EXHIBIT 10.1
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
September 15, 2003 (this "Agreement") by and among Metris Companies Inc. duly
organized and existing under the laws of the State of Delaware (the "Company"),
the lenders listed as signatories hereto (the "Lenders"), Deutsche Bank Trust
Company Americas, a trust company duly organized and existing under the laws of
the State of New York and having its principal corporate trust office at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (the "Successor Agent") and Xxxxxxx Xxxxx
Credit Partners L.P., a limited partnership duly organized and existing under
the laws of Bermuda and having its principal office at 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Resigning Agent").
RECITALS:
WHEREAS, the Company, the Lenders, the Resigning Agent and the
Successor Agent, in its capacity as Collateral Agent, are parties to that
certain Amended and Restated Senior Secured Credit Agreement dated as of June
18, 2003 (as amended, supplemented and otherwise modified from time to time, the
"Credit Agreement"); and
WHEREAS, the Resigning Agent desires to resign its position as
Administrative Agent under the Credit Agreement; and
WHEREAS, the Required Lenders are prepared to appoint the Successor
Agent as the Resigning Agent's replacement.
NOW, THEREFORE, for and in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby consent and agree as follows:
ARTICLE I
THE RESIGNING AGENT
SECTION 1.1. Pursuant to Section 8.01(d) of the Credit Agreement, the
Resigning Agent hereby notifies the Company, the Successor Agent, (in its
current capacity as Collateral Agent), and the Lenders that the Resigning Agent
is hereby resigning as Administrative Agent under the Credit Agreement.
SECTION 1.2. Subject in any event to the provisions of Article VIII of
the Credit Agreement, the Resigning Agent hereby represents and warrants to
Successor Agent, the Company and the Lenders that, to its knowledge,:
(a) No covenant or condition contained in the Credit Agreement has been
waived, amended, supplemented or otherwise modified by the Resigning Agent or,
except in accordance with the terms and conditions of the Loan Documents, by the
Lenders.
(b) There is no action, suit or proceeding pending or threatened
against the Resigning Agent before any court or any governmental authority
arising out of any action or omission by Resigning Agent as Administrative Agent
under the Credit Agreement or the other Loan Documents to which it is a party.
(c) As of the effective date of this Agreement, the Resigning Agent
will hold no property under the Credit Agreement or the other Loan Documents.
(d) The Resigning Agent has no knowledge of an event that occurred and
is continuing which is an Event of Default under Article VII of the Credit
Agreement.
SECTION 1.3. The Resigning Agent hereby assigns, transfers, delivers
and confirms to the Successor Agent all rights, powers, privileges and duties of
the
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Administrative Agent under the Credit Agreement and the other Loan Documents and
all property and money held by such Resigning Agent under the Credit Agreement
and the other Loan Documents. The Resigning Agent shall execute and deliver such
further instruments or documents, as may be necessary or advisable, so as to
more fully and certainly vest and confirm in the Successor Agent all the rights,
privileges, powers and duties hereby assigned, transferred, delivered and
confirmed to the Successor Agent as Administrative Agent. This Section shall
survive the execution hereof and the termination of the rights and obligations
of the Resigning Agent under the Credit Agreement and other Loan Documents.
SECTION 1.4. The Resigning Agent shall deliver to the Successor Agent
all of the documents listed on Exhibit A hereto as a condition precedent to the
effectiveness of this Agreement.
SECTION 1.5. The Resigning Agent retains continued responsibility for
its actions or omissions during its term as the Administrative Agent under the
Credit Agreement in accordance with the terms thereof and agrees to reimburse
the Successor Agent for any reasonable fees and expenses incurred by the
Successor Agent (which are not otherwise reimbursed) as a result of the
Resigning Agent's gross negligence or willful misconduct in its capacity as
Administrative Agent during such term. Except as set forth in the Credit
Agreement and as provided herein, the Resigning Agent shall be discharged from
its duties and obligations under the Credit Agreement at such time this
Agreement becomes effective.
