TAX SHARING AGREEMENT
THIS TAX SHARING AGREEMENT dated as of October 31,
1996, is made and entered into by Fingerhut Companies, Inc.,
a Minnesota corporation ("FCI") and Metris Companies Inc., a
Delaware corporation ("Metris"), and the Metris Affiliates.
RECITALS
WHEREAS, FCI is the common parent corporation of an
affiliated group of corporations within the meaning of
Section 1504(a) of the Internal Revenue Code of 1986, as
amended (the "CODE") and of combined groups as defined under
similar laws of other jurisdictions, and Metris and the
Metris Affiliates are members of such groups; and
WHEREAS, the groups of which FCI is the common parent
and Metris and the Metris Affiliates are members, file or
intend to file Consolidated Returns and Combined Returns;
and
WHEREAS, FCI and Metris desire to provide for the
allocation of liabilities, procedures to be followed, and
other matters with respect to certain taxes for taxable
periods beginning after December 31, 1993.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS
1.1. "AUDIT" includes any audit, assessment of Taxes,
other examination by any Tax Authority, proceeding, or
appeal of such proceeding relating to Taxes, whether
administrative or judicial.
1.2. "COMBINED GROUP" means a group of corporations or
other entities that files a Combined Return.
1.3. "COMBINED RETURN" means any Tax Return with
respect to Non-Federal Taxes filed on a consolidated,
combined (including nexus combination, worldwide
combination, domestic combination, line of business
combination or any other form of combination) or unitary
basis wherein one or more members of the Metris Group join
in the filing of a Tax Return with FCI or a FCI subsidiary
that is not also a member of the Metris Group.
1.4. "CONSOLIDATED GROUP" means the affiliated group of
corporations within the meaning of Section 1504(a) of the
Code of which FCI is the common parent and which includes
the Metris Group.
1.5. "CONSOLIDATED RETURN" means any Tax Return with
respect to Federal Income Taxes filed by FCI and its
subsidiaries pursuant to Section 1501 of the Code.
1.6. "DECONSOLIDATION" means any event pursuant to
which the FCI or the Metris Group cease to be includible in
the Consolidated Group or the Combined Group.
1.7. "DECONSOLIDATION DATE" means the close of business
on the day on which a Deconsolidation occurs. Unless
otherwise required by the relevant Tax Authority or a court
of competent jurisdiction, FCI and Metris, for itself and
the Metris Group, agree to file all Tax Returns, and to take
all other actions, relating to Federal Income Taxes or Non-
Federal Combined Taxes in a manner consistent with the
position that Metris and the Metris Group are includible in
the Consolidated Group and the Combined Group for all days
from December 31, 1993 through and including a
Deconsolidation Date.
1.8. "ESTIMATED TAX INSTALLMENT DATE" means the
installment due dates prescribed in Section 6655(c) of the
Code (presently April 15, June 15, September 15 and December
15).
1.9. "FCI GROUP" means FCI and its affiliates other
than the Metris Group.
1.10. "FEDERAL INCOME TAXES" means any tax imposed
under Subtitle A of the Code (including the taxes imposed by
Sections 11, 55, 59A and 1201(a) of the Code), including any
interest, additions to tax, or penalties applicable thereto,
and any other income based United States federal taxes which
are hereinafter imposed upon corporations.
