AMENDED AND RESTATED CREDIT CARD PROGRAM AGREEMENT by and between KOHL’S, INC. and CAPITAL ONE, NATIONAL ASSOCIATION Dated as of March 14, 2022

Exhibit 10.1

EXECUTION VERSION

 

 

 

AMENDED AND RESTATED CREDIT CARD PROGRAM AGREEMENT

by and between

KOHL’S, INC.

and

CAPITAL ONE, NATIONAL ASSOCIATION

 

Dated as of March 14, 2022

 

 

NOTE: [*] = redacted text

 

 

 

 

 

 

 

 

 

---

 

TABLE OF CONTENTS

 

		Page
ARTICLE 1 DEFINITIONS		1
1.1	Generally.	1
1.2	Miscellaneous.	12
ARTICLE 2 ESTABLISHMENT OF THE PROGRAM		12
2.1	Generally; Amendment and Restatement.	12
2.2	Credit Programs.	12
2.3	Account Terms.	13
2.4	[*]; FFT; Digital Wallets; Kohl’s Pay; Apple Pay.	13
2.5	Exclusivity.	13
2.6	Non-Solicitation.	14
ARTICLE 3 PROGRAM MANAGEMENT		14
3.1	Program Objectives.	14
3.2	Program Managers; Program Team.	14
3.3	Management Committee.	15
3.4	Functions of the Management Committee.	16
3.5	Additional Governance Process.	16
3.6	Escalation.	17
3.7	Kohl’s Matters and Bank Matters.	17
ARTICLE 4 PROGRAM OPERATION		17
4.1	Marketing Guidelines; Operating Policies; Operation of the Program.	17
4.2	Certain Responsibilities of Kohl’s.	18
4.3	Certain Responsibilities of Bank.	19
4.4	Ownership of Accounts.	19
4.5	Documents Developed and Used in Connection with the Program.	20
4.6	Risk Management/Credit Standards.	21
4.7	Exception Accounts.	22
4.8	Program Website.	22
4.9	Taxes.	22
4.10	Systems	22
4.11	Credit Bureaus.	23
ARTICLE 5 MARKETING OF THE PROGRAM		23
5.1	Kohl’s Responsibility to Market the Program.	23
5.2	Bank’s Responsibility to Market the Program.	24
5.3	Communications with Cardholders.	24
5.4	Access to Bank Databases and Mailing Lists.	24
5.5	Interest Free Plans.	25

 

 

---

 

5.6	Marketing of CreditWise to Kohl’s Persons; Bank Financial Products Information.	25
ARTICLE 6 CARDHOLDER AND CUSTOMER INFORMATION		25
6.1	Customer Information.	25
6.2	Qualified Kohl’s Customer List.	26
6.3	Cardholder Data.	26
6.4	Kohl’s Shopper Data.	28
6.5	Data Security.	28
ARTICLE 7 PROGRAM SERVICING AND STANDARDS		29
7.1	Reports; Data.	29
7.2	Servicing.	29
7.3	Customer Service.	29
7.4	Transfer of Servicing to Bank.	30
7.5	Bank Right to Assume Servicing.	31
7.6	Access; Audit.	31
7.7	Disaster Recovery Plans.	32
7.8	▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance.	33
7.9	Training.	33
ARTICLE 8 MERCHANT SERVICES		34
8.1	Transmittal and Authorization of Charge Transaction Data.	34
8.2	POS Terminals.	34
8.3	Kohl’s Channel Payments.	34
8.4	Settlement Procedures.	34
8.5	Returns of Kohl’s Goods and/or Services.	35
8.6	No Merchant Discount.	35
ARTICLE 9 PROGRAM ECONOMICS		35
9.1	Monthly Statement to Kohl’s.	35
9.2	Program-Related Payments.	36
9.3	Renegotiation of Terms.	36
9.4	Recoveries	36
9.5	Sharing of Program Bad Debts	36
ARTICLE 10 LICENSING OF TRADEMARKS; INTELLECTUAL PROPERTY		36
10.1	The Kohl’s Licensed Marks.	36
10.2	The Bank Licensed Marks.	38
10.3	Ownership and Licenses of Intellectual Property.	39
10.4	Bank Intellectual Property.	39
ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS		39
11.1	General Representations and Warranties of Kohl’s.	39
11.2	General Representations and Warranties of Bank.	41

 

 

---

 

11.3	General Covenants of Kohl’s.	43
11.4	General Covenants of Bank.	45
11.5	Interchange Lawsuit	46
11.6	Insurance.	46
ARTICLE 12 CONFIDENTIALITY		47
12.1	General Confidentiality.	47
12.2	Use and Disclosure of Confidential Information	48
12.3	Unauthorized Use or Disclosure of Confidential Information	49
12.4	Return or Destruction of Confidential Information	49
ARTICLE 13 RETAIL PORTFOLIO ACQUISITIONS AND DISPOSITIONS		50
13.1	Retail Portfolio Acquisitions and Dispositions.	50
ARTICLE 14 EVENTS OF DEFAULT; RIGHTS AND REMEDIES		50
14.1	Events of Default.	50
14.2	Defaults by Bank.	51
14.3	Defaults by Kohl’s.	51
14.4	Remedies for Events of Default.	52
ARTICLE 15 TERM/TERMINATION		52
15.1	Term.	52
15.2	Termination by Kohl’s Prior to the End of the Initial Term or a Renewal Term.	52
15.3	Termination by Bank Prior to the End of the Initial Term or Renewal Term.	52
ARTICLE 16 EFFECTS OF TERMINATION		52
16.1	General Effects.	52
16.2	Kohl’s Option to Purchase the Program Assets.	53
16.3	Rights of Bank if Purchase Option not Exercised.	55
16.4	Charged-Off Indebtedness	55
ARTICLE 17 INDEMNIFICATION		55
17.1	Kohl’s Indemnification of Bank.	55
17.2	Bank’s Indemnification of Kohl’s.	57
17.3	Procedures.	58
17.4	Notice and Additional Rights and Limitations.	59
ARTICLE 18 MISCELLANEOUS		59
18.1	Limitation of Liability.	59
18.2	Precautionary Security Interest.	59
18.3	Securitization; Participation.	59
18.4	Assignment.	60
18.5	Sale or Transfer of Accounts.	60
18.6	Subcontracting.	60
18.7	Amendment.	61

 

 

---

 

18.8	Non-Waiver.	61
18.9	Severability.	61
18.10	Waiver of Jury Trial and Venue.	62
18.11	Governing Law.	62
18.12	Fair Credit Reporting Act.	62
18.13	Captions.	62
18.14	Notices.	63
18.15	Further Assurances.	63
18.16	No Joint Venture.	63
18.17	Press Releases.	64
18.18	No Set-Off.	64
18.19	Conflict of Interest.	64
18.20	Third Parties.	64
18.21	Force Majeure.	64
18.22	Entire Agreement.	64
18.23	Binding Effect; Effectiveness.	65
18.24	Counterparts/Facsimiles/PDF E-Mails.	65
18.25	Survival.	65
18.26	Good Faith.	65
18.27	Cumulative Remedies.	65

 

 

---

 

This Amended and Restated Credit Card Program Agreement is made as of March 14, 2022 (the “Effective Date”), by and between KOHL’S, INC. (“Kohl’s”), a Delaware corporation with its principal offices at Menomonee Falls, Wisconsin, and Capital One, National Association (“Bank”), a national banking association organized under the laws of the United States with its home office at ▇▇▇▇▇▇, Virginia.

