Exhibit 10.9
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.
FOURTH AMENDMENT
TO
CREDIT CARD PROGRAM
AGREEMENT
This FOURTH AMENDMENT TO CREDIT CARD
PROGRAM AGREEMENT (this “ Fourth Amendment ”) is
effective as of August 1, 2008 (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;
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.
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 Fourth Amendment have the
meanings assigned to them in the Program Agreement.
2. Amendment of
Section 1.1 .
(a) Section 1.1 of the Program
Agreement is hereby amended by deleting in its entirety the term
(and the related definition for) “FDS Marketing
Commitment”.
(b) Section 1.1 of the Program
Agreement is hereby amended by deleting in its entirety the term
“Net Credit Sales” and substituting in its place the
following new definition:
“Net Credit Sales”
means, for any Fiscal Year, Fiscal Month or Business Day, an amount
equal to (i) gross credit sales on Accounts (including gift
card sales, sales tax, delivery charges, Licensee sales and any
other amount included in the full amount charged by Cardholders)
during such Fiscal Year, Fiscal Month or Business Day, minus
(ii) the sum of credits for returned goods and cancelled
services and other credits granted at the point of sale (such as
concessions, discounts and adjustments) on Accounts during such
Fiscal Year, Fiscal Month or Business Day.”
(c) Section 1.1 of the Program
Agreement is hereby amended by deleting in its entirety the term
(and the related definition for) “FDS Revenue Share”
and substituting in its place the following new
definition:
“FDS Revenue Share”
means the sum of the Net Credit Sale Share and Additional Net
Credit Sale Share payments (as set forth on Schedule 9.3(a)(i))
plus the New Account Payments (as set forth on Schedule
9.3(a)).”
3. Amendment of Schedule
1.1(i) .
Schedule 1.1(i) of the Program
Agreement is hereby amended by deleting it in its entirety the form
of Program P&L contained in such Schedule and replacing it with
the new form of Program P&L, attached hereto.
4. Amendment of Schedule
1.1(l) .
Schedule 1.1(l) of the Program
Agreement is hereby amended by deleting it in its entirety and
replacing it with the new Schedule 1.1(l), attached
hereto.
5. Amendment of
Section 3.2(d) .
Section 3.2(d) is hereby
amended by adding to the end thereof the following new subsection
3.2(d)(xv):
“(xv) determine, on an annual
basis as part of approving the Budget and Business Plan, the amount
of the Additional Net Credit Sale Share payable pursuant to
Schedule 9.3(a)(i).
6. Amendment of Schedule
3.2(f) .
Schedule 3.2(f) of the Program
Agreement is hereby amended by deleting it in its entirety and
replacing it with the new Schedule 3.2(f), attached
hereto.
7. Amendment of
Section 5.2 .
Section 5.2 is hereby
amended:
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(a)
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by deleting in
their entirety subsections 5.2(a) and 5.2(b); and
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(b)
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by deleting in
its entirety subsection 5.2(d) and replacing it with the new
Section 5.2(d) as follows:
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“(d) Any proposed expenditure
in excess of the Additional Marketing Commitment for any Fiscal
Year shall require the prior approval of the Operating Committee
(which at the time of granting any such approval shall approve the
treatment of such excess expenditures).”
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(c)
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by deleting in
its entirety subsection 5.2(e) and replacing it with the new
Section 5.2(e) as follows:
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“(e) For the avoidance of
doubt, except as otherwise expressly provided in Section 5.4,
the Additional Marketing Commitment shall not be used to fund the
activities described in Section 5.4 or any other marketing
initiatives approved by the Operating Committee pursuant to a
Marketing Plan that allocates such costs to Bank.”
8. Amendment of Schedule
9.2(a) .
Schedule 9.2(a) of the Program
Agreement is hereby amended by deleting it in its entirety and
replacing it with the new Schedule 9.2(a), attached
hereto.
9. Amendment of Schedule
9.3(a) .
Schedule 9.3(a) of the Program
Agreement is hereby amended by deleting it in its entirety and
replacing it with the new Schedule 9.3(a), attached
hereto.
10. Amendment of Schedule
9.3(a)(i) .
Schedule 9.3(a)(i) of the Program
Agreement is hereby amended by deleting it in its entirety and
replacing it with the new Schedule 9.3(a)(i), attached
hereto.
11. 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 Fourth 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 Fourth 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 Fourth Amendment
(A) has been duly executed and delivered by the Macy’s
Companies, (B) constitutes the valid and legally binding
obligation of the Macy’s Companies, and (C) is
enforceable against the Macy’s Companies in accordance with
its terms (subject to applicable bankruptcy, insolvency,
reorganization, receivership or other laws affecting the rights of
creditors generally and by general equity principles including
those respecting the availability of specific
performance).
(b) Bank hereby represents and
warrants to the Macy’s Companies as of the date
hereof:
(i) Bank has all necessary corporate
or similar power and authority to (A) execute and enter into
this Fourth Amendment and (B) perform the obligations required
of it hereunder and the other documents, instruments and agreements
to be executed and delivered by Bank pursuant hereto.
(ii) The execution and delivery by
Bank of this Fourth Amendment and all documents, instruments and
agreements executed and delivered by Bank pursuant hereto, and the
consummation by Bank of the transactions specified herein, has been
duly and validly authorized and approved by all necessary corporate
or similar actions of Bank.
(iii) This Fourth Amendment
(A) has been duly executed and delivered by Bank,
(B) constitutes the valid and legally binding obligation of
Bank and (C) is enforceable against Bank in accordance with
its terms (subject to applicable bankruptcy, insolvency,
reorganization, receivership or other laws affecting the rights of
creditors generally and by general equity principles including
those respecting the availability of specific
performance).
12. Effect of Amendment
. This Fourth Amendment
is effective as of the Effective Date and is hereby incorporated
into and made a part of the Program Agreement. Except as amended by
this Fourth Amendment, all terms and provisions of the Program
Agreement shall continue and remain in full force and effect and
binding upon the Parties thereto.
13. Binding Effect
. This Fourth Amendment
shall be binding in all respects and inure to the benefit of the
successors and permitted assigns of the parties hereto.
14. Governing Law
. This Fourth Amendment
and all rights and obligations hereunder, including matters of
construction, validity and performance, shall be governed by and
construed in accordance with the laws of the State of Delaware
applicable to contracts made to be performed within such State and
applicable federal law.
15. Counterparts/Facsimiles . This
Fourth Amendment may be executed in any number of counterparts, all
of which together shall constitute one and the same instrument, but
in making proof of this Fourth Amendment, it shall not be necessary
to produce or account for more than one such counterpart. Any
facsimile of an executed counterpart shall be deemed an
original.
[Signatures appear on following
page]
IN WITNESS WHEREOF, each of the
parties hereto has caused this Fourth Amendment to be duly executed
as of the date first above written.