1.11. "FINAL DETERMINATION" means (a) the final
resolution of any tax (or other matter) for a taxable
period, including any related interest or penalties, that,
under applicable law, is not subject to further appeal,
review or modification through proceedings or otherwise,
including (1) the expiration of a statute of limitations
(giving effect to any extension, waiver or mitigation
thereof) or a period for the filing of claims for refunds,
amended returns, appeals from adverse determinations, or
recovering any refund (including by offset), (2) a decision,
judgment, decree, or other order by a court of competent
jurisdiction, which has become final and unappealable, (3) a
closing agreement or an accepted offer in compromise under
Section 7121 or 7122 of the Code, or comparable agreements
under laws of other jurisdictions, (4) execution of an
Internal Revenue Service Form 870 or 870AD, or by a
comparable form under the laws of other jurisdictions
(excluding, however, any such form that reserves (whether by
its terms or by operation of law) the right of the taxpayer
to file a claim for refund and/or the right of the Tax
Authority to assert a further deficiency), or (5) any
allowance of a refund or credit, but only after the
expiration of all periods during which such refund or credit
may be recovered (including by way of offset) or (b) the
payment of tax by any member of the Consolidated Group or
Combined Group with respect to any item disallowed or
adjusted by a Tax Authority provided that FCI determines
that no action should be taken to recoup such payment.
1.12. "METRIS AFFILIATE" means any corporation or
other entity directly or indirectly owned or controlled by
Metris (including direct or indirect subsidiaries of
Fingerhut Companies, Inc. and including the extended service
plan business of Fingerhut Corporation), as of the date of
execution of this Agreement, which is includible in the
Metris Group. Such corporations or other entities shall
specifically, without limitation, include DMCCB Inc.; Direct
Merchants Credit Card Bank, National Association; Fingerhut
Financial Services Receivables, Inc.; and the extended
service plan business of Fingerhut Corporation.
1.13. "METRIS GROUP" means the affiliated group of
corporations as defined in Section 1504(a) of the Code, or
similar group of entities as defined under similar laws of
other jurisdictions, including Metris and the Metris
affiliates, of which Metris is deemed to be the common
parent, and any corporation or other entity which may have
been, may be or may become a member of such group from time
to time.
1.14. "METRIS GROUP COMBINED TAX LIABILITY" means,
with respect to any taxable year, the Metris Group's
liability for Non-Federal Combined Taxes as determined under
Section 2.3 of this Agreement.
1.15. "METRIS GROUP FEDERAL INCOME TAX LIABILITY"
means, with respect to any taxable year, the Metris Group's
liability for Federal Income Taxes as determined under
Section 2.2 of this Agreement.
1.16. "NON-FEDERAL COMBINED TAXES" means any Non-
Federal Domestic Taxes with respect to which a Combined
Return is filed.
1.17. "NON-FEDERAL SEPARATE TAXES" means any Non-
Federal Domestic Taxes that are not Non-Federal Combined
Taxes.
1.18. "NON-FEDERAL DOMESTIC TAXES" includes all
domestic state and local taxes, charges, fees, levies,
imposts, duties, or other assessments of a similar nature,
including, without limitation, income, alternative or add-on
minimum, gross receipts, excise, employment, sales, use,
transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, withholding, Social Security,
unemployment, disability, ad valorem, estimated, highway
use, commercial rent, capital stock, paid up capital,
recording, registration, property, real property gains,
value added, business license, custom duties, or other tax
or governmental fee of any kind whatsoever, imposed or
required to be withheld by any domestic Tax Authority
(excluding any federal governmental agency of the United
States), including any interest, additions to tax, or
penalties applicable thereto.
1.19. "POST-DECONSOLIDATION PERIOD" means a taxable
period beginning after the Deconsolidation Date.
1.20. "PRE-DECONSOLIDATION PERIOD" means a taxable
period ending on or prior to the Deconsolidation Date.
1.21. "PRO FORMA METRIS GROUP COMBINED RETURN"
means a pro forma Metris Combined Return or other schedule
prepared pursuant to Section 2.3 of this Agreement.
1.22. "PRO FORMA METRIS GROUP CONSOLIDATED RETURN"
means a pro forma Consolidated Return prepared pursuant to
Section 2.2 of this Agreement.
1.23. "REDETERMINATION AMOUNT" means, with respect
to any taxable year, the amount determined under Section 3.7
of this Agreement.