W I T N E S S E T H:

WHEREAS, Kohl’s (f/k/a Kohl’s Department Stores, Inc.) and Bank are party to that certain Private Label Credit Card Program Agreement dated as of August 11, 2010 (as the same has been modified, altered, supplemented, amended and/or restated prior to the Effective Date, the “Prior Program Agreement”);

WHEREAS, Bank has established programs to extend private label card and co-branded card credit to qualified customers for the purchase of goods and services;

WHEREAS, Kohl’s is engaged, among other activities, in operating retail stores and, together with Bank, the PLCC Program pursuant to the Prior Program Agreement;

WHEREAS, Kohl’s and Bank agree to establish the Co-Brand Program as described in this Agreement;

WHEREAS, the parties agree that the goodwill associated with the Kohl’s Licensed Marks contemplated for use hereunder is of substantial value which is dependent upon the maintenance of high quality services and appropriate use of the Kohl’s Licensed Marks pursuant to this Agreement; and

WHEREAS, the parties agree to amend and restate the Prior Program Agreement in its entirety 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, Kohl’s and Bank agree as follows:

The following terms shall have the following meanings when used in this Agreement:

“Account” means a PLCC Account or Co-Brand Account, as applicable.

“Account Documentation” means, with respect to an Account, any and all documentation relating to that Account, including Credit Card Documentation, checks or other forms of payment with respect to an Account, credit bureau reports (to the extent not prohibited from transfer by contract with the credit bureau), 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 arising from or relating or pertaining to any of the foregoing

 

---

 

to the extent related to the Program; provided that Account Documentation shall not include Kohl’s register tapes, invoices, sales or shipping slips, delivery and other receipts or other indicia of the sale of Kohl’s Goods and/or Services.

“Account Terms” means the financial terms and conditions applicable to Cardholders with respect to PLCC Accounts or Co-Brand Accounts, as applicable, including finance charge rates and other charges with respect to Accounts, grace periods and fees. The Account Terms as of the Effective Date with respect to the PLCC Program are set forth on Schedule 2.3(a).

“Acquired Program” has the meaning set forth in Section 1(a) of Schedule 13.1.

“Acquiring IP Party” has the meaning set forth in Section 10.3(a).

“Affected Party” has the meaning set forth in Section 6.5(b).

“Affiliate” means, with respect to any Person, each Person that controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.

“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.

“Apple Pay” means Apple’s mobile payment platform.

“Applicable Law” means all applicable federal, state and local laws, statutes, regulations, regulatory guidance, orders or directives, opinions and interpretations of any Governmental Authority, including any written examination report produced by a Regulator of the Bank and delivered to Bank, as may be amended and in effect from time to time during the Term of this Agreement, including: (i) the Truth in Lending Act, the Credit Card Accountability Responsibility and Disclosure Act of 2009 and Regulation Z; (ii) the Equal Credit Opportunity Act and Regulation B; (iii) the Fair Debt Collection Practices Act; (iv) the Fair Credit Reporting Act; (v) the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and its implementing regulations (“GLBA”); (vi) the USA PATRIOT Act and its implementing regulations; (vii) the Federal Trade Commission Act; (viii) written Federal Financial Institutions Examination Council (“FFIEC”) guidelines; (ix) Title X of the Consumer Financial Protection Act of 2010; and (x) the safety and soundness standards of the federal Governmental Authorities with jurisdiction over Bank.[*]

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

“Bank Collection and Recovery Activities” has the meaning set forth in Section 2 of Schedule 4.1(c).

“Bank Compliance Manager” has the meaning set forth in Section 3.2(c)(iv).

“Bank Corresponding Products” means [*]

“Bank Event of Default” means the occurrence of any one of the events listed in Section 14.2 hereof or an Event of Default of Bank.

“Bank Financial Products Information” has the meaning set forth in Section 5.6(c).

2

4873-5713-2568v.1 0117281-000001

---

 

“Bank Licensed Marks” means the trademarks, trade names, service marks, logos and other proprietary designations of Bank listed on Schedule B (as it may hereafter be amended) and licensed to Kohl’s under Section 10.2.

“Bank Matters” has the meaning set forth in Section (b) of Schedule 3.7.

“Bank Nominee” means each nominee representing the Bank on the Management Committee.

“Bank-owned Intellectual Property” has the meaning set forth in Section Error! Reference source not found..

“Bank Program” means [*]

“Bank Systems” means hardware, software, databases, computers, systems and networks which Bank utilizes in support of the Program.

“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.

“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 descriptive statement covering purchases of Kohl’s Goods and/or Services and, for Co-Brand Accounts, other goods and/or services and a statement with only past-due account information.

“BINs” has the meaning set forth in Section 3(e) of Schedule 2.2(b).

“Branded Book Provisions” means [*]

 

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

“Cardholder” means a PLCC Cardholder or Co-Brand Cardholder, as applicable.

“Cardholder Data” means all personally identifiable information about a Cardholder, applicant, pre-screen subject (subject to Section 5.4(a)), or authorized user received by or on behalf of Bank (including by Kohl’s as servicer) in connection with the Program, including in connection with the Cardholder’s application for or use of a Credit Card or Account or otherwise obtained by or on behalf of Bank (including by Kohl’s as servicer) for inclusion in a database of Cardholder information, but shall not include Kohl’s Shopper Data.

“Cardholder Indebtedness” means all amounts charged and owing to Bank by Cardholders with respect to Accounts (including finance charges, late fees and other similar fees), whether or not billed, less the amount of any payments received, any credit balances owing by Bank to Cardholders, including any credits associated with returns of goods and/or services (including Kohl’s Goods and/or Services) and similar credits and adjustments, whether or not billed.

3

4873-5713-2568v.1 0117281-000001

---

 

“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 any Person (the “Subject Party”): (i) a Person or group that is not an Affiliate of the Subject Party immediately prior to the relevant transaction (other than a merger, consolidation or other business combination, which is addressed in clause (ii)) becomes the beneficial owner, directly or indirectly, of more than fifty percent (50%) of the total voting rights attached to all the then outstanding voting securities of the Subject Party following the consummation of such transaction; (ii) a merger, consolidation, or other form of business combination of the Subject Party with a Person that is not an Affiliate of the Subject Party immediately prior to the relevant transaction which results in beneficial owners of the total voting rights attached to all the then outstanding voting securities of the Subject Party (or its ultimate parent company) immediately prior to such transaction, not having beneficial ownership, directly or indirectly of more than fifty percent (50%) of the total voting rights attached to all the then outstanding voting securities of the company resulting from the consummation of such merger, consolidation, or other combination or its ultimate parent entity; or (iii) the sale, lease or exchange of all or substantially all of the assets of the Subject Party in one transaction or a series of transactions, other than to any Person that is an Affiliate of the Subject Party immediately prior to such transaction.