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ARTICLE II
THE COMPANY
SECTION 2.1. Reserved.
SECTION 2.2. The Company hereby consents to the appointment by the
Required Lenders of the Successor Agent as Administrative Agent under the Credit
Agreement, to succeed to all the rights, powers, trusts, privileges and duties
of the Resigning Agent under the Credit Agreement as the Administrative Agent
from the effective date of its appointment forward.
SECTION 2.3 The Company has the requisite power and authority to enter
into this Agreement.
SECTION 2.4. The Company hereby represents and warrants to the
Resigning Agent and the Successor Agent that:
(a) The Company is a corporation duly and validly organized and
existing pursuant to the laws of the State of Delaware.
(b) The Credit Agreement was validly and lawfully executed and
delivered by the Company; except in accordance with the terms and conditions
thereof, the Credit Agreement has not been amended or modified and is in full
force and effect.
(c) No event has occurred and is continuing which is, or after notice
or lapse of time would become, an Event of Default under Article VII of the
Credit Agreement.
(d) To the Company's knowledge, no covenant or condition contained in
the Credit Agreement has been waived by Company or, to the Company's knowledge,
except in accordance with the terms and conditions thereof, by the Lenders.
(e) This Agreement has been duly authorized, executed and delivered on
behalf of Company and constitutes its legal, valid and binding obligation
enforceable against it except as enforceability may be limited by applicable
bankruptcy, insolvency,
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reorganization or similar laws affecting the enforcement of creditor's rights
generally and by general equitable principles.
ARTICLE III
THE SUCCESSOR AGENT
SECTION 3.1. The Successor Agent hereby represents and warrants to the
Resigning Agent, the Lenders and to the Company that:
(a) The Successor Agent is qualified and eligible under the provisions
of Section 8.01(d) of the Credit Agreement. In making this representation and
warranty, the Successor Agent is relying upon the representations and warranties
contained herein of both the Resigning Agent and the Company regarding the
Credit Agreement.
(b) This Agreement has been duly authorized, executed and delivered on
behalf of the Successor Agent and constitutes its legal, valid and binding
obligation.
SECTION 3.2.
(a) The Successor Agent hereby accepts its appointment as the successor
Administrative Agent under the Credit Agreement with respect to all property and
money held or to be held under the Credit Agreement and accepts the rights,
powers, trusts, privileges, duties and obligations of the Resigning Agent as
Administrative Agent under the Credit Agreement, upon the terms and conditions
set forth therein, as Administrative Agent under the Credit Agreement from the
effective date of its appointment forward.
(b) Within a reasonable time after the effective date of this
Agreement, the Successor Agent shall cause a notice, substantially in the form
of Exhibit B annexed here to, to be sent to each Lender.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Capitalized terms not otherwise defined herein shall have
the respective meanings assigned to them in the Credit Agreement.
SECTION 4.2. This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective upon the Successor Agent's receipt
of (i) the documents set forth on Exhibit A hereto, and (ii) execution and
delivery of counterpart signature pages to this Agreement by each party hereto
and the Required Lenders.
SECTION 4.3. The Company acknowledges its obligations set forth in the
Credit Agreement for the benefit of the Resigning Agent and further acknowledges
that such obligations survive the execution hereof pursuant to Section 8.01 of
the Credit Agreement. The Company also acknowledges its obligations to the
Successor Agent as set forth in Section 8.01 of the Credit Agreement, which
obligations shall survive the execution hereof.
SECTION 4.4. This Agreement shall be governed by and construed in
accordance with the laws of the jurisdiction which governs the Credit Agreement.
SECTION 4.5. This Agreement may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 4.6. The Company, the Resigning Agent and the Successor Agent
hereby acknowledge receipt of an executed and acknowledged counterpart of this
Agreement and the effectiveness thereof.
