AMENDMENT, dated as of December 3, 1998 (this
"Amendment"), to the AMENDED AND RESTATED CREDIT AGREEMENT (the
"Credit Agreement"), dated as of June 30, 1998, among METRIS
COMPANIES INC., a Delaware corporation (the "Borrower"), the
lenders listed in Schedule 2.01 thereto (the "Lenders"),
NATIONSBANK, N.A., as Syndication Agent (in such capacity, the
"Syndication Agent"), DEUTSCHE BANK, as documentation agent, U.S.
BANK NATIONAL ASSOCIATION, as documentation agent (collectively
in such capacity, the "Documentation Agents"), BARCLAYS BANK PLC
as co-agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as co-agent (collectively in such capacity, the "Co-
Agents"), and THE CHASE MANHATTAN BANK, as administrative agent
for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders
have agreed to make, and have made, certain loans and other
extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested, and, upon this
Amendment becoming effective, the Lenders have agreed, that the
investment (the "Xxx Investment"), described in Annex I hereto
shall be permitted under the Credit Agreement.
NOW, THEREFORE, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in
consideration of the premises contained herein, the parties
hereto hereby agree as follows:
SECTION I. SECTION I. AMENDMENT
I.1. Defined Terms. Unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement are
used herein as defined therein.
I.2. Amendment. The Lenders and the Borrower hereby
agree that upon the effectiveness of this Amendment the
definition of "Change in Control" set forth in Section 1.1 of the
Credit Agreement is amended and restated in its entirety to read
as follows:
A "Change in Control" shall be deemed to have
occurred if (a) any person (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) shall
beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act) shares representing more than 35% of the
aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of the Borrower, (b) at any
time, individuals who on the Effective Date (after giving
effect to the Spin-off) were directors of the Borrower
(together with any replacement or additional directors
nominated or appointed by the majority of directors then in
office) cease to constitute a majority of the Board of
Directors of the Borrower or (c) a "Change of Control" shall
occur as defined in the Senior Note Indenture.
SECTION II. SECTION II. MISCELLANEOUS
II.1. Conditions to Effectiveness of Amendment. This
Amendment shall become effective as of the date first set forth
above upon the Administrative Agent having received counterparts
of this Amendment duly executed and delivered by the Borrower and
the Required Lenders.
II.2.II.2. Representations and Warranties. The
Borrower represents and warrants to each Lender that as of the
effective date of this Amendment: (a) the representations and
warranties made by the Loan Parties in the Loan Documents are
true and correct in all material respects on and as of the date
hereof (except to the extent that such representations and
warranties are expressly stated to relate to an earlier date, in
which case such representations and warranties shall have been
true and correct in all material respects on and as of such
earlier date); and (b) no Default or Event of Default shall have
occurred and be continuing as of the date hereof
II.3. CounterpartsII.3. Counterparts. This Amendment
may be executed by one or more of the parties to this Amendment
on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of
the copies of this Amendment signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.
II.4. Continuing Effect; No Other Amendments. Except
to the extent expressly stated herein, all of the terms and
provisions of the Credit Agreement and the other Loan Documents
are and shall remain in full force and effect and are not waived
in any respect. This Amendment shall constitute a Loan Document.
II.5. Payment of Expenses. The Borrower agrees to pay
and reimburse the Administrative Agent for all of its reasonable
out-of-pocket costs and reasonable expenses incurred to date in
connection with this Amendment and the other Loan Documents,
including, without limitation, the reasonable fees and
disbursements of legal counsel to the Administrative Agent.II.5.
Payment of Expenses. The Borrower agrees to pay and reimburse
the Administrative Agent for all of its reasonable out-of-pocket
costs and reasonable expenses incurred to date in connection with
this Amendment and the other Loan Documents, including, without
limitation, the reasonable fees and disbursements of legal
counsel to the Administrative Agent.
II.6. GOVERNING LAWII.6. GOVERNING LAW. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their
respective proper and duly authorized officers as of the day
and year first above written.
METRIS COMPANIES INC., as Borrower
By:/s/ Xxxx Xxxxxx
Name:Xxxx Xxxxxx
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent, Lender and
Issuing Bank
By:/s/ Xxxx Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
NATIONSBANK, N.A.
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title:Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:/s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
By: /s/Xxxx X. XxXxxx
Name: Xxxx X. XxXxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By:/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
BARCLAYS BANK PLC,
NEW YORK BRANCH
By:/s/ Xxxx Jaegher
Name: Xxxx Jaegher
Title: Director
THE SUMITOMO BANK, LTD.
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By:/s/ F.C.H. Xxxxx
Name: X.X. Xxxxx
Title: Senior Manager Loan Operations
BANQUE NATIONALE DE PARIS
By:/s/ Xxxxxx Xxxxxx du Bocage
Name: Xxxxxx Xxxxxx du Xxxxxx
Title: Executive Vice President and General Manager
THE LONG TERM CREDIT BANK OF JAPAN, LTD.
By:/s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
THE FUJI BANK, LIMITED
By:/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
KZH IV LLC
By:/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
KZH III LLC
By:/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH SHOSHONE LLC
By:/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
AMARA-1 FINANCE LTD
By:/s/ Ian Xxxxx Xxxxx
Name: Xxx Xxxxx Xxxxx
Title: Director
AMARA-2 FINANCE LTD
By:/s/ Ian Xxxxx Xxxxx
Name: Xxx Xxxxx Xxxxx
Title: Director
CERES FINANCE LTD.
By:/s/ Xxxxx Egglishaw
Name: Xxxxx Egglishaw
Title: Director
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Vice President