AMENDMENT NUMBER TWO TO LEASE
THIS AMENDMENT NUMBER TWO TO LEASE ("Amendment") is made and entered
into as of the 16th day of January, 1997 by and between WHIOP REAL ESTATE
LIMITED PARTNERSHIP, a Delaware limited partnership as Landlord ("Landlord"),
and METRIS DIRECT, INC., a Minnesota corporation (formerly named Fingerhut
Financial Services Corporation), as Tenant ("Tenant").
WITNESSETH
WHEREAS, Fingerhut Financial Services Corporation, as tenant, and The
Equitable Life Assurance Society of the United States ("Equitable"), as
landlord, entered into a lease dated August 11, 1995, as amended by Amendment
Number One to Lease dated August 1, 1996 (together referred to as the "Lease")
under which Equitable leased to Tenant certain space known as Suite 1800 and 400
in a building known as Interchange Tower (the "Building") and located at 000
Xxxxx Xxxxxxx 000, Xx. Xxxxx Xxxx, Xxxxxxxxx 00000, as more particularly
described in the Lease, herein called the Premises; and
WHEREAS, Landlord is now the owner of the Building and has succeeded to the
rights and interests of Equitable as the landlord under the Lease.
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided
below.
NOW, THEREFORE, in consideration of the above recitals, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby amend and supplement the Lease, effective as of the date
hereof, as follows:
1) Effective March 1, 1997 and continuing through the Term of the Lease, the
Premises as described in the Lease as previously amended as Suite 1800
consisting of approximately 17,859 rentable square feet and Suite 400
consisting of approximately 18,137 rentable square feet, totaling
approximately 35,996 rentable square feet, is further amended to include
Suite 300, consisting of approximately 18,134 rentable square feet. The
Premises shall be described as Suite 1800, located on the eighteenth (18th)
floor, Suite 400, located on the fourth (4th) floor and Suite 300 located
on the third (3rd) floor, consisting of approximately 54,130 total rentable
square feet.
2) Effective for the month of March 1997 no rents shall be paid by Tenant to
Landlord for approximately 18,134 rentable square feet on the 3rd floor
only, and rents to be paid by Tenant to Landlord are as described in the
Lease dated August 1, 1995, as
previously amended, including all adjustments as described in Paragraph 3
of said Lease, for approximately 35,996 rentable square feet on the 18th
and 4th floors.
3) Effective April 1, 1997 and thereafter, the annual Base Rent to be paid by
Tenant to Landlord shall be Three Hundred Fifty Thousand Seven Hundred
Twelve and 00/100 Dollars ($350,712.00) in equal monthly installments of
Twenty Nine Thousand Two Hundred Twenty Six and 00/100 Dollars ($29,226.00)
for the approximately 18,134 rentable square feet on the 3rd floor. The
above stated Base Rent per rentable square foot includes Landlord's
estimate of the 1996 ("Base Year") Taxes in the amount of $2.97 per
rentable square foot ("Base Year Taxes') and Operating Expenses in the
amount of $5.17 per rentable square foot ("Base Year Operating Expenses"),
all of which are adjustable as described in Paragraph 3 of the Lease. In
addition, Tenant shall pay to Landlord for the approximately 35,996
rentable square feet on the 18th and 4th floors those rents as described in
the Lease dated August 11, 1995 as previously amended including all
adjustments as described in Paragraph 3 of said Lease.
4) Landlord will provide an additional "Tenant Allowance" of $199,474.00 for
Tenant Work, to be used as described in Paragraph 2 Improvements of Rider
to Lease Agreement attached to the Lease, dated August 11, 1995, except
that "Approved Plans" shall mean any plans approved in writing by Landlord.
Except as hereinabove amended, this Lease shall remain in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
METRIS DIRECT, INC. WHIOP REAL ESTATE LIMITED PARTNERSHIP
BY: WHIOP GEN-PAR, INC.
A DELAWARE CORPORATION, GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxx X. Xxxxxx
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(Print Name) (Print Name)
President & CEO Senior Vice President - East
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(Title) (Title)
ADDITIONAL LEASE GUARANTY
The undersigned ("Guarantor") in consideration of, and in order to
induce WHIOP Real Estate Limited Partnership ("Landlord") to enter into the
attached Amendment Number Two to Lease dated January 16, 1997 with Metris
Direct, Inc. ("Tenant") does hereby unconditionally guarantee the payment of
rent and the performance of all obligations expressed as to be performed by
Tenant under the terms and provisions of the Amendment including payment of
damages for any breach of the Lease (collectively the "Lease Obligations") up
to, but not in excess of, the amount of the Unamortized Landlord Costs (as
hereinafter defined). The "Unamortized Landlord Costs" means the principal
which would remain on the date of enforcement of this Guaranty if a principal
amount equal to $298,002.00 were fully amortized, in consecutive equal
monthly amounts of principal and interest, with interest at the rate of ten
percent (10%) per annum, over the period commencing on March 1, 1997 and
continuing through November 30, 2000 with payments in arrears due on the
first day of each and every month commencing on April 1, 1997 and with all
payments first applied to accrued interest. Guarantor's obligation under this
Guaranty shall extend through the initial Term of the Lease, and shall be
binding upon Guarantor's heirs, successors and assigns.
