Exhibit 10.10
Confidential Treatment
Requested . Confidential
treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality
request. Omissions are designated as
“[Redacted].” A complete version of this exhibit
has been filed separately with the Securities and Exchange
Commission.
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
agreements to be executed and delivered by such Macy’s
Company pursuant hereto.
(ii) The execution and delivery by
the Macy’s Companies of this Fifth Amendment and all
documents, instruments and agreements executed and delivered by the
Macy’s Companies pursuant hereto, and the consummation by the
Macy’s Companies of the transactions specified herein, have
been duly and validly authorized and approved by all necessary
corporate or similar actions of the Macy’s
Companies.
(iii) This Fifth Amendment
(A) has been duly executed and delivered by the Macy’s
Companies, (B) constitutes the valid and legally binding
obligation of the Mac
