THIRD AMENDMENT AGREEMENT
to
FINGERHUT RECEIVABLES, INC.
SECURITY PURCHASE AGREEMENT
This Third Amendment Agreement (the "Amendment") is
executed as of the 28th day of August, 2000, by and among
Fingerhut Receivables, Inc. (the "Transferor"), Quincy Capital
Corporation ("QCC"), Falcon Asset Securitization Corporation
("Falcon"), Four Winds Funding Corporation ("Four Winds" and,
collectively with QCC and Falcon, the "Conduit Purchasers"), Bank
of America, N.A. ("BofA" or the "Administrative Agent"), Bank
One, NA (Main Office Chicago) ("Bank One"), and Commerzbank
Aktiengesellschaft, Chicago Branch ("Commerzbank" and
collectively with BofA and Bank One, the "Alternate Purchasers"
or the "Managing Agents").
W I T N E S S E T H:
WHEREAS, the Transferor, the Conduit Purchasers, the
Managing Agents, the Alternate Purchasers and the Administrative
Agent executed the Security Purchase Agreement dated as of July
30, 1998, as amended by the First Amendment Agreement dated as of
July 29, 1999 and the Second Amendment Agreement dated as of
July 20, 2000 (the "Security Purchase Agreement"). Capitalized
terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Security Purchase
Agreement.
WHEREAS, the parties hereto have agreed to amend the
Security Purchase Agreement on the terms and conditions
hereinafter set forth:
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment of the Security Purchase
Agreement. The Security Purchase Agreement is, effective on the
date hereof and subject to the satisfaction of the condition
precedent set forth in Section 3 below, hereby amended as
follows:
1.1 The definition of "Specified Termination Date"
contained in Section 1.01 of the Security Purchase Agreement
shall be amended and restated in its entirety to read as follows:
"Specified Termination Date" shall mean
August 27, 2001, or such later date to which the
Specified Termination Date may be extended in
accordance with Section 2.05 hereof."
1.2 This Amendment shall be deemed to extend the
Specified Termination Date for purposes of Section 2.05 of
the Security Purchase Agreement.
1.3 Upon consummation of the sale referred to in
Section 2 hereof and for so long as the Class C Securities are
held by the Transferor, all references to the Class C Securities,
the Class C Commitment Amount, the Class C Investment Amount, the
Additional Class C Invested Amount, the Class C Initial Invested
Amount, the Class C Facility Usage Fees and the Class C Principal
shall be deleted from the Security Purchase Agreement.
SECTION 2. Sale of Class C Securities. Pursuant to an
Assignment and Assumption Agreement in the form attached hereto
as Exhibit A, the Conduit Purchasers and Alternate Purchasers
shall sell the Class C Securities to the Transferor.
SECTION 3. Condition Precedent. This Amendment shall
become effective as of the date hereof upon the execution hereof
by all of the parties hereto.
SECTION 4. Miscellaneous.
4.1 Ratification. As amended hereby, the Security
Purchase Agreement is in all respects ratified and confirmed and
the Security Purchase Agreement as so amended by this Amendment
shall be read, taken and construed as one and the same
instrument.
4.2 Representation and Warranty. The Transferor
represents and warrants that this Amendment has been duly
authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general
and by general principles of equity (whether considered in a suit
at law or in equity).
4.3 Governing Law; Parties. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Whenever in this Amendment there is a
reference made to any of the parties hereto, such reference shall
also be a reference to the successors and assigns of such party,
including, without limitation, any debtor-in-possession or
trustee. The provisions of this Amendment shall be binding upon
and shall inure to the benefit of the successors and assigns of
the parties hereto.
4.4 Counterparts; Severability. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement. In case
any provision in or obligation under this Amendment shall be
invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
4.5 Expenses. The Transferor agrees to pay all
reasonable out-of-pocket expenses (including, without limitation,
the fees and expenses of counsel to the Purchasers) incurred by
the Administrative Agent or the Purchasers in connection with the
negotiation, execution, delivery and preparation of this
Amendment.
IN WITNESS WHEREOF, the Transferor, the Purchasers, the
Managing Agents, and the Administrative Agent have caused this
Amendment to be fully executed by their respective officers as of
the day and year first above written.
FINGERHUT RECEIVABLES, INC.,
as Transferor
By: /s/ Brian M. Szames
Name: Brian M. Szames
Title: President
QUINCY CAPITAL CORPORATION,
as Conduit Purchaser
By: /s/ Juliana C. Johnson
Name: Juliana C. Johnson
Title: Vice President
FALCON ASSET SECURITIZATION CORPORATION,
as Conduit Purchaser
By: /s/ Andrew Leszczynski
Name: Andrew Leszczynski
Title: Authorized Signatory
FOUR WINDS FUNDING CORPORATION,
as Conduit Purchaser
By: /s/ James T. Ahern
Name: James T. Ahern
Title: Senior Vice President
By: /s/ Carl Kemmerer
Name: Carl Kemmerer
Title: Assistant Treasurer
BANK OF AMERICA, N.A.,
as Alternate Purchaser and Managing
Agent and as Administrative Agent for the
Purchasers
By /s/ Elliot Lemon
Name: Elliot Lemon
Title: Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Alternate Purchaser and Managing
Agent
By: /s/ Andrew Leszczynski
Name: Andrew Leszczynski
Title: Authorized Signatory
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH, as Alternate Purchaser and
Managing Agent
By: /s/ James T. Ahern
Name: James T. Ahern
Title: Senior Vice President
By: /s/ Carl Kemmerer
Name: Carl Kemmerer
Title: Assistant Treasurer