“Charge Transaction Data” means the transaction information with regard to each purchase of Kohl’s Goods and/or Services by a PLCC Cardholder on credit and each return of Kohl’s Goods and/or Services or other adjustment for credit in the form of electronic information.

“Co-Brand Account” means a Co-Branded Credit Card-accessed open-end credit account established in favor of a Co-Brand Cardholder, pursuant to which such Co-Brand Cardholder may finance the purchase of goods and/or services, subject to the terms of a Credit Card Agreement.

“Co-Brand Cardholder” means any individual who has been issued a Co-Branded Credit Card regardless of the individual’s place of residency. “Co-Brand Cardholder” also includes, where the context requires, authorized users.

“Co-Brand Program” means the co-branded general purpose credit card program established by Kohl’s and Bank and made available to Co-Brand Cardholders and qualified applicants for the purchase of goods and/or services, including the extension of credit, ▇▇▇▇▇▇▇▇, collections, customer service and accounting between the parties.

“Co-Brand Program Launch Date” has the meaning set forth in Section 2(a) of Schedule 2.2(b).

“Co-Brand Transition Date” has the meaning set forth in Section 6(b) of Schedule 2.2(b).

“Co-Brand Value Proposition” means Kohl’s new Co-Brand Account opening discounts, coupons, promotional card event discounts, and any other card-related promotional or rewards programs with respect to the Co-Brand Program as may be established by Kohl’s from time to time, subject to Section 8 of Schedule 2.2(b).

“Co-Branded Credit Card” means a credit card issued by Bank to a Cardholder in connection with the Program which bears, or is associated with, a Kohl’s Licensed ▇▇▇▇ and the trademarks, trade names, service marks, logos and other proprietary designations of a Payment Network.

[*]

4

4873-5713-2568v.1 0117281-000001

---

 

“Confidential Information” has the meaning set forth in Section 12.1(a).

“Conforming Payment” means a single payment, made by check or money order, mailed to the applicable mail payment remittance address, made by or on behalf of a Cardholder on an Account that is accompanied by a single payment coupon in the Kohl’s-provided mailing envelope and which does not contain cash, staples, paper clips, tape or correspondence.

“Consistently” or “Consistent” means [*]

“Cost Allocation” means each party’s designated share of the costs, which shall be [*]

“Credit Card” means a Private Label Credit Card or Co-Branded Credit Card, as applicable.

“Credit Card Agreement” means the credit card agreement between Bank and a Cardholder (and any replacement of such 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 Bank’s credit application which must be completed and submitted for review to Bank by individuals who wish to become Cardholders.

“Credit Card Documentation” means, with respect to Accounts, all Credit Card Applications, Credit Card Agreements, Credit Cards, the Program Privacy Policy and Billing Statements relating to such Accounts.

“Credit Downgrade Adjustment” has the meaning set forth in Section 1(g)(ii) of Schedule 9.2.

“CreditWise” means the credit monitoring tool existing as of the Effective Date generally made available by Bank to consumers, or any other similar tool or offering made available by or on behalf of Bank from time to time.

“Development Agreement” has the meaning set forth in Section 10.3(b)(i).

“Digital Wallet” has the meaning set forth in Schedule 2.4(c).

“Direct Settlement” has the meaning set forth in Section 4(a) of Schedule 2.2(b).

“Disclosing Party” has the meaning set forth in Section 12.1(d).

“Divided Purchase” has the meaning set forth in Section 16.2(a).

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

“Enhancement Products” means the Credit Card enhancement products or services that are offered to Cardholders as mutually determined by the parties pursuant to Sections 3.3 - 3.6 from time to time. For the avoidance of doubt, the Enhancement Products do not include merchandise purchased by Cardholders through Kohl’s Channels.

“Event of Default” means the occurrence of any one of the events listed in Section 14.1.

5

4873-5713-2568v.1 0117281-000001

---

 

“Exigent Circumstances” means circumstances that would or could reasonably be expected to require a party to take action to avoid (i) a material loss or material fraud event for such party or the Program, (ii) a material systems interference or security breach, or (iii) violation of Applicable Law.

“Express Mail Payment” means a payment made by check or money order by or on behalf of a Cardholder on an Account and mailed to Kohl’s at the designated address for express mail using a United States expedited mail service.

“Federal Funds Rate” means the offered rate as reported in The Wall Street Journal in the “Money Rates” section for reserves traded among commercial banks for overnight use in amounts of one million dollars or more, as published in the most recent Friday edition prior to any required payment or settlement date in which such offered rate is reported, and if such rate is not so reported in any Friday edition of The Wall Street Journal during the thirty (30) day period preceding such required payment or settlement date, such offered rate as reported in another publication reasonably acceptable to the parties.

“FFT” means [*]

“Financial Incentives” has the meaning set forth in Section 11.3(i).

“FinCEN” means the Financial Crimes Enforcement Network.

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

“Governmental Authority” means any federal, state or local domestic, foreign or supranational governmental, regulatory or self-regulatory authority, agency, court, tribunal, commission or other governmental, regulatory or self-regulatory entity.

“Indemnified Party” has the meaning set forth in Section 17.3(a).

“Indemnifying Party” has the meaning set forth in Section 17.3(a).

“Initial Development Project” has the meaning set forth in Section Error! Reference source not found..

“Initial Term” has the meaning set forth in Section 15.1.

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

“Intellectual Property” means, on a worldwide basis, other than with respect to Kohl’s Licensed Marks or Bank Licensed Marks, any and all: (i) rights associated with works of authorship, including copyrights, moral rights and mask-works; (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).

“Interest Free Plans” has the meaning set forth in Section 5.5.

“IP Owner” has the meaning set forth in Section 10.3(a).

“IRS” means the Internal Revenue Service.

6

4873-5713-2568v.1 0117281-000001

---

 

“Jointly Developed Credit Models” has the meaning set forth in Section 1(a) of Schedule 4.6(e).

“Knowledge” means, with respect to either Kohl’s or the Bank, the actual knowledge of each respective party’s Manager.

“Kohl’s” has the meaning set forth in the Introduction.

“Kohl’s Channels” means all retail establishments owned or operated by Kohl’s or its Affiliates in the United States (including Licensee departments therein) and all mail order, catalog, Internet outlets (including websites operated by Kohl’s or its Licensees) and other direct access media within the United States that are owned or operated by Kohl’s, its Affiliates or its Licensees.

“Kohl’s Channel Payment” means any payment on an Account made in a Kohl’s Channel by a Cardholder or a person acting on behalf of a Cardholder, including: (i) in a Kohl’s store, (ii) online (solely with respect to the PLCC Program and solely prior to the Systems/Servicing Transition), and (iii) by telephone through the Program call center (solely with respect to the PLCC Program and solely prior to the Systems/Servicing Transition).

“Kohl’s Co-Brand Purchases” has the meaning set forth in Section 4(a) of Schedule 2.2(b).

“Kohl’s Core Systems” has the meaning set forth in Section 4.10.

“Kohl’s Event of Default” means the occurrence of any one of the events listed in Section 14.3 or an Event of Default of Kohl’s.

“Kohl’s Goods and/or Services” means the products and services sold by Kohl’s or through Kohl’s Channels.

