MISCELLANEOUS
FIRST AMENDMENT, dated as of September 9, 1998 (this
"First Amendment"), to the Revolving Credit and Letter of Credit
Facility Agreement, dated as of October 29, 1990, as amended and
restated as of June 18, 1998 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among FINGERHUT COMPANIES, INC. (the "Borrower"), the Guarantors
named therein, the Lenders parties thereto, NATIONSBANK, N.A., as
Syndication Agent (in such capacity, the "Syndication Agent"), the
Issuing Banks named therein, and THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative
Agent"). Unless otherwise defined herein, all capitalized terms
defined in the Credit Agreement and used herein are so used as so
defined.
W I T N E S S E T H :
WHEREAS, in connection with the anticipated tax-free
distribution of the Borrower's approximately 83% ownership interest
in the capital stock of Metris Companies, Inc. on September 25,
1998, the Borrower has requested that the Administrative Agent and
the Lenders enter into this First Amendment;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
AMENDMENT TO THE CREDIT AGREEMENT
Section 4.01 of the Credit Agreement is hereby amended by
deleting the reference to "90 days" therein and replacing it with a
reference to "105 days".
ARTICLE II
MISCELLANEOUS
1. Representations and Warranties. The Borrower
represents and warrants to each Lender that as of the Effective
Date: (a) this First Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against it in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium or similar laws affecting creditors'
rights generally, by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and an
implied covenant of good faith and fair dealing; (b) the
representations and warranties made by the Borrower in Article III
of the Credit Agreement 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 (c) no Default or
Event of Default shall have occurred and be continuing as of the
date hereof.
2. No Other Modifications. Except as expressly modified
hereby, all the provisions of the Credit Agreement are and shall
continue to be in full force and effect. Each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" and
words of like import referring to the Credit Agreement and each
reference in any other Loan Document to the Credit Agreement shall
mean the Credit Agreement as amended hereby.
3. Governing Law. THIS FIRST AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
4. Counterparts. This First Amendment may be executed
by one or more of the parties to this First Amendment on any number
of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
5. Effectiveness. This First Amendment shall become
effective as of the date (the "Effective Date") upon which the
Administrative Agent shall have received executed counterparts of
this First Amendment from the Borrower and the Required Lenders as
specified by Section 10.08(b) of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above
written.
FINGERHUT COMPANIES, INC.,
as Borrower
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President, Treasurer
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
FINGERHUT CORPORATION,
as a Guarantor
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President, Treasurer
THE CHASE MANHATTAN BANK,
as Administrative Agent, as Lender
and as an Issuing Bank
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent, Issuing
Bank and Lender
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NATIONSBANK, N.A.,
as Syndication Agent and Lender
By: /s/Xxxx Xxxxx Xxxx
Name: Xxxx Xxxxx Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, as Issuing
Bank and Lender
By: /s/Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Lender
By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as Lender
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Manager
COMMERZBANK AG, as Lender
By: /s/Xxxxxxx Shortly /s/Xxxxxx Xxxxxx
Name: Xxxxxxx Shortly Xxxxxx Xxxxxx
Title: Senior Vice President Assistant Treasurer
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, as Lender
By: /s/Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
By: /s/Xxxxxxxxx X. Xxxx
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
NORWEST BANK OF MINNESOTA, NATIONAL
ASSOCIATION,
as Issuing Bank and Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as Lender
By: /s/Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Director
U.S. BANK NATIONAL ASSOCIATION,
as Issuing Bank and Lender
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Banking Officer
THE BANK OF NOVA SCOTIA, as Lender
By: /s/F.C.H. Xxxxx
Name: F.C.H. Ashbuy
Title: Senior Manager Loan Operations
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as Lender
By: /s/Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/Xxxx-Xxxxx Xxxxxx
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
FIRST UNION NATIONAL BANK, as
Lender
By: /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Lender
By: /s//Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Joint General Manager
NORDDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH,
as Lender
By: /s/Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
By:/s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