1.24. "SPECIAL TAX ATTRIBUTES" means any net
operating loss, net capital loss, investment tax credit,
charitable deduction or any other deduction, credit or tax
attribute which could reduce taxes (including without
limitation deductions and credits related to alternative
minimum taxes).
1.25. "STRADDLE PERIOD" means a taxable period
beginning on or prior to and ending after the
Deconsolidation Date.
1.26. "TAX AUTHORITY" includes the Internal Revenue
Service and any state, local, or other governmental
authority responsible for the administration of any Taxes.
1.27. "TAXES" means Federal Income Taxes and Non-
Federal Taxes.
1.28. "TAX RETURN" means any return, declaration,
statement, report, schedule, certificate, form, information
return or any other document (and any related or supporting
information) including an amended tax return required to be
supplied to, or filed with, a Tax Authority with respect to
Taxes.
SECTION 2. TAX SHARING
2.1. METRIS LIABILITY FOR FEDERAL INCOME TAXES AND NON-
FEDERAL COMBINED TAXES. With respect to each taxable year,
Metris shall pay to FCI (or FCI shall pay to Metris) in
accordance with the procedures set forth in Section 3, an
amount equal to the sum of the Metris Group Federal Income
Tax Liability (or refund) and the Metris Group Combined Tax
Liability (or refund) for such taxable year.
2.2. METRIS GROUP FEDERAL INCOME TAX LIABILITY.
(a) IN GENERAL. With respect to any taxable
year, the Metris Group Federal Income Tax Liability shall be
the sum, for such taxable year, of (1) the Metris Group's
liability for Federal Income Taxes as determined on the Pro
Forma Metris Group Consolidated Return, and (2) any
interest, penalties and other additions applicable to such
taxes.
(b) PRO FORMA FEDERAL RETURN. With respect to
each taxable year, FCI shall prepare or cause to be prepared
a pro forma consolidated federal income tax return or other
comparable schedules for the Metris Group ("Pro Forma Metris
Group Consolidated Return") as if (except as provided in
Section 2.2(c)) the Metris Group was not, nor ever was a
part of the Consolidated Group, but rather was a separate
affiliated group of corporations, consisting of Metris and
the Metris affiliates of which Metris was the common parent
filing a consolidated federal income tax return pursuant to
Section 1501 of the Code.
(c) OPERATING RULES. The Pro Forma Metris Group
Consolidated Return shall be prepared:
(1) reflecting the elections, methods of
accounting, and positions with respect to specific items to
be made or used in the Consolidated Return;
(2) giving effect to any deduction or credit
for any Metris Special Tax Attribute as determined on the
Pro Forma Metris Group Consolidated Return. In addition,
Metris shall receive the benefit of any deduction or credit
for any Metris Special Tax Attributes for which a tax
benefit is actually received in a Consolidated Return, but
for this purpose, if the Metris Group and the FCI Group
contribute like Special Tax Attributes to a Consolidated
Return (not necessarily in the same taxable year) which are
partially or fully limited under the Code, the Metris Group
shall only receive benefit for such like Special Tax
Attributes to the extent that the Special Tax Attributes for
which a tax benefit is actually received in a Consolidated
Return exceed such like Special Tax Attributes contributed
by the FCI Group;
(3) applying the top marginal income tax
rate used in the Consolidated Return;
(4) reflecting transactions with members of
the Consolidated Group that are not also members of the
Metris Group as if such transactions were not with members
of the same Consolidated Group. Metris personnel would be
responsible for identifying all such transactions in each
taxable year, and providing such information to FCI for
review and approval within sixty (60) days of year end, in
order to assist FCI in preparing the Pro Forma Metris Group
Consolidated Return; and
(5) reflecting deductions for Non-Federal
Combined Taxes estimated as provided for in Section 2.3 of
this agreement.
2.3 METRIS GROUP COMBINED TAX LIABILITY
(a) IN GENERAL. With respect to any taxable
year, the Metris Group Combined Tax Liability shall be the
sum, for such taxable year, of (1) the Metris Group's
liability for Non-Federal Combined Taxes as determined on
the Pro Forma Metris Group Combined Return and (2) any
interest, penalties and other additions to such taxes.
