Exhibit 10.2
AMENDED AND RESTATED GUARANTEE
AGREEMENT dated as of January 5, 2009, among MACY’S,
INC. (formerly known as FEDERATED DEPARTMENT STORES, INC.) (“
Parent ”), MACY’S RETAIL HOLDINGS, INC.
(formerly known as FEDERATED RETAIL HOLDINGS, INC.) (the “
Borrower ”), the SUBSIDIARY GUARANTORS party hereto
and JPMORGAN CHASE BANK, N.A., as Paying Agent.
Reference is made to (a) the
Amended and Restated Credit Agreement dated as of August 30,
2007 (as in effect on the date hereof, the “ Existing
Credit Agreement ”) among Parent, the Borrower, the
lenders party thereto, JPMorgan Chase Bank, N.A. and Bank of
America, N.A., as administrative agents and JPMorgan Chase Bank,
N.A., as paying agent and (b) the Amended and Restated
Guarantee Agreement dated as of August 30, 2007 (as in effect
on the date hereof, the “ Existing Guarantee Agreement
”) among Parent, the Borrower and JPMorgan Chase Bank, N.A.,
as paying agent. The Existing Credit Agreement is being amended and
restated pursuant to and in accordance with the Amendment and
Restatement Agreement dated as of December 18, 2008 (the
“ Amendment and Restatement Agreement ”) among
Parent, the Borrower, the Lenders party thereto, JPMorgan Chase
Bank, N.A. and Bank of America, N.A., as Administrative Agents and
JPMorgan Chase Bank, N.A., as Paying Agent (the Existing Credit
Agreement, as so amended and restated, by the Amendment and
Restatement Agreement, and as amended, supplemented or otherwise
modified from time to time, the “ Credit Agreement
”). The amendment and restatement of the Existing Credit
Agreement pursuant to the Amendment and Restatement Agreement is
conditioned upon, among other things, the execution and delivery of
this Agreement. Parent is the parent company of the Borrower, will
derive substantial benefits from the extension of credit to the
Borrower pursuant to the Credit Agreement and is willing to execute
and deliver this Agreement in order to induce the Lenders to extend
such credit. The Subsidiary Guarantors are subsidiaries of the
Borrower, will derive substantial benefits from the extension of
credit to the Borrower pursuant to the Credit Agreement and are
willing to execute and deliver this Agreement in order to induce
the Lenders to extend such credit. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit
Agreement. (a) Capitalized terms used in this Agreement
and not otherwise defined herein have the meanings specified in the
Credit Agreement.
(b) The rules of construction
specified in Section 1.03 of the Credit Agreement also apply
to this Agreement.
SECTION 1.02. Other Defined
Terms. As used in this Agreement, the following terms have the
meanings specified below:
“ Claiming Party
” has the meaning assigned to such term in Section 3.02
of this Agreement.
“ Contributing Party
” has the meaning assigned to such term in Section 3.02
of this Agreement.
“ Credit Agreement
” has the meaning assigned to such term in the preliminary
statement of this Agreement.
“ Credit Parties
” means (a) the Lenders, (b) the Agents,
(c) the Issuing Banks, (d) the beneficiaries of the
Borrower’s indemnification obligations under the Credit
Agreement and (e) the successors and assigns of each of the
foregoing.
“ Guarantors ”
means Parent and the Subsidiary Guarantors.
“ Obligations ”
means the due and punctual payment by the Borrower of (a) the
principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (b) each payment required to be made
by the Borrower under the Credit Agreement in respect of any Letter
of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon (including
interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) and obligations to
provide cash collateral, and (c) all other monetary
obligations of the Borrower to any of the Credit Parties under the
Credit Agreement and each of the other Loan Documents, including
obligations to pay fees, expense reimbursement obligations and
indemnification obligations, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding).
“ Subsidiary Guarantor
” means, at any time, any Subsidiary Loan Party that is party
to this Agreement at such time, except any such Subsidiary Loan
Party the Guarantee hereunder of which has been released and
terminated in accordance with the terms of this Agreement. The
initial Subsidiary Guarantors are listed on Schedule A.
SECTION 1.03. Restatement .
This Agreement amends and restates the Existing Guarantee Agreement
in its entirety.
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ARTICLE II
Guarantee
SECTION 2.01. Guarantee.
Subject to the limitations set forth herein, each of the Guarantors
unconditionally guarantees, as a primary obligor and not merely as
a surety, the due and punctual payment of the Obligations. Each of
the Guarantors further agrees that the Obligations may be extended
or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation. Each
Guarantor waives presentment to, demand of payment from and protest
to the Borrower of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for
nonpayment. Notwithstanding any other provision of this Agreement,
the maximum liability of the Bloomingdale’s Parties with
respect to the Obligations under this Agreement at any time of
determination shall be limited to the difference of (a) the
maximum liability that the Bloomingdale’s Parties may have
under this Agreement without causing Bloomingdale’s to fail
to be in compliance with Section 26.15 of the
Bloomingdale’s Lease minus
(b) $10,000,000.
SECTION 2.02. Guarantee of
Payment. Each of the Guarantors further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and
not of collection, and waives any right to require that any resort
be had by the Paying Agent or any other Credit Party to any
security held for the payment of the Obligations or to any balance
of any deposit account or credit on the books of the Paying Agent
or any other Credit Party in favor of the Borrower or any other
Person.
SECTION 2.03. Limitations.
(a) Except for (x) termination of a Guarantor’s
obligations hereunder as expressly provided in Section 4.10
and (y) the limitations with respect to the
Bloomingdale’s Parties set forth in Section 2.01, the
obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or
impaired or otherwise affected by (i) the failure of the
Paying Agent or any other Credit Party to assert any claim or
demand or to enforce any right or remedy under the provisions of
any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms
or provisions of, any Loan Document or any other agreement;
(iii) the release of any security held by the Paying Agent or
any other Credit Party for the Obligations or any of them;
(iv) any default, failure or delay, wilful or otherwise, in
the payment of the Obligations; or (v) any other act or
omission that may or might in any manner or to any extent vary the
risk of any Guarantor or otherwise operate as a discharge of any
Guarantor as a matter of law or equity (other than the payment in
full in cash of all the Obligations). Each of the Guarantors
expressly authorizes the Credit Parties to take and hold security
for the payment and
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performance of the Obligations, to exchange,
waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the
order and manner of any sale thereof in their sole discretion or to
release or substitute any one or more other guarantors or obligors
upon or in respect of the Obligations, all without affecting the
obligations of any of the Guarantors hereunder.
(b) To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or
arising out of any defense of the Borrower or the unenforceability
of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower, other
than the payment in full in cash of all the Obligations. The Paying
Agent and the other Credit Parties may, at their election,
foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part
of the Obligations, make any other accommodation with the Borrower
or exercise any other right or remedy available to them against the
Borrower, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the Obligations
have been paid in full in cash. To the fullest extent permitted by
applicable law, each Guarantor waives any defense arising out of
any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any security.
SECTION 2.04. Reinstatement.
Each Guarantor agrees that its guarantee hereunder shall continue
to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded
or must otherwise be restored by the Paying Agent or any other
Credit Party upon the bankruptcy or reorganization of the Borrower
or otherwise. The provisions of this Section 2.04 shall
survive any termination or release under
Section 4.10.
SECTION 2.05. Agreement To Pay;
Subrogation. In furtherance of the foregoing and not in
limitation of any other right that the Paying Agent or any other
Credit Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Borrower to pay any
Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise,
each Guarantor hereby promises to and will forthwith pay, or cause
to be paid, to the Paying Agent for distribution to the applicable
Credit Parties in cash the amount of such unpaid Obligation. Upon
payment by any Guarantor of any sums to the Paying Agent as
provided above, all rights of such Guarantor against the Borrower
arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all
respects be subject to Article III.
SECTION 2.06. Information.
Each of the Guarantors assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition
and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of
the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Paying Agent or the other Credit Parties
will have any duty to advise such Guarantor of information known to
it or any of them regarding such circumstances or risks.
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ARTICLE III
Indemnity, Subrogation and
Subordination
SECTION 3.01. Indemnity . In
addition to all such rights of indemnity and subrogation as each of
the Subsidiary Guarantors may have under applicable law (but
subject to Section 3.03), Parent and the Borrower jointly and
severally agree that, in the event a payment in respect of any
Obligation shall be made by any Subsidiary Guarantor under this
Agreement, Parent and the Borrower shall indemnify such Subsidiary
Guarantor for the full amount of such payment and such Subsidiary
Guarantor shall be subrogated to the rights of the Person to whom
such payment shall have been made to the extent of such
payment.
