Execution Copy
FDS GUARANTY
GUARANTY, dated as of June 4, 1996 ("Guaranty"), made
by FEDERATED DEPARTMENT STORES, INC., a Delaware corporation (the
"Guarantor"), in favor of the Guaranteed Parties referred to
below. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Amended and Restated Program
Agreement, dated as of the date hereof (the "Amended and Restated
Program Agreement").
WHEREAS, Monogram Bank, USA ("Monogram"), R. H. Macy &
Co., Inc. ("Macy"), Macy's Northeast, Inc. ("Macy's Northeast"),
Macy's South, Inc. ("Macy's South"), Macy's California, Inc.
("Macy's California"), Bullock's, Inc. ("Bullock's"), I. Magnin,
Inc. and Macy Specialty Stores, Inc. entered into a Credit Card
Program Agreement dated as of May 10, 1991 (the "Program
Agreement"); and
WHEREAS, contemporaneously herewith, GE Capital
Consumer Card Co. (as the successor to Monogram) ("GE Bank"),
Guarantor (as the successor to Macy), FDS National Bank ("FDS
Bank"), FACS Group, Inc. ("FACS"), Macy's East (as the successor
to Macy's Northeast and Macy's South), Macy's West (as the
successor to Macy's California), Bullock's, Broadway Stores, Inc.
("Broadway") and MSS-Delaware, Inc. ("MSS") are entering into the
Amended and Restated Program Agreement amending and restating the
Program Agreement in its entirety; and
WHEREAS, General Electric Capital Corporation ("GE
Capital"), Macy, Macy Credit Corp., Macy Receivables Funding
Corp., Macy's California, Macy's Northeast, Macy's South,
Bullock's, I. Magnin, Macy Receivables Master Servicing Corp. and
Macy Specialty entered into a Commercial Accounts Agreement,
dated as of May 10, 1991 (the "Commercial Accounts Agreement");
and
WHEREAS, contemporaneously herewith, GE Capital,
Guarantor, FDS Bank, Macy's East, Macy's West, Bullock's,
Broadway, FACS, and MSS are entering into the Amended and
Restated Commercial Accounts Agreement amending and restating the
Commercial Accounts Agreement in its entirety; and
WHEREAS, contemporaneously with the execution of the
Amended and Restated Program Agreement and the Amended and
Restated Commercial Accounts Agreement, GE Bank, GE Capital and
FACS are entering into the FACS Services Agreement and GE
Capital, Guarantor, FDS Bank and FACS are entering into the GE
Capital Services Agreement (the Amended and Restated Program
Agreement, the Amended and Restated Commercial Accounts
Agreement, the FACS Services Agreement and the GE Capital
Services Agreement, as they may be amended, supplemented or
otherwise modified from time to time, referred to hereinafter
collectively as the "Guaranteed Agreements"); and
WHEREAS, FDS Bank and the other FDS Companies are
wholly owned subsidiaries of Guarantor; and
WHEREAS, Guarantor desires to execute this Guaranty to
induce GE Bank and GE Capital to execute, deliver and perform
their respective obligations under the Guaranteed Agreements (GE
Bank, GE Capital, their Affiliates and their respective officers,
directors, agents and representatives are referred to herein
collectively as the "Guaranteed Parties").
NOW, THEREFORE, in consideration of the premises and to
induce the Guaranteed Parties to execute, deliver and perform
their respective obligations under the Guaranteed Agreements, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor
hereby agrees as follows:
SECTION 1. Guaranty. (a) The Guarantor hereby
unconditionally and irrevocably guarantees the full and prompt
payment when due and performance, subject to, and on the terms
and conditions set forth in the Guaranteed Agreements, of the
specific obligations of FDS Bank, FACS, and each of the other FDS
Companies and their respective successors and assigns
(collectively, the "Obligors") under the Guaranteed Agreements
whether now existing or hereafter arising (collectively, the
"Obligations"), and any and all expenses (including, without
limitation, counsel fees and expenses) incurred by any of the
Guaranteed Parties in enforcing any rights under this Guaranty to
the extent such Guaranteed Party is entitled to performance or
payment under this Guaranty. This Guaranty is an absolute
guaranty of payment and performance and not a guaranty of
collection.