(b) PRO FORMA COMBINED RETURN. Each taxable
year, FCI shall prepare or cause to be prepared a pro forma
combined tax return or other schedule for the Metris Group
("Pro Forma Metris Group Combined Return") determined as if
the Metris Group was not and never was part of the Combined
Group, but rather was a separate group of which Metris was
the common parent filing a combined tax return.
(c) OPERATING RULES. The Pro Forma Metris Group
Combined Return shall be prepared by reference to:
(1) the Metris Group's taxable income or
loss from Line 28 (or other similar line representing
taxable income before net operating loss deduction and
special deductions) of the Pro Forma Metris Group
Consolidated Return, adjusted to take into account (i) those
members of the Metris Group which are included in the
Combined Return; (ii) Metris Group Special Tax Attributes;
and (iii) material adjustments necessary to reflect the laws
of the applicable jurisdiction;
(2) apportionment factors determined by
taking into account only those members of the Metris Group
which are included in the Combined Return;
(3) the highest applicable tax rate without
regard to any graduated rates; and
(4) the fact that if a Metris Group Special
Tax Attribute cannot be fully utilized in the Pro Forma
Metris Group Combined Return, the Metris Group will only be
able to realize a benefit from such Special Tax Attribute to
the extent it is allowed to utilize such Special Tax
Attribute when carried forward or carried back to a Pro
Forma Metris Group Combined Return in future or prior years.
SECTION 3. PAYMENT OF TAXES AND TAX SHARING AMOUNTS
3.1 FEDERAL INCOME TAXES. FCI shall pay timely to the
Internal Revenue Service all Federal Income Taxes, if any,
of the Consolidated Group (including the Metris Group) due
and payable for all Pre-Deconsolidation Periods.
3.2. NON-FEDERAL COMBINED TAXES. FCI shall pay timely
to the appropriate Tax Authorities all Non-Federal Combined
Taxes, if any, of the Combined Group (including the Metris
Group) due and payable for all Pre-Deconsolidation Periods
and Straddle Periods.
3.3. NON-FEDERAL SEPARATE TAXES. Metris shall pay
timely to the appropriate Tax Authorities all Non-Federal
Separate Taxes, if any, of the Metris Group due and payable
for all Pre-Deconsolidation Periods and Straddle Periods.
3.4. OTHER FEDERAL TAXES. The parties shall each pay
timely to the appropriate governmental authorities all of
their respective other federal taxes (excluding Federal
Income Taxes for Pre-Deconsolidation Periods, which are
governed by Section 3.1 of this Agreement), if any, due and
payable for all Pre-Deconsolidation Periods, Straddle
Periods, and Post-Deconsolidation Periods.
3.5. TAX SHARING INSTALLMENT PAYMENTS.
(a) FEDERAL INCOME TAXES. Not later than five
(5) business days after each Estimated Tax Installment Date
with respect to any Pre-Deconsolidation Period or Straddle
Period, FCI shall determine under Section 6655 of the Code
the estimated amount of the related installment of the
Metris Group Federal Income Tax Liability and shall notify
Metris of such amount in writing. Metris shall review such
calculation and shall then pay to FCI, not later than ten
(10) business days after such Estimated Tax Installment
Date, the amount thus determined. In addition, the
provisions of this Section 3.5(a) shall apply to any federal
income tax payment made with the filing of the extension of
the Consolidated Return.
(b) NON-FEDERAL COMBINED TAXES. Not later than
May 1 of the year subsequent to each taxable year with
respect to any Pre-Deconsolidation Period or Straddle
Period, FCI shall deliver to Metris, in writing, an estimate
of the Metris Group Combined Tax Liability for such taxable
year determined by using the apportionment factors
applicable to such taxable year. Metris shall review such
calculation and shall then pay to FCI, not later than ten
(10) business days after receipt of such estimate, the
amount thus determined.