“Kohl’s Licensed Marks” means the trademarks, trade names, service marks, logos and other proprietary designations of Kohl’s or its Affiliates listed on Schedule A (as it may hereafter be amended) and licensed to Bank by Kohl’s or its Affiliates under Section 10.1.

“Kohl’s Matters” has the meaning set forth in Section (a) of Schedule 3.7.

“Kohl’s Nominee” means each nominee representing Kohl’s on the Management Committee.

“Kohl’s Pay” means Kohl’s mobile payment platform.

“Kohl’s Persons” has the meaning set forth in Section 5.6(a).

“Kohl’s On-Line Channel” means any digital Kohl’s Channel, including all websites and mobile applications owned or operated by Kohl’s or its Affiliates, whereby Kohl’s Goods and/or Services can be purchased using a Private Label Credit Card or through which new Accounts are being originated.

“Kohl’s Shopper” means any Person who (a) makes purchases of Kohl’s Goods and/or Services, whether or not he/she uses a Credit Card, (b) is identified by Kohl’s as having entered a Kohl’s Channel, or (c) is identified by Kohl’s as having been solicited by Kohl’s to make a purchase of Kohl’s Goods and/or Services.

“Kohl’s Shopper Data” means all personally identifiable information regarding a Kohl’s Shopper, including information that is obtained by Kohl’s in connection with such Kohl’s Shopper making a purchase of Kohl’s Goods and/or Services, including all transaction and experience information collected

7

4873-5713-2568v.1 0117281-000001

---

 

by Kohl’s with regard to each purchase made by a Kohl’s Shopper and the item-specific transaction information collected about Cardholders with respect to purchases of Kohl’s Goods and/or Services.

“Legacy Accounts” means accounts owned by Kohl’s that were not included in the portfolio of Purchased Accounts under the Purchase Agreement.

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

“Lockbox Obligations” means the mail, lockbox, and check processing activities that Bank performs to service the Accounts, as further described in Schedule 7.2.

“Management Committee” means the committee established pursuant to Section 3.3.

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

“Monthly Settlement Sheet” has the meaning set forth in Section 9.1(c).

“Net Interchange Income” [*]

“Net Settlement Amount” has the meaning set forth in Section 8.4(b).

“New ▇▇▇▇” has the meaning set forth in Sections 10.1(b) and 10.2(b).

“Nominated Purchaser” has the meaning set forth in Section 16.2(a).

“Non-Conforming Payment” means any payment, made by check, cash or money order, mailed to the applicable mail payment remittance address made by or on behalf of a Cardholder on an Account, other than a Conforming Payment or an Express Mail Payment.

“Notified Party” has the meaning set forth in Section 4.9(e).

“NPPI” has the meaning set forth in Section 12.2(c).

“OFAC” has the meaning set forth in Section 4.3(d)(i).

“On-Line Disposition” has the meaning set forth in Schedule 9.3.

“Operating Policies” has the meaning set forth in Section 4.1(b).

“Operating Standards” has the meaning set forth in Section 2 of Schedule 4.1(c).

“Outside Date” has the meaning set forth in Section 16.2(c).

“party” means Kohl’s or Bank, as the circumstances warrant, and “parties” means both Kohl’s and Bank.

“Payment” means any Conforming Payment, Non-Conforming Payment or an Express Mail Payment.

“Payment Network” means a card association or card network for the Co-Brand Program selected by Kohl’s in accordance with Schedule 2.2(b).

8

4873-5713-2568v.1 0117281-000001

---

 

“Payment Network Rules” means the applicable (i.e., relating to Credit Card issuance and Credit Card acceptance rather than acceptance of credit cards generally, including pursuant to any written agreement between either party and any Payment Network) by-laws and other membership and operating rules of the Payment Network, as amended, waived or otherwise modified by such Payment Network from time to time.

“Person” means and includes any individual, partnership joint venture, corporation, company, bank, trust, unincorporated organization, government or any department, agency or instrumentality thereof.

“PLCC Account” means a Private Label Credit Card-accessed open-end credit account established in favor of a PLCC Cardholder, pursuant to which such PLCC Cardholder may finance the purchase of Kohl’s Goods and/or Services from Kohl’s Channels, subject to the terms of a Credit Card Agreement.

“PLCC Cardholder” means any individual who has been issued a Private Label Credit Card regardless of the individual’s place of residency. “PLCC Cardholder” also includes, where the context requires, authorized users.

“PLCC Program” means the private label credit card program established by Kohl’s and Bank and made available to PLCC Cardholders and qualified applicants for the purchase of Kohl’s Goods and/or Services through Kohl’s Channels, including the extension of credit, billings, collections, customer service, and accounting between the parties.

“PLCC Value Proposition” means Kohl’s new PLCC Account opening discounts, coupons, promotional card event discounts, and any other card-related promotional or rewards programs applicable to the PLCC Program as may be established by Kohl’s from time to time.

“POS” means point of sale.

“Prime Rate” means, as of the date of any calculation, the highest (U.S.) Prime Rate published in the Money Rates section of The Wall Street Journal on the last day of the most recently ended quarter or, if The Wall Street Journal stops publishing such rate, a similar rate mutually determined by the parties pursuant to Sections 3.3 - 3.6.

“Prior Program Agreement” has the meaning set forth in the Introduction.

“Privacy Act and Regulations” has the meaning set forth in Section 12.2(c).

“Private Label Credit Card” means a credit card issued by Bank to a Cardholder in connection with the Program which bears, or is associated with, a Kohl’s Licensed ▇▇▇▇ and may be used to finance purchases of Kohl’s Goods and/or Services.

“Processing Day” means every calendar day on which Bank’s third party payment processor processes payments, excluding any holidays on which Bank’s third party payment processor does not process payments.

“Pro Forma Remaining Footprint Sales Decline” means [*]

“Program” means the PLCC Program and Co-Brand Program, collectively.

9

4873-5713-2568v.1 0117281-000001

---

 

“Program Assets” means the Accounts, Account Documentation, Cardholder List, Cardholder Data, Solicitation Materials and all Cardholder Indebtedness (excluding Cardholder Indebtedness that has been or properly should have been charged-off by Bank) (whether held by Bank, Kohl’s or a third party).

“Program Privacy Policy” means the privacy policy and associated disclosures to be provided by Bank to Cardholders in connection with the Program, the form of which as of the Effective Date is attached hereto as Schedule 6.3(b) hereto.

“Program Purchase Date” has the meaning set forth in Section 16.2(c).

“Program Website” has the meaning set forth in Section 4.8(a).

“Program Year” means the period commencing on March 1 and ending on the last day of February of the subsequent year, and each subsequent twelve (12) month period until the termination of this Agreement; provided that for purposes of determining any amounts payable on a Program Year basis, (i) there will be no pro-rata reduction for the first (1st) Program Year and (ii) amounts for the final Program Year shall be pro-rated based on the actual number of days in such Program Year as compared to a 365-day year.

“Purchase Agreement” means that certain Purchase and Sale Agreement between Bank and Chase Bank USA, National Association dated March 31, 2011.

“Purchase Notice” has the meaning set forth in Section 16.2(b).

