EXHIBIT 99.3
[FORM OF EXCHANGE AGENCY AGREEMENT]
______________, 1998
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Metris Companies Inc. (the "Company"), a Delaware corporation,
hereby appoints The First National Bank of Chicago ("First Chicago") to act
as exchange agent (the "Exchange Agent") in connection with an exchange offer
by the Company to exchange up to $100,000,000 aggregate principal amount of
its 10% Senior Notes Due 2004 (the "New Notes"), which have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), for a
like principal amount of its outstanding 10% Senior Notes Due 2004 (the "Old
Notes" and together with the New Notes, the "Notes"). The terms and
conditions of the exchange offer are set forth in a Prospectus dated
_____________, 1998 (as the same may be amended or supplemented from time to
time, the "Prospectus") and in the related Letter of Transmittal, which
together constitute the "Exchange Offer." The registered holders of the
Notes are hereinafter referred to as the "Holders." Capitalized terms used
herein and not defined shall have the respective meanings described thereto
in the Prospectus.
On the basis of the representations, warranties and agreements of
the Company and First Chicago contained herein and subject to the terms and
conditions hereof, the following sets forth the agreement between the Company
and First Chicago as Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Company hereby authorizes First Chicago to act as exchange
agent in connection with the exchange offer and First Chicago agrees to act
as Exchange Agent in connection with the Exchange Offer. As Exchange Agent,
First Chicago will perform those services as are outlined herein or which are
customarily performed by an exchange agent in connection with an exchange
offer of like nature, including, but not limited to, accepting tenders of Old
Notes, assisting the Company in the preparation of the documentation
necessary to effect the transactions herein contemplated (without assuming
responsibility for such documentation, unless such information has been
furnished to the Company in writing by First Chicago) and communicating
generally regarding the Exchange Offer with brokers, dealers, commercial
banks, trust companies and other persons, including Holders of the Old Notes.
b. The Company acknowledges and agrees that First Chicago has
been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer, and in such capacity, First Chicago shall
perform such duties as are outlined herein and which are specifically set
forth in the section of the Prospectus captioned "The Exchange Offer" and in
the Letter of Transmittal; provided, however, that in no way will First
Chicago's general duty to act in good faith and without gross negligence or
willful misconduct be discharged by the foregoing.
c. First Chicago will examine each of the Letters of
Transmittal and certificates for Old Notes and any other documents delivered
or mailed to First Chicago by or for Holders of the Old Notes, and any
book-entry conformations (as defined in the Prospectus) received by First
Chicago with respect to the Old Notes, to ascertain whether: (i) the Letters
of Transmittal and any such other documents are duly executed and properly
completed in accordance with the instructions set forth therein and that such
book-entry confirmations are in due and proper form and contain the
information required to be set forth therein, and (ii) the Old Notes have
otherwise been properly tendered. In each case where the Letters of
Transmittal or any other documents have been improperly completed or executed
or where book-entry confirmations are not in due and proper form or omit
certain information, or any of the certificates for Old Notes are not in
proper form for transfer or some other irregularity in connection with the
tender or acceptance of the Old Notes exists, First Chicago will endeavor,
subject to the terms and conditions of the Exchange Offer, to advise the
tendering Holders of the irregularity and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
Notwithstanding the above, First Chicago shall not be under any duty to give
any notification of any irregularities in tenders or incur any liability for
failure to give any such notification.
d. With the approval of the President, any Senior Vice President
or any Vice President of the Company, (such approval, if given orally, to be
confirmed in writing) or any other party designated by any such officer,
First Chicago is authorized to waive any irregularities in connection with
any tender of Old Notes pursuant to the Exchange Offer.
e. Tenders of Old Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Old Notes shall be considered properly tendered only when
tendered in accordance with such procedures set forth therein.
Notwithstanding the provisions of this paragraph, Old Notes which the
President, any Senior Vice President, any Vice President or any other
designated officer of the Company, shall approve (such approval, if given
orally, to be confirmed in writing) as having been properly tendered shall be
considered to be properly tendered.
f. First Chicago shall advise the Company with respect to any Old
Notes received as soon as possible after 5:00 p.m., New York City time, on
the Expiration Date and accept its instructions with respect to disposition
of such Old Notes.
