EXHIBIT 10.11
FIRST OMNIBUS AMENDMENT
This First Omnibus Amendment, dated as of December 19, 2003 (this
"Amendment"), is among Seven Hills Funding Corporation (formerly known as
Deerfield Funding Corporation) (the "CP Issuer"); Federated Department Stores,
Inc. ("Federated"); FDS Bank (the "Servicer"), successor in interest to
Federated in its capacity as servicer under the Liquidity Agreement (defined
below); Credit Suisse First Boston, New York Branch (formerly known as Credit
Suisse), as liquidity agent (the "Liquidity Agent") under the Liquidity
Agreement (as defined below); JPMorgan Chase Bank ("JPMorgan"), as successor in
interest to Chemical Bank in its capacities of (i) Depositary under the
Depositary Agreement (as defined in the Liquidity Agreement) and (ii) Depositary
and Collateral Agent under the Security Agreement (as defined in the Liquidity
Agreement); and the Banks listed on the signature pages hereto. Capitalized
terms used in this Amendment and not otherwise defined have the meanings
assigned to them in the Liquidity Agreement.
Preliminary Statements
1. Prime Receivables Corporation, a Delaware corporation (the
"Transferor") and the Servicer are among the parties to that certain Series
1992-3 Variable Funding Supplement, dated as of December 31, 1992 (as heretofore
amended, restated, supplemented or otherwise modified, the "Supplement") to that
certain Amended and Restated Pooling and Servicing Agreement, dated as of
December 15, 1992 among, inter alia, the Transferor and the Servicer (as
heretofore amended, restated, supplemented or otherwise modified, the "Pooling
Agreement").
2. Under the Supplement, the Transferor created the Series 1992-3
Variable Funding Certificates, conveyed to the CP Issuer a Class A Variable
Funding Certificate and entered into arrangements for the sale of commercial
paper and the provision for certain liquidity arrangements from other parties,
including the entry into (i) the Liquidity Agreement, dated as of December 31,
1992 among the CP Issuer, the Servicer, the Banks and the Liquidity Agent (as
amended, restated or otherwise modified, the "Liquidity Agreement"), (ii) the
Depositary Agreement and (iii) the Security Agreement (collectively with the
Depositary Agreement and the Liquidity Agreement, the "Operative Documents").
3. The parties hereto desire to (a) amend the Liquidity Agreement
to remove the requirement that the CP Issuer maintain Interest Rate Caps, (b)
make other conforming changes to the Operative Documents and (c) request an
extension of the Expiration Date pursuant to Section 4.02 of the Liquidity
Agreement.
4. Section 10.03 of the Liquidity Agreement, Section 11 of the
Depositary Agreement and Section 19 of the Security Agreement permit such
amendment of the Operative Documents with the consent of the Required Banks and
subject to the conditions included in this Amendment and Section 4.02 of the
Liquidity Agreement permits such extension of the Expiration Date with the
consent and acceptance of such extension by the applicable Banks.
Agreement
The parties hereto agree to the following terms and conditions:
SECTION 1. Amendment of Interest Rate Cap Provisions. On the date of this
Amendment, the Liquidity Agreement and other Operative Documents are amended
as follows:
1.01 Amendment of Section 7.28 of the Liquidity Agreement. Section
7.28 of the Liquidity Agreement is deleted in its entirety and is replaced with
the following:
Section 7.28 Interest Rate Caps. [RESERVED]
1.02 Amendment to Operative Documents. All references to the terms:
"Cap Escrow Account", "Cap Proceeds Account", "Cap Settlement Date", "Interest
Rate Caps", "Required Cap Agreements", "Excess Cap Proceeds", "the requirements
set forth in Section 7.28 of the Liquidity Agreement", and any and all other
references to the Interest Rate Caps or terms relating to Interest Rate Caps are
hereby amended to include the addition of the reference ", if any" where
grammatically appropriate after each and every such term and reference, it being
the intention and agreement of each of the parties to each Operative Document
that such terms and references have substantive meaning and effect only when an
Interest Rate Cap is in effect.