“Purchase Option” has the meaning set forth in Section 16.2(a).

“Purchased Accounts” means those certain assets related to the Kohl’s private label credit card program set forth in the Purchase Agreement.

“Qualified Kohl’s Customer” means customers of Kohl’s that Kohl’s determines are available to be solicited for Accounts under the Program.

“Qualified Kohl’s Customer List” means the list of Qualified Kohl’s Customers provided from time to time by Kohl’s to Bank for purposes of soliciting such Persons for the Program.

“Receiving Party” has the meaning set forth in Section 12.1(d).

“Regulators” has the meaning set forth in Section 7.6(a).

“Regulatory SLAs” have the meaning set forth on Schedule 7.3(a).

“Remediation Period” has the meaning set forth in Section 7.5(a)(i).

“Renewal Term” has the meaning set forth in Section 15.1.

“Reserve” has the meaning set forth in Section 18.2(b)(ii)(B).

“Residual Knowledge” has the meaning set forth in Section 2 of Schedule 4.6(e).

“Risk Adjusted Revenue” has the meaning set forth in Section 1(a) of Schedule 9.2.

10

4873-5713-2568v.1 0117281-000001

---

 

“Risk Management Policies” means the risk management policies, procedures and practices for the PLCC Program and/or Co-Brand Program, as applicable, including policies, procedures and practices for credit and Account openings, Transaction authorization, credit line management, over-limit decisions, Account closures, payment crediting, anti-money laundering, identity theft and charge-offs, all of which shall at all times comply with Applicable Law

“SAR” has the meaning set forth in Section 4.3(d)(iv).

“SDN List” has the meaning set forth in Section 4.3(d)(i).

“Service Level Failure” means the failure by the servicing party to meet any Regulatory SLA contained in Schedule 7.3(a).

“Service Level Transfer Event” has the meaning set forth in Section 7.5(a)(i).

“SLA” means any service level set forth on Schedule 7.3(a) or Schedule 7.3(b).

“Solicitation Materials” means documentation, materials, artwork, copy, trademarks (excluding the Kohl’s Licensed Marks and the Bank Licensed Marks), copyrights and any protectible 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.

“SOX Laws” has the meaning set forth in Section 7.8.

“Stores Disposition” has the meaning set forth in Schedule 9.3.

“Systems/Servicing Transition” has the meaning set forth in Section 4.1(c).

“Systems/Servicing Transition Date” has the meaning set forth in Section 3(b) of Schedule 4.1(c).

“Term” means the Initial Term and each Renewal Term. For the avoidance of doubt, Program Years and Program Months (as defined in Schedule 9.2) will continue to occur during the Termination Period.

“Termination Period” means the period beginning with the date of any notice of termination or non-renewal pursuant to Article 15 and ending on (a) the last Program Purchase Date, if Kohl’s or its designee purchases the Program Assets or, (b) if Kohl’s does not exercise its Purchase Option, the later of (i) the termination or expiration of this Agreement and (ii) the earlier of (A) Kohl’s written notice that it will not exercise its Purchase Option and (B) expiration of the Purchase Option.

“Trademark Style Guide” means any rules governing the manner of usage of trademarks, trade names, service marks, logos and other proprietary designations.

“Transaction” means any purchase of Kohl’s Goods and/or Services through a Kohl’s Channel using a Private Label Credit Card or PLCC Account number.

“Triggering Event” has the meaning set forth in Section 18.2(b)(ii).

“United States” means the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory or possession of the United States or any political subdivision thereof.

11

4873-5713-2568v.1 0117281-000001

---

 

“Value Proposition” means the PLCC Value Proposition or Co-Brand Value Proposition, as applicable.

As used herein,

 

12

4873-5713-2568v.1 0117281-000001

---

 

13

4873-5713-2568v.1 0117281-000001

---

 

Except as contemplated by Section 3(d)(iii) of Schedule 4.1(c), neither party shall specifically target, recruit, or solicit for employment any employees of the other party or its Affiliates who supports the Program during the Term and for a [*] period following the end of the Term. Notwithstanding the foregoing in this Section 2.6, neither party shall be precluded from hiring any such employee who: (a) responds to a general solicitation placed by a party or its Affiliates or its retained recruiting firm; or (b) has been terminated prior to commencement of employment discussions between a party or its Affiliates and such employee. Bank and Kohl’s and their respective Affiliates shall be entitled to specific performance of such provisions in addition to any other remedies that they may have at law or in equity.

 

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

14

4873-5713-2568v.1 0117281-000001

---

 

The parties hereby establish a committee (the “Management Committee”) to perform the functions set forth in Section 3.4 including reviewing the conduct of the Program pursuant to this Agreement and to perform any other action that, pursuant to any express provision of this Agreement, requires its action. The Management Committee shall consist of [*] As of the Effective Date, the Kohl’s Nominees and Bank Nominees will be the same as those in place immediately prior to the Effective Date. Each party shall nominate its Manager to serve as one of its nominees on the Management Committee. At least one nominee from each party shall be the individual with overall responsibility for the performance of the Program within his or her respective corporate organization, [*]. Each Bank Nominee will serve on the Management Committee for a minimum of [*], unless the Bank Nominee’s employment with the Bank terminates or Bank Nominee is a Manager who is replaced pursuant to Section 3.2(b) herein. Each party may substitute one of its nominees to the Management Committee upon termination of such nominee’s employment with the party; provided that the substitute nominee satisfies the requirements of this Section 3.3. Each party shall provide the other party with as much prior notice of such substitution as is reasonably practicable under the circumstances.

15

4873-5713-2568v.1 0117281-000001

---

 

The Management Committee shall serve as a forum for the parties to discuss and recommend initiatives to improve the Program. The Management Committee shall also have decision-making authority regarding various aspects of the Program as set forth in this Agreement. In performing its functions, the Management Committee will act in accordance with the terms of this Agreement. Specifically the Management Committee shall:

16

4873-5713-2568v.1 0117281-000001

---

 

If the Management Committee fails to agree pursuant to Section 3.5(c) on a matter that is subject to Management Committee approval under Section 3.4 within [*] Business Days after the relevant initial vote, then the [*]and the [*] shall in good faith attempt to resolve the matter. Any such resolution by [*] shall be deemed to be the action and approval of the Management Committee for purposes of this Agreement. If the matter remains unresolved [*] Business Days after such [*] first discussion of it (in any medium), the final decision shall rest with [*].

