Execution Copy
AMENDED AND RESTATED COMMERCIAL ACCOUNTS AGREEMENT *
AMENDED AND RESTATED COMMERCIAL ACCOUNTS AGREEMENT,
dated as of June 4, 1996, by and among GENERAL ELECTRIC CAPITAL
CORPORATION ("GE Capital"), FEDERATED DEPARTMENT STORES, INC.
("FDS"), FDS NATIONAL BANK ("FDS Bank"), MACY'S EAST, INC.
("Macy's East"), MACY'S WEST, INC. ("Macy's West"), BULLOCK'S,
INC. ("Bullock's"), BROADWAY STORES, INC. ("Broadway"), FACS
Group, Inc. ("FACS") and MSS-DELAWARE, INC. ("MSS").
W I T N E S S E T H :
WHEREAS, GE Capital, R.H. Macy & Co., Inc., Macy Credit
Corp., Macy Receivables Funding Corp., Macy's California, Inc.,
Macy's Northeast, Inc., Macy's South, Inc., Bullock's, Inc., I.
Magnin, Inc., Macy Receivables Master Servicing Corp. and Macy
Specialty Stores, Inc. entered into a Commercial Accounts
Agreement, dated as of May 10, 1991 (such agreement, as it has
been amended from time to time, the "Original Agreement"); and
WHEREAS, GE Capital, FDS (as the successor to R.H. Macy
& Co., Inc.), FDS Bank, Macy's East (as the successor to Macy's
Northeast, Inc. and Macy's South, Inc.), Macy's West (as the
successor to Macy's California, Inc.), Bullock's, and the other
parties hereto desire to amend and restate the Original Agreement
in its entirety (other than Article Seven thereof, which shall
continue unamended);
NOW, THEREFORE, in consideration of the terms,
conditions and mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
Rider X
_________________________
* Confidential portions of this Exhibit have been omitted
and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
ARTICLE ONE
DEFINITIONS
1.1. Certain Capitalized Terms
. Capitalized terms used but not otherwise defined
herein have the meanings set forth in the Amended and Restated
Program Agreement.
1.2. Definitions.
As used in this Agreement, the following terms have
the respective meanings set forth below:
"Agreement" means this Amended and Restated Commercial
Accounts Agreement, including all amendments, modifications,
supplements, exhibits, and schedules hereto, and shall refer to
this Agreement as the same may be in effect at the time such
reference is operative.
"Amended and Restated Program Agreement" means the
Amended and Restated Credit Card Program Agreement, dated as of
the date hereof, by and among GE Capital Consumer Card Co. and
the FDS Companies, as it may be amended from time to time.
"Authorized Commercial User" means, with respect to any
GE/Macy's Commercial Account, any Person authorized from time to
time by the relevant Commercial Account Debtor to purchase
Merchandise on credit pursuant to such GE/Macy's Commercial
Account.
"Commercial Account Agreement" means any credit
agreement entered into between GE Capital and a Commercial
Account Debtor (or any replacement of such agreement) pursuant to
which such Commercial Account Debtor and Authorized Commercial
Users may be permitted to purchase Merchandise from any Retailer
on credit from time to time, whether or not there is a finance
charge computed from time to time, together with any amendments,
modifications or supplements which now or hereafter may be made
to such Commercial Account Agreement (or any replacement of such
agreement) and any replacements thereof.
"Commercial Account Application" means any application
for a GE/Macy's Commercial Account completed and submitted
(whether by mail, telephone or other electronic means) by or on
behalf of any Person or Persons.
"Commercial Account Balance" means, with respect to any
GE/Macy's Commercial Account, the outstanding balance of such
GE/Macy's Commercial Account at the time of determination, which
shall consist of, without limitation, the sum of (i) the
aggregate Face Amount of GE/Macy's Commercial Receivables posted
to such GE/Macy's Commercial Account prior to such time and
(ii) the aggregate amount of any and all fees and charges posted
to such GE/Macy's Commercial Account prior to such time,
including, without limitation, interest and finance charges,
returned check charges or late charges, insurance premiums and
attorneys' fees, minus the aggregate amount of all credits,
payments, adjustments, and employee discounts posted to such
GE/Macy's Commercial Account prior to such time, provided that
the Commercial Account Balance of any of the following accounts
shall be zero (whether or not any GE/Macy's Commercial
Receivables with respect to such account are included on the
Master File at such time): any GE/Macy's Commercial Account
where, as of the time of determination, (a) the Commercial
Account Debtor has been coded on the Master Files with respect to
any prior billing cycle as having filed a petition for relief
under the Bankruptcy Code, having made a general assignment for
the benefit of creditors, having had filed against it any
petition or other application for relief under the Bankruptcy
Code, or having suffered a receiver or trustee to be appointed
for all or a significant portion of its assets, and under the
Credit and Collection Policy such GE/Macy's Commercial Account
was required to be written off, but was not written off, (b) such
GE/Macy's Commercial Account is 180 days or more past due, (c)
such GE/Macy's Commercial Account has been referred to an
attorney, collection agency, or other entity for collection and
has been written off in accordance with the Credit and Collection
Policy, or (d) such GE/Macy's Commercial Account has been written
off as uncollectible under the Credit and Collection Policy at
any time prior to the time of determination.
"Commercial Accounts Business" means the business of
extending credit in connection with the sales of Merchandise on
credit by any of the Retailers pursuant to a GE/Macy's Commercial
Account, and servicing such credit purchases of Merchandise.
"Commercial Account Debtor List" means all lists of
Commercial Account Debtors, including the addresses and phone
numbers of, and other demographic data with respect to, such
Commercial Account Debtors, maintained by any of the FDS
Companies and/or any Affiliate of any of the FDS Companies.
"Commercial Accounts Program" means the Commercial
Accounts Program established by the Original Agreement and
continued pursuant to this Agreement.
"Commercial Books and Records" means all books,
records, files (including, without limitation, the Commercial
Master File), credit information, business records and plans,
reports, correspondence, and other financial and corporate data
used or held by any of the FDS Companies or any Affiliate of any
of the FDS Companies for use in connection with or relating to
the Commercial Accounts Business or the Commercial Collateral.
"Commercial Collateral" has the meaning set forth in
Section 6.1(a) hereof.
"Commercial Credit Card" means any card issued by any
of the FDS Companies, any Affiliate of any of the FDS Companies
or by GE Capital, to a Person, which card can be used by such
Person only to purchase Merchandise on credit from one or more of
the Retailers pursuant to a GE/Macy's Commercial Account.
"Commercial Credit Card Documentation" means, with
respect to a GE/Macy's Commercial Account, all of the following
items relating to such GE/Macy's Commercial Account: Commercial
Account Applications, Commercial Account Agreements, Commercial
Credit Cards, credit bureau reports, GE/Macy's Charge Slips,
GE/Macy's Credit Slips, periodic billing statements, receipts for
in-store payments, adverse action notices and change of terms
notices.
"Commercial Intellectual Property" means all shop
rights, inventions, discoveries, improvements, designs, patterns,
processes, formulae, trade secrets, proprietary rights and data,
ideas and know-how, whether or not patentable or registrable,
from time to time owned by any of the FDS Companies or any
Affiliate of any of the FDS Companies and used or held for use
solely in connection with the Commercial Accounts Business.
"Commercial Master File" means, with respect to each
Division on any date, the computer files containing the most
recently-posted financial, GE/Macy's Commercial Account status
and demographic information with respect to any of such
Division's GE/Macy's Commercial Accounts, including, without
limitation, active, inactive and recovery GE/Macy's Commercial
Accounts, which computer files represent the aggregate amount of
Commercial Account Balances on such date, together with
corresponding control reports.
"Cut-off Time" means May 9, 1991 at 11:59 p.m., New
York City Time.
"GE/Macy's Commercial Account" means any of the
following credit accounts owned by GE Capital established at any
time (past, present or future) in favor of a Commercial Account
Debtor and identified by a unique account number, whether or not
established in favor of any particular class of Persons: (a) a
non-GE/Macy's Credit-Card accessed credit account, (b) a credit
account not used primarily for personal, family or household
purposes or uses, (c) a closed-end credit account and (d) any
other credit account (in each case in clauses (b), (c) and (d) of
this definition, whether or not such credit account is accessed
through a GE/Macy's Credit Card). As used in this Agreement, the
term "GE/Macy's Commercial Account" includes New Commercial
Accounts. Notwithstanding the foregoing, "GE/Macy's Commercial
Account" does not include (x) any account generated pursuant to a
layaway plan and (y) any GE/Macy's Account.
"Commercial Account Debtor" means any Person who is a
party to a Commercial Account Agreement or who is or who may
become obligated under, with respect to, or on account of, a
GE/Macy's Commercial Account from time to time.
"GE/Macy's Commercial Account Documentation" means,
with respect to a GE/Macy's Commercial Account, any and all
documentation from time to time relating to such GE/Macy's
Commercial Account, including, without limitation, Commercial
Credit Card Documentation, checks and stubs, correspondence,
memoranda, documents, instruments, certificates, agreements,
invoices, sales or shipping slips, delivery and other receipts,
magnetic tapes, disks, hardcopy formats, any other computer-
readable data transmissions, and any other records of whatever
form or nature, related to any of the foregoing, any other
written, electronic or other material related to any of the
foregoing, any microfilm, electronic or other copy of any of the
foregoing and all other materials, including, without limitation,
tangible and intangible information, arising from any of the
foregoing or pertaining thereto.
"GE/Macy's Commercial Receivable" means any and all
amounts owing from time to time with respect to the purchase of
Merchandise on credit pursuant to a GE/Macy's Commercial Account,
including, without limitation, any charges for sales tax,
regardless of whether such GE/Macy's Commercial Receivable
consists of an "account," "chattel paper," an "instrument" or a
"general intangible" under and as defined in Article or
Division 9 of the UCC applicable to such GE/Macy's Commercial
Receivable, and all proceeds of any of the foregoing, together
with (a) any and all GE/Macy's Commercial Account Documentation
relating to such GE/Macy's Commercial Receivable and any
"document" (as defined in the UCC) covering any Merchandise
relating to such GE/Macy's Commercial Receivable, (b) any and all
rights and remedies as to stoppage-in-transit, reclamation,
return and repossession of Merchandise with respect to such
GE/Macy's Commercial Receivable, whether arising by Contract or
by Law, (c) any and all Merchandise, goods or other property that
is security for such GE/Macy's Commercial Receivable or for any
item referred to in clause (a), (b), (d), (e) or (f) of this
definition, (d) any and all contracts of indemnity, guaranties,
sureties, letters of credit, proceeds of insurance claims,
security interests, or other direct or indirect security or
support held by or granted to any Retailer by any Person to
secure payment of such GE/Macy's Commercial Receivable, (e) any
and all other rights, remedies, benefits, interests and titles,
both legal and equitable, to which any of the FDS Companies or
any Affiliate of any of the FDS Companies may at any time (past,
present or future) be entitled in respect of any of the
foregoing, and (f) any and all proceeds of any of the foregoing.
Each purchase of Merchandise by a GE/Macy's Commercial Account
Debtor or an Authorized Commercial User pursuant to a GE/Macy's
Commercial Account shall constitute a separate GE/Macy's
Commercial Receivable. As used in this Agreement, the term
"GE/Macy's Commercial Receivable" includes New Commercial
Receivables. Notwithstanding the foregoing, "GE/Macy's
Commercial Receivable" does not include (x) any receivable
generated pursuant to a layaway plan or (y) any GE/Macy's
Receivable.
"New Commercial Accounts" means all GE/Macy's
Commercial Accounts originated on or after the date of the
Original Agreement.
"New Commercial Receivable" means any GE/Macy's
Commercial Receivable arising after the Cut-off Time.
"Transferable Commercial Business Permits" means all
Permits (a) that are required in order to carry on the Commercial
Accounts Business and to consummate the transactions contemplated
by this Agreement and (b) that are transferable to GE Capital.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF FDS COMPANIES
2.1. Amended and Restated Program Agreement
Representations and
Warranties
. On the date hereof, and on the date of each
Remittance, the FDS Companies, jointly and severally, hereby make
each representation and warranty made by the FDS Companies in
Article VI of the Amended and Restated Program Agreement mutatis
mutandis with respect to the Commercial Accounts Program. Each
such representation and warranty shall survive to the extent
provided in the Amended and Restated Program Agreement.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF GE CAPITAL
3.1. Amended and Restated Program Agreement
Representations and Warranties
. On the date hereof and on the date of each
Remittance, GE Capital hereby makes each representation and
warranty made by GE Bank in Article Seven of the Amended and
Restated Program Agreement mutatis mutandis with respect to the
Commercial Accounts Program. Each such representation and
warranty shall survive to the extent provided in the Amended and
Restated Program Agreement.
ARTICLE FOUR
INCORPORATION OF PROVISIONS
4.1. Amended and Restated Program Agreement
. Unless specifically provided to the contrary in this
Agreement, the terms and provisions applicable to the Program
which are contained in the Amended and Restated Program Agreement
shall apply mutatis mutandis to the Commercial Accounts Program.
ARTICLE FIVE
OTHER PROVISIONS
5.1. Commercial Accounts Remittances
. Notwithstanding any other provision of this
Agreement or Section 3.1 of the Amended and Restated Program
Agreement, Remittances with respect to GE/Macy's Commercial
Accounts shall not be separated by Divisions.
5.2. GE Capital Service Discount
. During the term of this Agreement, the budget and
Monthly Discount in effect on any day shall be included in the
budget and Monthly Discount in effect under the Amended and
Restated Program Agreement on such date.
5.3. Maximum Commercial Amount
. Notwithstanding any other provision of this
Agreement to the contrary or the provisions of Section 3.8 of the
Amended and Restated Program Agreement, if (a) the aggregate
Commercial Account Balances of GE/Macy's Commercial Accounts
established in favor of Persons other than natural persons
("Corporate Accounts") would not exceed $[OMISSION] or (b) the
aggregate Commercial Account Balances of any GE/Macy's Commercial
Accounts other than Corporate Accounts ("Other Commercial
Accounts") would exceed $[OMISSION], GE Capital and the FDS
Companies shall have all the rights provided in Section 3.8(f) of
the Amended and Restated Program Agreement.
5.4. Termination
. Notwithstanding any other provision of this
Agreement to the contrary, this Agreement shall automatically
terminate upon the termination of the Amended and Restated
Program Agreement pursuant to its terms.
5.5. Indemnification
. (a) The FDS Companies shall indemnify GE Capital
with respect to the Commercial Accounts Program pursuant to this
Agreement to the same extent, and subject to the same
limitations, as the FDS Companies indemnify GE Bank with respect
to the Program pursuant to Article X of the Amended and Restated
Program Agreement.
(b) In addition to the foregoing, GE Capital
shall indemnify the FDS Companies with respect to the Commercial
Accounts Program pursuant to this Agreement to the same extent,
and subject to the same limitations, as GE Bank indemnifies the
FDS Companies with respect to the Program pursuant to Article X
of the Amended and Restated Program Agreement.
5.6. Other
. Notwithstanding any other provision of this
Agreement to the contrary, (i) the provisions of Article II of
the Program Agreement shall not be applicable to the Commercial
Accounts Program and (ii) the provisions of Article Seven of the
Original Agreement shall remain unchanged and in full force and
effect.
5.7. Servicing
. Unless the parties otherwise agree, the GE/Macy's
Commercial Accounts shall be serviced pursuant to the terms of
the FACS Services Agreement.
5.8. Certain Limitations
. If at any time during the term hereof either (i) the
aggregate Commercial Account Balances of GE/Macy's Commercial
Accounts equals $[OMISSION] or (ii) the aggregate account
balances of all FDS/Macy's Accounts established in favor of
persons other than natural persons ("FDS/Macy's Commercial
Accounts") equals $[OMISSION], then the parties shall negotiate
in good faith to agree upon a mutually acceptable manner of
sharing volume of GE/Macy's Commercial Accounts and FDS/Macy's
Commercial Accounts. Subject to the foregoing, GE Capital may
continue to originate new GE/Macy's Commercial Accounts and FDS
may continue to originate new FDS/Macy's Commercial Accounts.
ARTICLE SIX
OWNERSHIP OF ACCOUNTS AND RECEIVABLES
6.1. Ownership of GE/Macy's Commercial
Accounts and GE/Macy's Commercial Receivables
. (a) All transactions and borrowings in connection
with the GE/Macy's Commercial Accounts and the GE/Macy's
Commercial Receivables shall create the relationship of debtor
and creditor between each Commercial Account Debtor and GE
Capital, respectively, and GE Capital shall be the owner of all
the GE/Macy's Commercial Accounts, the GE/Macy's Commercial
Receivables, the GE/Macy's Commercial Accounts Documentation,
pending Commercial Account Applications, Commercial Books and
Records, and the Commercial Account Debtor List and, except as
otherwise specifically provided herein, shall have all rights,
powers, and privileges with respect thereto as such owner,
including, without limitation, the right at any and all times to
receive directly payments on GE/Macy's Commercial Accounts from
Commercial Account Debtors. In this regard, GE Capital shall
bear all risks of collections of GE/Macy's Commercial Receivables
(other than as a result of the application of Section 3.5 of the
Program Agreement to the GE/Macy's Commercial Accounts). Each
FDS Company acknowledges and agrees that it has no right, title
or interest in or to (i) any of the GE/Macy's Commercial Accounts
or the GE/Macy's Commercial Receivables, or (ii) any payments
made by Commercial Account Debtors with respect to the GE/Macy's
Accounts or the GE/Macy's Receivables.
(b) GE Capital and the FDS Companies acknowledge that
under the Commercial Accounts Program GE Capital extends credit
directly to Commercial Account Debtors. However, in the unlikely
event it were ever to be determined by a final order of a court
of competent jurisdiction that FDS (or the FDS Companies) is
deemed to be extending credit directly to Commercial Account
Debtors, the FDS Companies and GE Capital acknowledge and agree
that GE Capital shall be deemed to be purchasing the receivables
created by such arrangements and that GE Capital's remittances
pursuant to this Agreement shall be deemed to be payment for the
purchase of such receivables and GE Capital shall be deemed to
have purchased such receivables effective when GE Capital
incurred the obligation to make payment therefor. In this
regard, GE Capital and the FDS Companies agree that, on or before
the date of this Agreement, and thereafter from time to time,
they will execute and file such financing statements under the
UCC as would be necessary and appropriate to protect GE Capital's
interest to the same extent as if GE Capital was purchasing such
receivables.
ARTICLE SEVEN
GENERAL
7.1. Headings
. The section and other headings contained in this Agreement
are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
7.2. Counterparts
. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be
an original and all of which together shall be deemed to be one
and the same instrument.
7.3. Notices
. All notices, requests, demands, applications,
services of process and other communications which are required
to be or may be given under this Agreement to be effective shall
be made in accordance with the provisions of Section 12.16 of the
Amended and Restated Program Agreement except that no notice
required to be delivered hereunder shall be sent to GE Bank.
7.4. Governing Law
. The validity, performance and enforcement of this
Agreement shall be governed by the Laws of the State of New York,
without giving effect to the principles of conflicts of law
thereof.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have entered into this Agreement as of the day and
year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Richard A. Hayes
Name: Richard A. Hayes
Title: Senior Vice President Retailer Financial
Services
FEDERATED DEPARTMENT STORES, INC.
By: /s/ Ronald W. Tysoe
Name: Ronald W. Tysoe
Title: Vice Chairman and Chief Financial Officer
FDS NATIONAL BANK
By: /s/ James R. Gudmens
Name: James R. Gudmens
Title: President
MACY'S EAST, INC.
By: /s/ Robert C. Seppelt
Name: Robert C. Seppelt
Title: Vice President
MACY'S WEST, INC.
By: /s/ Robert C. Seppelt
Name: Robert C. Seppelt
Title: Vice President
BULLOCK'S, INC.
By: /s/ Robert C. Seppelt
Name: Robert C. Seppelt
Title: Vice President
BROADWAY STORES, INC.
By: /s/ Robert C. Seppelt
Name: Robert C. Seppelt
Title: Vice President
FACS GROUP, INC.
By: /s/ Robert C. Seppelt
Name: Robert C. Seppelt
Title: Vice President
MSS-DELAWARE, INC.
By: /s/ Robert C. Seppelt
Name: Robert C. Seppelt
Title: Vice President