court. Guarantor
shall file in any bankruptcy or other proceeding in which the filing of claims is required or permitted by law all claims which
Guarantor may have against Tenant relating to any indebtedness of Tenant to Guarantor and will assign to Landlord all rights of
Guarantor thereunder. Landlord shall have the sole right to accept or reject any plan proposed in such proceeding and to take any
other action which a party filing a claim is entitled to do. In all such cases, whether in administration, bankruptcy or otherwise,
the person or persons authorized to pay such claim shall pay to Landlord the amount payable on such claim and, to the full extent
necessary for that purpose, Guarantor hereby assigns to Landlord all of Guarantor's rights to any such payments or distributions to
which Guarantor would otherwise be entitled; provided, however, that Guarantor's obligations hereunder shall not be satisfied except
to the extent that Landlord receives cash by reason of any such payment or distribution. If Landlord receives anything hereunder
other than cash, the same shall be held as collateral for amounts due under this Guaranty.
8. Until all the Tenant's obligations under the Lease are fully performed, Guarantor: (a) shall have no right of
subrogation or reimbursement against the Tenant by reason of any payments or acts of performance by Guarantor under this Guaranty;
(b) subordinates any liability or indebtedness of the Tenant now or hereafter held by Guarantor to the obligations of the Tenant
under, arising out of or related to the Lease or Tenant's use of the Premises; and (c) acknowledges that the actions of Landlord may
affect or eliminate any rights of subrogation or reimbursement of Guarantor as against Tenant without any liability or recourse
against Landlord. Without limiting the generality of the foregoing, until all of Tenant's obligations under the Lease are fully
satisfied, Guarantor hereby waives any and all benefits of the provisions of Section 2848 of the California Civil Code and any
similar or analogous statutes of California or any other jurisdiction.
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9. Prior to the execution of this Guaranty and at any time during the Term of the Lease upon thirty (30) days prior
written notice from Landlord (but no more often than once in any calendar year), Guarantor agrees to provide Landlord with a current
financial statement for Guarantor. Guarantor's financial statements are to be prepared in accordance with generally accepted
accounting principles. Guarantor represents and warrants that all such financial statements shall be true and correct statements of
Guarantor's financial condition. Notwithstanding the foregoing, Guarantor shall not be required to provide any such financial
statements so long as its financial statements are publicly available.
10. The liability of Guarantor and all rights, powers and remedies of Landlord hereunder and under any other agreement
now or at any time hereafter in force between Landlord and Guarantor relating to the Lease shall be cumulative and not alternative
and such rights, powers and remedies shall be in addition to all rights, powers and remedies given to Landlord by law.
11. This Guaranty applies to, inures to the benefit of and binds all parties hereto, their heirs, devisees, legatees,
executors, administrators, representatives, successors and assigns. This Guaranty may be assigned by Landlord voluntarily or by
operation of law.
12. This Guaranty shall constitute the entire agreement between Guarantor and the Landlord with respect to the subject
matter hereof. No provision of this Guaranty or right of Landlord hereunder may be waived nor may any guarantor be released from any
obligation hereunder except by a writing duly executed by an authorized officer, director or trustee of Landlord. The waiver or
failure to enforce any provision of this Guaranty shall not operate as a waiver of any other breach of such provision or any other
provisions hereof. No course of dealing between Landlord and Tenant shall alter or affect the enforceability of this Guaranty or
Guarantor's obligations hereunder.
13. Guarantor hereby agrees to indemnify, protect, defend and hold Landlord harmless from and against, all losses, costs
and expenses including, without limitation, all interest, default interest, post-petition bankruptcy interest and other post-petition
obligations, late charges, court costs and attorneys' fees, which may be suffered or incurred by Landlord in enforcing or
compromising any rights under this Guaranty or in enforcing or compromising the performance of Tenant's obligations under the Lease.
14. The term "Landlord" whenever hereinabove used refers to and means the Landlord in the foregoing Lease specifically
named and also any assignee of said Landlord, whether by outright assignment or by assignment for security, and also any successor to
the interest of said Landlord or of any assignee of such Lease or any part thereof, whether by assignment or otherwise. The term
"Tenant" whenever hereinabove used refers to and means the Tenant in the foregoing Lease specifically named and also any assignee or
subtenant of said Lease and also any successor to the interests of said Tenant, assignee or sublessee of such Lease or any part
thereof, whether by assignment, sublease or otherwise including, without limitation, any trustee in bankruptcy and any bankruptcy
estate of Tenant, Tenant's assignee or sublessee.