3.6. TAX SHARING TRUE UP PAYMENTS.
(a) FEDERAL INCOME TAXES. Not later than ninety
(90) business days after the Consolidated Return is filed
with respect to any Pre-Deconsolidation Period or Straddle
Period, FCI shall deliver to Metris a Pro Forma Metris Group
Consolidated Return or other comparable schedules reflecting
the Metris Group Federal Income Tax Liability. Not later
than ten (10) business days after the date such pro forma or
other schedules are delivered, Metris shall review such
return or other comparable schedules and shall pay to FCI,
or FCI shall pay to Metris, as appropriate, an amount equal
to the difference, if any, between the Metris Group Federal
Income Tax Liability for such taxable year, as adjusted, and
the aggregate amount paid by Metris with respect to such
taxable year under Section 3.5(a) of this Agreement.
(b) NON-FEDERAL COMBINED TAXES. Not later than
December 15 following each taxable year with respect to any
Pre-Deconsolidation Period or Straddle Period, FCI shall
deliver to Metris a Pro Forma Metris Group Combined Return
or other comparable schedules reflecting the Metris Group
Combined Tax Liability for such taxable year. Not later
than ten (10) business days following delivery of such pro
forma or other schedules, Metris shall review such return or
other comparable schedules and shall pay to FCI, or FCI
shall pay to Metris, as appropriate, an amount equal to the
difference, if any, between the Metris Group Combined Tax
Liability, for the taxable year and the amount paid by
Metris with respect to such taxable year under Section
3.5(b) of this Agreement.
3.7. REDETERMINATION AMOUNTS.
(a) IN GENERAL. In the event of any
redetermination of any item of income, gain, loss, deduction
or credit of any member of the Consolidated Group or
Combined Group as a result of a Final Determination or any
settlement or compromise with any Tax Authority (including
any amended tax return or claim for refund filed by FCI),
Metris shall pay FCI or FCI shall pay Metris, as the case
may be, the Redetermination Amount.
(b) COMPUTATION. The Redetermination Amount
shall be the difference, if any, between all amounts
previously determined under Section 2 of this Agreement and
all amounts that would have been determined under Section 2
of this Agreement taking such redetermination into account
(including any additions to tax or penalties applicable
thereto), together with interest for each day calculated (1)
with respect to redeterminations affecting Federal Income
Taxes, at the rate determined, in the case of payment by
Metris, under Section 6621(a)(2) of the Code and, in the
case of payment by FCI, under Section 6621(a)(1) of the
Code, and (2) with respect to redeterminations affecting Non-
Federal Combined Taxes, under similar laws, if any, of other
jurisdictions.
(c) PAYMENT. FCI shall deliver to Metris a
schedule reflecting the computation of any Redetermination
Amount with respect to any taxable year. Not later than ten
(10) days after the date such schedule is delivered, Metris
shall review such schedule and shall pay FCI, or FCI shall
pay Metris, such Redetermination Amount.
3.8. INTEREST. Payments under this Section 3 that are
not made within the prescribed period shall thereafter bear
interest at the Federal short-term rate established pursuant
to Section 6621 of the Code.
SECTION 4. PROCEDURAL MATTERS
4.1. AGENT, PREPARATION AND FILING OF RETURNS. Until
Deconsolidation, FCI shall be the sole and exclusive agent
of Metris and any member of the Metris Group in any and all
matters relating to (a) Federal Income Taxes of the
Consolidated Group and (b) any Non-Federal Combined Taxes
for all Pre-Deconsolidation Periods and Straddle Periods.