 

17

4873-5713-2568v.1 0117281-000001

---

 

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b), in addition to its other obligations set forth elsewhere in this Agreement, the parties agree that during the Term, Kohl’s shall, on behalf of itself or, as applicable, as servicer for Bank:

18

4873-5713-2568v.1 0117281-000001

---

 

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b), in addition to its other obligations set forth elsewhere in this Agreement, the parties agree that during the Term, Bank shall:

19

4873-5713-2568v.1 0117281-000001

---

 

20

4873-5713-2568v.1 0117281-000001

---

 

Bank and Kohl’s shall maintain the Risk Management Policies for the PLCC Program in effect immediately prior to the Effective Date. Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b), the following shall apply with respect to Risk Management Policies for the Program:

21

4873-5713-2568v.1 0117281-000001

---

 

The parties’ respective responsibilities for taxes arising under or in connection with this Agreement shall be as follows: [*]

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b):

22

4873-5713-2568v.1 0117281-000001

---

 

[*]

 

23

4873-5713-2568v.1 0117281-000001

---

 

At least once per Program Year, Bank shall present to Kohl’s marketing team a list of possible marketing initiatives and the associated budget for each marketing initiative. [*]

24

4873-5713-2568v.1 0117281-000001

---

 

Notwithstanding anything to the contrary set forth in the Agreement, Kohl’s and Bank agree as follows:

 

25

4873-5713-2568v.1 0117281-000001

---

 

26

4873-5713-2568v.1 0117281-000001

---

 

27

4873-5713-2568v.1 0117281-000001

---

 

[*]

28

4873-5713-2568v.1 0117281-000001

---

 

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b), Kohl’s, on behalf of Bank, shall service all Accounts under the Program in accordance with the terms and conditions of this Agreement. The parties agree as set forth on Schedule 7.2 with respect to the Lockbox Obligations and the parties agree that the Lockbox Obligations only apply prior to the Systems/Servicing Transition Date and do not apply to the Co-Brand Program.

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b):

29

4873-5713-2568v.1 0117281-000001

---

 

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b):

30

4873-5713-2568v.1 0117281-000001

---

 

Subject to Schedule 4.1(c) and, solely with respect to the Co-Brand Program, Schedule 2.2(b) and, in any event, solely until the Systems/Servicing Transition Date:

31

4873-5713-2568v.1 0117281-000001

---

 

Kohl’s and Bank will each maintain in effect during the Term a disaster recovery and business continuity plan that complies with Applicable Law. Each party shall notify the other party of any material changes to its disaster recovery and business continuity plan. Each party will test such plan annually and will promptly initiate such plan upon the occurrence of a disaster or business interruption, giving the Program the highest priority in its recovery efforts. In the event that a party must initiate its disaster recovery and business continuity plan due to any act or omission of the other party, the party whose act or omission caused the disaster or business interruption shall pay all out-of-pocket costs and expenses (whether incurred by Bank or Kohl’s) related to disaster recovery of Kohl’s Core Systems or Bank Systems.

32

4873-5713-2568v.1 0117281-000001

---

 

The parties acknowledge that: (a) each party’s management is now and/or in the future may be required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and related regulations (the “SOX Laws”) to, among other things, assess the effectiveness of its internal controls over financial reporting and state in its annual report whether such internal controls are effective; (b) each party’s independent auditor is now and/or in the future may be required to evaluate the process used by management to make such assessment to determine whether that process provides an appropriate basis for management’s conclusions; and (c) because each party has entered into a significant transaction with each other as described in this Agreement, the controls used by the parties (including controls that restrict unauthorized access to systems, data and programs) are relevant to each party’s evaluation of its internal controls. Having acknowledged the foregoing, and subject to the terms of this Section 7.8, each party agrees to cooperate with the other party and its independent auditor as reasonably necessary to facilitate such party’s ability to comply with its obligations under the SOX Laws including by providing reports or documentation to satisfy SOX Laws obligations as mutually determined by the parties pursuant to Sections 3.3 – 3.6.

33

4873-5713-2568v.1 0117281-000001

---

 

Subject to Section 18.2(b), Kohl’s shall maintain POS terminals capable of processing Transactions. To the extent that Bank requires other equipment or changes to such terminals for transmission of Charge Transaction Data under this Agreement, Bank shall provide, or pay for the purchase, installation and maintenance of, such other equipment or required changes to Kohl’s POS credit card terminals.

Except as provided in Section 18.2(b), Kohl’s shall accept Kohl’s Channel Payments from Cardholders on their Accounts, which payments shall be applied by Kohl’s or Bank, as applicable, against the outstanding balances on the Accounts. Kohl’s shall, as necessary, provide proper endorsements on such items. Bank grants to Kohl’s a limited power of attorney (coupled with an interest) to sign and endorse Bank’s name upon any form of payment that may have been issued in Bank’s name in respect of any Account. Kohl’s shall notify Bank upon receipt of Kohl’s Channel Payments and Bank shall include the Charge Transaction Data related to such Kohl’s Channel Payments in the net settlement in respect of the day immediately following such receipt on the same basis as other Charge Transaction Data. Kohl’s shall issue receipts for such payments. Kohl’s shall accept Kohl’s Channel Payments, process such payments and issue receipts for such payments (x) pending the Systems/Servicing Transition Date (with respect to the PLCC Program), in accordance with the applicable policies and procedures used by the parties as of the Effective Date and (y) after the Systems/Servicing Transition Date (with respect to the PLCC Program) and the Co-Brand Program Launch Date (with respect to the Co-Brand Program), in accordance with the Operating Policies.

34

4873-5713-2568v.1 0117281-000001

---

 

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

None of Kohl’s, its Affiliates or its Licensees shall be required to pay any merchant discount, interchange fees, or other transaction fees on any Transaction. Bank shall directly process the Transactions such that none of Kohl’s, its Affiliates or its Licensees incur any merchant acquirer/processor or similar fees.

35

4873-5713-2568v.1 0117281-000001

---

 

The parties agree as set forth on Schedule 9.2 with respect to certain amounts payable by each party to the other party in connection with the Program.

The parties agree as set forth in Schedule 9.3.

[*]

The parties agree to the sharing of Program Bad Debts as set forth on Schedule 9.5.

36

4873-5713-2568v.1 0117281-000001

---

 

37

4873-5713-2568v.1 0117281-000001

---

 

38

4873-5713-2568v.1 0117281-000001

---

 

To induce Bank to maintain and administer the Program, Kohl’s makes the following representations and warranties to Bank, each and all of which shall survive the execution and delivery of this Agreement, and each and all of which shall be deemed to be restated and remade with the same force

39

4873-5713-2568v.1 0117281-000001

---

 

and effect on each day of the Term (except with respect to the representations and warranties in the last sentence of Section 11.1(e) and Section 11.1(g), which are made solely as of the Effective Date).

40

4873-5713-2568v.1 0117281-000001

---

 

To induce Kohl’s to enter into this Agreement and participate in the Program, Bank makes the following representations and warranties to Kohl’s, each and all of which shall survive the execution and delivery of this Agreement, and each and all of which shall be deemed to be restated and remade with the same force and effect on each day of the Term (except with respect to the representations and warranties in the last sentence of Section 11.2(e), Section 11.2(g) and Section 11.2(j), which are made solely as of the Effective Date).

41

4873-5713-2568v.1 0117281-000001

---

 

42

4873-5713-2568v.1 0117281-000001

---

 

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

43

4873-5713-2568v.1 0117281-000001

---

 

44

4873-5713-2568v.1 0117281-000001

---

 

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

45

4873-5713-2568v.1 0117281-000001

---

 

46

4873-5713-2568v.1 0117281-000001

---

 

 

47

4873-5713-2568v.1 0117281-000001

---

 

48

4873-5713-2568v.1 0117281-000001

---

 

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 via facsimile or PDF e-mail of any security breach that may have compromised any Confidential Information, of 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.

