COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
between
Federated Department Stores, Inc., as Issuer
and
Goldman, Sachs & Co., as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement dated as
of January 30, 1997 between the Issuer and
Citibank, N.A., as Issuing and Paying Agent
Dated as of
March 12, 1999
COMMERCIAL PAPER DEALER AGREEMENT
This agreement ("Agreement") sets forth the understandings
between the Issuer and the Dealer, each named on the cover page
hereof, in connection with the issuance and sale by the Issuer of
its short-term promissory notes (the "Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section
6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits
described in this Agreement or such Addendum, are hereby
incorporated into this Agreement and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation
to sell the Notes to the Dealer or to permit the Dealer to
arrange any sale of the Notes for the account of the Issuer, and
(ii) the Dealer has and shall have no obligation to purchase the
Notes from the Issuer or to arrange any sale of the Notes for the
account of the Issuer, the parties hereto agree that in any case
where the Dealer purchases Notes from the Issuer, or arranges for
the sale of Notes by the Issuer, such Notes will be purchased or
sold by the Dealer in reliance on the representations,
warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions
and in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, and
in addition to the limitations contained in Section 1.7 hereof,
the Issuer shall not, without the consent of the Dealer, offer,
solicit or accept offers to purchase, or sell, any Notes except
(a) in transactions with one or more dealers which may from time
to time after the date hereof become dealers with respect to the
Notes by executing with the Issuer one or more agreements which
contain provisions substantially identical to those contained in
Section 1 of this Agreement, of which the Issuer hereby
undertakes to provide the Dealer prompt notice or (b) in
transactions with the other dealers listed on the Addendum
hereto, which are executing agreements with the Issuer which
contain provisions substantially identical to Section 1 of this
Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any
Notes directly on its own behalf in transactions with persons
other than broker-dealers as specifically permitted in this
Section 1.2.
1.3 The Notes shall be in a minimum denomination of
$250,000 or integral multiples of $1,000 in excess thereof, will
bear such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed upon by
the Dealer and the Issuer, shall have a maturity not exceeding
270 days from the date of issuance (exclusive of days of grace)
and shall not contain any provision for extension, renewal or
automatic "rollover."
1.4 The authentication and issuance of, and payment for,
the Notes shall be effected in accordance with the Issuing and
Paying Agency Agreement, and the Notes shall be either individual
physical certificates or book-entry notes evidenced by a Master
Note registered in the name of DTC or its nominee, in the form or
forms annexed to the Issuing and Paying Agency Agreement. The
Dealer agrees to keep confidential the user number identification
and password given to it pursuant to the Issuing and Paying
Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms
of the purchase of any Note by the Dealer or the sale of any Note
arranged by the Dealer (including, but not limited to, agreement
with respect to the date of issue, purchase price, principal
amount, maturity and interest rate (in the case of interest-
bearing Notes) or discount thereof (in the case of Notes issued
on a discount basis), and appropriate compensation for the
Dealer's services hereunder) pursuant to this Agreement, the
Issuer shall cause such Note to be issued and delivered in
accordance with the terms of the Issuing and Paying Agency
Agreement and payment for such Note shall be made by the
purchaser thereof, either directly or through the Dealer, to the
Issuing and Paying Agent, for the account of the Issuer. Except
as otherwise agreed, in the event that the Dealer is acting as an
agent and a purchaser shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has
theretofore paid the Issuer for the Note, the Issuer will
promptly return such funds to the Dealer against its return of
the Note to the Issuer, in the case of a certificated Note, and
upon notice of such failure in the case of a book-entry Note. If
such failure occurred for any reason other than default by the
Dealer, the Issuer shall reimburse the Dealer on an equitable
basis for the Dealer's loss of the use of such funds for the
period such funds were credited to the Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to
observe the following procedures in connection with offers, sales
and subsequent resales or other transfers of the Notes:
(a) Offers and sales of the Notes by or through the
Dealer shall be made only to: (i) investors reasonably
believed by the Dealer to be Qualified Institutional Buyers
("QIBs"), Institutional Accredited Investors or
Sophisticated Individual Accredited Investors and (ii) non-
bank fiduciaries or agents that will be purchasing Notes for
one or more accounts, each of which is reasonably believed
by the Dealer to be an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor.