SECTION 2. Guaranty Absolute. (a) The Guarantor
guarantees that the Obligations will be paid and performed
strictly in accordance with the terms of each of the Guaranteed
Agreements as then in effect, provided that the liability of the
Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of any
provision of any of the Guaranteed Agreements or any other
agreement or instrument relating to the Guaranteed Agreements, or
avoidance or subordination of any of the Obligations;
(ii) any change in the time, manner or place of payment
or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of any term of, or
any consent to departure from any requirement of, any of the
Guaranteed Agreements;
(iii) any waiver, consent, extension, forbearance
or granting of any indulgence by any of the Guaranteed Parties
with respect to any provision of any of the Guaranteed
Agreements; or
(iv) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a
guarantor.
(b) Subject to the foregoing provisions of Section
2(a) hereof, the Guarantor shall only be liable hereunder with
respect to any Obligation to the same extent that the respective
Obligor would be liable under the respective Guaranteed Agreement
with respect to that Obligation (subject to the terms, conditions
and limitations set forth in Article X of the Amended and
Restated Program Agreement and Article 7 of the FACS Services
Agreement).
SECTION 3. Waiver. (a) The Guarantor hereby
(i) waives (A) promptness, diligence, notice of acceptance and
any and all other notices with respect to any of the Obligations
or this Guaranty, (B) the filing of any claim with any
Governmental Authority in the event of the insolvency or
receivership of any of the Obligors, (C) protest or notice with
respect to nonperformance or nonpayment of all or any of the
Obligations, and (D) all demands whatsoever; and (ii) covenants
and agrees that this Guaranty will not be discharged except by
complete performance of the Obligations and any other obligations
of the Guarantor hereunder.
(b) If, in the exercise of any of its rights and
remedies, any of the Guaranteed Parties shall forfeit any of its
rights or remedies, whether because of any applicable Law
pertaining to "election of remedies" or the like, the Guarantor
hereby consents to such action by such Guaranteed Party and
waives any claim based upon such action. Any election of
remedies which results in the denial or impairment of the right
of such Guaranteed Party to seek a deficiency judgment against
any of the Obligors shall not impair the obligation of the
Guarantor to pay the full amount of the Obligations or any other
obligation of the Guarantor contained herein.
(c) The Guarantor consents and agrees that the
Guaranteed Parties shall be under no obligation to marshal any
assets in favor of the Guarantor or otherwise in connection with
obtaining payment of any or all of the Obligations from any
Person or source.
SECTION 4. Representations and Warranties. The
Guarantor hereby represents and warrants to the Guaranteed
Parties as follows:
(a) Organization and Good Standing. The Guarantor (i)
is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware, and (ii) has
all requisite corporate power and authority to execute, deliver
and perform this Guaranty.
(b) Authorization. The Guarantor has taken all
necessary corporate action to authorize the execution, delivery
and performance by the Guarantor of this Guaranty. The Guarantor
has duly and validly authorized, executed and delivered this
Guaranty, and this Guaranty constitutes the legal, valid and
binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms.
(c) Effect of Agreement. The execution, delivery and
performance by the Guarantor of this Guaranty will not, with or
without the giving of notice or the lapse of time, or both, (a)
violate any provision of Law to which the Guarantor is subject,
(b) violate any judgment, order, writ or decree of any court
applicable to the Guarantor, or (c) conflict with any provision
of the Certificate of Incorporation or By-Laws of the Guarantor
or result in the breach of, or conflict with, any term, covenant,
condition or provision of any Contract to which the Guarantor is
a party or by which any of its assets or properties is or may be
bound, other than violations, breaches or conflicts which could
not reasonably be expected to have a material adverse effect upon
Guarantor's ability to fulfill its obligations hereunder (a
"Guarantor Material Adverse Effect").
(d) Consents. No Consent, authorization or approval
of, or exemption by, or filing with, any Governmental Authority
or any other Person is required to be obtained by the Guarantor
in connection with the execution, delivery and performance by the
Guarantor of this Guaranty or the consummation by the Guarantor
of the transactions contemplated hereby, except for consents,
authorizations, approvals and filings made or obtained prior to
the date hereof or those the failure to obtain or make which
could not reasonably be expected to have a Guarantor Material
Adverse Effect.
(e) Litigation. There is no Litigation pending before
any Governmental Authority or any private arbitration tribunal,
or, to the knowledge of the Guarantor, threatened against,
relating to or affecting the Guarantor, the resolution of which
could reasonably be expected to have a Guarantor Material Adverse
Effect.
SECTION 5. Amendments, Etc. No amendment or waiver of
any provision of this Guaranty nor consent to any departure by
the Guarantor herefrom shall in any event be effective unless the
same shall be in writing and approved and signed by GE Capital
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 6. Addresses for Notices. All notices and
other communications provided for hereunder shall be in writing
(including telegraphic, telex or facsimile communication) and
mailed (return receipt requested), telegraphed, telexed,
facsimilied, delivered via next day courier or delivered by hand.
