FINGERHUT RECEIVABLES, INC.
Buyer
and
FINGERHUT CORPORATION
Seller
FIRST AMENDMENT
Dated as of November 15, 1994
to
PURCHASE AGREEMENT
Dated as of June 29, 1994
FIRST AMENDMENT to PURCHASE AGREEMENT, dated as of
November 15, 1994 ("First Amendment") by and between Fingerhut
Receivables, Inc., as Buyer ("Buyer") and Fingerhut Corporation,
as Seller ("Seller").
WHEREAS, the Buyer and Seller have heretofore executed
and delivered the Purchase Agreement dated as of June 29, 1994
("Purchase Agreement"), between the Buyer and Seller for the
purchase of certain installment sale contract receivables
generated by Seller from time to time in its ordinary course of
business;
WHEREAS, Section 9.1 of the Purchase Agreement provides
that the Buyer and Seller may amend the Purchase Agreement by a
written instrument signed by both parties;
WHEREAS, Section 9.1 of the Purchase Agreement requires
the Seller to provide prompt written notice of any such amendment
to the Rating Agencies and such notice has been given to each
Rating Agency; and
WHEREAS, all other conditions precedent to the
execution of this Amendment have been complied with;
NOW, THEREFORE, the Buyer and Seller are executing and
delivering this Amendment in order to amend the Purchase
Agreement in the following manner.
Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Purchase Agreement or,
if not defined therein, in the Pooling and Servicing Agreement
dated as of June 29, 1994 ( "Pooling and Servicing Agreement") by
and among the Buyer, as Transferor, the Seller, as Servicer, and
The Bank of New York (Delaware), as Trustee ("Trustee"), as
supplemented by the Series 1994-1 Supplement, dated as of June
29, 1994 ("1994-1 Supplement") by and among Buyer, Seller and
Trustee, and as further supplemented by the Series 1994-2
Supplement, dated as of November 15, 1994 ("1994-2 Supplement")
by and among Buyer, Seller and Trustee.
SECTION 1. Consideration and Payment. Section 3.1 of
the Purchase Agreement shall be amended to read in its entirety
as follows:
Section 3.1 Purchase Price. The Purchase Price for
the Receivables and related property conveyed to the
Buyer under this Agreement shall be a dollar amount
equal to, for Receivables transferred on any date, the
product of (i) the aggregate Outstanding Balance of all
Receivables as of such date, and (ii) one minus the
then applicable Seller's Discount.
SECTION 1.1 Term and Termination. Section 8.1 of the
Purchase Agreement shall be amended to read in its entirety as
follows:
Section 8.1 Term. This Agreement shall commence as of
the date of execution and delivery hereof and shall
continue in full force and effect until the earlier of:
(a) unless otherwise agreed to in writing by the Buyer
and the Seller, the latest Series Termination Date for
any Series; or (b) the occurrence of any of the
following events: the Buyer or the Seller shall (i)
become insolvent, (ii) fail to pay its debts generally
as they become due, (iii) voluntarily seek, consent to,
or acquiesce in the benefit or benefits of any Debtor
Relief Law, (iv) become a party to (or be made the
subject of) any proceeding provided for by any Debtor
Relief Law, other than as a creditor or claimant, and,
in the event such proceeding is involuntary, the
petition instituting same is not dismissed within 60
days after its filing; provided, however, that the
Buyer shall have no duty to continue to purchase
Receivables from and after the filing against the
Seller of an involuntary petition but prior to
dismissal, or (v) become unable for any reason to
purchase or re-purchase Receivables in accordance with
the provisions of this Agreement or default in its
obligations hereunder, which default continues
unremedied for more than 30 days after written notice
is delivered to the defaulting party by the non-
defaulting party (any such date set forth in clause
(a) or (b) hereof being a "Termination Date");
provided, however, that the termination of this
Agreement pursuant to this subsection 8.1(b) hereof
shall not discharge any Person from any obligations
incurred prior to such termination, including, without
limitation, any obligations to make any payments with
respect to, or repurchase, pursuant to Section 6.1
hereof, Receivables sold prior to such termination.
Section 8.2 Effect of Termination. No termination or
rejection of or failure to assume the executory
obligations of this Agreement in the event of the
bankruptcy of the Seller or the Buyer shall be deemed
to impair or affect the obligations pertaining to any
executed sale or executed obligations, including,
without limitation, pre-termination breaches of
representations and warranties by the Seller or the
Buyer. Without limiting the foregoing, prior to
termination, the failure of the Seller to deliver
computer records of Receivables or Settlement
Statements shall not render such transfer or obligation
executory, nor shall the continued duties of the
parties pursuant to Section 5 or Section 9.1 of this
Agreement render an executed sale executory.
SECTION 2.1 Ratification of Purchase Agreement. As
amended by this First Amendment, the Purchase Agreement is in all
respects ratified and confirmed, and the Purchase Agreement as so
amended by this First Amendment shall be read, taken and
construed as one and the same instrument.
SECTION 3.1 No Waiver. The execution and delivery of
this First Amendment shall not constitute a waiver of a past
default under the Purchase Agreement or impair any right
consequent thereon.
SECTION 4.1 Counterparts. The First Amendment may be
executed in two or more counterparts including telefax
transmission thereof (and by different parties on separate
counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS FIRST AMENDMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.1 Effective Date. This First Amendment
shall become effective as of the day and year first above
written.
IN WITNESS WHEREOF, the Buyer and the Seller have
caused this First Amendment to be duly executed by their
respective officers, thereunto duly authorized, as of the day and
year first above written.
FINGERHUT RECEIVABLES, INC.
as Buyer
By: /s/ Xxxxxx X. Xxxxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
FINGERHUT CORPORATION
as Seller
By: /s/ Xxxxxx X. Xxxxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
