EXHIBIT 10.77
GUARANTY OF LEASE FOR THE METRIS MINNETONKA BUILDING
GUARANTY
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This Guaranty is made by Metris Companies, Inc., a Delaware corporation
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(individually and collectively, "Guarantor") to and for the benefit of Opus
Northwest, L.L.C., a Delaware limited liability company, its successors and
assigns ("Landlord"), with respect to that Lease Agreement dated March 29, 1999,
as amended from time to time (the "Lease") between Landlord and METRIS DIRECT,
INC., a Delaware corporation ("Tenant") for the premises located in the Phase II
Building of Crescent Ridge, Minnetonka, Minnesota (the "Premises"). Landlord is
unwilling to enter into the Lease unless Guarantor executes and delivers this
Guaranty and Guarantor is willing, as the parent company of Tenant and a direct
recipient of the benefits of the Lease, to enter into this Guaranty in order to
induce Landlord to enter into the Lease.
Therefore, in consideration of Landlord entering into the lease,
Guarantor agrees as follows:
1. Guarantor jointly and severally, unconditionally, absolutely and
irrevocably guarantees and promises (a) to pay to landlord, or order, any and
all amounts, including, without limitation, Rent, as defined in the Lease, late
charges, default interest, damages and all other amounts, costs, fees, expenses
and charges of any kind or type whatsoever, which are payable by Tenant (or its
successor and assigns) under the Lease, and (b) the truthfulness and accuracy of
all representations, warranties and certifications of Tenant, the satisfaction
of all conditions by Tenant and the full and timely performance, and observance
of all obligations to be performed, and observed by Tenant (or its successors
and assigns), under or pursuant to the Lease (the "Obligations").
2. The obligation of each Guarantor is primary, joint and several
and independent of the obligation of any and every other Guarantor or of Tenant,
and a separate action or actions may be brought and executed against any one or
more Guarantor, whether or not such action is brought against Tenant or any
other Guarantor and whether or not Tenant or any other Guarantor be jointed in
such action or actions. This Guaranty is entered into by each of the individuals
included to the term "Guarantor" on behalf of his or her community, if any, and
as a community obligation as well as individually and as the individual
obligation of each and may be enforced against the community property and
separate property of each. This Guaranty shall apply to the parties hereto and
their successors and assigns according to the context hereof and without regard
to the number or gender of words or expressions used herein.
3. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives any
requirement that Landlord first make demand upon, or seek to enforce or exhaust
remedies against, Tenant or any other person or entity (including any other
Guarantor) or any of the collateral or property of Tenant or such other person
or entity before demanding payment from, or seeking to enforce this Guaranty
against, Guarantor;
(b) waives and agrees not to assert any and all rights, benefits and defenses
which might otherwise be available under the provisions of Minnesota laws,
statutes or rules which might operate, contrary to Guarantor's agreements in
this Guaranty, to limit Guarantor's liability under, or the enforcement of, this
Guaranty; (c) covenants that this Guaranty will not be discharged until all of
the Obligations are fully satisfied; (d) agrees that this Guaranty shall remain
in full effect without regard to, and shall not be affected or impaired by, any
invalidity, irregularity or unenforceability in whole or in part of the Lease,
or any limitation of the liability of Tenant or Guarantor thereunder, or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever; and (e) waives notice
of acceptance of this Guaranty, notice of defaults under the Lease, presentment,
protest, demand and diligence.