(b) Resales and other transfers of the Notes by the
holders thereof shall be made only in accordance with the
restrictions in the legend described in clause (e) below.
(c) No general solicitation or general advertising
shall be used in connection with the offering of the Notes.
Without limiting the generality of the foregoing, without
the prior written approval of the Dealer, the Issuer shall
not issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
The Dealer shall not use any materials other than the
Private Placement Memorandum as then approved by the Issuer
(or such other materials as may from time to time be
approved by the Issuer) in connection with the offer and
sale of the Notes.
(d) No sale of Notes to any one purchaser shall be for
less than $250,000 principal or face amount, and no Note
shall be issued in a smaller principal or face amount. If
the purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of
Notes.
(e) Offers and sales of the Notes by the Issuer
through the Dealer acting as agent for the Issuer shall be
made in accordance with Rule 506 under the Securities Act,
and shall be subject to the restrictions described in the
legend appearing on Exhibit A hereto. A legend substantially
to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each individual
certificate representing a Note and each Master Note
representing book-entry Notes offered and sold pursuant to
this Agreement.
(f) The Dealer shall furnish or shall have furnished
to each purchaser of Notes for which it has acted as the
Dealer a copy of the then-current Private Placement
Memorandum unless such purchaser has previously received a
copy of the Private Placement Memorandum as then in effect.
The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an
opportunity to ask questions of, and receive information
from, the Issuer and the Dealer and shall provide the names,
addresses and telephone numbers of the persons from whom
information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer
and each of the holders and prospective purchasers from time
to time of the Notes that, if at any time the Issuer shall
not be subject to Section 13 or 15(d) of the Exchange Act,
the Issuer will furnish, upon request and at its expense, to
the Dealer and to holders and prospective purchasers of
Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be
offered by the Dealer would be ineligible for resale under
Rule 144A, the Issuer shall immediately notify the Dealer
(by telephone, confirmed in writing) of such fact and shall
promptly prepare and deliver to the Dealer an amendment or
supplement to the Private Placement Memorandum describing
the Notes that are ineligible, the reason for such
ineligibility and any other relevant information relating
thereto.
(i) The Issuer represents that it is not currently
issuing commercial paper in the United States market in
reliance upon, and in compliance with, the exemption
provided by Section 3(a)(3) of the Securities Act. However,
the Issuer agrees that if the Issuer were to issue such
3(a)(3) commercial paper, (a) the proceeds from the sale of
the Notes would be segregated from the proceeds of the sale
of any such commercial paper by being placed in a separate
account; (b) the Issuer would institute appropriate
corporate procedures to ensure that the offers and sales of
notes issued by the Issuer pursuant to the Section 3(a)(3)
exemption would not be integrated with offerings and sales
of Notes hereunder; and (c) the Issuer would comply with
each of the requirements of Section 3(a)(3) of the
Securities Act in selling commercial paper or other short-
term debt securities other than the Notes in the United
States.
