Exhibit 10.o(iii)
FINGERHUT COMPANIES, INC.
__________________
$65,000,000
9.81% Senior Notes, Series A, Due June 30, 1996
$25,000,000
10.12% Senior Notes, Series B, due December 30, 1997
________________
THIRD AMENDMENT AGREEMENT
_________________
Dated as of October 30, 1995
to
PURCHASE AGREEMENT
dated as of January 14, 1991
as amended by
FIRST AMENDMENT AGREEMENT
dated as of March 1, 1992
and
SECOND AMENDMENT AGREEMENT
dated as of June 17, 1994
THIRD AMENDMENT AGREEMENT, dated as of October 30, 1995
("this Amendment"), between Fingerhut Companies, Inc., a
Minnesota corporation (the "Company"), and the Noteholders
(as defined below).
Preliminary Statement
The statements in this "Preliminary Statement" are made
by the Company.
Reference is made to the separate Purchase Agreements
dated as of January 14, 1991, between the Company and the
Purchasers listed in Schedule 1 thereto and their assigns
(the "Noteholders") pursuant to which the Company issued and
sold its 9.81% Senior Notes, Series A, due June 30, 1996, in
the aggregate principal amount of $65,000,000 (the "Series A
Notes") and its 10.12% Senior Notes, Series B, due
December 30, 1997, in the aggregate principal amount of
$25,000,000 (the "Series B Notes"), as amended by the First
Amendment Agreement dated as of March 1, 1992 and the Second
Amendment Agreement dated as of June 17, 1994 (collectively,
as amended, the "Purchase Agreement"). The Series A Notes
and the Series B Notes are hereinafter collectively referred
to herein as the "Notes." Unless otherwise defined in this
Amendment, capitalized terms used herein without definition
shall have the meanings set forth in the Purchase Agreement.
The Company and Principal Mutual Life Insurance Company
("Principal Mutual") have entered into a Purchase Agreement,
dated as of February 15, 1991, pursuant to which the Company
issued and sold its 9.74% Senior Notes, Series C, due August
15, 1996, in the aggregate principal amount of $20,000,000
(the "Series C Notes"), as amended by the First Amendment
Agreement dated as of March 1, 1992, and the Second
Amendment Agreement dated as of June 17, 1994 (as amended,
the "Series C Purchase Agreement"), and a Purchase Agreement
dated as of January 15, 1992, pursuant to which the Company
issued and sold its 6.96% Senior Notes, Series D, due August
15, 1996, in the aggregate principal amount of $15,000,000
(the "Series D Notes"), as amended by the First Amendment
Agreement dated as of March 1, 1992 and the Second Amendment
Agreement dated as of June 17, 1994 (as amended, the "Series
D Purchase Agreement). The Series C Notes and the Series D
Notes are collectively referred to herein as the "Other
Notes" and the Series C Purchase Agreement and the Series D
Purchase Agreement are collectively referred to herein as
the "Other Purchase Agreements."
The Purchase Agreement definition of "Credit Card
Bank", unlike the definition used in the Bank Credit
Agreement, could be read to limit the Company to only one
such entity. The Company has given a current copy of the
Bank Credit Agreement to Xxxx & Xxxxxx, special counsel to
the Noteholders. In February 1995, the Company received a
federal charter for Direct Merchants Credit Card Bank, N.A.
For strategic business reasons, the Company is planning to
form a second credit card bank. In addition, the Company
may in the future be presented with business opportunities
which may require a third credit card bank. In addition,
the Company believes that the 5% investment limit may not
permit optimal capitalization of its Credit Card Bank.
In connection with the foregoing, the Company has
requested the amendment of certain provisions of the
Purchase Agreement and the Other Purchase Agreements to
revise certain definitions and covenants in the Purchase
Agreement and the Other Purchase Agreements to reflect the
Company's plans for the Credit Card Bank.
Accordingly, the Company and the Noteholders hereby
agree as follows:
ARTICLE 1
CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT
This Amendment is expressly subject to and shall become
effective only upon satisfaction of each of the following
conditions (such date upon which all of such conditions are
satisfied being herein called the "Effective Date"):
Section 1.1. There shall exist on the Effective Date
no Default or Event of Default under the Loan Documents or
any of the Other Purchase Agreements and the documents
related thereto, both before and after giving effect to this
Amendment and the Other Amendments (as defined in Section
1.2 hereof).
Section 1.2. Amendments, similar in substance to this
Amendment, to the Other Purchase Agreements (collectively,
the "Other Amendments") shall have been entered into by the
requisite percentage of noteholders under the Other Purchase
Agreements and become effective, and the Noteholders shall
have received satisfactory evidence to such effect.