Except with respect to information which the parties are expressly permitted to continue to use post-termination as set forth herein, 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 return 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 may retain such Confidential Information (x) to the extent required for compliance with Applicable Law (which Confidential Information may be used solely for such compliance purposes and not for any other purpose) or (y) to the extent electronically

49

4873-5713-2568v.1 0117281-000001

---

 

archived in accordance with the Receiving Party’s information retention, security or disaster recovery procedures and which cannot be destroyed without unreasonable effort, so long as such archived Confidential Information is no longer accessible to the Receiving Party by any reasonable means. Such compliance shall be certified in writing, including a statement that no copies of Confidential Information have been kept, except as necessary for such purposes.

The parties agree as set forth on Schedule 13.1 with respect to Retail Portfolio Acquisitions and Dispositions.

The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an Event of Default hereunder:

50

4873-5713-2568v.1 0117281-000001

---

 

The occurrence of any one or more of the following events (regardless of the reason therefore) shall constitute a Bank Event of Default hereunder:

The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute a Kohl’s Event of Default hereunder:

51

4873-5713-2568v.1 0117281-000001

---

 

In addition to any other rights or remedies available to the parties at law or in equity, upon the occurrence of an Event of Default pursuant to Section 14.1, the non-defaulting party shall be entitled, in addition to its termination rights under Article 15, to collect any undisputed amount in default plus interest based on the Federal Funds Rate and calculated on a three hundred and sixty (360) day year basis.

This Agreement shall continue in full force and effect until March 31, 2030 (the “Initial Term”). The Agreement shall renew automatically without further action of the parties for successive one (1) year terms (each a “Renewal Term”) unless either party provides written notice of non-renewal at least one (1) year prior to the expiration of the Initial Term or current Renewal Term, as the case may be.

Kohl’s may terminate this Agreement upon written notice (delivered no more than one hundred eighty (180) days following the terminating party having notice of an occurrence specified as giving rise to the right of termination) prior to the end of the Initial Term or any Renewal Term:

[*]

Bank may terminate this Agreement upon written notice (delivered no more than one hundred eighty (180) days following the terminating party having notice of an occurrence specified as giving rise to the right of termination) prior to the end of the Initial Term or any Renewal Term:

52

4873-5713-2568v.1 0117281-000001

---

 

53

4873-5713-2568v.1 0117281-000001

---

 

[*]

54

4873-5713-2568v.1 0117281-000001

---

 

Kohl’s shall indemnify and hold harmless Bank, its Affiliates, their respective officers, directors, employees, agents and representatives and any Person claiming by or through any of them from and against and in respect of any and all losses, liabilities, damages, costs and expenses of whatever nature,

55

4873-5713-2568v.1 0117281-000001

---

 

including reasonable attorneys’ fees and expenses relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:

56

4873-5713-2568v.1 0117281-000001

---

 

Bank shall indemnify and hold harmless Kohl’s, its Affiliates, their respective officers, directors, employees, agents and representatives and any Person claiming by or through any of them 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, relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:

57

4873-5713-2568v.1 0117281-000001

---

 

58

4873-5713-2568v.1 0117281-000001

---

 

[*]

Bank shall have the right to securitize, pledge or participate the Cardholder Indebtedness or any part thereof by itself or as part of a larger offering at any time, in such a manner that allows Bank to

59

4873-5713-2568v.1 0117281-000001

---

 

obtain cash flows representing all or most of the economic benefits of owning such Cardholder Indebtedness. Such securitization, pledge or participation shall not affect Kohl’s rights or Bank’s obligations hereunder. Bank shall not securitize, pledge or participate the Cardholder Indebtedness in any manner that may encumber any of Kohl’s rights hereunder to purchase the Program Assets. All uses of the Kohl’s Licensed Marks in any securitization document shall be made in accordance with Section 10.1 and with the prior written approval of Kohl’s.

Except as provided in this Section 18.4, neither party shall assign this Agreement or any of its rights hereunder without the prior written consent of the other party; provided, however, that (a) either party may, without the consent of the other party, (i) assign this Agreement in whole or in part to an Affiliate of such party provided that such Affiliate remains an Affiliate of such party and such assignment shall not relieve such party of its obligations under this Agreement or (ii) following at least ten (10) days’ written notice to the other party (unless such advance notice is prohibited by statute or regulation, in which event such assigning party shall provide notice as promptly as practicable), assign this Agreement to the acquiring party in, or company resulting from, a Change of Control of such assigning party provided that such acquiring or resulting party is reasonably capable of performing such assigning party’s obligations under this Agreement and (b) following at least ten (10) days’ written notice to Bank, Kohl’s may, without the consent of Bank, assign Kohl’s rights to receive funds under this Agreement (but not its obligations) in connection with a financing arrangement.

Except as provided in Sections 4.6(g), Error! Reference source not found., 16.2 and 18.3, Bank shall not sell or transfer in whole or in part the Accounts.

60

4873-5713-2568v.1 0117281-000001

---

 

 

 

Except as otherwise specifically provided herein, this Agreement may not be amended except by a written instrument executed and delivered by Bank and Kohl’s. For the avoidance of doubt, an email shall not constitute a written instrument for purposes of this Section 18.7.

No delay by a party hereto in exercising any of its rights hereunder, or partial or single exercise of such rights, shall operate as a waiver of that or any other right. The exercise of one or more of a party’s rights hereunder shall not be a waiver of any rights or remedies available to such party under this Agreement or in law or at equity.

If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions shall remain valid and be enforced and construed as if such invalid provision were never a part of this Agreement.

61

4873-5713-2568v.1 0117281-000001

---

 

The parties hereto waive all right to trial by jury in any action or proceeding to enforce or defend any rights under this Agreement.

[*]

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 Delaware, without regard to internal principles of conflict of laws, and applicable federal law.

Notwithstanding any provision in this Agreement to the contrary, neither party shall be required to disclose information to the other party or any third party under this Agreement, unless the transmittal of such information (a) would not cause such party to be deemed a credit reporting agency under the Fair Credit Reporting Act, 15 U.S.C. §1681 and (b) would not be restricted by such party’s agreement with the credit bureau providing such information.

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.

62

4873-5713-2568v.1 0117281-000001

---

 

Unless otherwise set forth herein, 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 Kohl’s:	Kohl’s, Inc. N56 W ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Chief Executive Officer
With a copy to (which copy shall not constitute notice):	Kohl’s, Inc. N56 W ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: General Counsel
If to Bank:	Capital One, National Association 15000 Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: SVP, Card Partnerships
With a copy to (which copy shall not constitute notice):	Capital One, National Association 1680 Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: Chief Counsel, Transactions

Kohl’s and Bank agree to produce or execute such other documents or agreements as may be 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, including (in furtherance and not limitation of Schedule 2.2(b) and Schedule 4.1(c)) in connection with, respectively, the launch of the Co-Brand Program or transition of certain servicing functions with respect to the Program from Kohl’s to Bank so as to reflect, effective as of the Co-Brand Program Launch Date or the Systems/Servicing Transition Date, as applicable, any necessary or appropriate adjustments to the parties’ respective rights and obligations hereunder, in each case consistent with Schedule 2.2(b) and Schedule 4.1(c).