Until December 31, 1997, FCI shall have the sole and
exclusive responsibility for the preparation and filing of
any (a) Consolidated Return or (b) Combined Return for all
Pre-Deconsolidation Periods and Straddle Periods. In its
sole discretion, FCI shall have the exclusive right with
respect to any such Consolidated Return or Combined Return
(a) to determine (1) the manner in which such Tax Return
shall be prepared and filed, including, without limitation,
the manner in which any item of income, gain, loss,
deduction or credit shall be reported, (2) whether any
extensions may be requested, (3) the elections that will be
made by any member of the Consolidated Group or Combined
Group, and (4) whether any amended tax returns should be
filed, (b) to control, contest, and represent the interests
of the Consolidated Group and Combined Group in any Audit
and to resolve, settle, or agree to any adjustment or
deficiency proposed, asserted or assessed as a result of any
Audit, (c) to file, prosecute, compromise or settle any
claim for refund, and (d) to determine whether any refunds,
to which the Consolidated Group or Consolidated Group may be
entitled, shall be paid by way of refund or credited against
the tax liability of the Consolidated Group and Combined
Group. Metris, for itself and its subsidiaries, hereby
irrevocably appoints FCI as its agent and attorney-in-fact
to take such action (including the execution of documents)
as FCI may deem appropriate to effect the foregoing.
4.2. FURNISHING INFORMATION. Each member of the Metris
Group shall (a) furnish to FCI in a timely manner such
information and documents as FCI may reasonably request for
purposes of (1) preparing any original or amended
Consolidated Return or Combined Return, (2) contesting or
defending any Audit, and (3) making any determination or
computation necessary or appropriate under this Agreement,
(b) cooperate in any Audit of any Consolidated Return or
Combined Return, (c) retain and provide on demand books,
records, documentation or other information relating to any
tax return until the later of (1) the expiration of the
applicable statute of limitations (giving effect to any
extension, waiver, or mitigation thereof) and (2) in the
event any claim is made under this Agreement for which such
information is relevant, until a Final Determination with
respect to such claim is made, and (d) take such action as
FCI may deem appropriate in connection therewith. FCI shall
provide the Metris Group with any assistance reasonably
required in providing any information requested pursuant to
this Section 4.2.
4.3. EXPENSES. Metris shall reimburse FCI for its
reasonable portion of third party legal and accounting
expenses incurred by FCI in the course of the planning and
preparation of any tax returns, the conduct of any Audit
regarding the tax liability of the Combined Group or
Consolidated Group, and for any other expense incurred by
FCI in the course of any litigation relating thereto, to the
extent such costs are reasonably attributable to the Metris
Group and provided FCI has conferred with Metris as to the
portion of such costs relating to the Metris Group.
Notwithstanding the foregoing, FCI shall have the sole
discretion to control, contest, represent, file, prosecute,
challenge or settle any Audit.
SECTION 5. DECONSOLIDATION
5.1. CONTINUING COVENANTS. Metris, for itself and the
Metris Affiliates, covenants that on or after a
Deconsolidation it will not, nor will it cause or permit any
member of the Metris Group to, make or change any tax
election, change any accounting method, amend any tax return
or take any tax position on any tax return, take any action,
omit to take any action or enter into any transaction that
results in any increased tax liability or reduction of any
Special Tax Attributes of the Metris Group in respect of any
Pre-Deconsolidation Period or Straddle Period.
5.2. REATTRIBUTION OF SPECIAL TAX ATTRIBUTES. In the
event of a Deconsolidation, FCI may, at its option, elect to
reattribute to itself certain Special Tax Attributes of the
Metris Group pursuant to Treasury Regulations Section 1.1502-
20(g) or similar provisions of other jurisdictions. If FCI
makes such an election, Metris shall comply with any
applicable requirements, including those of Treasury
Regulations Section 1.1502-20(g)(5).