4. This Guaranty is a continuing guaranty, and the obligations,
undertakings and conditions to be performed or observed by Guarantor under this
Guaranty shall not be affected or impaired by reason of the happening from time
to time of the following with respect to the Lease, all without notice to, or
the further consent of, Guarantor, and Guarantor hereby waives any and all
defenses arising by reason of, (a) the waiver by Landlord of the observance or
performance by Tenant, Guarantor or any one or more of them of any of the
obligations, undertakings, conditions or other provisions contained in the
Lease, except to the extent of such waiver; (b) the extension, in whole or in
part, of the time for payment of any amount owing or payable under the lease;
(c) the modification or amendment (whether material or otherwise) of any of the
obligations of Tenant under, or any other provisions of the Lease, except to the
extent of such modification or amendment; (d) the taking or the omission of any
of the actions referred to in the Lease (including, without limitation, the
giving of any consent referred to therein); (e) any failure, omission, delay or
lack on the part of Landlord to enforce, assert or exercise any provision of the
Lease, including any right, power or remedy conferred on Landlord in the Lease
or any action on the part of Landlord granting indulgence or extension in any
form; (f) the assignment to or assumption by any third party of any or all of
the rights or obligations of Tenant under the Lease; (g) the release or
discharge of Tenant from the performance or observance of or the impairment,
limitation or modification of any obligation, undertaking or condition to be
performed by Tenant under the Lease by operation of law, including any rejection
or disaffirmance of the Lease in any bankruptcy or similar proceedings; (h) the
receipt and acceptance by Landlord or any other person or entity of notes,
checks or other instruments for the payment of money and extensions and renewals
thereof; (i) any action, inaction or election of remedies by Landlord which
results in any impairment or destruction of any subrogation rights of Guarantor,
or any rights of Guarantor to proceed against any other person or entity for
reimbursement, (j) any setoff, defense, counterclaim, abatement, recoupment,
reduction, change in law or any other event or circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
indemnitor or surety under the laws of the State of Minnesota or any other
jurisdiction; (k) the termination or renewal of any of the Obligations or any
other provision thereof, and (l) any merger, reorganization, structure change,
ownership change or change in the name or any other change of Tenant or
Guarantor.
5. Guarantor represents and warrants to Landlord that: (a) Neither
the execution nor delivery of this Guaranty nor fulfillment of nor compliance
with the terms and provisions hereof will
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conflict with, or result in a breach of the terms or conditions of, or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of Guarantor under any agreement or
instrument to which Guarantor is now a party or by which Guarantor may be bound,
which conflict, breach, default, lien, charge or encumbrance could result in a
material adverse change in the financial condition of Guarantor; (b) No further
consents, approvals or authorizations are required for the execution and
delivery of this Guaranty by Guarantor or for Guarantor's compliance with the
terms and provisions of this Guaranty; (c) This Guaranty is the legal, valid and
binding agreement of Guarantor and is enforceable against Guarantor in
accordance with its terms; (d) Guarantor has the full power, authority, capacity
and legal right to execute and deliver this Guaranty, and, to the extent
Guarantor is a corporation or partnership, the parties executing this Guaranty
on behalf of Guarantor are fully authorized and directed to execute the same to
bind Guarantor; (e) Guarantor is not a "foreign corporation," "foreign
partnership," "foreign trust," or "foreign estate," as those terms are defined
in the U.S. Internal Revenue Code and the regulations promulgated thereunder;
(f) During the term of this Guaranty, Guarantor will not transfer or dispose of
any material part of its assets except in the ordinary course of business for
full and fair consideration and reasonably equivalent value; and (g) the Lease
is conclusively presumed signed in reliance on this Guaranty and the assumption
by Guarantor of its obligations under this Guaranty results in direct financial
benefit to Guarantor.
6. This Guaranty shall commence upon execution and delivery of the
Lease and shall continue in full force and effect until all of the Obligations
are duly, finally and permanently paid, performed and discharged and are not
subject to any right of extension by Tenant. The Obligations shall not be
considered fully paid, performed and discharged unless and until all payments by
Tenant to Landlord are no longer subject to any right on the part of any person
whomsoever, including but not limited to Tenant, Tenant as a debtor-in-
possession and/or any trustee in bankruptcy, to disgorge such payments or seek
to recoup the amount of such payments or any part thereof. The foregoing shall
include, by way of example and not by way of limitation, all rights to recover
preferences voidable under Title 11 of the United States Bankruptcy Code, 11
U.S.C. Sec. 101 et seq., as amended (the "Code"). In the event that any such
payments by Tenant to Landlord are disgorged after the making thereof, in whole
or in part, or settled without litigation, to the extent of such disgorgement or
settlement, Guarantor shall be liable for the full amount Landlord is required
to repay plus interest, late charges, attorney's fees and any and all expenses
paid or incurred by Landlord in connection therewith.