SECTION 2. Extension of Expiration Date.
2.01 Confirmation of Request for Extension. The CP Issuer confirms
that it has heretofore requested that the Expiration Date for each Bank be
extended to December 17, 2004.
2.02 Representations and Warranties. In connection with such
request for extension, each of the CP Issuer, Federated, and the Servicer
represents and warrants to the Liquidity Agent and each Bank that (a) no Default
or Event of Default exists, (b) all of its representations and warranties
contained in the Liquidity Agreement or in any document, certificate or
financial or other statement delivered in connection therewith are true and
correct in all material respects with the same force and effect as though such
representations and warranties had been made on and as of the date hereof
(except to the extent any such representations and warranties relate solely to
an earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date), and (c) no Pay Out
Event exists with respect to the Variable Funding Certificates.
SECTION 3. Effect of Amendment. All provisions of the Operative
Documents, as expressly amended and modified by this Amendment, shall remain
in full force and effect. After this Amendment becomes effective, all
references in the Operative Documents (or in any related document) to "this
Agreement", "hereof", "herein", or words of similar effect referring to the
Operative Documents shall be deemed to be references to the Operative
Documents as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision
of the Agreement other than as set forth herein.
SECTION 4. Conditions to Effectiveness. This Amendment, including the
extension of the Expiration Date, shall become effective as of the date
hereof upon (a) receipt by the Liquidity
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Agent of counterparts of this Amendment (whether by facsimile or otherwise)
executed by each of (i) the CP Issuer, (ii) the Banks listed on the
signature pages to this Amendment, (iii) the Transferor, (iv) the Servicer,
(v) Federated and (vi) JPMorgan; (b) execution and delivery to the other
parties hereto of a counterpart of this Amendment by the Liquidity Agent and
(c) receipt by JPMorgan of an Officer's Certificate of the CP Issuer to the
effect that this Amendment will not materially and adversely affect the
interests of the Collateral Agent under the Depositary Agreement.
SECTION 5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of
which when so executed shall be deemed to an original and all of which when
taken together shall constitute but one and the same instrument.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 7. Section Headings. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or
interpretation of this Amendment, the Operative Documents or any provision
hereof or thereof.
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Delivered as of the day and the year first above written.
SEVEN HILLS FUNDING CORPORATION, as CP Issuer
By: /s/ Susan P. Storer
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Name: Susan P. Storer
Title: President
PRIME RECEIVABLES CORPORATION, as Transferor
By: /s/ Susan P. Storer
-----------------------------------------
Name: Susan P. Storer
Title: President
FDS BANK, as Servicer
By: /s/ Susan R. Robinson
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Name: Susan R. Robinson
Title: Treasurer
FEDERATED DEPARTMENT STORES, INC.
By: /s/ Dennis J. Broderick
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Name: Dennis J. Broderick
Title: Senior Vice President, General Counsel
& Secretary
JPMORGAN CHASE BANK, as Depositary and
Depositary and Collateral Agent
By: /s/ Michael A. Smith
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Name: Michael A. Smith
Title: Vice President
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Liquidity Agent and a Bank
By: /s/ Alberto Zonca
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Name: Alberto Zonca
Title: Vice President
By: /s/ Mark Golombeck
-----------------------------------------
Name: Mark Golombeck
Title: Vice President
BANK ONE, N.A., as a Bank
By: /s/ William Hendricks
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Name: William Hendricks
Title: Director, Capital Markets
MELLON BANK, N.A., as a Bank
By: /s/ Mark F. Johnston
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Name: Mark F. Johnston
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: /s/ Bruce A. Kintner
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Name: Bruce A. Kinter
Title: Vice President
FLEET NATIONAL BANK, as a Bank
By: /s/ Judith C. E. Kelly
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Name: Judith C. E. Kelly
Title: Managing Director