5.3. CARRYBACKS. FCI agrees to pay to Metris the
actual tax benefit received by the FCI Group from the use in
any Pre-Deconsolidation Period of a carryback of any Special
Tax Attributes of the Metris Group from a Post-
Deconsolidation Period. Such benefit shall be considered
equal to the lesser of (a) the benefit Metris would have
received had such Special Tax Attributes arisen in a Pre-
Deconsolidation Period and (b) the excess of (1) the amount
of Federal Income Taxes imposed on the Consolidated Group or
the amount of Combined Taxes imposed on the Combined Group,
as the case may be, that would have been payable by the
Consolidated Group or Combined Group in the absence of such
carryback over (2) the amount of Federal Income Taxes or
Combined Taxes, as the case may be, actually paid. Payment
of the amount of such benefit shall be made within ninety
(90) days of the filing of the applicable tax return for the
taxable year in which the Special Tax Attributes are
utilized. If subsequent to the payment by FCI to Metris of
any such amount, there shall be (a) a Final Determination
which results in a disallowance or a reduction of the
Special Tax Attributes so carried back or (b) a reduction in
the amount of the benefit realized by the FCI Group as a
result of any other Special Tax Attributes that arise in a
Post-Deconsolidation Period, Metris shall receive support
for such disallowance or reduction in writing, and shall
repay to FCI, within ninety (90) days of such event, any
amount which would not have been payable to Metris pursuant
to this Section 5.3 had the amount of the benefit been
determined in light of these events. Metris shall hold FCI
harmless for any penalty, addition to tax or interest
payable by any member of the FCI Group as a result of any
such event. Any such amount shall be provided to Metris in
writing and shall be paid by Metris to FCI within ninety
(90) days after notice to Metris of the payment by FCI, or
any member of the Consolidated Group or Combined Group of
any such penalty, addition to tax, or interest. Nothing in
this Section 5.3 shall require FCI to file a claim for
refund of Federal Income Taxes or Combined Taxes.
SECTION 6. DISPUTES
6.1. ACCOUNTING FIRM. If the parties are unable to
agree on the amount which is allocable or due to one party
from the other under this Agreement (including any payments
due under Section 3.5, 3.6 or 3.7), or on whether an action
or failure to act has the effect of minimizing taxes, then
either party may invoke this procedure by giving notice to
the other. Upon receipt of such notice, the parties shall
select and notify a single public accounting firm to resolve
the dispute. If the parties cannot agree on a single firm
within ten (10) days, they shall each select a nationally
recognized public accounting firm, which may include the
public accounting firm which regularly opines on either
party's financial statements ("Auditor). Those two firms
shall jointly select and notify, within ten (10) days, a
third independent nationally recognized public accounting
firm, which shall not be the Auditor of either party, to
resolve the dispute.
6.2 RESOLUTION OF DISPUTE. The chosen public
accounting firm (the "Arbitrator") shall be provided with
written arguments by each party and all supporting documents
which each party deems necessary within thirty (30) days of
selection of the Arbitrator. Each party shall provide the
other party with copies of all written arguments, documents,
and correspondence submitted to the Arbitrator. Either
party may discuss the issues with the Arbitrator provided
the other party is given the opportunity to be present.
Within sixty (60) days of selection of Arbitrator, the
Arbitrator may request each party to respond to the written
arguments provided by the other party. The Arbitrator may
also set a date, time and place for oral arguments. Within
sixty (60) days of any oral arguments or the last written
arguments, whichever is later, the Arbitrator shall notify
the parties of its decision. If in the opinion of the
Arbitrator, an expedited decision is necessary to protect
either party's rights, the Arbitrator shall accelerate the
dates for submissions, arguments and decision so as to
protect the rights of the parties.
6.3 BINDING RESOLUTION. The determination made by the
Arbitrator under Section 6.2 hereof shall be conclusive and
binding upon the parties and shall not be subject to appeal,
except in the case of manifest mathematical error.
6.4 COSTS OF DISPUTE RESOLUTION. The parties shall
share equally in all fees and costs of the Arbitrator.