7. Guarantor hereby unconditionally and irrevocably waives (a) any
right to participate in any security now or hereafter held by Landlord or in any
claim or remedy of Landlord or any other person against Tenant with respect to
obligations guaranteed hereby, (b) any statute of limitations affecting
Guarantor's liability hereunder, (c) all principles and provisions of law which
conflict with the terms of this Guaranty,(d) diligence, presentment, demand for
performance, notice of nonperformance, notice of intent to accelerate and
acceleration, notice of protest, notice of dishonor, notice of execution of the
Lease, notice of extension, renewal, alteration or amendment, notice of
acceptance of this Guaranty and all other notices whatsoever, and (e) any right
to prove or make any claim which competes with any proof or claim made by
Landlord in the event of Tenant's bankruptcy
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or insolvency, until Landlord's claim has been fully satisfied. In the event
that Guarantor shall have any claims against Tenant, any indebtedness of Tenant
now or hereafter held by Guarantor is hereby subordinated to the indebtedness of
Tenant to Landlord. Any such indebtedness of Tenant to Guarantor, if Landlord so
requests, shall be collected, enforced and received by Guarantor as trustee for
Landlord and be paid over to Landlord on account of the obligations guaranteed
hereby, but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.
8. It is not necessary for Landlord to inquire into the powers of
Tenant or its officers, directors, partners or agents acting or purporting to
act on its behalf, and Guarantor shall be liable for the obligations of Tenant
in accordance with their terms notwithstanding any lack of authorization or
defect in execution or delivery by Tenant.
9. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees to pay (i) all of Landlord's attorneys' fees and other costs
and expenses which may be incurred by Landlord in the enforcement of this
Guaranty and which may be incurred by Landlord as a consequence of any default
by Tenant under the Lease, and (ii) interest (including postpetition interest to
the extent a petition is filed by or against Tenant under the Code) at the lower
of 12% interest to the extent a petition is filed by or against Tenant under the
Code) at the lower of 12% interest to the extent a petition is filed by or
against Tenant under the Code) at the lower of 12% interest per annum or the
highest rate permitted by applicable law on any Obligations not paid when due.
10. Guarantor hereby agrees to defend, indemnify and hold harmless
Landlord from any loss, cause of action, claim, cost, expense or fee, including
but not limited to attorneys' fees, suffered or occasioned by the failure of
Tenant to satisfy its obligations under the Lease. The obligations of Guarantor
under this paragraph shall be independent, primary, joint and several
obligations of Guarantor. The agreement to indemnify, protect, defend and hold
harmless Landlord contained in this paragraph shall be enforceable
notwithstanding the invalidity or unenforceability of the Lease or the
invalidity or unenforceability of any other paragraph contained in this
Guaranty.
11. All moneys available to Landlord for application in payment or
reduction of the liabilities of Tenant under the Lease may be applied by
Landlord to the payment or reduction of such liabilities of Tenant, in such
manner, in such amounts and at such time or times as Landlord may elect.
12. This Guaranty shall be governed by the laws of the State of
Minnesota, without giving effect to conflict of laws principles. Guarantor
unconditionally and irrevocably consents and agrees that any legal action
brought under this Guaranty may be brought in any state court of the State of
Minnesota or any federal district court in Minnesota.
13. All of Landlord's rights and remedies under the Lease and this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy is intended to be in exclusion of or a waiver of any of the others.
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14. This Guaranty is solely for the benefit of Landlord, its
successors and assigns, and is not intended to nor shall be deemed to be for the
benefit of any third party, including, without limitation, Tenant.
15. The terms "Landlord" and "Tenant" as used herein shall be deemed
to include each party's respective successors and assigns. The assignment by
Landlord of the lease, and/or the avails and proceeds thereof, made either with
or without notice to Guarantor, shall in no manner release Guarantor from any
liability as Guarantor hereunder Landlord's consent to any assignment(s) by
Tenant, unless otherwise agreed, made either with or without notice to
Guarantor, shall in no manner release Guarantor from any liability as Guarantor
hereunder. Landlord's consent to a release of Guarantor in connection with an
approved assignment or sublease shall not be unreasonably withheld.
16. If any provision of this Guaranty is unenforceable, the
enforceability of the other provisions shall not be affected and they shall
remain in full force and effect.
DATED as of June 9, 1999.
Metris Companies, Inc.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: President & CEO
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