(j) The Issuer hereby agrees that, not later than 15
days after the first sale of Notes as contemplated by this
Agreement, it will file with the SEC a notice on Form D in
accordance with Rule 503 under the Securities Act and that
it will thereafter file such amendments to such notice as
Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the
Dealer, in connection with offers, sales and resales of Notes, as
follows:
(a) The Issuer hereby confirms to the Dealer that
(except as permitted by Section 1.6(i)) within the preceding
six months neither the Issuer nor any person other than the
Dealer or the other dealers referred to in Section 1.2
hereof acting on behalf of the Issuer has offered or sold
any Notes, or any substantially similar security of the
Issuer (including, without limitation, medium-term notes
issued by the Issuer), to, or solicited offers to buy any
such security from, any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof (including
for purposes of this Section 1.7(a) other dealers who would
be so referred to but for the fact that they executed
agreements of the type referred to in such Section 1.2 prior
to the date hereof). The Issuer also agrees that (except as
permitted by Section 1.6(i)), as long as the Notes are being
offered for sale by the Dealer and the other dealers
referred to in Section 1.2 hereof as contemplated hereby and
until at least six months after the offer of Notes hereunder
has been terminated, neither the Issuer nor any person other
than the Dealer or the other dealers referred to in Section
1.2 hereof (except as contemplated by Section 1.2 hereof)
will offer the Notes or any substantially similar security
of the Issuer for sale to, or solicit offers to buy any such
security from, any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof, it being
understood that such agreement is made with a view to
bringing the offer and sale of the Notes within the
exemption provided by Section 4(2) of the Securities Act and
Rule 506 thereunder and shall survive any termination of
this Agreement. The Issuer hereby represents and warrants
that it has not taken or omitted to take, and will not take
or omit to take, any action that would cause the offering
and sale of Notes hereunder to be integrated with any other
offering of securities, whether such offering is made by the
Issuer or some other party or parties.
(b) In the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation
T and the interpretations thereunder, the Dealer will sell
such Notes either (i) only to offerees it reasonably
believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule
144A or (ii) in a manner which would not cause a violation
of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and has all the requisite power and
authority to execute, deliver and perform its obligations under
the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency
Agreement have been duly authorized, executed and delivered by
the Issuer and constitute legal, valid and binding obligations of
the Issuer enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject,
as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at
law).
2.3 The Notes have been duly authorized, and when issued as
provided in the Issuing and Paying Agency Agreement, will be duly
and validly issued and will constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated
hereby do not require registration of the Notes under the
Securities Act, pursuant to the exemption from registration
contained in Section 4(2) thereof and Regulation D thereunder,
and no indenture in respect of the Notes is required to be
qualified under the Trust Indenture Act of 1939, as amended.
Neither the Issuer nor any affiliate (as defined in Regulation
501(b) of Regulation D), will sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act) which will be integrated with
the sale of the Notes in a manner which would require the
registration of the Notes under the Securities Act.
2.5 The Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or
action of, or filing or registration with, any governmental or
public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection
with the execution, delivery or performance of, this Agreement,
the Notes or the Issuing and Paying Agency Agreement, except as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement
and the Issuing and Paying Agency Agreement, nor the issuance of
the Notes in accordance with the Issuing and Paying Agency
Agreement, nor the fulfillment of or compliance with the terms
and provisions hereof or thereof by the Issuer, will (i) result
in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties
or assets of the Issuer, or (ii) violate or result in a breach or
a default under any of the terms of the Issuer's charter
documents or by-laws, any contract or instrument to which the
Issuer is a party or by which it or its property is bound, or any
law or regulation, or any order, writ, injunction or decree of
any court or government instrumentality, to which the Issuer is
subject or by which it or its property is bound, which breach or
default might have a material adverse effect on the condition
(financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
2.8 There is no litigation or governmental proceeding
pending, or to the knowledge of the Issuer threatened, against or
affecting the Issuer or any of its subsidiaries which might
result in a material adverse change in the condition (financial
or otherwise), operations or business prospects of the Issuer or
the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the
Company Information contains any untrue statement of a material
fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading,
provided that the Issuer makes no representation and warranty
regarding the Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and
(b) amendment or supplement of the Private Placement Memorandum
shall be deemed a representation and warranty by the Issuer to
the Dealer, as of the date thereof, that, both before and after
giving effect to such issuance and after giving effect to such
amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true
and correct on and as of such date as if made on and as of such
date, (ii) in the case of an issuance of Notes, the Notes being
issued on such date have been duly and validly issued and
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (iii) in the case of an issuance of Notes, since the
date of the most recent Private Placement Memorandum, there has
been no material adverse change in the condition (financial or
otherwise), operations or business prospects of the Issuer which
has not been disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in
any event prior to any subsequent issuance of Notes hereunder) of
any amendment to, modification of or waiver with respect to, the
Notes or the Issuing and Paying Agency Agreement, including a
complete copy of any such amendment, modification or waiver.