SECTION 7. MISCELLANEOUS
7.1. TERM. This Agreement shall expire upon the
Deconsolidation Date; provided, however, that all rights and
obligations arising hereunder with respect to a Pre-
Deconsolidation Period or Straddle Period shall survive
until they are fully effectuated or performed and, provided,
further, that notwithstanding anything in this Agreement to
the contrary, all rights and obligations arising hereunder
with respect to a Post-Deconsolidation Period shall remain
in effect and its provisions shall survive for the full
period of all applicable statutes of limitation (giving
effect to any extension, waiver or mitigation thereof).
7.2. ALLOCATIONS. All computations with respect to the
Pre-Deconsolidation Period ending on the Deconsolidation
Date, the immediately following taxable period of Metris and
the Metris Group and any Straddle Period shall be made
pursuant to the principles of Treasury Regulations Section
1.1502-76(b), taking into account such elections thereunder
as FCI, in its sole discretion, shall make.
7.3. CHANGES IN LAW. Any reference to a provision of
the Code or a similar law of another jurisdiction shall
include a reference to any successor provision to such
provision.
7.4. CONFIDENTIALITY. Each party shall hold and cause
its advisors and consultants to hold in strict confidence,
unless compelled to disclose by judicial or administrative
process or, in the opinion of its counsel, by other
requirements of law, all information (other than any such
information relating solely to the business or affairs of
such party) concerning the other parties hereto furnished it
by such other party or its representatives pursuant to this
Agreement (except to the extent that such information can be
shown to have been (a) previously known by the party to
which it was furnished, (b) in the public domain through no
fault of such party, or (c) later lawfully acquired from
other sources not under a duty of confidentiality by the
party to which it was furnished), and each party shall not
release or disclose such information to any other person,
except its auditors, attorneys, financial advisors, bankers
and other consultants who shall be advised of and agree to
be bound by the provisions of this Section 7.4. Each party
shall be deemed to have satisfied its obligation to hold
confidential information concerning or supplied by the other
party if it exercises the same care as it takes to preserve
confidentiality for its own similar information.
7.5. SUCCESSORS. This Agreement shall be binding on
and inure to the benefit of any successor, by merger,
acquisition of assets or otherwise, to any of the parties
hereto (including any successor of FCI and Metris succeeding
to the tax attributes of such party under Section 381 of the
Code), to the same extent as if such successor had been an
original party.
7.6. AUTHORIZATION, ETC. Each of the parties hereto
hereby represents and warrants that it has the power and
authority to execute, deliver and perform this Agreement,
that this Agreement has been duly authorized by all
necessary corporate action on the part of such party, that
this Agreement constitutes a legal, valid and binding
obligation of each such party and that the execution,
delivery and performance of this Agreement by such party
does not contravene or conflict with any provision of law or
of its charter or bylaws or any agreement, instrument or
order binding on such party.
7.7. ENTIRE AGREEMENT. This Agreement contains the
entire agreement among the parties hereto with respect to
the subject matter hereof and supersedes all prior
agreements.
7.8. SECTION CAPTIONS. Section captions used in this
Agreement are for convenience and reference only and shall
not affect the construction of this Agreement.
7.9. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Minnesota without giving effect to laws and principles
relating to conflicts of law.
7.10. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
an original, but all of which together shall constitute one
and the same Agreement.
7.11. WAIVERS AND AMENDMENTS. This Agreement shall
not be waived, amended or otherwise modified except in
writing, duly executed by all of the parties hereto.
7.12. SEVERABILITY. In case any one or more of the
provisions in this Agreement should be invalid, illegal or
unenforceable, the enforceability of the remaining
provisions hereof will not in any way be effected or
impaired thereby.
7.13. NO THIRD PARTY BENEFICIARIES. This Agreement
is solely for the benefit of the parties to this Agreement
and the other members of the Consolidated Group and should
not be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other
rights in excess of those existing without this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed by a duly authorized
officer as of the date first above written.
FINGERHUT COMPANIES, INC.
By:
Name:
Title:
METRIS COMPANIES INC.
By:
Name:
Title:
