Amended and Restated CREDIT CARD PROGRAM AGREEMENT by and between Ascena Retail Group, Inc. and Capital One, National Association dated as of April 28, 2017

 

This Amended and Restated Private Label Credit Card Program Agreement is made as of the 28th of April, 2017 (“Effective Date”), by and between Ascena Retail Group, Inc., a Delaware corporation with its principal offices at 933 MacArthur Blvd., Mahwah, N.J. 07430 (“Company”), and Capital One, National Association, a national banking association with its principal offices at 1680 Capital One Drive, McLean, V.A. 22102 (“Bank”).

WHEREAS, Bank establishes programs to extend credit via private label and co-branded credit cards to qualified customers for the purchase of goods and services;

WHEREAS, Company subsidiaries engage in retail apparel sales under the Company Marks;

WHEREAS, Company has requested that Bank establish the Program pursuant to which Bank shall, pursuant to the terms of this Agreement, offer Private Label Credit Cards that shall be accepted by Company Channels;

WHEREAS, the Parties acknowledge that they intend for Bank to issue Credit Cards as set forth in Schedule D;

WHEREAS, the Parties have entered into that certain Credit Card Program Agreement dated as of August 29, 2014 (such date, the “Original Effective Date”; such agreement, together with all Schedules and Exhibits thereto, and as modified, altered, supplemented, amended and/or restated from time to time prior to the date hereof, the “Original Program Agreement,” including pursuant to (i) that certain letter agreement dated as of November 26, 2014 by and between Company and Bank (the “First Letter Agreement”), (ii) that certain letter agreement dated as of April 14, 2015 by and between Company and Bank (the “Second Letter Agreement”), (iii) the First Amendment thereto dated as of June 24, 2016 by and between Company and Bank (the “First Amendment”), (iv) the Second Amendment thereto dated as of July 29, 2016 by and between Company and Bank (the “Second Amendment”), (v) the Third Amendment thereto dated as of August 26, 2016 by and between Company and Bank (the “Third Amendment”), (vi) the Fourth Amendment thereto dated as of September 1, 2016 by and between Company and Bank (the “Fourth Amendment”), (vii) the Fifth Amendment thereto dated as of September 9, 2016 by and between Company and Bank (the “Fifth Amendment”), (viii) the Sixth Amendment thereto dated as of September 16, 2016 by and between Company and Bank (the “Sixth Amendment”), (ix) the Seventh Amendment thereto dated as of September 23, 2016 by and between Company and Bank (the “Seventh Amendment”), (x) the Eighth Amendment thereto dated as of September 30, 2016 by and between Company and Bank (the “Eighth Amendment”), (xi) that certain Accession Agreement dated as of October 18, 2016 by and among Company, Tween Brands, Inc. and Bank (the “First Accession Agreement”) and (xii) that certain Accession Agreement dated as of October 18, 2016 by and among Company, The Dressbarn, Inc., Maurices Incorporated and Bank (the “Second Accession Agreement” and together with the First Letter Agreement, the Second Letter Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment and the First Accession Agreement, collectively the “Amendments”));

WHEREAS, the Parties wish for purposes of convenience to amend and restate the Original Program Agreement by reorganizing the provisions thereof and incorporating therein the changes made thereto pursuant to the Amendments; and

WHEREAS, the Parties agree that the goodwill associated with the Company Marks contemplated for use hereunder is of substantial value that is dependent upon the maintenance of high quality services and appropriate use of the marks pursuant to this Agreement.

NOW, THEREFORE, in consideration of the terms, conditions and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Bank agree as follows:

Additional defined terms are set forth in Schedule 1.1. The following terms shall have the following meanings when used in this Agreement:

“AAA” has the meaning set forth in Section 17.22(c).

“ABL Agreement” means that certain Amended and Restated Credit Agreement dated as of January 3, 2011, among Ascena Retail Group, Inc., the Borrowing Subsidiaries party thereto, the other Loan Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, as amended and restated as of March 13, 2013 (and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time).

“Accession Agreement” has the meaning set forth in Schedule 1.1.     

“Account” means a Private Label Account as set forth in this Agreement and includes Purchased Accounts.

“Account Documentation” means, with respect to an Account, any and all documentation relating to that Account, including all Credit Card Applications, Credit Card Agreements, Credit Cards, Billing Statements related to such Accounts, checks or other forms of payment with respect to an Account, credit bureau reports (to the extent not prohibited from transfer by Applicable Law or contract), adverse action notices, change in terms notices, other notices, correspondence, memoranda, documents, stubs, instruments, certificates, agreements, magnetic tapes, disks, hard copy formats or other computer-readable data transmissions, any microfilm, electronic or other copy of any of the foregoing, and any other written, electronic or other records or materials of whatever form or nature, whether tangible or intangible, including information relating or pertaining to any of the foregoing to the extent related to the Program; provided that Account Documentation shall not include Retail Entity register tapes and electronic journals, invoices, sales or shipping slips, delivery and other receipts or other indicia of the sale of Goods and/or Services.

“Account Terms” means the New Account Terms or Purchased Account Terms, as applicable, as such may be amended from time to time in accordance with this Agreement.

“Affected Party” has the meaning set forth in Schedule 6.4.

“Affiliate” means, with respect to any Person, each Person that Controls, is Controlled by or is under common Control with, such Person.

“Agreement” means this Amended and Restated Credit Card Program Agreement, together with all of its Schedules and exhibits, and, if modified, altered, supplemented, amended and/or restated, as the same may be so modified, altered, supplemented, amended and/or restated from time to time.

“Amendments” has the meaning set forth in the recitals hereto.

“Applicable Law” has the meaning set forth in Schedule 1.1.     

“Applicant” means an individual who has submitted a Credit Card Application who desires a Credit Card under the Program.

“Bank” has the meaning set forth in the preamble.

“Bank Event of Default” means the occurrence of any one or more of the events listed in Schedule 13.2, or in Schedule 13.1 with respect to Bank.

“Bank Indemnified Parties” has the meaning set forth in Section 16.1.    

“Bank Licensed Marks” means the trademarks, tradenames, service marks, logos and other proprietary designations of Bank listed on Schedule A and licensed to Company under Section 9.2.

“Bank Marks” has the meaning set forth in Schedule 9.3.

“Bank Matters” has the meaning set forth in Section 3.6(d).

“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any other applicable state or federal bankruptcy, insolvency, moratorium or other similar law and all laws relating thereto.

“Bankruptcy Event” has the meaning set forth in Schedule 13.4.

“Billing Cycle” means the interval of time between regular periodic Billing Dates for an Account.

“Billing Date” means, for any Account, the last day of each regular period when the Account is billed.

“Billing Statement” means a summary of Account credit and debit transactions for a Billing Cycle, including a statement with only past-due account information and/or an Account with a zero Cardholder Indebtedness at a Billing Date, but where such Account had transaction activity since the last Billing Date, whether in print or electronic form.

“Business Day” means any day, other than a Saturday, Sunday or legal holiday, on which Company and Bank both are open for business.

“Cardholder” means any individual who resides in the United States and who has been issued a Credit Card within the United States.

“Cardholder Data” means all Personally Identifiable Information about a Cardholder or Applicant received by or on behalf of Bank in connection with the Cardholder’s application for, or that is necessary to affect a transaction arising out of the use of, a Credit Card or Account or otherwise obtained by or on behalf of Bank, including Charge Transaction Data and data obtained in connection with enrollment in any Value Proposition or portion thereof only to the extent available to Cardholders in their capacity as Cardholders and excluding item specific Transaction information collected about Cardholders and all other Transaction and experience information collected by Company or its Affiliates with regard to each purchase made by a Customer using

a Credit Card, other than information required under Applicable Law to be displayed on Billing Statements or for resolution of Cardholder disputes. For clarity, tokens issued in replacement of Credit Card information are not Cardholder Data.

“Cardholder Indebtedness” means all amounts charged and owing by Cardholders with respect to an Account, including principal balances and finance charges whether billed or accrued, billed late fees and other similar billed fees, less the amount of any payments received, any credit balances owed to Cardholders, including any credits associated with returns of Goods and/or Services and similar credits and adjustments.

“Cardholder List” means any list in electronic form that identifies or provides a means of differentiating Cardholders, including any such electronic listing that includes the names, addresses, email addresses (as available), telephone numbers or social security numbers of any or all Cardholders.

“Change in Control” means, with respect to a Party, that any Person (acting alone or with Affiliates) acquires Control of such Party, other than when any transaction contemplated by this definition is consummated by such Party with a Person that, immediately prior to the consummation of such transaction and thereafter, directly or indirectly, is an Affiliate of such Party.

“Charge Transaction Data” means the Transaction information with regard to each purchase of Goods and/or Services charged to an Account and each return of such Goods and/or Services or other adjustment for credit to an Account that is necessary for Bank to process the Transaction and/or populate a Billing Statement with information, excluding item-specific Transaction information collected about Cardholders and all other Transaction and experience information collected by Company or its Affiliates with regard to each purchase made by a Customer using a Credit Card.

“Claim” has the meaning set forth in Schedule 4.16.

“Claimant” has the meaning set forth in Schedule 4.16.

“Closing Date” has the meaning set forth in Schedule 1.1.          

“Collections Policies” has the meaning set forth in Section 4.11(a).

“Combination Mark” has the meaning set forth in Schedule 9.3.

“Company” has the meaning set forth in the preamble.

“Company Cash Balance” has the meaning set forth in Schedule 13.4.

“Company Channels” means those certain sales channels operating under a Company Licensed Mark through which Company’s Affiliates sell their Goods and/or Services during the Term, including (as applicable): (i) Stores, (ii) all websites and other electronic sales media (e.g., mobile applications) operated by or on behalf of Company or its Affiliates under a Company Licensed Mark; (iii) any Retail Entity catalog, if any, offering Goods and/or Services; and (iv) to the extent applicable, any Licensee location operating within any of the foregoing.

“Company Event of Default” means the occurrence of any one or more of the events listed in Schedule 13.3, or in Schedule 13.1 with respect to Company.

“Company Indemnified Parties” has the meaning set forth in Section 16.2.

“Company Licensed Marks” means the trademarks, tradenames, service marks, logos and other proprietary designations of Company or its Affiliates listed on Schedule C and licensed to Bank by Company or its Affiliates under Section 9.1.

“Company Marks” means the trademarks, tradenames, service marks, logos, and other proprietary designations of Company listed on Schedule B.

“Company Matters” has the meaning set forth in Section 3.6(c).         

“Confidential Information” has the meaning set forth in Section 11.1(a).

“Consumer Credit Product” has the meaning set forth in Schedule 2.4.          

“Control” with regard to an entity, means the beneficial, equitable or legal ownership, either directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest, if not a corporation) of such entity having voting rights, or effective control of the management or policies of such entity (through contract, board representation or otherwise) regardless of the percentage of ownership.

“Conversion Date” has the meaning set forth in Schedule 1.1.             

“Conversion Plan” has the meaning set forth in Schedule 2.1.

“Credits” has the meaning set forth in Schedule 4.16.

“Credit Card” means a Private Label Credit Card.

“Credit Card Agreement” means each form of credit card agreement between Bank and a Cardholder, including credit card agreements assigned to Bank pursuant to any Purchase Agreement, governing the use of an Account, together with any amendments, modifications or supplements which now or hereafter may be made to such Credit Card Agreement (and any replacement of such agreement).

“Credit Card Application” means the credit application which must be completed and submitted by individuals who wish to become Cardholders.

“Cross-Shopping” shall mean the acceptance of a Private Label Credit Card issued under this Agreement by a Retail Entity operating under a Company Licensed Mark different from the one appearing on the front of such Private Label Credit Card.

“Customer” shall mean any Person who makes purchases of Goods and/or Services at a Retail Entity or is otherwise identified by Company as a shopper in Company Channels.

“Customer Data” shall mean all Personally Identifiable Information regarding a Customer, that is obtained by Company or its Affiliates in connection with the Customer making a purchase of Goods and/or Services, enrolling for a Value Proposition or otherwise accessing Company Channels, including all transaction and experience information collected by Company or its Affiliates with regard to each purchase made by a Customer, including the item-specific transaction information collected by Company or its Affiliates about Cardholders through the use of a Credit Card or in connection with the Program.

“Designated Retailer” shall mean each of the entities identified on Schedule 3.7(a), as amended from time to time as provided therein.

“Designated Subcontractor” shall mean a Subcontractor who provides services in relation to the Program and has or could reasonably have access to Cardholder Data or Customer Data.

“Development Agreement” has the meaning set forth in Schedule 9.3.

“Disclosing Party” has the meaning set forth in Section 11.1(d).

“Dispute” has the meaning set forth in Section 3.6(a).

“EBT” has the meaning set forth in Schedule 13.4.

“Effective Date” has the meaning set forth in the preamble.

“Eighth Amendment” has the meaning set forth in the recitals hereto.

“Electronic Product” has the meaning set forth in Schedule 2.4.

“Enhancement Products” has the meaning set forth in Schedule 5.4.

“Existing Issuer” means Comenity Bank or Comenity Capital Bank, as applicable.

“Existing Issuer Agreements” has the meaning set forth in Schedule 12.1.

“Existing Issuer Portfolio” has the meaning set forth in Schedule 12.1.                 

“Existing Receivables” has the meaning set forth in Schedule 15.2.

“Fifth Amendment” has the meaning set forth in the recitals hereto.

“First Accession Agreement” has the meaning set forth in the recitals hereto.

“First Amendment” has the meaning set forth in the recitals hereto.

“First Letter Agreement” has the meaning set forth in the recitals hereto.

“Force Majeure Event” has the meaning set forth in Section 17.18.

“Fourth Amendment” has the meaning set forth in the recitals hereto.

“GAAP” means United States generally accepted accounting principles, consistently applied.

“Goods and/or Services” means the products and services, including closed-loop prepaid cards, sold by or through Company Channels.

“Governmental Authority” means any federal, state, or local domestic, foreign, or supranational governmental or regulatory authority, agency, court, tribunal, commission, or other governmental or regulatory entity, including the Consumer Financial Protection Bureau, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Trade Commission and NACHA (for purposes of Automated Clearing House transfers between Parties).

“Holdback Amount” has the meaning set forth in Schedule 13.4.

“Initial Term” has the meaning set forth in Schedule 14.1.

“In-Store Payment” means any payment on an Account made in a Store by a Cardholder or a Person acting on behalf of a Cardholder.

“Indemnified Party” has the meaning set forth in Section 16.3(a).

“Indemnifying Party” has the meaning set forth in Section 16.3(a).

“Inserts” has the meaning set forth in Section 5.3(b).

“Insider Fraud” means, as applicable, any fraudulent activity of any employee or agent of Company or Bank, or any Affiliate, or Subcontractor of Company or Bank that is (i) identified and traceable back to such employee having access to any Cardholder Data or Customer Data (including a Party’s systems that have Cardholder Data or Customer Data) or any Transaction involving a Credit Card, (ii) fraud that is enabled through the provision of servicing activities by such employee by or on behalf of Bank or Company (such as processing Credit Card Applications or Transaction) on any Account and (iii) fraudulent activity involving Cardholder Data or Customer Data or any other data that was undertaken in the course of performing servicing by or on behalf of Bank or Company, in each case that originated within Company or Bank or any Affiliate or Subcontractor of Company or Bank, even if a specific employee cannot be identified.

“Instant Credit” means a Credit Card Application procedure for a Private Label Credit Card whereby the Credit Card Application information is communicated to Bank by Company either (i) verbally at the POS at the time of a transaction; or (ii) systemically during the order entry process.

“Intellectual Property” means, on a worldwide basis, other than with respect to Company Licensed Marks, Bank Licensed Marks, Cardholder Data or Customer Data, any and all: (i) rights associated with works of authorship, including copyrights; (ii) trademarks and service marks and the goodwill associated therewith; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) applications, registrations, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

“Jurisdictions” has the meaning set forth in Schedule 4.16.

“Justice Closing Date” has the meaning set forth in Schedule 1.1.                 

“Justice Conversion Date” has the meaning set forth in Schedule 1.1.                 

“Justice Extension” has the meaning set forth in Schedule 1.1.                 

“Justice Portfolio” means the Portfolio operated under the Tween Brands, Inc.’s “Justice” brand, and to the extent expanded to include “Brothers”, “Brothers” brand, including, as applicable, the Existing Issuer Portfolio operated under the “Justice” brand.

“Key Employees” has the meaning set forth in Section 2.5.

“Key Program Management Resources” has the meaning set forth in Section 3.2(b).

“Knowledge” means, with respect to (i) Company, the actual knowledge of its Program Manager and Program Executive and (ii) Bank, the actual knowledge of its Program Manager and Program Executive, in each case after and assuming due inquiry.

“Launch Plan” has the meaning set forth in Schedule 2.1.

“Licensee(s)” means any Person(s) authorized by Company or a Company Affiliate to operate in and sell Goods and/or Services from Company Channels or under the Company Licensed Marks.

“Losses” has the meaning set forth in Section 16.1.

“NDA” has the meaning set forth in Schedule 1.1.                 

“Net Sales” has the meaning as used by Company in its publicly filed quarterly and annual disclosures.

“New Account Terms” has the meaning set forth in Schedule 2.3.

“New Mark” has the meaning set forth in Sections 9.1(b), 9.2(b) and/or Schedule 9.3, as applicable.

“Nominated Purchaser” has the meaning set forth in Schedule 15.2.

“Operating Committee” has the meaning set forth in Section 3.3(a).

“Operating Procedures” means the Operating Procedures attached at Schedule 4.4, as amended from time to time in accordance with this Agreement.

“Original Effective Date” has the meaning set forth in the recitals hereto.

“Original Program Agreement” has the meaning set forth in the recitals hereto.

“Other Conversion Dates” has the meaning set forth in Schedule 2.1.

“Party” means Company or Bank, as the circumstances warrant, and “Parties” means both Company and Bank.

“Pending Claim” has the meaning set forth in Schedule 4.16.

“Person” means and includes any individual, partnership, joint venture, corporation, company, bank, trust, unincorporated organization, government or any department, agency or instrumentality thereof, and for purposes of the definition of “Change in Control”, the term shall include any group that is deemed to act together under Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended.

“Personally Identifiable Information” means any information that: (i) alone, or in combination with other personal or identifying information, relates to a specific, identifiable individual or can be used to identify an individual; (ii) is “nonpublic personal information” as defined in the GLBA; or (iii) any other personally identifiable consumer information that is subject to privacy protections under Applicable Law.

“Portfolio” means the group of Accounts and Cardholder Indebtedness associated with each Company Licensed Mark.

“Portfolio Purchase Date” has the meaning set forth in Schedule 15.2.         

“POS” means the physical point of sale of Goods and/or Services.

“Private Label Account” means an open-end revolving consumer credit account subject to the Program accessed via a Private Label Credit Card, including Purchased Accounts.

“Private Label Credit Card” means the consumer credit card and/or associated card number, as appropriate in the context in which the term is used, issued under the Program that bears a Company Licensed Mark, settles directly between Company or its Affiliates and Bank, and may be used only to finance purchases of Goods and/or Services.

“Program” means the consumer credit card program established by Company and Bank and made available to Cardholders, including the origination of new Accounts by Bank, the extension of credit on Accounts, billings, collections, customer service, accounting between the Parties and all other aspects of the customized credit plan specified herein and in Credit Card Agreements.

“Program Assets” means the Accounts (including Accounts charged off during the Term in which Bank retains an ownership interest), Account Documentation, Cardholder List, Cardholder Data and all Cardholder Indebtedness (in each case, whether held by Bank, Company or a Subcontractor).

“Program Conversion Date” has the meaning set forth in Schedule 1.1.         

“Program Executives” has the meaning set forth in Schedule 1.1.         

“Program Expense” has the meaning set forth in Schedule 1.1.                

“Program Manager” has the meaning set forth in Section 3.2(a).

“Program Materials” has the meaning set forth in Section 4.5(a).

“Program Privacy Policy Notice” shall mean the privacy policy notice and associated disclosures to be provided by Bank to Cardholders in connection with the Program, the initial form of which is attached hereto as Schedule 6.2(b) hereto.

“Program Website” has the meaning set forth in Section 4.13(a).

“Program Year” shall mean each consecutive twelve (12) month period commencing on the Program Conversion Date.

“Protection Programs” has the meaning set forth in Schedule 5.4.

“Purchase Agreement” has the meaning set forth in Schedule 1.1.             

“Purchase Notice” has the meaning set forth in Schedule 15.2.

“Purchase Option” has the meaning set forth in Schedule 15.2.

“Purchased Account Terms” has the meaning set forth in Schedule 2.3.             

“Purchased Accounts” has the meaning set forth in Schedule 1.1.             

“Qualified Customers” means Customers of a Retail Entity that Company or such Retail Entity determines are available to be solicited for a Credit Card Application under the Program.

“Receiving Party” has the meaning set forth in Section 11.1(d).

“Refunds” has the meaning set forth in Schedule 4.16.

“Renewal Term” has the meaning set forth in Schedule 14.1.

“Restricted Party” has the meaning set forth in Section 2.5.

“Retail Entity” means any Affiliate of Company that operates a Company Channel.

“Risk Management Policies” has the meaning set forth in Section 4.7(a).

“SEC” means the U.S. Securities and Exchange Commission.

“Second Amendment” has the meaning set forth in the recitals hereto.

“Second Letter Agreement” has the meaning set forth in the recitals hereto.

“Second Look Program” has the meaning set forth in Schedule 2.4.

“Separate Expenses” has the meaning set forth in Schedule 1.1.             

“Series I” has the meaning set forth in Schedule 14.1.    

“Series II” has the meaning set forth in Schedule 14.1.    

“Series II Initial Term” has the meaning set forth in Schedule 14.1.    

“Series II Renewal Term” has the meaning set forth in Schedule 14.1.    

“Seventh Amendment” has the meaning set forth in the recitals hereto.

“Similarly Situated” has the meaning set forth in Schedule 1.1.                 

“Sixth Amendment” has the meaning set forth in the recitals hereto.

“SLA” has the meaning set forth in Schedule 4.8(a).

“SLA Failure” has the meaning set forth in Schedule 4.8(a).

“SLA Termination Event” has the meaning set forth in Schedule 4.8(a).

“Solicitation Materials” means documentation, materials, artwork, copy, trademarks (excluding the Company Licensed Marks and the Bank Licensed Marks), copyrights and any protectable items, in any format or media (including television and radio), used to promote or identify the Program to Cardholders and potential Cardholders, including direct mail solicitation materials and coupons.

“Solvent” as to a Person, means (i) the present fair salable value of such Person’s assets is in excess of the total amount of its liabilities, (ii) such Person is presently able generally to pay its debts as they become due, and (iii) such Person does not have unreasonably small capital to carry on such Person’s business as theretofore operated and all business in which such Person is about to engage. The phrase “present fair salable value” of a Person’s assets is intended to mean that value which can be obtained if the assets are sold within a reasonable time in arm’s-length transactions in an existing and not theoretical market.

“SOX Laws” has the meaning set forth in Schedule 4.15.

“Store” means a physical location operating under a Company Licensed Mark for which Private Label Credit Cards are offered under this Agreement.

“Subcontractor” means a third party, including any authorized agent, vendor, consultant, or outsourced service provider, or any Affiliates of such third party, utilized by a Party to perform any obligations or services of such Party under this Agreement.

“Subset” has the meaning set forth in Schedule 1.1.                 

“Term” means, collectively, the Initial Term, each Renewal Term, the Series II Initial Term and each Series II Renewal Term.

“Termination Period” has the meaning set forth in Schedule 1.1.                 

“Termination Date” has the meaning set forth in Schedule 4.16.

“Third Amendment” has the meaning set forth in the recitals hereto.                

“Trademark Style Guide” means the written guidelines of a Party governing the manner of usage of the Company Licensed Marks or Bank Licensed Marks, as applicable.

“Transaction” means any purchase of Goods and/or Services through a Company Channel, including from a Licensee, using an Account, or a return or cancellation of the same.

“United States” means the fifty states of the United States and the District of Columbia (expressly excluding for purposes of Credit Card solicitation and issuance but not Credit Card acceptance the Commonwealth of Puerto Rico, and any territory or possession of the United States or any political subdivision thereof).

“USPTO” means the United States Patent and Trademark Office.

“Value Proposition” means any Cardholder loyalty program offered in connection with the Program pursuant to the terms of this Agreement.

“Web Application” means a web-based new Account application procedure made available by Bank in connection with the Program.

As used herein,

See Schedule 2.1.

See Schedule 2.4.

During the Term and for a period of one (1) year thereafter, a Party and its Affiliates (the “Restricted Party”) shall not directly solicit, induce, recruit or encourage any of the employees of the other Party or its Affiliates who have the business title of Vice-President or above, with whom the Restricted Party shall have had any direct contact or whose work shall have become known to the Restricted Party, as the case may be, through

his or her involvement in the Program (such employees, “Key Employees”), to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage, take away or hire Key Employees, for the Restricted Party; provided, however, that such restrictions shall not apply to any Key Employee (a) who contacts the Restricted Party in response to a bona fide public advertisement for employment placed by the Restricted Party and not specifically targeted at employees of the other party, (b) who has been terminated, subject to applicable restrictions set out in the termination arrangement of such person, or (c) who contacts the Restricted Party directly or through referrals made by a placement service which was directed by the Restricted Party not to specifically target employees of the other Party.

Effective as of the Effective Date, this Agreement hereby amends and restates the Original Program Agreement in its entirety.

In performing its responsibilities with respect to the management and administration of the Program, each Party shall be guided by the following Program objectives:

about the Bank Program Manager with Bank, and Company and Bank shall consult in good faith to address such concerns.

On an annual basis, the Program Executives shall meet for a planning session to review the Program’s business plan for the upcoming year, discuss Program changes, establish Program priorities and identify opportunities to share and implement best practices on behalf of the Program.

Except as otherwise provided herein, changes to the Program, its operation or servicing shall be approved by the Operating Committee, and either Party may propose such changes, including to Program policies, in writing from time to time in accordance with the procedures set forth in this Section 3.5. After a Party proposes a change, the Operating Committee shall have a minimum of thirty (30) days to review, meet and discuss the proposed change. If the Operating Committee is unable to agree, they may determine to continue the Program unchanged or either Party may invoke the dispute resolution process set forth in Section 3.6; provided, however, in all cases, Bank may implement a change required by Applicable Law if the effective date of such change is prior to the completion of the dispute resolution process set forth in Section 3.6, subject to the standards set forth in Sections 3.6(d) and 4.5(b), and Schedule 4.4(b), 4.7, 4.12 and 6.2, for implementation of changes required by Applicable Law.

rights with respect to compliance of the Program with Applicable Law, including as set forth in Section 3.6(d) and as noted in Schedule 3.6(c).

Company shall not use such new or revised Program Materials until affirmatively approved by Bank. Upon request of Bank, Company shall provide an opportunity for Bank review regardless of whether or not Bank has previously approved such Program Material. Prior to Company exercising any other remedies available under this Agreement, any failure of Bank to comply with the second sentence of this Section 4.5(b) shall be promptly reviewed by the Operating Committee and subject to escalation in accordance with Section 3.6.

Policies and changes thereto; provided, however, that notwithstanding the foregoing, under no circumstances shall Bank be required to provide any proprietary information or scoring models of any kind.

Company is hereby authorized to receive payments on Accounts in Stores in the United States. The Parties shall process In-Store Payments in accordance with the Operating Procedures. Bank has the sole right to receive and retain all payments made with respect to all Accounts and to pursue collection of all amounts outstanding, unless a Transaction is charged back to Company pursuant to the provisions of Section 4.10 (in which event Company and not Bank shall have the right to pursue such collection).

Transactions on Accounts shall be subject to chargeback solely as provided in the Operating Procedures. With respect to any amounts to be charged back, Bank will offset such amount as part of the Transaction settlement to be paid to Company, to the extent the balance thereof is sufficient, or, if such balance is not sufficient, Company shall pay to Bank in immediately available funds for the full or any partial amount of

such chargeback. Upon payment in full of the related amount by Company to Bank, or off-setting, as the case may be, Bank shall transfer to Company, without any representation, warranty, or recourse, all of Bank’s right to payments of such amounts charged back in connection with such Transaction. Bank will cooperate with Company in any efforts by Company to collect the chargeback amount. Bank will provide Company reasonable supporting documentation relating to any chargeback. Bank may reduce the amount owed by a Cardholder on any Transaction subject to chargeback, but the related chargeback shall then be equal to the reduced (or net) amount owed by the Cardholder.

See Schedule 4.12.     

Company will either update or modify its website thereto, as directed by Bank, and shall be reimbursed for the cost thereof as a Program Expense. In providing a link to the Web Application on one or more of the Retail Entities’ websites, if appropriate, the applicable Retail Entity shall make it clear and conspicuous that the Customer is leaving the Retail Entity’s website and is being directed to Bank’s website for the exclusive purpose of accessing Bank’s website. Company agrees that, in connection with the Web Application, Company and its Retail Entities will use Bank’s name, or any logo, statements, or any other information that is related to Bank, only as directed by Bank, or as previously approved by Bank in writing. Without limiting the generality of the scope of required approvals, but by way of example, Company shall seek Bank’s approval, not to be unreasonably withheld, not only with respect to content, but also with respect to any typestyle, color or abbreviations used in connection with the Web Application.

As long as this Agreement remains in effect, Bank shall deliver to Company the reports listed in the Operating Procedures, in addition to any other reports expressly required under this Agreement. Additions to such reports or changes to the timing of the delivery of such reports shall be subject to Operating Committee approval. Bank agrees to review reasonable requests from Company and provide ad hoc data support and analysis reasonably requested by Company as it relates to the Program.

See Schedule 4.15.     

Company shall pay when due any sales taxes related to the sale of Goods and/or Services. The procedures to address claims for tax refunds and credits related to charged off receivables are set forth as Schedule 4.16 of this Agreement.

See Schedule 4.17.

related marketing efforts on behalf of Company based upon the customer databases and customer database analysis tools maintained by or on behalf of Bank and its Affiliates and Subcontractors, including aggregate transaction and experience data across Bank’s credit card portfolios (with any third party costs funded by the Fixed Marketing Fund (as defined in Section 1.e. of Schedule 8.1)); § make suggestions regarding available systems technology to improve effectiveness of the Value Proposition and enhance sales, provided that any additional costs associated with implementing any changes to systems technology shall be Program Expenses; and § provide results of Bank’s modeling and market research, in each case to the extent permitted by Applicable Law and contractual obligations of Bank and its Affiliates; provided, however, that notwithstanding the foregoing, under no circumstances shall Bank be required to provide any proprietary information or scoring models of any kind.

to communicate with Cardholders through direct mail (including through catalogs, invitations, newsletters, and postcards), e-mail, telephone messaging, text messaging, and any other communication channel that Company deems appropriate. Company may communicate with Cardholders through these channels about any aspect of the Program, including any Value Proposition, and any other subject matter, in Company’s discretion, subject to Applicable Law.

See Schedule 5.4.     

See Schedule 6.1.     

See Schedule 6.2.     

See Schedule 6.3.     

See Schedule 6.4.     

Bank will settle Transactions charged to Private Label Accounts as set forth in the Operating Procedures, without discount.

If a Cardholder purchases Goods and/or Services on an Account and a Retail Entity processes a return of such Goods and/or Services in accordance with the return policy of such Retail Entity or makes another adjustment such as a price reduction, the relevant Retail Entity shall provide a credit to such Cardholder’s Account. The relevant Retail Entity will transmit the relevant information in the Charge Transaction Data for inclusion in the daily settlement process.

See Schedule 8.2.     

as specified in this Section 9.1) right and license to use the Company Licensed Marks in the United States solely in connection with the creation, establishment, marketing and administration of, and the provision of services related to, the Program, all pursuant to, and in accordance with, this Agreement and any applicable Trademark Style Guide. Those services shall include the issuance and reissuance of Credit Cards, the provision of Billing Statements and other correspondence relating to Accounts, the extension of credit to Cardholders, and the advertisement or promotion of the Program. All use of the Company Licensed Marks shall be approved by Company. The license hereby granted is solely for the use of Bank and may be used as necessary to permit the exercise by Bank of any of its rights under this Agreement to delegate obligations to Affiliate(s) and/or Subcontractors. Bank may sublicense the use of Company Licensed Marks to any Affiliate or Subcontractor performing the following Bank obligations under this Agreement solely as necessary to perform such obligations: production of plastics, statements and other Cardholder correspondence and collections; provided that such Affiliate or Subcontractor agrees to comply with all of the standards specified herein and the limitations on the use of the Company Licensed Marks contained in this Section. Except for the rights granted to Bank in the preceding sentence, the license granted hereby may not be sublicensed without the prior written approval of Company.

Licensed Marks, or the goodwill associated with the Company Licensed Marks (it being understood that the collection of Accounts, adverse action letters, and changes in terms of Accounts as required by Applicable Law do not adversely affect goodwill, if done in accordance with the terms of this Agreement), and § any and all goodwill arising from use of the Company Licensed Marks by Bank shall inure to the benefit of Company and its Affiliates. Nothing herein shall give Bank any proprietary interest in or to the Company Licensed Marks, except the right to use the Company Licensed Marks in accordance with this Agreement, and Bank shall not contest Company’s or its Affiliates’ title in and to the Company Licensed Marks.

shall not be required to add a New Mark to Schedule A if such New Mark was developed by Bank primarily for another charge, credit or debit program.

To induce Bank to establish and administer the Program, Company on behalf of itself and each Retail Entity to the extent specified below hereby makes the following representations and warranties to Bank as of the Original Effective Date, and each and all of which (except with respect to the representations and warranties in Section 10.1(c)(v), which are made solely as of the Original Effective Date and the Justice Closing Date, if the Justice Closing Date is the first Closing Date, and Section 10.1(g) (No Litigation), which is made solely as of the Original Effective Date, the Justice Conversion Date, and each Closing Date), shall be deemed to be restated and remade on each day during the Term.

therein with respect to each Conversion Date as applicable, and the closing of each Purchase Agreement will not § conflict with, violate, result in the breach of, constitute an event which would, or with the lapse of time or action by a third party or both would, result in a default under, or accelerate the performance required by, the terms of any material contract, instrument or agreement, including the Existing Issuer Agreements, to which Company or the Retail Entity, as applicable, is a party or by which it is bound except for conflicts, breaches and defaults which would not have a material and adverse effect upon Company’s or the Retail Entity’s, as applicable, ability to perform its obligations under this Agreement; § conflict with or violate the articles of incorporation or by-laws, or any other equivalent organizational document(s), of Company or the Retail Entity, as applicable; § violate any Applicable Law, or conflict with or require any consent or approval under any judgment, order, writ, decree, permit or license, to which Company or the Retail Entity, as applicable, is a party or by which it is bound or affected, except to the extent that such violation or the failure to obtain such consent or approval would not have a material and adverse effect upon Company’s or the Retail Entity’s, as applicable, ability to perform its obligations under this Agreement or the Accession Agreement; § require the consent or approval of any other party to any contract, instrument or commitment to which Company or the Retail Entity, as applicable, is a party or by which it is bound, except to the extent that the failure to obtain such consent or approval would not have a material and adverse effect upon Company’s or the Retail Entity’s, as applicable, ability to perform its obligations under this Agreement or the Accession Agreement; or § to the Knowledge of Company after consultation with counsel, require any filing with, notice to, consent or approval of, or any other action to be taken with respect to, any regulatory authority by Company, except to the extent that the failure to obtain such consent or approval would not have a material and adverse effect upon Company or the Retail Entity, as applicable, the Program, the Accounts, the Cardholder Indebtedness or Company’s or the Retail Entity’s, as applicable, ability to perform its obligations under this Agreement.

To induce Company to enter into this Agreement and participate in the Program, Bank hereby makes the following representations and warranties to Company as of the Original Effective Date, and each and all of which (except with respect to the representations and warranties in Section 10.2(g) (No Litigation), which are made solely as of the Original Effective Date, the Justice Conversion Date, and each Closing Date and except with respect to the representations and warranties in Section 10.2(c)(v), which are made solely as of the Original Effective Date and the Justice Closing Date, if the Justice Closing Date is the first Closing Date), shall be deemed to be restated and remade on each day during the Term.

consummation by Bank of the transactions specified herein, have been duly and validly authorized and approved by all necessary corporate action of Bank. This Agreement (A) has been duly executed and delivered by Bank, (B) constitutes the valid and legally binding obligation of Bank, and (C) is enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, receivership or other laws affecting the rights of creditors generally and financial institutions in particular and by general equity principles including those respecting the availability of specific performance).

Company makes the following covenants to Bank, each and all of which shall survive the execution and delivery of this Agreement:

Bank makes the following covenants to Company, each and all of which shall survive the execution and delivery of this Agreement:

that JPMorgan Chase Bank, N.A. or Company may share such redacted copy with other parties as provided under the ABL Agreement) if such Agreement is redacted in a manner substantially similar to (and in any event, no more than) the redactions reflected in the Private Label Credit Card Program Agreement publicly released by Kohl’s Department Stores, Inc. as Exhibit 10.1 of the Form 10-Q filing with the Securities and Exchange Commission for the quarter ended July 31, 2010, provided that no element of the process hereunder for settling transactions for the purchases of goods or services or receipt of payments (or returns/credits/exchanges for payments) in stores is redacted.

Each Receiving Party agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause immediate and irreparable harm to the Disclosing Party for which money damages might not constitute an adequate remedy. In that event, the Receiving Party agrees that injunctive

relief may be warranted in addition to any other remedies the Disclosing Party may have. In addition, the Receiving Party agrees promptly to advise the Disclosing Party by telephone and in writing pursuant to Section 17.12, each pursuant to the principles outlined in Section (b) of Schedule 6.4, of any security breach that may have compromised any Confidential Information, or any unauthorized misappropriation, disclosure or use by any Person of the Confidential Information of the Disclosing Party which may come to its attention, and to take all steps at its own expense reasonably requested by the Disclosing Party to limit, stop or otherwise remedy such misappropriation, disclosure or use.

Upon the termination or expiration of this Agreement, the Receiving Party shall comply with the Disclosing Party’s reasonable instructions regarding the disposition of the Disclosing Party’s Confidential Information, which may include the return or destruction of any and all the Disclosing Party’s Confidential Information (including any electronic or paper copies, reproductions, extracts or summaries thereof); provided, however, the Receiving Party in possession of tangible property containing the Disclosing Party’s Confidential Information may retain, subject to the terms of this Agreement, § such Confidential Information as may be present in backup systems from which it cannot reasonably be deleted, and § one archived copy of such Confidential Information which may be used solely for regulatory purposes and may not be used for any other purpose. Such compliance shall be certified in writing, including a statement that no copies of Confidential Information have been kept, except as provided herein.

From and after the Original Effective Date, Company shall indemnify and hold harmless Bank, its Affiliates, their respective officers, directors, employees, agents, Subcontractors and representatives and any Person claiming by or through any of them (collectively, the “Bank Indemnified Parties”) from and against and in respect of any and all losses, liabilities, damages, costs and expenses of whatever nature, including reasonable attorneys’ fees and expenses (collectively, “Losses”) relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:

modification or combination thereof by Bank that is not reasonably contemplated by the Parties;

From and after the Original Effective Date, Bank shall indemnify and hold harmless Company, its Affiliates, their respective officers, directors, employees, agent, Subcontractors and representatives and any Person claiming by or through any of them (collectively, the “Company Indemnified Parties”) from and against and in respect of any and all Losses relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:

that would be reasonably likely to be adverse to the Indemnified Party without the Indemnified Party’s express prior written consent.

Company and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders. However, as a precaution in the event that any Person asserts that Article 9 of the Uniform Commercial Code applies or may apply to the transactions contemplated hereby, and to secure Company’s payment of and performance of all obligations of Company to Bank, Company hereby grants to Bank a first priority present and continuing security interest in and to the following, whether now existing or hereafter created or acquired, together with the proceeds thereof: all Accounts, all Cardholder Indebtedness, and all Charge Transaction Data. In addition, Company agrees to take any reasonable action requested by Bank, at Bank’s expense, to establish the first lien and perfected status of such security interest, and appoints Bank as Company’s attorney-in-fact to take any such action on Company behalf; provided that Bank shall be responsible for preparing any such documentation.

Bank shall not sell, securitize, pledge or participate the Cardholder Indebtedness unless such sale, exchange, securitization, pledge or participation does not affect Company’s rights or Bank’s ability to satisfy its obligations hereunder, including by requiring consent or approval of any third party for Bank to reacquire all right, title and interest in and to such Cardholder Indebtedness and release any lien thereon, or otherwise encumber or impair in any way any of Company’s rights hereunder to purchase the Program Assets.

EXCEPT FOR DAMAGES ARISING OR RESULTING FROM WILLFUL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLES, OR FOR ANY LOSS OF PROFITS OR REVENUE, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL

NOT APPLY TO CLAIMS FOR BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY (WHICH INCLUDES MISUSE OF CUSTOMER DATA AND CARDHOLDER DATA), INDEMNIFICATION OR INFRINGEMENT OF THE BANK LICENSED MARKS OR COMPANY LICENSED MARKS.

Except as provided in this ARTICLE 17, neither Party shall assign this Agreement or any of its rights hereunder without the prior written consent of the other Party; provided, however, that either Party may, without the consent of the other Party, assign this Agreement in whole or in part to an Affiliate in the United States of such Party. The assigning Party shall provide the other Party with at least sixty (60) days prior written notice of the proposed assignment and if requested by the non-assigning Party, provide an appropriate guarantee covering all of the obligations of the assigning Party under this Agreement.

Except as provided in Schedule 12.3 and ARTICLE 17, Bank shall not sell or transfer the Accounts in whole or in part. Bank will not transfer the Accounts or the Cardholder Indebtedness to an entity that is treated as a “variable interest entity” within the meaning of FASB Codification ASC 810 – Consolidation.

Except as provided herein, this Agreement may not be amended except by a written instrument signed by Bank and Company.

No waiver of the provisions hereto shall be effective unless in writing and signed by the Party to be charged with such waiver. No waiver shall be deemed to be a continuing waiver in respect of any subsequent breach or default either of similar or different nature unless expressly so stated in writing. No failure or delay on the part of either Party in exercising any power or right under this Agreement shall be deemed to be a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.

If any of the provisions or parts of the Agreement are determined to be illegal, invalid or unenforceable in any respect under any applicable statute or rule of law, such provisions or parts shall be deemed omitted without affecting any other provisions or parts of the Agreement which shall remain in full force and effect, unless the declaration of the illegality, invalidity or unenforceability of such provision or provisions substantially frustrates the continued performance by, or entitlement to benefits of, either Party, in which case this Agreement may be terminated by the affected Party, without penalty.

This Agreement 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 New York, without regard to internal principles of conflict of laws, and applicable federal law.

The table of contents and various captions of the articles and sections of this Agreement are for convenient reference only and are not intended as a summary of such articles or sections and do not affect, limit, modify or construe the contents thereof.

Any notice, approval, acceptance or consent required or permitted under this Agreement shall be in writing to the other Party and shall be deemed to have been duly given when delivered in person or, if sent by United States registered or certified mail, with postage prepaid, or by a nationally recognized overnight delivery service, when received, addressed as follows:

If to Company:         Ascena Retail Group, Inc.

933 MacArthur Blvd.

Mahwah, N.J. 07430

Attn: President

With copies to:         Ascena Retail Group, Inc.

(which copies shall not constitute notice)    933 MacArthur Blvd.

Mahwah, N.J. 07430

Attn: General Counsel

If to Bank:         Capital One Services, LLC

77 W. Wacker Drive

Chicago, IL 60601

Attn: Vice President Client Development

With copies to:        Capital One

(which copies shall not constitute notice)    8000 Towers Crescent Drive

Vienna, VA 22182

Attn: Chief Counsel, Transactions

Morrison & Foerster LLP

2000 Pennsylvania Avenue, NW

Suite 6000

Washington, DC 20006

Attn: Panagiotis Bayz

Company and Bank agree to produce or execute such other documents or agreements as may be reasonably necessary or desirable for the execution and implementation of this Agreement and the consummation of the transactions specified herein and to take all such further action as the other Party may reasonably request in order to give evidence to the consummation of the transactions specified herein.

Nothing contained in this Agreement shall be deemed or construed by the Parties or any third party to create a partnership, joint venture or of any association between Company and Bank, and no act of either Party

shall be deemed to create any such relationship. Company and Bank each agree to such further actions as the other Party may request to evidence and affirm the non-existence of any such relationship.

Except for any notice which is required by Applicable Law or stock exchange rules (which shall be subject to Section 11.1(b)), neither Party may issue any press releases, announcements, or similar materials of a public or promotional nature regarding the subject matter of this Agreement without first obtaining the other Party’s written permission, which may be withheld in such Party’s sole discretion.

Company and Bank agree that each Party has waived any right to set-off, combine, consolidate or otherwise appropriate and apply § any assets of the other Party held by the Party or § any indebtedness or other liabilities at any time owing by the Party to the other Party, as the case may be, against or on account of any obligations owed by the other Party under this Agreement, except as expressly set forth herein.

There are no third-party beneficiaries to this Agreement except that the Bank Indemnified Parties and Company Indemnified Parties are intended third party beneficiaries of ARTICLE 16. Except as provided in the preceding sentence, the Parties do not intend § the benefits of this Agreement to inure to any third party; or § any rights, claims or causes of action against a Party to be created in favor of any Person other than the other Party.

If performance of any service or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of labor disputes, strikes, acts of God, floods, lightning, severe weather, shortages of materials, rationing, utility or communication failures, earthquakes, war, revolution, civil commotion, acts of public enemies, blockade, embargo or any law, order, proclamation, regulation, ordinance, demand or requirement having legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of a Party and could not have been prevented by reasonable precautions (each, a “Force Majeure Event”), then such Party shall be excused from such performance to the extent of and during the period of such Force Majeure Event. A Party excused from performance pursuant to this Section shall exercise all reasonable efforts to continue to perform its obligations hereunder, including by implementing its disaster recovery and business continuity plan as provided in Schedule 4.8, and shall thereafter continue with reasonable due diligence and good faith to remedy its inability to so perform except that nothing herein shall obligate either Party to settle a strike or other labor dispute when it does not wish to do so.

This Agreement, together with the First Accession Agreement, the Second Accession Agreement and the Schedules and exhibits hereto which are expressly incorporated herein by reference, supersedes any other agreement, whether written or oral, that may have been made or entered into by Company and Bank (or by any officer or employee of either of such Parties) relating to the matters specified herein, and constitutes the entire agreement by the Parties related to the matters specified herein or therein.

This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement is the product of negotiation by the Parties having the assistance of counsel and other advisers. It is the intention of the Parties that this Agreement not be construed more strictly with regard to one Party than with regard to the other Party.

This Agreement 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 Agreement, it shall not be necessary to produce or account for more than one such counterpart. Any facsimile or PDF e-mailed version of an executed counterpart shall be deemed an original.

the two arbitrators selected by the Parties must have no direct or indirect financial interest in the dispute or any direct or indirect financial interest in or dependence upon either of the Parties (other than his or her fees and expenses for serving on the panel), and the third, presiding arbitrator selected by the two Party-selected arbitrators must qualify as a neutral arbitrator as defined in the Commercial Arbitration Rules and/or Code of Ethics of the AAA. Before beginning the hearings, the three arbitrators must each take an oath of impartiality. Any arbitration proceedings shall be concluded within ninety (90) days of the appointment of the arbitrators.

Upon the termination of this Agreement, the Parties shall have the rights and remedies described herein. Upon such termination, all obligations of the Parties under this Agreement shall cease, except that the obligations of the Parties pursuant to ARTICLE 1 (Definitions), Schedule 4.17 (Reciprocal Access Rights) (for one (1) year following expiration or termination of this Agreement for financial accounting and reconciliation and for three (3) years following expiration or termination of this Agreement for audit rights of a Governmental Authority), ARTICLE 6 (Cardholder and Customer Information), ARTICLE 9 (Licensing of Trademarks; Intellectual Property), ARTICLE 10 (Representations and Warranties), ARTICLE 11 (Confidentiality), ARTICLE 15 (Effects of Termination), ARTICLE 16 (Indemnification), ARTICLE 17 (Miscellaneous), including references to survival of specific obligations therein, and any other provision hereof that by its terms applies following the expiration or termination hereof, including any payment obligation which arises prior to expiration or termination hereof, shall survive the expiration or termination of this Agreement.

IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed as of the date first above written.

ASCENA RETAIL GROUP, INC.

By: /s/ David Jaffe

Name: David Jaffe

Title: President and Chief Executive Officer

CAPITAL ONE, NATIONAL ASSOCIATION

By: /s/ Jennifer A. Glaspie

Name: Jennifer A. Glaspie