3.2 The Issuer shall, whenever there shall occur any change
in the Issuer's condition (financial or otherwise), operations or
business prospects or any development or occurrence in relation
to the Issuer that would be material to holders of the Notes or
potential holders of the Notes (including any downgrading or
receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the
Issuer's securities by any nationally recognized statistical
rating organization which has published a rating of the Notes),
promptly, and in any event prior to any subsequent issuance of
Notes hereunder, notify the Dealer (by telephone, confirmed in
writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the
Dealer such information as the Dealer may reasonably request,
including, without limitation, any press releases or material
provided by the Issuer to any national securities exchange or
rating agency, regarding (i) the Issuer's operations and
financial condition, (ii) the due authorization and execution of
the Notes and (iii) the Issuer's ability to pay the Notes as they
mature.
3.4 The Issuer will take all such action as the Dealer may
reasonably request to ensure that each offer and each sale of the
Notes will comply with any applicable state Blue Sky laws;
provided, however, that the Issuer shall not be obligated to file
any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified or subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject.
3.5 The Issuer will not be in default of any of its
obligations hereunder, under the Notes or under the Issuing and
Paying Agency Agreement, at any time that any of the Notes are
outstanding.
3.6 The Issuer shall not issue Notes hereunder until the
Dealer shall have received (a) an opinion of counsel to the
Issuer, addressed to the Dealer, satisfactory in form and
substance to the Dealer, (b) a copy of the executed Issuing and
Paying Agency Agreement as then in effect, (c) a copy of
resolutions adopted by the Board of Directors of the Issuer,
satisfactory in form and substance to the Dealer and certified by
the Secretary or similar officer of the Issuer, authorizing
execution and delivery by the Issuer of this Agreement, the
Issuing and Paying Agency Agreement and the Notes and
consummation by the Issuer of the transactions contemplated
hereby and thereby, (d) prior to the issuance of any Notes
represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations
among the Issuer, the Issuing and Paying Agent and DTC and (e)
such other certificates, opinions, letters and documents as the
Dealer shall have reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the
Dealer's out-of-pocket expenses related to this Agreement,
including expenses incurred in connection with its preparation
and negotiation, and the transactions contemplated hereby
(including, but not limited to, the printing and distribution of
the Private Placement Memorandum), and, if applicable, for the
reasonable fees and out-of-pocket expenses of the Dealer's
counsel.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents
(other than the Dealer Information) shall be the sole
responsibility of the Issuer. The Private Placement Memorandum
shall contain a statement expressly offering an opportunity for
each prospective purchaser to ask questions of, and receive
answers from, the Issuer concerning the offering of Notes and to
obtain relevant additional information which the Issuer possesses
or can acquire without unreasonable effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the
Company Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer
promptly upon the occurrence of any event relating to or
affecting the Issuer that would cause the Company Information
then in existence to include an untrue statement of a material
fact or to omit to state a material fact necessary in order to
make the statements contained therein, in light of the
circumstances under which they are made, not misleading.
(b) In the event that the Issuer gives the Dealer
notice pursuant to Section 4.3(a) and the Dealer notifies the
Issuer that it then has Notes it is holding in inventory, the
Issuer agrees promptly to supplement or amend the Private
Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the
Issuer shall make such supplement or amendment available to the
Dealer.
