Exhibit 10.4
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.
SECOND AMENDMENT
TO
PURCHASE, SALE AND SERVICING
TRANSFER AGREEMENT
This SECOND AMENDMENT TO PURCHASE,
SALE AND SERVICING TRANSFER AGREEMENT, dated as of June 1,
2005, (this “ Amendment ”) is made and entered
into as of October 24, 2005, by and among Federated Department
Stores, Inc., a Delaware corporation (“ FDS ”),
FDS Bank, a federally-chartered stock savings bank (“ FDS
Bank ”), Prime II Receivables Corporation, a Delaware
corporation (“ Prime II ”), Macy’s
Department Stores, Inc., an Ohio corporation and a wholly-owned
subsidiary of FDS (“ Macy’s ”),
Bloomingdale’s, Inc., an Ohio corporation and a wholly-owned
subsidiary of FDS (“ Bloomingdale’s ”),
and Citibank, N.A., a national banking association (the “
Purchaser ”).
WHEREAS, FDS, FDS Bank, Prime II and
Purchaser are parties to that certain Purchase, Sale and Servicing
Transfer Agreement dated as of June 1, 2005, as amended by the
letter agreement (the “ First Amendment ”) dated
August 22, 2005 (the “ Purchase Agreement
”);
WHEREAS, the parties hereto have
agreed that Macy’s and Bloomingdale’s shall be parties
to the Purchase Agreement and to make certain other changes to the
Purchase Agreement as set forth herein; and
WHEREAS, the parties hereto desire
to amend the Purchase Agreement in accordance with
Section 13.4 of the Purchase Agreement.
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 Amendment have the meanings assigned to
them in the Purchase Agreement.
2. Amendment of
Section 1.1 .
(a) The definition of “Charged
Off Accounts” in Section 1.1 of the Purchase Agreement
is hereby amended by replacing such definition in its entirety with
the following definition:
“ Charged Off Accounts
” means, collectively, all Credit Card Accounts that
(a) would constitute FDS Accounts, but for clause
(iii) of the definition of FDS Accounts, (b) would
constitute GE/Macy’s Accounts but for clause (iii) of
the definition of GE/Macy’s Accounts, and (c) would
constitute May Accounts but for clause (ii) of the definition
of May Accounts.
(b) The definition of “Credit
Card Account” in Section 1.1 of the Purchase Agreement
is hereby amended by adding the words “or an Employee
Account” immediately after the words “which is recorded
as an Account” and immediately before the words “on the
computer system”.
(c) The following definition is
hereby added to Section 1.1 of the Purchase Agreement
immediately before the defined term
“Employees”:
“ Employee Accounts
” has the meaning set forth in the Program
Agreement.
(d) The definition of “FDS
Account” in Section 1.1 of the Purchase Agreement is
hereby amended by replacing such definition in its entirety with
the following definition:
“ FDS Account ”
means any Credit Card Account that exists and is owned by FDS or
one of its Subsidiaries as of the First Cut-Off Time, other than
(i) any GE/Macy’s Account or any May Account,
(ii) any Employee Account and (iii) any Credit Card
Account that, as of the First Cut-Off Time, has been (or should
have been) charged off in accordance with the Sellers’
standard policies and procedures as in effect on the date of this
Agreement.
(e) Clause (2) of the
definition of “FDS Assets” in Section 1.1 of the
Purchase Agreement is hereby amended by replacing such clause in
its entirety with the following:
(2) as of the First Cut-Off Time,
the Gross Receivables (other than Prime Securitization Receivables)
on the FDS Accounts and the Employee Accounts that but for clause
(ii) of the definition of FDS Account would be FDS
Accounts;
(f) The definition of “First
Cut-Off Time” in Section 1.1 of the Purchase Agreement
is hereby amended by replacing such definition in its entirety with
the following definition:
“ First Cut-Off Time
” means the close of business of the Sellers on the date that
is one day prior to the First Closing Date. At least two Business
Days prior to the First Closing Date, the parties hereto shall
agree upon the time zone cut-offs and systemic cut-off procedures
applicable to the First Cut-Off Time.
(g) The definition of
“GE/Macy’s Account” in Section 1.1 of the
Purchase Agreement is hereby amended by replacing such definition
in its entirety with the following definition:
“ GE/Macy’s
Account ” means a Credit Card Account owned by GE Bank or
one of its Affiliates as of the Second Cut-Off Time and governed by
the GE/Macy’s Program Agreement that exists as of the Second
Cut-Off Time, other than (i) any May Account, (ii) any
Employee Account and (iii) any Credit Card Account that, as of
the Second Cut-Off Time,
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has been (or should have been)
charged off in accordance with the standard policies and procedures
of GE Bank as in effect as of the date of this
Agreement.
(h) Clause (2) of the
definition of “GE/Macy’s Assets” in
Section 1.1 of the Purchase Agreement is hereby amended by
replacing such clause in its entirety with the
following:
(2) as of the Second Cut-Off Time,
the Gross Receivables on the GE/Macy’s Accounts and the
Employee Accounts that but for clause (ii) of the definition
of GE/Macy’s Account would be GE/Macy’s
Accounts;
(i) The definition of “Gross
Receivables” in Section 1.1 of the Purchase Agreement is
hereby amended by replacing such definition in its entirety with
the following definition:
“ Gross Receivables
” means amounts owing (net of credit balances) to the Sellers
from Cardholders with respect to Accounts and Employee Accounts (in
each case, including outstanding loans, cash advances, balance
consolidation receivables and other extensions of credit, accrued
finance charges and late charges, whether or not posted, and any
other accrued fees, charges and interest assessed on such Accounts
and Employee Accounts, whether or not posted).
