FINGERHUT RECEIVABLES, INC.
Buyer
and
FINGERHUT CORPORATION
Seller
SECOND AMENDMENT
Dated as of January 12, 1997
to
PURCHASE AGREEMENT
Dated as of June 29, 1994
SECOND AMENDMENT to PURCHASE AGREEMENT, dated as of
January 12, 1997 ("Second Amendment") by and between Fingerhut
Receivables, Inc., as Buyer (the "Buyer") and Fingerhut
Corporation, as Seller (the "Seller").
WHEREAS, the Buyer and the Seller have heretofore
executed and delivered the Purchase Agreement, dated as of June
29, 1994, and the First Amendment to Purchase Agreement, dated
as of November 15, 1994 (as so amended, the "Original
Agreement"), each between the Buyer and the Seller for the
purchase of certain installment sale contract receivables
generated by the Seller from time to time in its ordinary course
of business;
WHEREAS, Section 9.1 of the Original Agreement provides
that the Buyer and the Seller may amend the Original Agreement by
a written instrument signed by both parties;
WHEREAS, Section 9.1 of the Original 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 Second Amendment have been complied with;
NOW, THEREFORE, the Buyer and the Seller are executing
and delivering this Second Amendment in order to amend the
Original Agreement in the following manner.
Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Original Agreement or,
if not defined therein, in the Amended and Restated Pooling and
Servicing Agreement dated as of January 12, 1997 (the "Pooling
and Servicing Agreement") by and among the Buyer, as Transferor,
Fingerhut National Bank, as Servicer, and The Bank of New York
(Delaware), as Trustee.
SECTION 1. Definitions. The following defined term is
hereby added to Section 1.1 of the Original Agreement in the
appropriate alphabetical order:
"Debtor Relief Law" shall mean any of (i) the
Bankruptcy Code of the United States of America and (ii) all
other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency,
reorganization, suspension of payments, readjustment of debt,
marshalling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in
effect affecting the rights of creditors generally.
SECTION 2. Amendment of Section 6.1(b). Section
6.1(b) of the Original Agreement is hereby deleted in its
entirety and replaced with the following:
(b) Reassignment of the Sold Assets. In the event of
a breach of any of the representations and warranties set forth
in Section 4.1(a), (b), and (c) and 4.2(a)(i) and (ii), the Buyer
by notice given in writing to the Seller may direct the Seller to
accept reassignment of the Receivables at the amount specified
below within 60 days of such notice (or within such longer period
as may be specified in such notice), and the Seller shall be
obligated to accept reassignment of the Receivables within such
applicable period on the terms and conditions set forth below;
provided, however, that no such reassignment shall be required to
be made if, at any time during such applicable period, the
Seller delivers to the Buyer an Officer's Certificate stating
that the representations and warranties contained in Section
4.1(a), (b), and (c) and 4.2(a)(i) and (ii) shall then be true
and correct in all material respects as if made on such day. The
Seller shall pay to the Buyer on the day of such reassignment an
amount equal to the product of (i) the aggregate Invested Amount
plus accrued and unpaid interest on the Investor Certificates and
(ii) a fraction, the numerator of which is the outstanding
balance of Principal Receivables sold by the Seller to the Buyer
hereunder, and the denominator of which is the sum of the
outstanding balance of Principal Receivables sold by the Seller
to the Buyer hereunder plus the outstanding balance of Principal
Receivables sold by Fingerhut Companies, Inc. to the Buyer
pursuant to the receivables purchase agreement dated as of
January 12, 1997 between the Buyer, as purchaser of such
Receivables, and Fingerhut Companies, Inc., as seller of such
Receivables, as amended from time to time. On the day on which
such amount has been paid, each Receivable sold to the Buyer
hereunder shall be sold and reassigned to the Seller, and the
Buyer shall execute and deliver such instruments of sale and
assignment, in each case without recourse, representation or
warranty, as shall be reasonably requested by the Seller to vest
in the Seller, or its designee or assignee, all right, title and
interest of the Buyer in and to each such Receivable. The
obligation of the Seller to purchase Receivables pursuant to this
Section shall constitute the sole remedy available to the Buyer
for a breach of the representations and warranties contained in
Section 4.1(a), (b), and (c) and 4.2(a)(i) and (ii).
SECTION 3. Ratification of Original Agreement. As
amended by this Second Amendment, the Original Agreement is in
all respects ratified and confirmed, and the Original Agreement
as so amended by this Second Amendment shall be read, taken and
construed as one and the same instrument.
SECTION 4. No Waiver. The execution and delivery of
this Second Amendment shall not constitute a waiver of a past
default under the Original Agreement or impair any right
consequent thereon.
SECTION 5. Counterparts. The Second 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 6. GOVERNING LAW. THIS SECOND 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 7. Effective Date. This Second Amendment
shall become effective as of the day and year first above
written.
IN WITNESS WHEREOF, the Buyer and the Seller have
caused this Second 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/ Xxxxx X. Xxxxxxx
___________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President,
Assistant Treasurer
FINGERHUT CORPORATION
as Seller
By: /s/ Xxxxxx X. Xxxxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President,
Treasurer