(c) In the event that (i) the Issuer gives the Dealer
notice pursuant to Section 4.3(a), (ii) the Dealer does not
notify the Issuer that it is then holding Notes in inventory and
(iii) the Issuer chooses not to promptly amend or supplement the
Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be
suspended until such time as the Issuer has so amended or
supplemented the Private Placement Memorandum, and made such
amendment or supplement available to the Dealer.
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer,
each individual, corporation, partnership, trust, association or
other entity controlling the Dealer, any affiliate of the Dealer
or any such controlling entity and their respective directors,
officers, employees, partners, incorporators, shareholders,
servants, trustees and agents (hereinafter the "Indemnitees")
against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including,
without limitation, fees and disbursements of counsel) or
judgments of whatever kind or nature (each a "Claim"), imposed
upon, incurred by or asserted against the Indemnitees arising out
of or based upon (i) any allegation that the Private Placement
Memorandum, the Company Information or any information provided
by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of
any relevant time) or omits to state any material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading or (ii) arising out of
or based upon the breach by the Issuer of any agreement, covenant
or representation made in or pursuant to this Agreement. This
indemnification shall not apply to the extent that the Claim
arises out of or is based upon Dealer Information.
5.2 Provisions relating to claims made for indemnification
under this Section 5 are set forth on Exhibit B to this
Agreement.
5.3 In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in
this Section 5 is held to be unavailable or insufficient to hold
harmless the Indemnitees, although applicable in accordance with
the terms of this Section 5, the Issuer shall contribute to the
aggregate costs incurred by the Dealer in connection with any
Claim in the proportion of the respective economic interests of
the Issuer and the Dealer; provided, however, that such
contribution by the Issuer shall be in an amount such that the
aggregate costs incurred by the Dealer do not exceed the
aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which
such Claim relates. The respective economic interests shall be
calculated by reference to the aggregate proceeds to the Issuer
of the Notes issued hereunder and the aggregate commissions and
fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section
5.1.
6.2 "Company Information" at any given time shall mean the
Private Placement Memorandum together with, to the extent
applicable, (i) the Issuer's most recent report on Form 10-K
filed with the SEC and each report on Form 10-Q or 8-K filed by
the Issuer with the SEC since the most recent Form 10-K, (ii) the
Issuer's most recent annual audited financial statements and each
interim financial statement or report prepared subsequent
thereto, if not included in item (i) above, (iii) the Issuer's
and its affiliates' other publicly available recent reports,
including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other
information or disclosure prepared pursuant to Section 4.3 hereof
and (v) any information prepared or approved by the Issuer for
dissemination to investors or potential investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the
Dealer provided by the Dealer in writing expressly for inclusion
in the Private Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange
Act of 1934, as amended.
6.6 "Indemnitee" shall have the meaning set forth in
Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an
institutional investor that is an accredited investor within the
meaning of Rule 501 under the Securities Act and that has such
knowledge and experience in financial and business matters that
it is capable of evaluating and bearing the economic risk of an
investment in the Notes, including, but not limited to, a bank,
as defined in Section 3(a)(2) of the Securities Act, or a savings
and loan association or other institution, as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its
individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the
issuing and paying agency agreement described on the cover page
of this Agreement, as such agreement may be amended or
supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party
designated as such on the cover page of this Agreement, as
issuing and paying agent under the Issuing and Paying Agency
Agreement, or any successor thereto in accordance with the
Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or
agent other than (a) a bank, as defined in Section 3(a)(2) of the
Securities Act, or (b) a savings and loan association, as defined
in Section 3(a)(5)(A) of the Securities Act.
6.11 "Private Placement Memorandum" shall mean offering
materials prepared in accordance with Section 4 (including
materials referred to therein or incorporated by reference
therein) provided to purchasers and prospective purchasers of the
Notes, and shall include amendments and supplements thereto which
may be prepared from time to time in accordance with this
Agreement (other than any amendment or supplement that has been
completely superseded by a later amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning
assigned to that term in Rule 144A under the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules 501 et
seq.) under the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities
Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange
Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of
1933, as amended.
6.17 "Sophisticated Individual Accredited Investor" shall
mean an individual who (a) is an accredited investor within the
meaning of Regulation D under the Securities Act and (b) based on
his or her pre-existing relationship with the Dealer, is
reasonably believed by the Dealer to be a sophisticated investor
(i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in
financial and business matters that he or she is capable of
evaluating and bearing the economic risk of an investment in the
Notes and (ii) having a net worth of at least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices
under this Agreement to parties hereto shall be in writing and
shall be effective when received at the address of the respective
party set forth in the Addendum to this Agreement.
7.2 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard
to its conflict of laws provisions.
7.3 The Issuer agrees that any suit, action or proceeding
brought by the Issuer against the Dealer in connection with or
arising out of this Agreement or the Notes or the offer and sale
of the Notes shall be brought solely in the United States federal
courts located in the Borough of Manhattan or the courts of the
State of New York located in the Borough of Manhattan. EACH OF
THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN
ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the
Issuer, upon one business day's prior notice to such effect to
the Dealer, or by the Dealer upon one business day's prior notice
to such effect to the Issuer. Any such termination, however,
shall not affect the obligations of the Issuer under Sections
3.7, 5 and 7.3 hereof or the respective representations,
warranties, agreements, covenants, rights or responsibilities of
the parties made or arising prior to the termination of this
Agreement.
7.5 This Agreement is not assignable by either party hereto
without the written consent of the other party; provided,
however, that the Dealer may assign its rights and obligations
under this Agreement to any affiliate of the Dealer.
7.6 This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
7.7 This Agreement is for the exclusive benefit of the
parties hereto, and their respective permitted successors and
assigns hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
No purchaser of any of the Notes from the Dealer shall be deemed
a successor or assign by reason merely of such purchase.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first above
written.
Federated Department Stores, Inc., as Issuer
By: /s/ Karen M. Hoguet
Name: Karen M. Hoguet
Title: Senior Vice President, Treasurer
and Chief Financial Officer
Goldman, Sachs & Co., as Dealer
By: /s/ J. Christopher Kersey
Name: J. Christopher Kersey
Title: Vice President
ADDENDUM
The following additional clauses shall apply to the
Agreement and be deemed a part thereof.
1. The other dealers referred to in clause (b) of Section 1.2
of the Agreement are Chase Securities Inc. and First Chicago
Capital Markets, Inc.
2. The addresses of the respective parties for purposes of
notices under Section 7.1 are as follows:
For the Issuer: Federated Department Stores, Inc.
Address: 7 West Seventh Street
Cincinnati, Ohio 45202
Attention: Susan P. Storer
Telephone number: 513-579-7775
Fax number: 513-579-7393
For the Dealer: Goldman, Sachs & Co.
