FIRST AMENDMENT, dated as of October 6, 1997 (this "FIRST
AMENDMENT"), to each of (a) the Revolving Credit and Letter of Credit
Facility Agreement, dated as of September 16, 1996 (as amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among
METRIS COMPANIES, INC. (the "BORROWER"), the Lenders parties thereto,
NATIONSBANK, N.A., as co-agent (in such capacity, the "CO-AGENT"), and THE
CHASE MANHATTAN BANK, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"), (b) the Guaranty, dated as of September 16, 1996 (as
amended, supplemented or otherwise modified from time to time, the "PARENT
GUARANTY"), made by FINGERHUT COMPANIES, INC. (the "GUARANTOR") in favor of
the Administrative Agent and (c) the Security Agreement, dated as of
September 16, 1996 (as amended, supplemented or otherwise modified from time
to time, the "SECURITY AGREEMENT"), made by the Borrower in favor of the
Administrative Agent. Unless otherwise defined herein, all capitalized terms
defined in the Credit Agreement and used herein are so used as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower and the Guarantor have requested that the
Administrative Agent and the Lenders enter into this First Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE CREDIT AGREEMENT
1. Section 1.01 of the Credit Agreement is hereby amended by
adding the following definitions in the appropriate alphabetical order:
"SENIOR NOTE INDEBTEDNESS" shall mean the indebtedness of the
Borrower issued pursuant to the Senior Note Indenture.
"SENIOR NOTE INDENTURE" shall mean the $100,000,000 Indenture
governing the Borrower's Senior Notes due 2004 among the Borrower, the
guarantors parties thereto and the trustee named therein, as the same may
be amended, supplemented, modified or restated from time to time as
permitted thereby.
2. Section 6.04 of the Credit Agreement is hereby amended by (i)
re-lettering clause (b) thereof as clause (c) and (ii) inserting a new clause
(b) immediately before such re-lettered clause (c) which shall read in its
entirety as follows:
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", (b) Indebtedness of the Borrower and any Subsidiary Guarantor
pursuant to the Senior Note Indenture in an aggregate principal amount
not to exceed $100,000,000 at any one time outstanding, and"
3. Paragraph (g) of Article VII of the Credit Agreement is hereby
amended by adding a new clause (iv) to the end thereof which shall read in
its entirety as follows:
", or (iv) in the case of the Borrower, fail to observe or perform any
term, covenant, condition or agreement contained in the Senior Note
Indenture or any other agreement or instrument evidencing or governing
any of the Senior Note Indebtedness if the effect of any failure
referred to in this clause (iv) is to cause, or to permit the holder
or holders of such Senior Note Indebtedness (or any Person acting on
their behalf) to cause, with the giving of notice if required, all or
any portion of such Senior Note Indebtedness to become due prior to
its stated maturity"
ARTICLE II
AMENDMENT TO THE PARENT GUARANTY
Section 5(h) of the Parent Guaranty is hereby amended by adding a
new clause (w) immediately before clause (x) thereof which shall read in its
entirety as follows:
"(w) as specifically set forth in (1) the Senior Note Indenture or (2) any
other document or instrument governing Indebtedness so long as such
restrictions are no more onerous than those contained in the Senior Note
Indenture,"
ARTICLE III
AMENDMENT TO THE SECURITY AGREEMENT
Section 1.1(b) of the Security Agreement is hereby amended by
amending and restating the definition of "Excluded Assets" contained therein
as follows:
"EXCLUDED ASSETS": any property, including but not limited to
Accounts, Chattel Paper, Documents, General Intangibles, Instruments, books
and records pertaining to such property and all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to the foregoing, sold, assigned,
transferred, set-over and otherwise conveyed from time to time to a special
purpose Receivables Transfer Subsidiary pursuant to a Receivables Transfer
Program.