Whether or not any existing relationship between the Guarantor and Tenant has
been changed or ended and whether or not this Guaranty has been revoked,
Landlord may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Lease Obligations, without any
consent or approval by Guarantor and without any notice to Guarantor. The
liability of Guarantor shall not be affected or impaired by any of the
following acts or things (which Landlord is expressly authorized to do, omit
or suffer from time to time, both before and after revocation of this
Guaranty): (i) any one or more extensions or renewals of the Lease
Obligations (whether or not for longer than the original period) or any
modification of the contractual terms applicable to the Lease Obligations;
(ii) any waiver or indulgence granted to Tenant, any delay or lack of
diligence in the enforcement of the Lease Obligations, or any failure to
institute proceedings, file a claim, give any required notices or otherwise
protect any other person liable in respect of any of the Lease Obligations;
(iii) the assertion by Landlord of any right or remedy available under the
Lease, including without limitation the termination thereof; (iv) any full or
partial release of, settlement with, or agreement not to xxx, Tenant or any
other guarantor or other person liable in respect of any of the Lease
Obligations; or (v) any release or discharge of Tenant in any creditors',
receivership, bankruptcy or other proceeding; the impairment, limitation or
modification of any liability of Tenant or remedy against Tenant in any such
proceeding; or the rejection, disaffirmance, disallowance or the like of the
Lease or this Guaranty in any such proceeding.
Additional Lease Guaranty
Guarantor hereby waives notice of acceptance hereof, or any action taken
or omitted in reliance hereof, or of any default of Tenant under the Lease.
Guarantor hereby further waives any requirement that Landlord first exhaust
or pursue Landlord's remedies available under the Lease or any other guaranty
or security for Tenant's obligations under the Lease before Landlord proceeds
directly, and recovers, against the Guarantor.
Guarantor will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogration available to Guarantor against
Tenant, its successors and assigns, or as to any collateral security
therefore, unless and until all of the Lease Obligations shall have been
fully paid and discharged.
In addition to the Lease Obligations, Guarantor jointly and severally
agrees to pay all costs and expenses, including reasonable attorney's fees,
incurred by Landlord in connection with the protection, defense or
enforcement of this Guaranty, but excluding the cost of preparation of any
initial demand letter for late payments or any initial demand letter for
other Lease defaults.
Notwithstanding the foregoing, Guarantor or Tenant shall have the right
at any time, to replace this Guaranty with an unconditional and irrevocable
letter of credit issued by an issuer acceptable to Landlord, in its sole
discretion (the "LC Issue") and in a form either (a) permitting draws by
Landlord on the letter of credit solely upon Landlord stating in writing to
the issuer of the letter of credit that Landlord has the right to draw on the
letter of credit hereunder or (b) otherwise satisfactory to Landlord in its
sole discretion. Said letter of credit, as it may from time to time be
extended or replaced, is hereinafter referred to as the "Letter of Credit".
The Letter of Credit shall be provided effective as of the first day or any
month (the "Effective Date") and shall be in the amount of the Unamortized
Landlord Costs as of such Effective Date. The Letter of Credit shall provide
that on the first day of the month immediately following the Effective Date
and on the first day of each succeeding month thereafter it shall be reduced
to an amount equal to the Unamortized Landlord Costs on said date. Guarantor
or Tenant, as applicable, may from time to time extend the expiry date of the
Letter of Credit by extending amendment or by replacement letter of credit of
the same tenor from the LC Issuer. Landlord may draw on the Letter of Credit
if (i) Tenant fails timely to pay rent or perform any other Lease Obligations
or (ii) the Letter of Credit is within thirty (30) days of the expiry date
thereof during the Term of the Lease. If Landlord draws on the Letter of
Credit, the amount drawn shall be applied against base rent payable hereunder
in inverse order of payment, except that, if the Lease is terminated or
Tenant dispossessed, or both, pursuant to Paragraph 15 of the Lease, any
amounts drawn which have not previously been
Additional Lease Guaranty
applied to base rents shall be applied to base rents and other amounts
payable by Tenant to Landlord hereunder through the day of termination or
eviction, and then to amounts payable by Tenant pursuant to Paragraph 15 of
the Lease in direct order of maturity (such order of application for draw
proceeds is called herein the "Agreed Order of Application"). Under no
circumstance shall Landlord have any obligation to refund any amount drawn on
the Letter of Credit unless and except to the extent such amounts drawn
exceed the amounts payable by Tenant to Landlord in the Agreed Order of
Application. Any such excess shall be refunded to Tenant.
Upon issuance of the Letter of Credit, this Guaranty shall without
further act or notice, automatically become null and void, except only for
the immediately proceeding paragraph regarding the Letter of Credit. If the
Letter of Credit has not been drawn upon on or before the expiration of the
term of the Lease, then Landlord shall return the Letter of Credit upon said
expiration.
METRIS DIRECT, INC.
By: Xxxxx X. Xxxxxxxxxxx
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Its: CFO
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