W I T N E S S E T H :
SECOND AMENDMENT, dated as of September 15, 1998 (this
"Second Amendment"), to the Revolving Credit and Letter of Credit
Facility Agreement, dated as of October 29, 1990, as amended and
restated as of June 18, 1998 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among FINGERHUT COMPANIES, INC. (the "Borrower"), the Guarantors
named therein, the Lenders parties thereto, NATIONSBANK, N.A., as
Syndication Agent (in such capacity, the "Syndication Agent"), the
Issuing Banks named therein, and THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative
Agent"). Unless otherwise defined herein, all capitalized terms
defined in the Credit Agreement and used herein are so used as so
defined.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the
Administrative Agent and the Lenders enter into this Second
Amendment;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
AMENDMENT TO THE CREDIT AGREEMENT
Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "Earnings Before Interest and Taxes"
therein and substituting in lieu thereof the following definition:
"Earnings Before Interest and Taxes" shall
mean, with respect to the Borrower and its Subsidiaries
for any period, the sum for such period of
(i) Consolidated Net Income, (ii) Consolidated Interest
Expense and (iii) the provision for income taxes on a
consolidated basis, in each case for such period,
computed and calculated in accordance with GAAP
consistently applied; provided that, for purposes of
calculating Earnings Before Interest and Taxes in Section
6.01(a), up to $46,000,000 of charges in respect of (a)
the Borrower's distribution facility located in Spanish
Fork, Utah and (b) other restructuring charges, in the
case of clauses (a) and (b), written off by the Borrower
in the third quarter of 1998 shall be added back to
Consolidated Net Income to the extent such charges were
deducted in calculating Consolidated Net Income.
ARTICLE II
MISCELLANEOUS
1. Representations and Warranties. The Borrower
represents and warrants to each Lender that as of the Effective
Date: (a) this Second Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against it in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium or similar laws affecting creditors'
rights generally, by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and an
implied covenant of good faith and fair dealing; (b) the
representations and warranties made by the Borrower in Article III
of the Credit Agreement are true and correct in all material
respects on and as of the date hereof (except to the extent that
such representations and warranties are expressly stated to relate
to an earlier date, in which case such representations and
warranties shall have been true and correct in all material
respects on and as of such earlier date); and (c) no Default or
Event of Default shall have occurred and be continuing as of the
date hereof.
2. No Other Modifications. Except as expressly modified
hereby, all the provisions of the Credit Agreement are and shall
continue to be in full force and effect. Each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" and
words of like import referring to the Credit Agreement and each
reference in any other Loan Document to the Credit Agreement shall
mean the Credit Agreement as amended hereby.
3. Governing Law. THIS SECOND AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS SECOND AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
4. Counterparts. This Second Amendment may be executed
by one or more of the parties to this Second Amendment on any
number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
5. Effectiveness. This Second Amendment shall become
effective as of the date (the "Effective Date") upon which the
Administrative Agent shall have received executed counterparts of
this Second Amendment from the Borrower and the Required Lenders as
specified by Section 10.08(b) of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Second Amendment to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above
written.
FINGERHUT COMPANIES, INC.,
as Borrower
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President, Finance
FINGERHUT CORPORATION,
as a Guarantor
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent, as Lender
and as an Issuing Bank
By: /s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent, Issuing
Bank and Lender
By:
Name:
Title:
NATIONSBANK, N.A.,
as Syndication Agent and Lender
By: /s/Xxxx Xxxxx Xxxx
Name: Xxxx Xxxxx Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, as Issuing
Bank and Lender
By: /s/R. Xxx Xxxxxxxxx
Name: R. Xxx Xxxxxxxxx
Title: Managing Director
THE BANK OF NEW YORK, as Lender
By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as Lender
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Manager
COMMERZBANK AG, as Lender
By: /s/Xxxxxxx Shortly /s/Xxxxx Chalping
Name: Xxxxxxx Shortly Xxxxx Chalping
Title: Senior Vice President Assistant Treasurer
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, as Lender
By: /s/Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
NORWEST BANK OF MINNESOTA, NATIONAL
ASSOCIATION,
as Issuing Bank and Lender
By: /s/Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
UBS AG, NEW YORK BRANCH, as Lender
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Director
U.S. BANK NATIONAL ASSOCIATION,
as Issuing Bank and Lender
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Banking Officer
THE BANK OF NOVA SCOTIA, as Lender
By: /s/F.C.H. Xxxxx
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as Lender
By: /s/Xxxxx X. X'Xxxxxx
Name: Xxxxx X. X'Xxxxxx
Title: Director
By: /s/Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
FIRST UNION NATIONAL BANK, as
Lender
By: /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Lender
By: /s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Joint General Manager
NORDDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH,
as Lender
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
