EXHIBIT 10.2
SECOND AMENDMENT TO AMENDED AND RESTATED SENIOR SECURED
CREDIT AGREEMENT
This Second Amendment (this "Amendment") to the Amended and Restated
Senior Secured Credit Agreement referenced below is entered into as of September
30, 2003, among Metris Companies Inc., a Delaware corporation (the "Borrower"),
the lenders signatory hereto (the "Required Lenders"), and Deutsche Bank Trust
Company Americas, as administrative agent and collateral agent for the Lenders
(in such capacities, the "Administrative Agent" and "Collateral Agent").
R E C I T A L S:
WHEREAS, the Borrower, the Lenders, the Administrative Agent, and the
Collateral Agent, are parties to the Amended and Restated Senior Secured Credit
Agreement, dated as of June 18, 2003, as amended by the First Amendment to the
Credit Agreement, dated as of July 29, 2003 (as so amended, the "Credit
Agreement") providing for the extension of credit to Borrower in the form of a
term loan in the aggregate principal amount of $125,000,000;
WHEREAS, Metris Warranty Services of Florida, Inc. ("MWSF") entered
into a security agreement (the "MWSF Security Agreement") pursuant to which it
granted to the Collateral Agent for the benefit of the Lenders a security
interest in substantially all of its assets;
WHEREAS, the Borrower and MWSF have requested that certain property of
MWSF be released from the security interest granted by the MWSF Security
Agreement and that certain related provisions of the Credit Agreement be
amended;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Amendments to Credit Agreement.
1.1. Amendment to Section 5.14 of the Credit Agreement.
Section 5.14 of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
Section 5.14. Additional Accounts. Deliver a control
agreement, in form and substance reasonably satisfactory to
the Required Lenders, prior to the establishment of any
deposit account or securities account established after the
Effective Date, other than (a) deposit accounts or securities
accounts exclusively related to Receivables Transfer Programs,
and (b)only to the extent of the first Five Hundred Thousand
Dollars ($500,000) credited thereto, that certain securities
account described as Money Market Fund A/C 5820-1737 held by
U.S. Bancorp in the name of Metris Warranty Services of
Florida, Inc., or any replacement thereof (the "MWSF
Regulatory Compliance Account"). The Borrower agrees to
promptly deliver, or cause to be delivered, to the
Administrative Agent a copy of all statements, confirmations,
and correspondence concerning the MWSF Regulatory Compliance
Account.
1.2. Amendment to Section 6.12 of the Credit Agreement.
Section 6.12 of the Credit Agreement is hereby amended by adding a new
clause (h) thereto, to read as follows:
(h) the MWSF Regulatory Compliance Account (as
defined in Section 5.14 hereof);provided that, notwithstanding
anything in this Agreement to the contrary, the Borrower shall
not, nor shall it permit or cause any subsidiary to, grant any
Lien on the MWSF Regulatory Compliance Account or any property
or deposit therein or credited thereto except to the
Collateral Agent.
2. All capitalized terms used herein, unless otherwise defined herein,
have the same meanings provided herein or in the Credit Agreement.
3. This Amendment is limited precisely as written and shall not be
deemed to (a) be a consent to a waiver or any other term or condition of the
Credit Agreement, the other Loan Documents or any of the documents referred to
therein or executed in connection therewith or (b) prejudice any right or rights
the Lenders may now have or may have in the future under or in connection with
the Credit Agreement, the other Loan Documents or any documents referred to
therein or executed in connection therewith. Whenever the Credit Agreement is
referred to in the Credit Agreement or any of the instruments, agreements or
other documents or papers executed and delivered in connection therewith, it
shall be deemed to mean the Credit Agreement, as the case may be, as modified by
this Amendment.
4. This Amendment is a document executed pursuant to the Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered or applied in accordance with the terms and provisions thereof.
5. This Amendment may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement. The parties may
execute facsimile copies of this Amendment and the facsimile signature of any
such party shall be deemed an original and fully binding on said party.
6. This Amendment shall be governed and construed in accordance with
the applicable terms and provisions of Section 9.07 (Applicable Law) of the
Credit Agreement, which terms and provisions are incorporated herein by
reference.
7. Except as hereby amended, no other term, condition or provision of
the Credit Agreement shall be deemed modified or amended, and this Amendment
shall not be considered a novation.
8. The Required Lenders hereby direct and instruct the Administrative
Agent and Collateral Agent, as applicable, to execute this Amendment and to
release the MWSF Regulatory Compliance Account from the security interest
granted under the MWSF Security Agreement in accordance with the terms and
conditions of this Amendment.
9. The UCC-3 in the form attached to this Amendment is hereby
authorized to be filed in the office of the Secretary of State of the State of
Florida to effect such release.
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10. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
[Remainder of Page Intentionally Left Blank. Signature Pages Follow.]
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IN WITNESS WHEREOF, the Borrower, the Required Lenders, the
Administrative Agent and the Collateral Agent have caused this Second Amendment
to the Amended and Restated Credit Agreement to be duly executed by their
respective authorized officers as of the day and year first written above.
METRIS COMPANIES INC., as Borrower
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Treasurer
[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Collateral
Agent for the Lenders,
Secured Party and
Securities Intermediary
By:
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Name:
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Title:
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative
Agent for the Lenders,
Secured Party and
Securities Intermediary
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
HIGH YIELD PORTFOLIO, a series of Income
Trust, as Lender
By:
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Name:
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Title:
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AXP VARIABLE PORTFOLIO - HIGH YIELD BOND
FUND, a series of AXP Variable Portfolio
Income Series, Inc., as Lender
(F/K/A AXP VARIABLE PORTFOLIO - EXTRA
INCOME FUND, a series of AXP Variable
Portfolio Income Series, Inc.)
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
DK ACQUISITION PARTNERS, L.P., as Lender
By:X.X. Xxxxxxxx & Co., its General
Partner
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
PERRY PRINCIPALS INVESTMENTS, L.L.C., as
Lender
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
THE VARDE FUND V, L.P., a Delaware limited
partnership
By: The Varde Fund V, G.P. LLC, a Delaware
limited liability company, its General
Partner
By: Varde Partners, L.P., a Delaware
limited partnership, its Managing Member
By: Varde Partners, Inc., a Delaware
corporation, its General Partner
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
YORK CAPITAL MANAGEMENT, L.P., as Lender
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
KZM SOLEIL-2 LLC, as Lender
By:
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Name:
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Title:
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GALAXY 1999-1, LTD., as Lender
By:
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Name:
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Title:
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SUNAMERICA LIFE INSURANCE COMPANY, as
Lender
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
SATELLITE SENIOR INCOME FUND, LLC, as
Lender
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
SPCP GROUP LLC, as Lender
By: SILVER POINT CAPITAL LP its managing
member
By:
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Name:
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Title:
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[Signature Pages to Second Amendment to Amended and Restated Senior Secured
Credit Agreement]