If to the Guarantor, such notices shall be addressed to it at the
address indicated on the signature page hereto. If to any
Guaranteed Party, such notices shall be addressed to it at the
address of such Guaranteed Party specified in the Amended and
Restated Program Agreement. Either party may provide such other
address as shall be designated by such party in a written notice
to each other party complying as to delivery with the terms of
this Section 6. All such notices and other communications shall
be effective when received by the party to whom addressed.
SECTION 7. No Waiver; Remedies. (a) No failure on
the part of any of the Guaranteed Parties to exercise, and no
delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by Law
or the Guaranteed Agreements.
(b) Failure by any of the Guaranteed Parties at any
time or times hereafter to require strict performance by any of
the Obligors or the Guarantor of any of the provisions,
warranties, terms or conditions contained in any of the
Guaranteed Agreements shall not waive, affect or diminish any
right of any of the Guaranteed Parties any time or times
hereafter to demand strict performance thereof, and such right
shall not be deemed to have been modified or waived by any course
of conduct or knowledge of any of the Guaranteed Parties or any
agent, officer or employee of any of the Guaranteed Parties.
(c) No waiver by the Guaranteed Parties of any default
shall operate as a waiver of any other default or the same
default on a future occasion, and no action by any of the
Guaranteed Parties permitted hereunder shall in way affect or
impair any of the rights of the Guaranteed Parties or the
obligations of the Guarantor under this Guaranty or under the
Guaranteed Agreements. Any determination by a court of competent
jurisdiction of any amount constituting any of the Obligations
shall be conclusive and binding on the Guarantor irrespective of
whether the Guarantor was a party to the suit or action in which
such determination was made.
SECTION 8. Continuing Guaranty. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect
until indefeasible payment and performance in full of the
Obligations and all other amounts payable under this Guaranty,
(ii) be binding upon the Guarantor, its successors and assigns,
and (iii) inure to the benefit of and be enforceable by the
Guaranteed Parties and their respective successors, transferees
and assigns.
SECTION 9. Reinstatement. This Guaranty shall remain
in full force and effect and continue to be effective should any
of the Obligors become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed
for all or any significant part of the assets of any of the
Obligors, and shall, to the fullest extent permitted by Law,
continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable Law, rescinded or
reduced in amount, or must otherwise be restored or returned by
any obligee of the Obligations or such part thereof, whether as a
"voidable preference," "fraudulent transfer," or otherwise, all
as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Obligations shall, to the
fullest extent permitted by Law, be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored
or returned.
SECTION 10. Governing Law. This Guaranty shall be
governed by, and construed and interpreted in accordance with,
the Laws of the State of New York without regard to its conflict
of Laws provisions. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective
and valid under applicable Law, but if any provision of this
Guaranty shall be prohibited by or invalid under applicable Law,
such provision shall be ineffective only to the extent of such
prohibition or invalidity and without invalidating the remaining
provisions of this Guaranty.
SECTION 11. Submission to Jurisdiction. (a) Any
legal action or proceeding with respect to this Guaranty or any
document related thereto may be brought in the courts of the
State of New York or the United States of America for the
Southern District of New York, and, by execution and delivery of
this Guaranty, the Guarantor hereby accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Guarantor hereby
irrevocably waives any objection, including, without limitation,
any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such respective
jurisdictions and consents to the granting of such legal or
equitable relief as is deemed appropriate by such courts.
(b) The Guarantor irrevocably consents to the service
of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Guarantor at its address
provided herein, such service to become effective 30 days after
such mailing.
(c) Nothing contained in this Section shall affect the
right of any Guaranteed Party to serve process in any other
manner permitted by Law or commence legal proceedings or
otherwise proceed against the Guarantor or any of the Guarantor's
property in any other jurisdiction.
SECTION 12. Miscellaneous. All references herein to
the Obligors or to the Guarantor shall include their respective
successors and assigns, including, without limitation, a
receiver, trustee or debtor-in-possession of or for any of the
Obligors or the Guarantor. All references to the singular shall
be deemed to include the plural where the context so requires.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be fully executed and delivered by its duly
authorized officer on the date first above written.
FEDERATED DEPARTMENT STORES, INC.
By: /s/ Ronald W. Tysoe
Name: Ronald W. Tysoe
Title: Vice Chairman and Chief Financial
Officer
ADDRESS FOR NOTICES:
7 West Seventh Street
Cincinnati, OH 45202
Attention: Law Department