SECTION 3.02. Contribution and
Subrogation . Each Subsidiary Guarantor (a “
Contributing Party ”) agrees (subject to
Section 3.03) that, in the event a payment shall be made by
any other Subsidiary Guarantor hereunder in respect of any
Obligation and such other Subsidiary Guarantor (the “
Claiming Party ”) shall not have been fully
indemnified by Parent and the Borrower as provided in
Section 3.01, the Contributing Party shall indemnify the
Claiming Party in an amount equal to the amount of such payment
multiplied by a fraction of which the numerator shall be the net
worth of the Contributing Party on the date hereof and the
denominator shall be the aggregate net worth of all the Subsidiary
Guarantors on the date hereof (or, in the case of any Subsidiary
Guarantor becoming a party hereto after the date hereof, the date
of the supplement hereto executed and delivered by such Subsidiary
Guarantor); provided , however , that in the case of
the Bloomingdale’s Parties, the numerator of the foregoing
fraction shall be the maximum liability of the Bloomingdale’s
Parties hereunder determined in accordance with Section 2.01.
Any Contributing Party making any payment to a Claiming Party
pursuant to this Section 3.02 shall be subrogated to the
rights of such Claiming Party under Section 3.01 to the extent
of such payment.
SECTION 3.03. Subordination .
(a) Notwithstanding any provision of this Agreement to the
contrary, all rights of each Subsidiary Guarantor under Sections
3.01 and 3.02 and all other rights of each Guarantor in respect of
indemnity, contribution or subrogation under applicable law or
otherwise, shall be fully subordinated to the indefeasible payment
in full in cash of the Obligations on the terms set forth in
Schedule B hereto. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 3.01 and 3.02
(or any other payments required under applicable law or otherwise)
shall in any respect limit the obligations and liabilities of any
Guarantor with respect to its obligations hereunder, and each
Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
(b) Each of the Borrower and the
Guarantors hereby agrees that all Indebtedness and other monetary
obligations owed by it to Parent, the Borrower or any other
Subsidiary shall be fully subordinated to the indefeasible payment
in full in cash of the Obligations on the terms set forth in
Schedule B hereto.
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ARTICLE IV
Miscellaneous
SECTION 4.01. Notices. All
communications and notices hereunder shall (except as otherwise
expressly permitted herein) be in writing and given as provided in
Section 9.01 of the Credit Agreement. All communications and
notices to any Subsidiary Guarantor shall be given to such
Subsidiary Guarantor in care of the Borrower.
SECTION 4.02. Waivers;
Amendment. (a) No failure or delay by any Agent, any
Issuing Bank or any Lender in exercising any right or power
hereunder or under the Credit Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Agents, the Issuing Banks and the Lenders hereunder
and under the Credit Agreement are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this
Section 4.02, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether any
Agent, any Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time. No notice or demand on any
Loan Party in any case shall entitle any Loan Party to any other or
further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Paying
Agent and the Loan Party or Loan Parties with respect to which such
waiver, amendment or modification is to apply, subject to any
consent required in accordance with Section 9.02 of the Credit
Agreement.
SECTION 4.03. Successors and
Assigns. Whenever in this Agreement any party hereto is
referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Guarantor, the
Borrower or the Paying Agent that are contained in this Agreement
shall bind and inure to the benefit of their respective successors
and assigns.
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SECTION 4.04. Survival of
Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in
the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the
Lenders and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters
of Credit, regardless of any investigation made by any Lender or on
its behalf and notwithstanding that any Agent, any Issuing Bank or
any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued
interest on any Loan or any fee or any other amount payable under
any Loan Document is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or
terminated.
SECTION 4.05. Counterparts;
Effectiveness; Several Agreement. This Agreement may be
executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original
but all of which when taken together shall constitute single
contract. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement. This Agreement shall
become effective when it shall have been executed by the Paying
Agent and when the Paying Agent shall have received counterparts
hereof which, when taken together, bear the signatures of each Loan
Party, and thereafter shall be binding upon each Loan Party and the
Paying Agent, and shall inure to the benefit of each Loan Party,
the Paying Agent and the other Credit Parties and their respective
successors and assigns, except that no Loan Party shall have the
right to assign or transfer its rights or obligations hereunder or
any interest herein (and any such assignment or transfer shall be
void) except as expressly contemplated by this Agreement or the
Credit Agreement.
SECTION 4.06. Severability.
Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity, illegality or
uneforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenf
