EXECUTION COPY
AMENDMENT NO. 1
TO THE
SECOND AMENDED AND RESTATED PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE SECOND AMENDED AND RESTATED PURCHASE AGREEMENT,
dated as of June 14, 2002 (this "Amendment No. 1") is by and between METRIS
RECEIVABLES, INC., as buyer (the "Buyer"), and METRIS COMPANIES INC., as seller
(the "Seller").
WHEREAS the Buyer and the Seller have executed that certain Second
Amended and Restated Purchase Agreement, dated as of January 22, 2002 (the
"Purchase Agreement");
WHEREAS the Buyer and the Seller wish to amend the Purchase Agreement
as provided herein;
NOW THEREFORE, in consideration of the premises and the
agreements contained herein, the parties hereto agree to amend the provisions of
the Purchase Agreement as follows:
SECTION 1. Amendment of Section 1.1. (a) Section 1.1 of the Purchase
Agreement shall be and hereby is amended by adding the following definition,
which shall read in its entirety as follows:
"Interchange" shall mean all interchange fees payable
to the Seller pursuant to the Bank Receivables Purchase Agreement, the
amount of which allocable to the Receivables on any day shall be
calculated as provided in subsection 5.1(g).
(b) Section 1.1 of the Purchase Agreement shall be and hereby
is amended by deleting the definition of "Receivable" in its entirety and by
inserting in its place the following definition, which shall read in its
entirety as follows:
"Receivable" shall mean all of the indebtedness of
any Obligor under an Account, including the right to receive payment of
any interest or finance charges and other obligations of such Obligor
with respect thereto, but only to the extent that such amounts payable
have been conveyed to the Seller pursuant to the Bank Receivables
Purchase Agreement (or, with respect to a Credit Card Originator other
than the Bank, pursuant to a similar agreement between such Credit Card
Originator and the Seller). Each Receivable includes, without
limitation, all rights of the Seller under the applicable Contract. A
Receivable shall be deemed to have been created at the end of the day
on the Date of Processing of such Receivable.
SECTION 2. Amendment of Section 2.1. (a) Section 2.1 of the Purchase
Agreement shall be and hereby is amended by deleting subsection 2.1(a) in its
entirety and by inserting in its place the following:
(a) In consideration for the Purchase Price and upon
the terms and subject to the conditions set forth herein, the Seller
does hereby sell, assign, transfer, set-over and otherwise convey to
the Buyer, and the Buyer does hereby purchase from the Seller, without
recourse except as specifically set forth herein, all of the Seller's
right, title and interest in, to and under (i) in the case of
Receivables arising in the Accounts designated on the Initial Closing
Date (including Transferred Accounts related to such Accounts), the
Receivables existing at the close of business on the Initial Closing
Date and thereafter created from time to time in such Accounts until
the termination of this Agreement, (ii) in the case of Receivables
arising in the Additional Accounts and the Supplemental Accounts
(including Transferred Accounts related to such Additional Accounts and
Supplemental Accounts), the Receivables existing at the close of
business on the applicable Addition Cut-Off Date and thereafter created
from time to time in such Accounts until the termination of this
Agreement, (iii) all Interchange allocable to such Receivables, (iv)
all monies and investments due or to become due with respect to all of
the foregoing, (v) all Collections with respect to, and all proceeds
of, all of the foregoing, and (vi) the Bank Receivables Purchase
Agreement to the extent that it relates to the foregoing. The
Receivables existing in Additional Accounts and Supplemental Accounts
at the close of business on the related Addition Cut-Off Date and
thereafter arising in such Additional Accounts and Supplemental
Accounts on or prior to the related Addition Date, and the related
property, shall be sold by the Seller and purchased by the Buyer on the
related Addition Date. Receivables arising after such Addition Date in
such Additional Accounts or Supplemental Accounts, and the related
property, shall be sold by the Seller and purchased by the Buyer on the
date such Receivables arise. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute and is not intended to
result in a creation or an assumption by the Buyer of any obligation of
the applicable Credit Card Originator or the Seller in connection with
the Accounts or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligors, merchant
banks, merchant clearance systems, VISA USA, Inc., MasterCard
International, Incorporated or insurers.
(b) Section 2.1 of the Purchase Agreement shall be and hereby
is further amended by deleting the third sentence of subsection 2.1(d) in its
entirety and by inserting in its place the following:
However, in the event that, notwithstanding the intent of the parties,
the Receivables or other property are held to continue to be property
of the Seller, then (i) this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the UCC, and (ii)
the conveyance by the Seller provided for in this Agreement shall be
deemed to be and the Seller hereby grants to the Buyer a security
interest in all of the Seller's right, title and interest in, to and
under (u) in the case of Receivables arising in the Accounts designated
on the Initial Closing Date (including Transferred Accounts related to
such Accounts), the Receivables existing at the close of business on
the Initial Closing Date and thereafter created from time to time in
such Accounts until the termination of this Agreement, (v) in the case
of Receivables arising in the Additional Accounts and the Supplemental
Accounts (including Transferred Accounts related to such Additional
Accounts and Supplemental Accounts), the Receivables existing at the
close of business on the applicable Addition Cut-Off Date and
thereafter created from time to time in such Accounts until the
termination of this Agreement, (w) all Interchange allocable to such
Receivables, (x) all monies and investments due or to become due with
respect to all of the foregoing, (y) all Collections with respect to,
and all proceeds of, all of the foregoing, and (z) the Bank Receivables
Purchase Agreement to the extent that it relates to the foregoing, to
secure (1) the obligations of the Seller and (2) a loan to the Seller
in the amount of the Purchase Price as set forth in this Agreement.