g. First Chicago shall ensure (i) that each Letter of Transmittal
and, if required pursuant to the terms of the Exchange Offer, the related Old
Notes or a bond power are duly executed (with signatures guaranteed where
required) by the appropriate parties in accordance with the terms of the
Exchange Offer; (ii) in those instances where the person executing the Letter
of Transmittal (as indicated on the Letter of Transmittal) is acting in a
fiduciary or a representative capacity, proper evidence of his or her
authority so to act is submitted; (iii) in those instances where Old Notes
are tendered by persons other than the registered holder of such Old Notes,
that customary transfer requirements, including any applicable transfer
taxes, and the requirements imposed by the transfer restrictions on the Old
Notes (including any applicable requirements for certifications, legal
opinions or other information) are fulfilled; (iv) that Old Notes tendered in
part are tendered in principal amounts of $1,000 and integral multiples
thereof and that if any Old Notes are tendered for exchange in part, the
untendered principal amount thereof is $1,000 or any integral multiple of
$1,000 in excess thereof; and (v) First Chicago shall deliver certificates
for Old Notes tendered in part to the transfer agent for split-up and shall
return any untendered Old Notes or Old Notes which have not been accepted by
the Company to the Holders promptly after the expiration or termination of
the Exchange Offer.
h. Upon acceptance by the Company of any Old Notes duly tendered
pursuant to the Exchange Offer (such acceptance if given orally, to be
confirmed in writing), First Chicago will cause New Notes in exchange
therefor to be issued as promptly as possible (subject to receipt from the
Company of appropriate certificates under the related Indenture) and First
Chicago will deliver such New Notes on behalf of the Company at the rate of
$1,000 principal amount of New Notes for each
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$1,000 principal amount of Old Notes tendered as promptly as possible after
acceptance by the Company of the Old Notes for exchange and notice (such
notice if given orally, to be confirmed in writing) of such acceptance by the
Company; provided, however, that in all cases, Old Notes tendered pursuant to
the Exchange Offer will be exchanged only after timely receipt by First
Chicago of certificates for such Old Notes (or a book-entry confirmation), a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other required
documents. Unless otherwise instructed by the Company, First Chicago shall
issue New Notes only in denominations of $1,000 or any integral multiple
thereof.
i. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and the conditions set forth in the Prospectus and
the Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date in accordance
with the terms of the Exchange Offer.
j. Notice of any decision by the Company not to exchange any Old
Notes tendered shall be given by the Company either orally (if given orally,
to be confirmed in writing) or in a written notice to First Chicago.
k. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Old Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Certain Conditions to the
Exchange Offer" or otherwise, First Chicago shall, upon notice from the
Company (such notice if given orally, to be confirmed in writing), promptly
after the expiration or termination of the Exchange Offer return such
certificates for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in First Chicago's possession, to the
persons who deposited such certificates.
l. Certificates for reissued Old Notes, unaccepted Old Notes or
New Notes shall be forwarded by (a) first-class certified mail, return
receipt requested under a blanket surety bond obtained by First Chicago
protecting First Chicago and the Company from loss or liability arising out
of the non-receipt or non-delivery of such certificates or (b) by registered
mail insured by First Chicago separately for the replacement value of each
such certificate.
m. First Chicago is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any
person to solicit tenders.
n. As Exchange Agent, First Chicago:
(i) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal
or herein or as may be subsequently agreed to in writing;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any of
the certificates for the Old Notes deposited pursuant to the Exchange
Offer, and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer; PROVIDED,
HOWEVER, that in no way will First Chicago's general duty to act in
good faith and without gross negligence or willful misconduct be
limited by the foregoing;
(iii) shall not be obligated to take any legal action
hereunder which might in First Chicago's reasonable judgment involve
any expense or liability, unless First Chicago shall have been
furnished with reasonable indemnity;
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(iv) may reasonably rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security delivered to
First Chicago and reasonably believed by First Chicago to be
genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement,
request, comment, agreement or other instrument whatsoever not only
as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which First Chicago believes in good
faith to be genuine and to have been signed or represented by a
proper person or persons acting in a fiduciary or representative
capacity (so long as proper evidence of such fiduciary's or
representative's authority so to act is submitted to First Chicago)
and First Chicago examines and reasonably concludes that such
evidence properly establishes such authority;
(vi) may rely on and shall be protected in acting upon
written or oral instructions from the President, any Senior Vice
President, any Vice President or any other designated officer of
the Company;
(vii) may consult with its own counsel with respect to
any questions relating to First Chicago's duties and
responsibilities and the written opinion of such counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by First Chicago
hereunder in good faith and in accordance with the written opinion
of such counsel; and
(viii) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or refrain
from tendering all or any portion of its Old Notes or as to the
market value, decline or appreciation in market value of any Old
Notes that may or may not occur as a result of the Exchange Offer
or as to the market value of the New Notes. First Chicago shall
take such action as may from time to time be requested by the
Company (and such other action as First Chicago may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery or such other
forms as may be approved from time to time by the Company, to all
persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures
for tendering into (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your
request.