(j) The definition of “May
Account” in Section 1.1 of the Purchase Agreement is
hereby amended by replacing such definition in its entirety with
the following definition:
“ May Account ”
means a Credit Card Account owned by FDS or a Subsidiary of FDS
prior to the Third Closing and associated with a retail division of
May Co. as conducted as of the closing of May Merger (or a
successor to such business as conducted by FDS and its Subsidiaries
following the May Merger) that exists as of the Third Cut-Off Time,
other than (i) any Employee Account and (ii) any Credit
Card Account that, as of the Third Cut-Off Time, has been (or
should have been) charged off in accordance with May Bank’s
or the Sellers’ standard policies and procedures as in effect
on the date of this Agreement.
(k) Clause (2) of the
definition of “May Assets” in Section 1.1 of the
Purchase Agreement is hereby amended by replacing such clause in
its entirety with the following:
(2) as of the Third Cut-Off Time,
the Gross Receivables on the May Accounts and the Employee Accounts
that but for clause (i) of the definition of May Account would
be May Accounts;
3. Amendment to
Section 2.1 . Section 2.1 of the Purchase Agreement is
hereby amended by replacing such Section in its entirety with the
following:
On the terms and subject to the
conditions of this Agreement, at the First Closing and effective
from and after the First Closing Date, the Sellers shall sell,
convey and assign (or cause their Subsidiaries to sell, convey and
assign) to the Purchaser, or in
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the case of the Prime Stock, to an
Affiliate of the Purchaser, free and clear of all Liens, except
Permissible Liens, and the Purchaser or an Affiliate of the
Purchaser shall purchase, the FDS Assets and the Prime Stock.
Immediately following receipt of the FDS Assets, the Purchaser
shall transfer, contribute or otherwise assign to CEBA Bank the FDS
Assets other than those assets described in clauses (2) and
(8) of the definition of FDS Assets and clause (13) of
such definition to the extent relating principally to the assets
listed in clauses (2) and (8) of such
definition.
4. Amendment to
Section 2.4 . Section 2.4(a) of the Purchase Agreement is
hereby amended by replacing such Section in its entirety with the
following:
(a) The closing (the “
First Closing ”) of the purchase and sale of the FDS
Assets and the Prime Stock and the assumption of the FDS
Liabilities hereunder (collectively, the “ First Purchase
and Assumption ”) shall take place at the offices of
Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New
York, New York, or by facsimile transmission on October 24,
2005 or at such other date or location as the parties hereto
jointly designate in writing (the “ First Closing Date
”).
5. Amendment of
Section 5.1(l) . Clauses (1) and (2) of
Section 5.1(l) of the Purchase Agreement are hereby amended by
replacing such clauses in their entirety as follows:
(1) FDS Bank, Prime or Prime II is
the sole owner of and has good and marketable title to (X) the
FDS Accounts, (Y) the Gross Receivables on the FDS Accounts
and the Employee Accounts that but for clause (ii) of the
definition of FDS Accounts would be FDS Accounts, and (Z) the
Prime Securitization Assets (subject in each case to the rights,
claims and interests arising under the Securitization Documents).
Upon the First Closing, subject to the filing of appropriate
financing statements and all required continuations, amendments and
replacements thereof, all right, title and interest in and to
(X) the FDS Accounts, (Y) the Gross Receivables on the
FDS Accounts and the Employee Accounts that but for clause
(ii) of the definition of FDS Accounts would be FDS Accounts,
and (Z) the Prime Securitization Assets shall vest or be
vested in the Purchaser free and clear of all Liens other than
Permissible Liens (and subject in each case to the rights, claims
and interests arising under the Securitization
Documents).
(2) As of the Second Closing, FDS
Bank shall be the sole owner of and have good and marketable title
to (Y) the GE/Macy’s Accounts and (Z) the Gross
Receivables on the GE/Macy’s Accounts and the Employee
Accounts that but for clause (ii) of the definition of
GE/Macy’s Accounts would be GE/Macy’s Accounts. This
Agreement shall, following the Second Closing Date, and subject to
the filing of appropriate financing statements and all required
continuations, amendments and replacements thereof, vest in the
Purchaser all right, title and interest in and to (Y) the
GE/Macy’s Accounts and (Z) the Gross Receivables on the
GE/Macy’s Accounts and the Employee Accounts that but for
clause (ii) of the definition of GE/Macy’s Accounts
would be GE/Macy’s Accounts, free and clear of all Liens
other than Permissible Liens.
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6. Amendment of
Section 6.4(g) . Section 6.4(g) of the Purchase Agreement is
hereby amended by replacing such Section in its entirety as
follows:
(g) The parties agree that if so
requested by FDS not later than the earlier to occur of (i) fifteen
(15) days prior to the First Closing Date and (ii) the date on
which the Purchaser has received all Requisite Regulatory Approvals
required to be obtained by it, the parties will negotiate in good
faith with respect to such mutually acceptable changes to the terms
of this Agreement and the Program Agreement as FDS may reasonably
request in order to maintain the status of FDS Bank as a savings
association in good standing with the Office of Thrift Supervision,
including without limitation amending such agreements to provide
that some or all of the Employee Accounts shall be retained
following the First Closing at FDS Bank; provided ,
how
