AMENDMENT, dated as of December 7, 1998 (this "Amendment"), to
the AMENDED AND RESTATED CREDIT AGREEMENT (the "Credit Agreement"), dated as of
June 30, 1998, among METRIS COMPANIES INC., a Delaware corporation (the
"Borrower"), the lenders listed in Schedule 2.01 thereto (the "Lenders"),
NATIONSBANK, N.A., as Syndication Agent (in such capacity, the "Syndication
Agent"), DEUTSCHE BANK, as documentation agent, U.S. BANK NATIONAL ASSOCIATION,
as documentation agent (collectively in such capacity, the "Documentation
Agents"), BARCLAYS BANK PLC as co-agent, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as co-agent (collectively in such capacity, the
"Co-Agents"), and THE CHASE MANHATTAN BANK, as administrative agent for the
Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Borrower; and
WHEREAS, in connection with the $300 million investment in the
Borrower by the Xxxxxx X. Xxx Company (in substantially the form attached hereto
as Annex A), the Borrower has requested that the Lenders agree to amend the
Credit Agreement as provided herein:
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto hereby agree as follows:
SECTION I. AMENDMENT
1.1 Defined Terms. Unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement are used herein as
defined therein.
1.2 Amendment. The Lenders and the Borrower hereby agree that
upon the effectiveness of this Amendment the definitions of "Capital Stock" and
"Consolidated Net Worth" set forth in Section 1.1 of the Credit Agreement shall
be deleted and the following definitions shall be added in alphabetical order:
"Amendment Effective Date" shall have the meaning given to
such term in the Amendment to this Agreement dated as of December 7, 1998.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing; provided that Capital Stock shall not include any certificates or
other interests in or issued by a trust or other conduit in connection with a
Receivables Transfer Program and shall include the Xxx Preferred Stock.
"Consolidated Net Worth" shall mean, at any date of
determination, the sum of (a) the consolidated stockholders' equity of the
Borrower and its Subsidiaries and (b) the amount of the Xxx Preferred Stock (not
to exceed $300,000,000), in the case of clauses (a) and (b) as determined on a
consolidated basis in conformity with GAAP consistently applied.
"Xxx Preferred Stock" shall mean, at any date of
determination, the amount of the obligation of the Borrower in respect of the
Series B Perpetual Preferred Stock and the Series C Perpetual Convertible
Preferred Stock of the Borrower in substantially the form provided to the
Administrative Agent on the Amendment Effective Date on a consolidated balance
sheet of the Borrower in conformity with GAAP consistently applied.
SECTION II. MISCELLANEOUS
2.1 Conditions to Effectiveness of Amendment. This Amendment
shall become effective (the "Amendment Effective Date") as of the date first set
forth above upon (a) the Administrative Agent having received counterparts of
this Amendment duly executed and delivered by the Borrower and the Required
Lenders and (b) payment to the Administrative Agent and the Lenders by the
Borrower of such fees in respect of this Amendment as have been previously
agreed upon by the Borrower and the Administrative Agent.
2.2 Representations and Warranties. The Borrower represents
and warrants to each Lender that as of the effective date of this Amendment: (a)
the representations and warranties made by the Loan Parties in the Loan
Documents 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 (b) no Default or Event of Default
shall have occurred and be continuing as of the date hereof
2.3 Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Amendment signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
2.4 Continuing Effect; No Other Amendments. Except to the
extent expressly stated herein, all of the terms and provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect and are not waived in any respect. This Amendment shall constitute a Loan
Document.
2.5 Payment of Expenses. The Borrower agrees to pay and
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and reasonable expenses incurred to date in connection with this Amendment and
the other Loan Documents, including, without limitation, the reasonable fees and
disbursements of legal counsel to the Administrative Agent.
2.6 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
METRIS COMPANIES INC., as Borrower
By:/s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Sr. Vice President, Treasurer
By
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Lender and Issuing Bank
By:/s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
NATIONSBANK, N.A.
By:/s/Xxxx Xxx Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By:/s/Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
By:/s/Xxxxxxxxx Ziegimeir
Name: Xxxxxxxxx Ziegimeier
Title: Director
U.S. BANK NATIONAL ASSOCIATION
By:/s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
BARCLAYS BANK PLC,
NEW YORK BRANCH
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Associate Director
THE SUMITOMO BANK, LTD.
By:/s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Sr. Vice President
THE BANK OF NEW YORK
By:/s/Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By:/s/F.C.H. Xxxxx
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
BANQUE NATIONALE DE PARIS
By:/s/Xxxxxx Xxxxxx du Xxxxxx
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President and
Branch Manager
THE LONG TERM CREDIT BANK OF JAPAN, LTD.
By:/s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Manager & Regional Head
THE FUJI BANK, LIMITED
By:/s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
KZH IV LLC
By:/s/Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:
Name:
Title:
KZH III LLC
By:/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH SHOSHONE LLC
By:/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
AMARA-1 FINANCE LTD
By:/s/Ian Xxxxx Xxxxx
Name: Ian Xxxxx Xxxxx
Title: Director
AMARA-2 FINANCE LTD
By:/s/ Ian Xxxxx Xxxxx
Name: Ian Xxxxx Xxxxx
Title: Director
CERES FINANCE LTD
By:/s/ Xxxx X. Cullimane
Name: Xxxx X. Cullimane
Title: Director
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By:/s/ Xxxx Xxx Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Vice President