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ARTICLE V
THE REQUIRED LENDERS
SECTION 5.1. Reserved.
SECTION 5.2. The Required Lenders hereby appoint the Successor Agent as
Administrative Agent under the Credit Agreement, to succeed to, and hereby vest
the Successor Agent with, all the rights, powers, trusts and duties of the
Resigning Agent under the Credit Agreement as the Administrative Agent from the
effective date of its appointment forward.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed and acknowledged as
of the day and year first above written.
Lenders: DK ACQUISITION PARTNERS, L.P., as Lender
By: X.X. Xxxxxxxx & Co., its General Partner
By:
----------------------------------------
Name:
Title:
HIGH YIELD PORTFOLIO, a series of Income
Trust, as Lender
By:
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Name:
Title:
AXP VARIABLE PORTFOLIO - EXTRA INCOME FUND,
a series of AXP Variable Portfolio Income
Series, Inc., as Lender
By:
----------------------------------------
Name:
Title:
PERRY PRINCIPALS INVESTMENTS, L.L.C., as
Lender
By:
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Name:
Title:
THE VARDE FUND V, L.P., a Delaware limited
partnership, as Lender
By: The Varde Fund V, G.P. LLC, a Delaware
limited liability company, its General
Partner
By: The Varde Partners, L.P., a Delaware
limited partnership, its Managing Member
By: The Varde Partners, Inc., a Delaware
corporation, its General Partner
By:
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Name:
Title:
YORK CAPITAL MANAGEMENT, L.P., as Lender
By:
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Name:
Title:
KZH SOLEIL-2, LLC, as Lender
By:
----------------------------------------
Name:
Title:
GALAXY 1999-1, LTD., as Lender
By:
----------------------------------------
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY, as Lender
By:
----------------------------------------
Name:
Title:
SATELLITE SENIOR INCOME FUND, LLC, as Lender
By: Satellite Asset Management, L.P., its
Investment Manager
By:
----------------------------------------
Name:
Title:
SPCP GROUP LLC, as Lender
By: SILVER POINT CAPITAL, L.P., its
managing member
By:
----------------------------------------
Name:
Title:
Resigning Agent: XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By:
----------------------------------------
Name:
Title:
Successor Agent: DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:
----------------------------------------
Name:
Title:
ACCEPTED AND AGREED:
Company:
METRIS COMPANIES INC.
By:
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Treasurer
EXHIBIT A
Documents to be delivered to Successor Agent
1. Administrative Questionnaires.
2. Full contact information for each Lender, including wire transfer
instructions.
3. Activity statement setting forth all cash transfers made by Resigning Agent
during its tenure as Administrative Agent.
4. Such other documents as the Successor Agent may reasonably require in order
to transfer the appointment to it.
EXHIBIT B
[TRUSTEE'S LETTERHEAD]
NOTICE
To the Lenders:
NOTICE IS HEREBY GIVEN, pursuant to Section 8.01(d) of the Amended and Restated
Senior Secured Credit Agreement dated as of June 18, 2003 (the "Credit
Agreement") by and among Metris Companies, Inc. (the "Company"), Deutsche Bank
Trust Company Americas, as Collateral Agent, Xxxxxxx Xxxxx Credit Partners L.P.
as Administrative Agent and the lenders that are signatories thereto, that
Xxxxxxx Sachs Credit Partners L.P. has resigned as Administrative Agent under
the Credit Agreement.
Pursuant to Section 8.01(d), of the Credit Agreement, Deutsche Bank Trust
Company Americas has accepted appointment as successor Administrative Agent
under the Credit Agreement.
Xxxxxxx Xxxxx Credit Partners L.P.'s resignation as Administrative Agent and
Deutsche Bank Trust Company Americas appointment as successor Administrative
Agent were effective as of the close of business on September [ ], 2003.
Dated: New York, New York
September [ ], 2003
Very truly yours,
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By:
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Name:
Title:
