Exhibit
10.10.9
Execution Copy
FIFTH AMENDMENT TO
CREDIT CARD PROGRAM
AGREEMENT
This FIFTH AMENDMENT TO CREDIT CARD
PROGRAM AGREEMENT ( “ Fifth Amendment ”) is
effective as of January 1, 2009 (the “ Effective
Date ”), by and among Macy's, Inc., f/k/a Federated
Department Stores, Inc., a Delaware corporation, (“
Macy's, Inc. ”), FDS Bank, a federally-chartered stock
savings bank (“ FDS Bank ”), Macy's Credit and
Customer Services, Inc., f/k/a FACS Group, Inc., an Ohio
corporation (“ MCCS ”), Macy’s Department
Stores, Inc., an Ohio corporation (“ Macy’s
”), Bloomingdale’s, Inc., an Ohio corporation (“
Bloomingdale’s ”) (collectively the " Macy's
Companies "), and Department Stores National Bank, a national
banking association, as assignee of Citibank, N.A. (“
Bank ”).
WHEREAS, the Macy's Companies and
Bank are parties to a certain Credit Card Program Agreement dated
as of June 1, 2005, as amended pursuant to amendments
effective October 24, 2005, May 19, 2006 and a
restated amendment effective February 3, 2008, respectively,
and as further amended by restated letter agreements effective
December 18, 2006, March 22,
2007, April 6, 2007 and June 1, 2007, respectively
(as so amended, the “ Program Agreement ”),
whereby Bank and the Macy's Companies operate a credit card program
(the " Program "), as more fully described in the Program
Agreement; and
WHEREAS, the parties hereto desire
to amend the Program Agreement in accordance with Section 18.5
of the Program Agreement, effective as of the Effective Date;
and
WHEREAS the Parties agree that it is
in the interest of the Program to align certain Private Label
Account incentives payable to the Macy’s Companies only with
the generation of activated new Private Label Accounts and not with
both activated new Private Label Accounts and Private Label Account
applications.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Defined
Terms . Capitalized
terms used without definition in this Fifth Amendment have the
meanings assigned to them in the Program Agreement.
2. Amendment of Schedule
9.3(a) . The Parties
agree to align certain Private Label Account incentives payable to
the Macy’s Companies only with the generation of activated
new Private Label Accounts and not with both activated new Private
Label Accounts and Private Label Account applications, thereby
enhancing overall Program performance, while intending that such
realignment not negatively impact the total amount of such Private
Label Account incentives payable to the Macy’s Companies. In
furtherance of such intent, at the conclusion of each Program Year,
the Operating Committee shall review the dollar amounts set forth
in Schedules 9.3(a) (b) (i) and (ii) to uphold such
intent after determining if any such negative impact has occurred.
In furtherance thereof, Schedule 9.3(a) of the Program Agreement is
hereby amended by deleting it in its entirety and replacing it with
the revised Schedule 9.3(a) attached hereto.
3. Capacity; Authorization;
Validity.
(a) Macy’s, Inc. hereby
represents and warrants to Bank as of the date hereof
that:
(i) Each Macy's Company has all
necessary corporate or similar power and authority to
(A) execute and enter into this Fifth Amendment and
(B) perform the obligations required of such Macy's Company
hereunder and the other documents, instruments and agre
