exv10w38






Exhibit 10.38




EXECUTION COPY




SECOND AMENDMENT TO SERVICING AGREEMENT

FIRST AMENDMENT TO BLUESTEM LETTER AGREEMENT

FIRST AMENDMENT TO SECURITY AGREEMENT




          This SECOND AMENDMENT TO SERVICING AGREEMENT, FIRST AMENDMENT TO BLUESTEM LETTER AGREEMENT AND
FIRST AMENDMENT TO SECURITY AGREEMENT, dated as of July 1, 2011 (this “Amendment”), amends
or otherwise modifies (i) that certain Servicing Agreement, dated as of August 20, 2010 (as
amended, supplemented or otherwise modified prior to the date hereof, the “Servicing
Agreement”) by and among BLUESTEM BRANDS, INC., a Delaware corporation (“Bluestem”), as
Servicer, FINGERHUT RECEIVABLES I, LLC, a Delaware limited liability company (the
“Company”) and GOLDMAN SACHS BANK USA (“GS Bank”), as administrative agent (in such
capacity, the “Administrative Agent”) and collateral agent (in such capacity, the “Collateral
Agent”), (ii) that certain Bluestem Letter Agreement, dated as of August 20, 2010 (as amended,
supplemented or otherwise modified prior to the date hereof, the “Letter Agreement”), by
and among Bluestem and the Administrative Agent and (iii) that certain Security Agreement, dated as
of August 20, 2010 (as amended, supplemented or otherwise modified prior to the date hereof, the
“Security Agreement”), by and among the Company and the Collateral Agent, each as hereafter
set forth. Capitalized terms used and not defined herein shall have the meanings ascribed thereto
in the Servicing Agreement, the Letter Agreement or the Security Agreement, as applicable.




          WHEREAS, Bluestem, the Company and the Administrative Agent wish to amend or otherwise modify
certain provisions of the Servicing Agreement, the Letter Agreement and the Security Agreement as
hereafter set forth; and




          WHEREAS, the Requisite Lenders have consented to such amendments in accordance with Section
8.01 of the Servicing Agreement, Section 4.1 of the Letter Agreement and Section 9.5 of that
certain Credit Agreement, dated as of August 20, 2010 (as amended, supplemented or otherwise
modified prior to the date hereof, the “Credit Agreement”), by and among the Company, the
Administrative Agent, the lenders party thereto and J.P. Morgan Securities Inc., as joint lead
arranger and joint bookrunner.




          NOW, THEREFORE, Bluestem, the Company and the Administrative Agent hereby agree as follows:




     1. Amendments to the Letter Agreement. The Letter Agreement is hereby amended as
follows:



          (a) Section 1.4(j) is hereby amended and restated in its entirety as follows:





	 	 	 	“(j) investments received or loans or advances made in connection with the
dispositions of assets permitted by Section 1.5, including pursuant to
installment contracts or similar arrangements in connection with dispositions
permitted under




 









 






	 	 	 	Section 1.5(k) (provided that the aggregate amount of such investments pursuant to
installment contracts or similar arrangements in connection with dispositions
permitted under Section 1.5(k) shall not exceed $10,000,000 in the aggregate at any
time outstanding);”






     (b) Section 1.5 is hereby amended by (i) deleting “and” at the end of clause (i)
thereof and moving it to the end of clause (j), (ii) adding the following new clause (k) at
the end thereof:




	 	 	 	“(k) with respect to Bluestem and any Subsidiary other than the Company, sales of
inventory pursuant to installment contracts or similar arrangements with consumers
and/or employers of consumers in connection with voluntary benefit programs and
payroll deduction plans used to purchase general merchandise and services;”
	 
	 	 	 	and (iii) replacing the parenthetical in the proviso at the end thereof in its
entirety to read “(other than those permitted by paragraphs (b), (f), (g) and (k)
above)”.






     2. Amendment to the Security Agreement.



          (a) The definition of “Controlled Account” is hereby amended by adding the following sentence
at the end thereof: “In the event the Depositary Bank changes any of the account numbers referenced
in this Security Agreement, such account numbers shall be automatically deemed to be updated to
such new account numbers immediately upon notice thereof to the Administrative Agent.”




          (b) The definition of “US Bank Account” is hereby amended by adding the phrase “; provided
that in the event that US Bank shall change the foregoing account number, US Bank Account shall be
automatically deemed to refer to such new account number immediately upon notice thereof to the
Administrative Agent” at the end thereof.




          (c) In connection with any change to the account number of any one or more Controlled Accounts
or the US Bank Account, as provided in Sections 4.1 and 4.3 of the Security Agreement, the Company,
as grantor, hereby authorizes (i) the amendment of the Controlled Account Control Agreement and/or
the US Bank Account Control Agreement and (ii) the filing of such amendments to financing
statements, as, in each case, the Collateral Agent may determine are necessary or advisable to
perfect (or maintain) the security interest granted to the Collateral Agent in the Controlled
Accounts and/or the US Bank Account, as the case may be, under the Security Agreement.




     3. Consent to Servicing Agreement: For the avoidance of doubt, including in
connection with Section 5.04(a), the Administrative Agent hereby consents to Bluestem and one or
more of its Subsidiaries (other than the Company) entering into installment sales contracts or
similar arrangements with consumers and/or employers of consumers, and related agreements with such
employers and with brokers or other agents, in connection with voluntary benefit programs and
payroll deduction plans used to purchase general merchandise and services



 









 




(collectively, “Bluestem Payroll Deduction Sales Programs”). For the avoidance of
doubt, amounts payable to Bluestem or such Subsidiary under any Bluestem Payroll Deduction Sales
Program shall not constitute “Underlying Receivables” or “Receivables Accounts”.




     4. Continued Effectiveness of the Servicing Agreement, the Letter Agreement, the Security
Agreement and Other Credit Documents. Each party hereto hereby (i) acknowledges and consents
to this Amendment and (ii) confirms and agrees that the Servicing Agreement, the Letter Agreement,
the Security Agreement and each other Credit Document to which it is a party is, and shall continue
to be, in full force and effect and is hereby ratified and confirmed in all respects except that on
and after the date hereof all references in any such Credit Document to “the Servicing Agreement”,
“Letter Agreement”, “Security Agreement”, “thereto”, “thereof”, “thereunder” or words of like
import referring to the Servicing Agreement, Letter Agreement or Security Agreement, as applicable,
shall mean the Servicing Agreement, Letter Agreement or Security Agreement, each as amended by this
Amendment. This Amendment does not and shall not affect any of the obligations of any Credit Party,
other than as expressly provided herein, including, without limitation, the Company’s obligation to
repay the Loans in accordance with the terms of the Credit Agreement, or the obligations of any
other Credit Party under any Credit Document to which it is a party, all of which obligations shall
remain in full force and effect. Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or any Lender under the Servicing Agreement, the Letter Agreement, the
Security Agreement or any other Credit Document, nor constitute a waiver of any provision of the
Servicing Agreement, the Letter Agreement, the Security Agreement or any other Credit Document.



     5. No Default. Bluestem and the Company each hereby represents and warrants that as
of the date hereof, after giving effect to this Amendment, there is no Servicer Default under the
Servicing Agreement and no Default or Event of Default under any other Credit Document.



     6. Consent to Amendments to the Bluestem Securities Purchase Agreement, Bluestem
Securities Security Agreement, the Bluestem 2010 Inventory Credit Agreement and the Bluestem 2010
Inventory Security Agreement. The Administrative Agent, on behalf of the Requisite Lenders,
hereby consents (to the extent required) to the execution and delivery by Bluestem and the Company
of amendments to each of the Bluestem Securities Purchase Agreement, Bluestem Securities Security
Agreement, the Bluestem 2010 Inventory Credit Agreement, the Bluestem 2010 Inventory Security
Agreement and any related Loan Documents (as defined in the Bluestem 2010 Inventory Credit
Agreement or Bluestem Securities Purchase Agreement, as applicable), which are substantially
similar to the Amendments set forth herein, and this Amendment shall constitute proper notice under
the Credit Documents (to the extent required) with respect to such amendments.



     7. Miscellaneous.



     (a) This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an original



 









 




but all of which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment by facsimile or electronic mail shall be equally effective
as delivery of an original executed counterpart of this Amendment.




     (b) Section and paragraph headings herein are included for convenience of reference only and
shall not constitute a part of this Amendment for any other purpose.



     (c) This Amendment shall be governed by, and construed in accordance with, the laws of the
State of New York.



     (d) Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.



          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.




	 	 	 	 	 	 	 

	 	 	BLUESTEM BRANDS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark P. Wagener
 

Mark P. Wagener
	 	 
	 

	 	Title:
	 	Executive Vice President & CFO	 	 
	 
	 	 	 	 	 	 
	 	 	FINGERHUT RECEIVABLES I, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark P. Wagener
 

Mark P. Wagener
	 	 
	 

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	 	 	GOLDMAN SACHS BANK USA,	 	 
	 	 	as Administrative Agent and Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Jason P. Gelberd
 

Jason P. Gelberd
	 	 
	 

	 	Title:
	 	Authorized Signatory