15. If any or all Guarantors shall become bankrupt or insolvent, or any application shall be made to have any or all
Guarantors declared bankrupt or insolvent, or any or all Guarantors shall make an assignment for the benefit of creditors, or any or
all Guarantors shall enter into a proceeding for the dissolution of marriage, or in the event of death of any or all Guarantors,
notice of such occurrence or event shall be promptly furnished to Landlord by such Guarantor or such Guarantor's fiduciary. This
Guarantee shall extend to and be binding upon each Guarantor's successors and assigns, including, but not limited to, trustees in
bankruptcy and Guarantor's estate.
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16. Any notice, request, demand, instruction or other communication to be given to any party hereunder shall be in
writing and sent by registered or certified mail, return receipt requested in accordance with the notice provisions of the Lease.
The Tenant shall be deemed Guarantor's agent for service of process and notice to Guarantor delivered to the Tenant at the address
set forth in the Lease shall constitute proper notice to Guarantor for all purposes. Notices to Landlord shall be delivered to
Landlord's address set forth in the Lease. Landlord, at its election, may provide an additional notice to Guarantor at the address
provided under Guarantor's signature below.
17. If either party hereto participates in an action against the other party arising out of or in connection with this
Guaranty, the prevailing party shall be entitled to have and recover from the other party reasonable attorneys' fees, collection
costs and other costs incurred in and in preparation for the action. Guarantor hereby waives any right to trial by jury and further
waives and agrees not to assert or take advantage of any defense based on any claim that any arbitration decision binding upon
Landlord and Tenant is not binding upon Guarantor.
18. Guarantor agrees that all questions with respect to this Guaranty shall be governed by, and decided in accordance
with, the laws of the State of California.
19. Should any one or more provisions of this Guaranty be determined to be illegal or unenforceable, all other
provisions shall nevertheless be effective.
20. Time is strictly of the essence under this Guaranty and any amendment, modification or revision hereof.
21. If more than one person signs this Guaranty, each such person shall be deemed a guarantor and the obligation of all
such guarantors shall be joint and several. When the context and construction so requires, all words used in the singular herein
shall be deemed to have been used in the plural. The word "person" as used herein shall include an individual, company, firm,
association, partnership, corporation, trust or other legal entity of any kind whatsoever.
22. If Guarantor is a corporation, each individual executing this Guaranty on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Guaranty on behalf of said corporation, in accordance with a duly
adopted resolution of the Board of Directors of said corporation or in accordance with the by-laws of said corporation, and that this
Guaranty is binding upon said corporation in accordance with its terms. If Guarantor is a corporation, Landlord, at its option, may
require Guarantor to concurrently, with the execution of this Guaranty, deliver to Landlord a certified copy of a resolution of the
Board of Directors of said corporation authorizing or ratifying the execution of this Guaranty.
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THE UNDERSIGNED HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS CONTAINED IN THIS GUARANTY INCLUDING, WITHOUT LIMITATION,
ALL WAIVERS CONTAINED IN THIS GUARANTY.
Executed as of the date of the Lease.
ENCORE CAPITAL GROUP, INC.,
a Delaware corporation
* By: /s/ Xxxx X. Xxxxxxx, III
Print Name: Xxxx X. Xxxxxxx, III
Print Title: CEO and President
* By: /s/ Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
Print Title: Sr. V.P. and General Counsel
Address of Guarantor:
Before Tenant’s occupancy of the Premises:
Encore Capital Group, Inc.
0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
After Tenant’s occupancy of the Premises:
Encore Capital Group, Inc.
0000 Xxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
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**NOTE:
If Guarantor is a California corporation, then one of the following alternative requirements must be satisfied:
(A) This Guaranty must be signed by two (2) officers of such corporation: one being the chairman of the board, the president or
a vice president, and the other being the secretary, an assistant secretary, the chief financial officer or an assistant
treasurer. If one (1) individual is signing in two (2) of the foregoing capacities, that individual must so indicate.
(B) If the requirements of (A) above are not satisfied, then Guarantor shall deliver to Landlord evidence reasonably acceptable
to Landlord that the signatory(ies) is (are) authorized to execute this Guaranty.
If Guarantor is a corporation incorporated in a state other than California, then Guarantor shall deliver to Landlord evidence
reasonably acceptable to Landlord that the signatory(ies) is (are) authorized to execute this Guaranty.
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