p. First Chicago shall advise orally and promptly thereafter
confirm in writing to the Company and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise reasonably requested) up to
and including the Expiration Date, the aggregate principal amount of Old
Notes which have been duly tendered pursuant to and in compliance with the
terms of the Exchange Offer and the items received by First Chicago pursuant
to the Exchange Offer and this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly
received. In addition, First Chicago will also provide, and cooperate in
making available to the Company, or any such other person or persons upon
request (such request if made orally, to be confirmed in writing) made from
time to time, such other information as the Company may reasonably request.
Such cooperation shall include, without limitation, the granting by First
Chicago to the Company, and such person or persons as the Company may
request, access to those persons on First Chicago's staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company shall have received adequate information in
sufficient detail to enable the Company to decide whether to extend the
Exchange Offer. First Chicago shall prepare a final list of all persons
whose tenders were accepted, the aggregate principal amount of Old Notes
tendered, the aggregate principal amount of Old Notes accepted and deliver
said list to the Company.
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q. Letters of Transmittal, book-entry confirmations and Notices
of Guaranteed Delivery shall be stamped by First Chicago as to the date and
the time of receipt thereof and shall be preserved by First Chicago for a
period of time at least equal to the period of time First Chicago preserves
other records pertaining to the transfer of securities, or one year,
whichever is longer, and thereafter shall be delivered by First Chicago to
the Company. First Chicago shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company.
r. First Chicago hereby expressly waives any lien, encumbrance or
right of set-off whatsoever that First Chicago may have with respect to funds
deposited with it for the payment of transfer taxes by reasons of amounts, if
any, borrowed by the Company, or any of its subsidiaries or affiliates
pursuant to any loan or credit agreement with First Chicago or for
compensation owed to First Chicago hereunder or for any other matter.
2. COMPENSATION.
Pursuant to a letter agreement, dated as of October 14, 1997 (the
"Bond Trusteeships Fee Schedule"), between the Company and First Chicago, no
additional compensation will be payable to First Chicago in its capacity as
Exchange Agent, it being understood and agreed that the Acceptance Fee and
the Annual Administration Fee payable pursuant to the Bond Trusteeships Fee
Schedule are intended to cover, among other things, the services of First
Chicago as Exchange Agent; provided, further, that First Chicago reserves the
right to receive reimbursement from the Company for any reasonable
out-of-pocket expenses incurred as Exchange Agent in performing the services
described herein, provided, however, that First Chicago shall not be entitled
to reimbursement for the fees or disbursements of its legal counsel without
the prior written consent of the Company.
3. INDEMNIFICATION.
a. The Company hereby agrees to protect, defend, indemnify
and hold harmless First Chicago against and from any and all costs, losses,
liabilities, expenses (including reasonable counsel fees and disbursements)
and claims imposed upon or asserted against First Chicago on account of any
action taken or omitted to be taken by First Chicago in connection with its
acceptance of or performance of its duties under this Agreement and the
documents related thereto as well as the reasonable costs and expenses of
defending itself against any claim or liability arising out of or relating to
this Agreement and the documents related thereto. This indemnification shall
survive the release, discharge, termination, and/or satisfaction of this
Agreement. Anything in this Agreement to the contrary notwithstanding, the
Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of First Chicago's bad
faith, gross negligence or willful misconduct. In no case shall the Company
be liable under this indemnification agreement with respect to any claim
against First Chicago unless the Company shall be notified by First Chicago,
by letter, of the written assertion of a claim against First Chicago or of
any other action commenced against First Chicago, promptly after First
Chicago shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be entitled
to participate at its own expense in the defense of any such claim or other
action, and, if the Company so elects, the Company may assume the defense of
any pending or threatened action against First Chicago in respect of which
indemnification may be sought hereunder, in which case the Company shall not
thereafter be responsible for the fees and disbursements of legal counsel for
First Chicago under this paragraph; provided that the Company shall not be
entitled to assume the defense of any such action if the named parties to
such action include both the Company and First Chicago and representation of
both parties by the same legal counsel would, in the written opinion of
counsel for First Chicago, be inappropriate due to actual or potential
conflicting interests between them. It is understood that the Company shall
not be liable under this paragraph for the fees and disbursements of more
than one legal counsel for First Chicago. In the event that the Company
shall assume the defense of any such suit, the
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Company shall not therewith be liable for the fees and expenses of any
counsel retained by First Chicago.
b. First Chicago agrees that, without the prior written
consent of the Company (which consent shall not be unreasonably withheld), it
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provision of this Agreement (whether or not First Chicago or the Company or
any of its directors, officers and controlling persons is an actual or
potential party to such claim, action or proceeding), unless such settlement,
compromise or consent includes an unconditional release of the Company and
its directors, officers and controlling persons from all liability arising
out of such claim, action or proceeding.
