ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Security Purchase Agreement
dated as of July 30, 1998 , as amended by the First Amendment
Agreement dated as of July 29, 1999, the Second Amendment
Agreement dated as of July 20, 2000 and the Third Amendment dated
as of August 28, 2000 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the
"Security Purchase Agreement"), by and among Fingerhut
Receivables, Inc., as Transferor, certain Purchasers and Managing
Agents parties thereto, and Bank of America, N.A., as
Administrative Agent for such Purchasers. To the extent not
defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Security Purchase Agreement.
Quincy Capital Corporation, Falcon Asset Securitization
Corporation, Four Winds Funding Corporation, Bank of America,
N.A., Bank One, NA (Main Office Chicago), and Commerzbank
Aktiengesellschaft, Chicago Branch (each an "Assignor" and
collectively the "Assignors") and Fingerhut Receivables, Inc., a
Delaware corporation (the "Assignee"), hereby agree as follows:
1. In consideration of the Assignee's payment of
$54,545,455 (the "Purchase Price"), each of the Assignors hereby
sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, a 100% interest in its
interest in the Class C Securities of its Purchaser Group and/or
the Class C Invested Amount, and to each such Assignor's rights
and obligations with respect to the Class C Securities under the
Security Purchase Agreement on August 28, 2000 (the "Purchase
Date"). The Purchase Price shall be paid on the Purchase Date.
All interest and fees accrued on the Class C Securities to but
excluding the Purchase Date, shall be paid to the Assignors in
accordance with the Series Supplement.
2. Each of the Assignors (i) represents and warrants
that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear
of any Lien created by it; (ii) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Security Purchase Agreement, the other
Principal Agreements or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Security
Purchase Agreement, the other Principal Agreements, the
Receivables or other Trust Property or any such other instrument
or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of Transferor or Servicer or
the performance or observance by Transferor or Servicer of any of
their respective obligations under the Security Purchase
Agreement, the other Principal Agreements or any instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a
copy of the Security Purchase Agreement, the Pooling and
Servicing Agreement, the Series Supplement and such other
instruments, documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption Agreement and purchase such
interest in the Assignor's rights and obligations under the
Security Purchase Agreement; (ii) specifies as its address for
notices the office set forth beneath its name on the signature
pages hereof; and (iii) agrees that it will not institute against
any Conduit Purchaser any proceeding of the type referred to in
Section 9.11 of the Security Purchase Agreement prior to the date
which is one year and one day after the payment in full of all
commercial paper and other debt securities issued by any Conduit
Purchaser.
4. (i) The Assignee shall be the owner of the Class C
Invested Amount, (ii) the Assignors shall be released from their
respective obligations to fund any Additional Invested Amount
with respect to the Class C Securities requested by the
Transferor subsequent to the Purchase Date and all other
obligations, if any, of the Assignors under and in connection
with the Security Purchase Agreement or any other Principal
Agreements with respect to the Class C Securities to the extent
of this Assignment and Assumption Agreement, (iii) all
distributions in respect of the Class C Invested Amount shall be
made to the Assignee, (iv) the defined terms and other terms and
provisions of the Security Purchase Agreement and the other
Principal Agreements shall be interpreted in accordance with the
foregoing, and (v) if requested by the Administrative Agent, the
Assignors and the Assignee will execute and deliver such further
agreements and documents and take such other actions as the
Administrative Agent may reasonably request to evidence and give
effect to the foregoing.
5. This Assignment and Assumption Agreement shall be
effective on the Purchase Date upon receipt by the Administrative
Agent and the Transferor of this Assignment and Assumption
Agreement duly executed by Assignors, the Assignee and the
Managing Agents for the Assignors.
6. As of the Purchase Date, (i) the Assignee shall
not be a party to the Security Purchase Agreement nor have any
rights and obligations of a Conduit Purchaser or an Alternate
Purchaser thereunder, notwithstanding the provisions of Section
8.01 of the Security Purchase Agreement and (ii) the Assignors
shall, to the extent provided in this Assignment and Assumption
Agreement with respect to the Class C Securities, relinquish
their respective rights and be released from their respective
obligations under the Security Purchase Agreement.
7. The Assignee covenants and agrees (i) not to
assign, sell or transfer all or any part of its interest in any
Class C Securities to any Person that is not an Affiliate of the
Transferor or the Servicer without the prior written consent of
the Required Senior Securityholders and (ii) that any assignment,
sale or transfer of an interest in its Class C Securities to such
Person shall comply in all respects with the terms and conditions
set forth in Section 8.01 of the Security Purchase Agreement.
8. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all
payments received by it in respect of the interest assigned
hereby to the Assignee. The Assignors and the Assignee shall
make all appropriate adjustments in payments under the Security
Purchase Agreement for periods prior to the Purchase Date
directly between themselves.
9. This Assignment and Assumption Agreement may be
executed by one or more of the parties on any number of separate
counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
10. This Assignment and Assumption Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be executed by their
respective officers thereunto duly authorized as of the 28th day
of August, 2000.
QUINCY CAPITAL CORPORATION,
as Conduit Purchaser and Assignor
By /s/ Juliana C. Johnson
Name: Juliana C. Johnson
Title: Vice President
FALCON ASSET SECURITIZATION CORPORATION,
as Conduit Purchaser and Assignor
By /s/ Andrew Leszczynski
Name: Andrew Leszczynski
Title: Authorized Signatory
FOUR WINDS FUNDING CORPORATION,
as Conduit Purchaser and Assignor
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/ Elliott Lemon
Name: Elliott 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
FINGERHUT RECEIVABLES, INC.,
as Assignee and Transferor
By /s/ Brian M. Szames
Name: Brian M. Szames
Title: President
4400 Baker Road
Suite F480
Minnetonka, MN 55343
Attn: Treasury
with a copy to:
Federated Department Stores, Inc.
7 West Seventh Street
Cincinnati, OH 45202
Attn: Treasurer