Section 1.3. The Noteholders shall have received a
certificate, dated as of the Effective Date and signed by a
Responsible Officer of the Company, stating that, as of the
Effective Date, (i) all of the obligations of the Company to
be performed prior to or as of the Effective Date under this
Amendment have been performed; (ii) the representations and
warranties contained in Article 4 of this Amendment are
accurate and complete, and (iii) all of the conditions to
the effectiveness of this Amendment have been satisfied in
full.
Section 1.4. All corporate and other proceedings and
all documents incident to the transactions contemplated by
this Amendment shall be satisfactory in form and substance
to the Noteholders, and the Noteholders shall have received
copies of all documents and records relating thereto which
they may reasonably request.
ARTICLE 2
AMENDMENTS TO ARTICLE VIII OF THE PURCHASE AGREEMENT
Section 2.1. Clause (n) of 8.9 of the Purchase
Agreement is hereby amended in its entirety to read as set
forth below:
(n) make and permit to remain outstanding
investments in the Credit Card Bank; provided that
the aggregate principal amount of the Company's
and the Subsidiaries' capital contributions,
loans, advances and Guarantees to or for the
benefit of the Credit Card Bank at any time
outstanding permitted under this clause (n) shall
not exceed 10% of Consolidated Net Worth.
ARTICLE 3
AMENDMENTS TO ARTICLE X OF THE PURCHASE AGREEMENT
Section 3.1. 10.2 of the Purchase Agreement is
hereby amended by restating the definition of the term
"Credit Card Bank" to read in its entirety as follows:
"Credit Card Bank" shall mean Direct
Merchants Credit Card Bank, National Association
and any other FDIC-insured limited purpose credit
card national bank(s) to be formed or acquired by
the Company or one of the Subsidiaries, which
shall engage only in the business activities
specified in Section 2(c)(2)(F) of the Bank
Holding Company Act of 1956, as amended by the
Competitive Equality Banking Act of 1987, as
amended.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1. The Company hereby represents and
warrants to the Noteholders as of the Effective Date:
(a) Each of the Company, the Guarantors, the
Significant Subsidiaries and the Pledgors is duly organized,
validly existing and in good standing in its jurisdiction of
incorporation.
(b) The Company has the power to enter into this
Amendment and to perform its obligations hereunder.
(c) The execution and delivery by the Company of this
Amendment and the performance of its obligations hereunder
have been duly authorized, and this Amendment will, upon
execution and delivery thereof, be duly executed and
delivered thereby and will constitute the legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to applicable
laws affecting the enforcement of creditors' rights
generally and principles of equity.
(d) Neither the execution nor delivery by the Company
of this Amendment nor the performance by it of its
obligations hereunder or under the Purchase Agreement (as
amended as contemplated hereby), the Notes, the Pledge
Agreement or the Guaranty of each Guarantor:
(1) will adversely affect the enforceability against
the Company of the Purchase Agreement or the Notes, against
the Guarantors of the Guaranty or against any Pledgor of the
security interest in the Pledged Stock under the Pledge
Agreement;
(2) will require the taking of any action or the
giving of any consent or approval by, or the making or any
registration or filing with, any Governmental Authority or
other person other than such actions, consents, approvals,
registrations and filings as have heretofore been taken,
given or made (as the case may be);
(3) will violate any provision of the articles of
incorporation or bylaws of any of the Company, any
Guarantor, any Significant Subsidiary or any Pledgor or any
provision of any law, rule, regulation, order or decree of
any Governmental Authority applicable thereto;
(4) will violate or constitute a default under any
material agreement to which any of the Company, any
Guarantor, any Significant Subsidiary or any Pledgor is a
party or by which any of its properties or assets is or may
be bound; or
(5) will result in the creation or imposition of any
Lien on the properties or assets of the Company, any
Guarantor, any Significant Subsidiary or any Pledgor other
than (i) Liens in favor of the Collateral Agent for the
benefit of the Secured Parties under the Pledge Agreement
and (ii) as contemplated by the Receivables Transfer
Agreement.
(e) Neither this Amendment nor any certificate
furnished in connection herewith nor any other document or
statement furnished to the Noteholders in connection with
the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements contained
herein and therein not misleading. Except as expressly
disclosed in documents filed by the Company or any
Subsidiary with the Commission and delivered by the Company
to the Noteholders prior to the Effective Date, there is no
fact known to the Company (except for general economic or
political conditions) which materially adversely affects,
or, so far as the Company can now reasonably foresee, would
be likely to materially and adversely affect, the business,
properties, prospects, operations or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a
whole or the ability of the Company or any Significant
Subsidiary to perform any material obligation under any Loan
Document, which has not been disclosed in writing to the
Noteholders.
(f) There exists (i) no Default or Event of Default
under the Loan Documents either before or after giving
effect to this Amendment and (ii) no Event of Default or
event that with the lapse of time or giving of notice would
constitute an Event of Default under the Other Purchase
Agreements, either before or after giving effect to the
Other Amendments.
ARTICLE 5
MISCELLANEOUS
Section 5.1 This Amendment shall not be valid and
binding upon the Company or any Noteholder under the
Purchase Agreement until the execution hereof by a Majority-
in-Interest of Noteholders and complete satisfaction by the
Company of the conditions precedent set forth in Article 1,
and upon the execution hereof by such Noteholders, and
compliance by the Company with said conditions precedent,
this Amendment shall be valid and binding upon the Company
and each Noteholder under the Purchase Agreement with
respect to each provision of this Amendment.
Section 5.2 This Amendment embodies the entire
agreement and understanding of the parties hereto and
supersedes all prior agreements and understandings relating
to the subject matter hereof. In case any one or more of
the provisions contained in this Amendment, or in the
Purchase Agreement as amended hereby, or in any Note, or any
application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions continued herein
and therein, and any other applications thereof, shall not
in any way be affected or impaired thereby.
Section 5.3 This Amendment is intended to be
governed by the laws of the State of New York and shall be
construed and enforced in accordance with, and the rights of
the parties shall be governed by, the laws of such State.
Section 5.4 This Amendment shall bind and inure to
the benefit of the respective successors and assigns of the
Company and the Noteholders.
Section 5.5 Except as otherwise expressly provided
herein, nothing continued in this Amendment shall, or shall
be construed to, modify, invalidate or otherwise affect any
provision of the Purchase Agreement or any right of the
Noteholders arising thereunder.
Section 5.6 The execution of this Amendment by the
Noteholders shall not in any way constitute, or be construed
as, a waiver of any provision of, or of any Default or Event
of Default otherwise existing under, the Purchase Agreement,
nor shall it constitute an agreement or obligation of the
Noteholders to give its consent to any future amendment of
the Purchase Agreement or to any future transaction which
would, absent consent of the Noteholders, constitute a
Default or Event of Default under the Purchase Agreement.
Section 5.7 Except as specifically provided herein,
the Purchase Agreement is in all respects ratified and
confirmed, and all the terms, conditions and provisions
thereof shall be and remain in full force and effect. For
any and all purposes, from and after the Effective Date, any
and all references hereafter to the Purchase Agreement, and
all references to "this Agreement" in the Purchase
Agreement, shall refer to the Purchase Agreement as hereby
amended.
Section 5.8 This Amendment may be executed in as
many counterparts as may be deemed necessary or convenient
and by the different parties hereto on separate counterparts
(provided that the Company will execute each counterpart),
and each of which, when so executed, shall be deemed to be
an original, but all such counterparts shall constitute but
one and the same agreement.
Section 5.9 The Company will pay, or cause to be
paid, the reasonable out-of-pocket costs and expenses of the
Noteholders in connection with entering into this Amendment
and the consummation of all transactions contemplated
hereby, and the Company will also indemnify and hold the
Noteholders harmless from and against all liability and loss
with respect to or resulting from all claims on account of
brokers' or finders' fees or commissions in connection with
this Amendment or any of the transactions contemplated
hereby. The obligations of the Company under this Section
5.9 shall survive payment of any Note issued under the
Purchase Agreement.
IN WITNESS WHEREOF, the Company and the undersigned
Noteholders have caused this Amendment to be executed by
their respective officer or officers thereto duly
authorized.
FINGERHUT COMPANIES, INC.
By: /s/Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Treasurer
By: /s/Xxxxx X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Associate Director,
Private Placements
THE EQUITABLE OF COLORADO, INC.
By: /s/Xxx Xxxx
Name: Xxx Xxxx
Title: Investment Officer
EQUITABLE VARIABLE LIFE INSURANCE COMPANY
By: /s/Xxx Xxxx
Name: Xxx Xxxx
Title: Investment Officer
MUTUAL OF OMAHA INSURANCE COMPANY
By: /s/Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: First Vice President
COMPANION LIFE INSURANCE COMPANY
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President &
Assistant Treasurer
By: /s/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Second Vice President &
Assistant Treasurer
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: /s/Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: First Vice President
NATIONWIDE LIFE INSURANCE COMPANY*
WEST COAST LIFE INSURANCE COMPANY**
WISCONSIN HEALTH CARE
LIABILITY INSURANCE PLAN**
NATIONWIDE LIFE AND ANNUITY
(formerly Financial Horizons Life
Insurance Company)*
FARMLAND LIFE INSURANCE COMPANY**
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President - Corporate
Fixed-Income Securities
**By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-fact
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
GREAT NORTHERN INSURED ANNUITY CORPORATION
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By: /s/Xxx Xxxx
Name: Xxx Xxxx
Title: Investment Officer
BANK HAPOALIM B.M.
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: First Vice President
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