4. TAX INFORMATION.
a. First Chicago shall arrange to comply with all
requirements under the tax laws of the United States, including those
relating to missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service. The Company
understands that First Chicago is required, in certain instances, to deduct
31% with respect to interest paid on the New Notes and proceeds from the
sale, exchange, redemption or retirement of the New Notes from Holders who
have not supplied their correct Taxpayer Identification Number or required
certification. Such funds will be turned over by First Chicago to the
Internal Revenue Service.
b. First Chicago shall notify the Company of the amount of
any transfer taxes payable in respect of the exchange of Old Notes and, upon
receipt of written approval from the Company shall deliver or cause to be
delivered, in a timely manner, to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old Notes, a check
in the amount of all transfer taxes so payable, and the Company shall
reimburse First Chicago for the amount of any and all transfer taxes payable
in respect of the exchange of Old Notes; PROVIDED, HOWEVER, that First
Chicago shall reimburse the Company for amounts refunded to it in respect of
its payment of any such transfer taxes, at such time as such refund is
received by First Chicago.
5. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that state.
6. NOTICES. Any communication or notice provided for hereunder shall
be in writing and shall be given (and shall be deemed to have been given upon
receipt) by delivery in person, telecopy, or overnight delivery or by
registered or certified mail (postage prepaid, return receipt requested) to
the applicable party at the addresses indicated below:
If to the Company:
Metris Companies Inc.
000 Xxxxx Xxxxxxx 000
Xxxxx 0000
Xx Xxxxx Xxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Senior Vice President, Chief
Financial Officer
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With a copy to:
Xxxxxx & Whitney LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000)-000-0000
Attention: Xxxxxxxxx X. Xxxxx
If to The First National Bank of Chicago:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Without limitation to the foregoing, the parties
hereto expressly agree that no holder of Old Notes or New Notes shall have
any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one
or more counterparts, and by different parties hereto on separate
counterparts, each of which when so executed shall be deemed an original, and
all of such counterparts shall together constitute one and the same
agreement. If any term or other provision of this Agreement or the
application thereof is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the agreements contained herein is not affected in any manner
adverse to any party. Upon such determination that any term or provision or
the application thereof is invalid, illegal or unenforceable, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the agreements contained herein may be
performed as originally contemplated to the fullest extent possible.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended or modified nor may any provision
hereof be waived except in writing signed by each party to be bound thereby.
11. TERMINATION. This Agreement shall terminate upon the earlier of
(a) the 90th day following the expiration, withdrawal, or termination of the
Exchange Offer, (b) the close of business on the date of actual receipt of
written notice by First Chicago from the Company stating that this
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Agreement is terminated, (c) one year following the date of this Agreement,
or (d) the time and date on which this Agreement shall be terminated by
mutual consent of the parties hereto.
12. MISCELLANEOUS.
a. First Chicago hereby acknowledges receipt of the
Prospectus and the Letter of Transmittal and the Notice of Guaranteed
Delivery and further acknowledges that it has examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal and the Notice of Guaranteed Delivery (as they may
be amended or supplemented from time to time), on the other hand, shall be
resolved in favor of the latter three documents, except with respect to the
duties, liabilities and indemnification of First Chicago as Exchange Agent
which shall be controlled by this Agreement.
Kindly indicate your willingness to act as Exchange Agent and First
Chicago's acceptance of the foregoing provisions by signing in the space
provided below for that purpose and returning to the Company a copy of this
Agreement so signed, whereupon this Agreement and First Chicago's acceptance
shall constitute a binding agreement between First Chicago and the Company.
Very truly yours,
METRIS COMPANIES INC.
By:_____________________________
Name:___________________________
Title:__________________________
Accepted and agreed to as of
the date first written above:
THE FIRST NATIONAL BANK OF CHICAGO
By:_____________________________
Name:___________________________
Title:__________________________
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