Nothing contained in this Agreement shall be deemed or construed by the parties or any third party to create the relationship of principal and agent, partnership, joint venture or of any association between Kohl’s and Bank, and no act of either party shall be deemed to create any such relationship. Kohl’s and Bank each agree to such further actions as the other may request to evidence and affirm the non-existence of any such relationship.

63

4873-5713-2568v.1 0117281-000001

---

 

Kohl’s and Bank shall mutually agree on the content, timing and distribution of a press release announcing the execution of this Agreement. Kohl’s and Bank each shall obtain the prior written approval of the other party with regard to the substance and timing of any press releases which announce the execution of this Agreement or the transactions specified herein, which prior approval shall not unreasonably be withheld, conditioned or delayed. At all times thereafter, Kohl’s and Bank, prior to issuing any press releases concerning this Agreement or the transactions specified herein, shall consult with each other concerning the proposed substance and timing of such releases and give due consideration to the comments of the other party relating thereto.

Kohl’s and Bank agree that each party has waived any right to set-off, combine, consolidate or otherwise appropriate and apply (i) any assets of the other party held by the party or (ii) 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.

Each party hereto, in performing it obligations hereunder, shall maintain appropriate business standards, procedures and controls. Each party shall review such standards, procedures and controls with reasonable frequency during the Term of this Agreement including those related to the activities of its employees and agents in their relations with the employees, agents and representatives of the other parties hereto and with other third parties.

There are no third-party beneficiaries to this Agreement. The parties do not intend: (i) the benefits of this Agreement to inure to any third party; or (ii) any rights, claims or causes of action against a party to be created in favor of any person or entity 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, then such party shall be excused from such performance to the extent of and during the period of such prevention, restriction, delay or interference. 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 pursuant to Section 7.7, 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 supersedes any other agreement, whether written or oral, that may have been made or entered into by Kohl’s 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.

64

4873-5713-2568v.1 0117281-000001

---

 

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.

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 telefacsimile or PDF e-mailed version of an executed counterpart shall be deemed an original. Signature pages may be electronically executed and delivered, including by any electronic method complying with the federal ESIGN Act (e.g., DocuSign) or by wet ink signature captured on a .pdf email attachment, and any signature pages so executed and delivered shall be valid and binding for all purposes. The foregoing provision supersedes any other consent signed by the parties related to the electronic signature and delivery of this Agreement.

Upon the conclusion of the Termination Period, all obligations of the parties under this Agreement shall cease, except that the obligations of the parties pursuant to Articles/Sections 2.6 (Non-Solicitation), 4.9 (Taxes), the last sentence of 5.6(c), 6 (Cardholder and Customer Information), 10 (Licensing of Trademarks; Intellectual Property), 11.3(b) (Litigation), 11.4(b) (Litigation), 11.5 (Interchange Lawsuit), 12 (Confidentiality), 16 (Effects of Termination), 17 (Indemnification), 18.1 (Limitation of Liability), 18.8 (Non-Waiver), 18.10 (Waiver of Jury Trial and Venue), 18.11 (Governing Law), 18.14 (Notices), 18.17 (Press Releases), 18.18 (No Set-Off), 18.20 (Third Parties), 18.22 (Entire Agreement), 18.23 (Binding Effect; Effectiveness), 18.25 (Survival), and 18.27 (Cumulative Remedies) shall survive. In addition, the obligations of the parties pursuant to: (a) Section 7.6(a) shall survive for a period of three (3) years following the conclusion of the Termination Period but solely with respect to the performance of the parties’ respective financial or tax obligations under this Agreement and (b) Sections 9.1 (Monthly Statement to Kohl’s), 9.2 (Program-Related Payments), 9.4 (Recoveries) and 9.5 (Sharing of Program Bad Debts) shall survive, but only with respect to periods occurring prior to the conclusion of the Termination Period. In furtherance and not in limitation of the foregoing in this Section 18.25, Bank shall be entitled to collect Accounts retained by Bank following termination in any lawful manner.

All actions and inactions of a party under this Agreement (including any exercise of a party’s ultimate decision-making authority) shall be made in good faith.

Except as expressly provided in Sections 2(e), 8(e), and 9 of Schedule 2.2(b) with respect to the Co-Brand Program, no right, remedy or election herein shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

[SIGNATURE PAGE FOLLOWS]

65

4873-5713-2568v.1 0117281-000001

---

 

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

 

 

KOHL’S, INC.
By:	/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name:	▇▇▇▇ ▇▇▇▇▇▇▇
Title:	Chief Marketing Officer
CAPITAL ONE, NATIONAL ASSOCIATION
By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:	Senior Vice President

 

66

 

---

 

List of Schedules

 

Schedule A	Kohl’s Licensed Marks
Schedule B	Bank Licensed Marks
Schedule 2.2(b)	Co-Brand Program
Schedule 2.3(a)	Account Terms
Schedule 2.4(a)	[*]
Schedule 2.4(b)	FFT
Schedule 2.4(c)	Digital Wallets
Schedule 2.4(d)	Kohl’s Pay
Schedule 2.4(e)	Apple Pay
Schedule 2.5(i)	Retail Department Stores
Schedule 3.2(a)	Program Managers
Schedule 3.7	Kohl’s Matters and Bank Matters
Schedule 3.7(b)(i)(x)	Impact on the Program
Schedule 4.1(a)	Marketing Guidelines
Schedule 4.1(c)	Systems and Servicing Transition
Schedule 4.2(d)	Kohl’s Collections Dialing Strategies
Schedule 4.6(a)-1	Kohl’s Shopper Data Provided to Bank
Schedule 4.6(a)-2	Agreed Risk Management Policies
Schedule 4.6(e)	Jointly Developed Credit Models
Schedule 4.6(f)	Bank’s Recovery Practices
Schedule 6.3(b)	Program Privacy Policy
Schedule 6.3(f)-1	Aggregated and Anonymized Data Provided to Kohl’s
Schedule 6.3(f)-2	Cardholder Data Subject to Opt-In or Opt-Out
Schedule 6.5(a)	Information Assurance Controls
Schedule 7.1	Reports
Schedule 7.2	Lockbox Obligations
Schedule 7.3(a)	Regulatory SLAs
Schedule 7.3(b)	Service Levels (Non-Regulatory)
Schedule 7.3(c)	General SLA Terms
Schedule 9.1(b)	Monthly Settlement Sheet (following Co-Brand Program Launch Date)
Schedule 9.2	Program Economics
Schedule 9.3	Renegotiation of Terms
Schedule 9.5	Sharing of Program Bad Debts
Schedule 11.3(i)	Incentive-Based Compensation
Schedule 13.1	Retail Portfolio Acquisitions and Dispositions
Schedule 15.2(c)	Termination Fee Schedule
Schedule 16.2(a)	Illustrative Example of Purchase Option Timeline
Schedule 16.2(e)-1	RFP Bid Data
Schedule 16.2(e)-2	Account Level Data
Schedule 16.2(e)-3	Third Party Beneficiary
Schedule 18.6	Kohl’s Existing Third-Party Subcontractors by Tier

 

67

 

---

 

 

27025432.2

4873-5713-2568v.1 0117281-000001

---