SECTION 3. Amendment of Section 3.1. Section 3.1 of the Purchase Agreement
shall be and hereby is amended by deleting subsection 3.1(a) in its entirety and
by inserting in its place the following:
(a) The Purchase Price for the Receivables and
related property conveyed to the Buyer under this Agreement shall be a
dollar amount equal to the aggregate amount of all Principal
Receivables, and of all Finance Charge Receivables as constitute fees
and charges relating to the debt waiver programs administered by a
Credit Card Originator, so sold, subject to adjustment to reflect such
factors as the Buyer and the Seller mutually agree will result in a
Purchase Price determined to equal the fair market value of such
Receivables and related property.
SECTION 4. Amendment of Section 5.1. Section 5.1 of the Purchase Agreement
shall be and hereby is amended by adding the following at the end of Section
5.1, immediately after subsection 5.1(f), which shall read in its entirety as
follows:
(g) On or before each Determination Date, the Seller
shall pay to the Buyer or its designee, in immediately available funds,
the amount of Interchange allocable to the Receivables with respect to
the preceding Monthly Period. Such amount of Interchange shall be equal
to the product of (a) the total amount of Interchange paid to the
Seller during the preceding Monthly Period and (b) a fraction the
numerator of which is the aggregate amount of cardholder charges for
goods and services in the Accounts with respect to such Monthly Period
and the denominator of which is the aggregate amount of cardholder
charges for goods and services with respect to such Monthly Period in
all VISA USA, Inc. and MasterCard International, Incorporated accounts
owned by a Credit Card Originator the receivables of which have been
sold to the Seller pursuant to the Bank Receivables Purchase Agreement.
SECTION 5. Amendment of Section 6.1. Section 6.1 of the Purchase Agreement
shall be and hereby is amended by deleting the second sentence thereof in its
entirety, and inserted in its place shall be the following:
Upon such payment, without further action, such Ineligible Receivable,
together with all Interchange allocable to such Ineligible Receivable,
shall be reassigned to the Seller.
SECTION 6. Amendment of Section 6.2. Section 6.2 of the Purchase Agreement
shall be and hereby is amended by deleting the third sentence thereof in its
entirety, and inserted in its place shall be the following:
Upon such payment, and without further action, such Receivables,
together with all Interchange allocable to such Receivables, shall be
reassigned to the Seller.
SECTION 7. Amendment of Exhibit A. Exhibit A to the Purchase Agreement
shall be and hereby is amended by deleting subsection 3(a) thereof in its
entirety and by inserting in its place the following:
(a) The Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Buyer, without recourse except as
provided in the Receivables Purchase Agreement, all of the Seller's
right, title and interest in, to and under (i) the Receivables existing
in the Supplemental Accounts at the close of business on the Addition
Cut-Off Date and thereafter created from time to time in the
Supplemental Accounts until the termination of the Receivables Purchase
Agreement, (ii) all Interchange allocable to such Receivables, (iii)
all monies and investments due or to become due with respect to all of
the foregoing, and (iv) all Collections with respect to, and all
proceeds of, all of the foregoing (collectively, the "Additional
Purchased Assets").
SECTION 8. Effectiveness. The amendments provided for by this Amendment No.
1 shall become effective upon the occurrence of the following:
(a) Receipt by the Buyer and the Seller of written confirmation from each
Rating Agency to the effect that the terms of this Amendment No. 1 will not
result in a reduction or withdrawal of the rating of any outstanding securities
issued by the Trust to which it is a Rating Agency.
(b) Counterparts of this Amendment No. 1, duly executed by the parties
hereto.
SECTION 9. Purchase Agreement in Full Force and Effect as Amended. Except
as specifically amended or waived hereby, all of the terms and conditions of the
Purchase Agreement shall remain in full force and effect. All references to the
Purchase Agreement in any other document or instrument shall be deemed to mean
such Purchase Agreement as amended by this Amendment No. 1. This Amendment No. 1
shall not constitute a novation of the Purchase Agreement, but shall constitute
an amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Purchase Agreement, as amended by this Amendment No. 1, as
though the terms and obligations of the Purchase Agreement were set forth
herein.
SECTION 10. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts and by separate parties hereto on separate
counterparts, each of which when executed shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
SECTION 11. Governing Law. THIS AMENDMENT NO. 1 SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12. Defined Terms and Section References. Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to
such terms in the Purchase Agreement. All Section or subsection references
herein shall mean Sections or subsections of the Purchase Agreement, except
as otherwise provided herein.
IN WITNESS WHEREOF, the Buyer and the Seller each have caused
this Amendment No. 1 to be duly executed by their respective officers as of the
day and year first above written.
METRIS COMPANIES INC.,
as Seller
By: /s/Xxxxx X. Than
Name:Xxxxx X. Than
Title:Sr. Vice President,
Treasurer
METRIS RECEIVABLES, INC.,
as Buyer
By: /s/Xxxxx X. Than
Name: Xxxxx X. Than
Title:Sr. Vice President,
Treasurer