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ARTICLE IV
MISCELLANEOUS
1. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the
Guarantor (each, an "AMENDMENT PARTY") hereby represents and warrants on and
as of the Effective Date (as defined below) that (a) this First Amendment has
been duly authorized, executed and delivered by such Amendment Party and
constitutes the legal, valid and binding obligation of such Amendment Party
enforceable against such Amendment Party in accordance with its terms; (b)
this First Amendment and the consummation of the transactions contemplated
hereunder will not (i) violate (A) any provision of any law, statute, rule or
regulation where such violation would be materially likely to result in a
Material Adverse Effect, (B) the articles of incorporation or other
constitutive documents or by-laws of such Amendment Party, (C) any order of
any Governmental Authority where such violation would be materially likely to
result in a Material Adverse Effect or (D) any provision of any material
indenture, agreement or other instrument to which such Amendment Party is a
party or by which it or any of its property is or may be bound or (ii) result
in a breach of or constitute (alone or with notice or lapse of time or both)
a default under any such indenture, agreement or other instrument; and (c) no
action, consent or approval of, registration or filing with or any other
action by, any Governmental Authority is or will be required by such
Amendment Party in connection with this First Amendment and the transactions
contemplated hereby.
2. NO OTHER MODIFICATIONS. Except as expressly modified hereby,
all the provisions of the Credit Agreement are and shall continue to be in
full force and effect. Each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" and words of like import referring to the
Credit Agreement and each reference in any other Loan Document to the Credit
Agreement shall mean the Credit Agreement as amended hereby. Except as
expressly modified hereby, all the provisions of the Parent Guaranty are and
shall continue to be in full force and effect. Each reference in the Parent
Guaranty to "this Guaranty", "this Agreement", "hereunder", "hereof" and
words of like import referring to the Parent Guaranty and each reference in
any other Loan Document to the Parent Guaranty shall mean the Parent Guaranty
as amended hereby. Except as expressly modified hereby, all the provisions
of the Security Agreement are and shall continue to be in full force and
effect. Each reference in the Security Agreement to "this Agreement",
"hereunder", "hereof" and words of like import referring to the Security
Agreement and each reference in any other Loan Document to the Security
Agreement shall mean the Security Agreement as amended hereby.
3. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
4. COUNTERPARTS. This First Amendment may be executed by one or
more of the parties to this First Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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5. EFFECTIVENESS. This First Amendment shall become effective as
of the date (the "EFFECTIVE DATE") upon which the Administrative Agent shall
have received executed counterparts of this First Amendment from each
Amendment Party and the Required Lenders as specified by Section 9.08(b) of
the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
METRIS COMPANIES INC., as Borrower
By /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name:
Title:
By /s/ X. X. Xxxxxx
-----------------------------------------
Name:
Title:
FINGERHUT COMPANIES, INC., as Guarantor
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name:
Title:
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
NATIONSBANK, N.A., individually and as
Co-Agent
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By /s/ J. Xxxxx Xxxxxxxx
-----------------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ A. S. Xxxxxxxxxx
-----------------------------------------
Name: A. S. Xxxxxxxxxx
Title: Sr. Team Leader-Loan Operations
BANK OF TOKYO-MITSUBISHI, LTD.,
Chicago Branch
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT
Grand Cayman Branch
By /s/ J. Xxxxxxx Shortly
-----------------------------------------
Name: J. Xxxxxxx Shortly
Title: Senior Vice President
By /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate Banking Chicago
6
CREDIT LYONNAIS CHICAGO BRANCH
By /s/ Xxxx Xxx Xxxxx
-----------------------------------------
Name: Xxxx Xxx Xxxxx
Title: Vice President and Group Head
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Seiichiro Ino
-----------------------------------------
Name: Seiichiro Ino
Title: Vice President
DEUTSCHE BANK AG-NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By /s/ Xxxxx X. X'Xxxxxx
-----------------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Director
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
DEUTSCHE GENOSSENSCHAFTSBANK-CAYMAN ISLAND
BRANCH
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
FIRST BANK NATIONAL ASSOCIATION
By /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP
THE FUJI BANK, LIMITED,
CHICAGO BRANCH
By
-----------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President and
Deputy General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, CHICAGO CBO
By /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Regional Head
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED, NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Vice President & Manager
8
NORDDEUTSCHE LANDESBANK GIROZENTRALE-
NEW YORK and/or CAYMAN ISLAND BRANCH
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: SVP
By
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: EVP
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: AVP
THE SAKURA BANK, LIMITED
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Joint General Manager
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
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THE YASUDA TRUST AND BANKING CO., LIMITED
By /s/ Xxxx X. Xxxxxxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxxxxxx
Title: Senior Vice President