Address: 85 Broad Street
New York, New York 10004
Attention: Money Markets Origination
Telephone number: 212-902-7594
Fax number: 212-902-0683
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAW, AND OFFERS AND SALES THEREOF
MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO
REPRESENT THAT IT HAS BEEN AFFORDED AN OPPORTUNITY TO
INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE
NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO
ANY DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN
INSTITUTIONAL INVESTOR OR SOPHISTICATED INDIVIDUAL
INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(a) UNDER THE ACT AND WHICH, IN THE
CASE OF AN INDIVIDUAL, (i) POSSESSES SUCH KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT HE OR
SHE IS CAPABLE OF EVALUATING AND BEARING THE ECONOMIC
RISK OF AN INVESTMENT IN THE NOTES AND (ii) HAS A NET
WORTH OF AT LEAST $5 MILLION (AN "INSTITUTIONAL
ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER IS
PURCHASING NOTES FOR ITS OWN ACCOUNT, IS A U.S. BANK (AS
DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS AND
LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN
SECTION 3(a)(5)(A) OF THE ACT) ACTING IN ITS INDIVIDUAL
OR FIDUCIARY CAPACITY OR IS A FIDUCIARY OR AGENT (OTHER
THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION)
PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH
IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR OR
SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH
ITSELF POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii)
WITH RESPECT TO WHICH SUCH PURCHASER HAS SOLE INVESTMENT
DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT
WHICH IS ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE
OR MORE ACCOUNTS, EACH OF WHICH IS A QIB AND WITH
RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE
INVESTMENT DISCRETION; AND THE PURCHASER ACKNOWLEDGES
THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE
EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5
OF THE ACT PROVIDED BY RULE 144A. BY ITS ACCEPTANCE OF
A NOTE, THE PURCHASER THEREOF SHALL ALSO BE DEEMED TO
AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE
MADE ONLY (A) IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO GOLDMAN,
SACHS & CO. OR ANOTHER PERSON DESIGNATED BY THE ISSUER
AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE
"PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE ANY
OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT
AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR,
SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR OR A QIB,
OR (3) TO A QIB IN A TRANSACTION THAT MEETS THE
REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF
$250,000.
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all
expenses (including reasonable fees and disbursements of internal
and external counsel) as they are incurred by it in connection
with investigating or defending any loss, claim, damage,
liability or action in respect of which indemnification may be
sought under Section 5 of the Agreement (whether or not it is a
party to any such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of
the existence of a Claim, such Indemnitee will, if a claim in
respect thereof is to be made against the Issuer, notify the
Issuer in writing of the existence thereof; provided that (i) the
omission so to notify the Issuer will not relieve the Issuer from
any liability which it may have hereunder unless and except to
the extent it did not otherwise learn of such Claim and such
failure results in the forfeiture by the Issuer of substantial
rights and defenses, and (ii) the omission so to notify the
Issuer will not relieve it from liability which it may have to an
Indemnitee otherwise than on account of this indemnity agreement.
In case any such Claim is made against any Indemnitee and it
notifies the Issuer of the existence thereof, the Issuer will be
entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnitee, to assume
the defense thereof, with counsel reasonably satisfactory to such
Indemnitee; provided that if the defendants in any such Claim
include both the Indemnitee and the Issuer, and the Indemnitee
shall have concluded that there may be legal defenses available
to it which are different from or additional to those available
to the Issuer, the Issuer shall not have the right to direct the
defense of such Claim on behalf of such Indemnitee, and the
Indemnitee shall have the right to select separate counsel to
assert such legal defenses on behalf of such Indemnitee. Upon
receipt of notice from the Issuer to such Indemnitee of the
Issuer's election so to assume the defense of such Claim and
approval by the Indemnitee of counsel, the Issuer will not be
liable to such Indemnitee for expenses incurred thereafter by the
Indemnitee in connection with the defense thereof (other than
reasonable costs of investigation) unless (i) the Indemnitee
shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the
next preceding sentence (it being understood, however, that the
Issuer shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel in the
jurisdiction in which any Claim is brought), approved by the
Dealer, representing the Indemnitee who is party to such Claim),
(ii) the Issuer shall not have employed counsel reasonably
satisfactory to the Indemnitee to represent the Indemnitee within
a reasonable time after notice of existence of the Claim or (iii)
the Issuer has authorized in writing the employment of counsel
for the Indemnitee. The indemnity, reimbursement and
contribution obligations of the Issuer hereunder shall be in
addition to any other liability the Issuer may otherwise have to
an Indemnitee and shall be binding upon and inure to the benefit
of any successors, assigns, heirs and personal representatives of
the Issuer and any Indemnitee. The Issuer agrees that without
the Dealer's prior written consent, it will not settle,
compromise or consent to the entry of any judgment in any Claim
in respect of which indemnification may be sought under the
indemnification provision of the Agreement (whether or not the
Dealer or any other Indemnitee is an actual or potential party to
such Claim).