Exhibit 10.26
CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF
THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
FIRST AMENDMENT TO INTERACTIVE MARKETING AGREEMENT
This FIRST AMENDMENT TO INTERACTIVE MARKETING AGREEMENT (this
"Amendment"), dated as of April 26, 1999, modifies the Interactive Marketing
Agreement dated March 31, 1999, by and between XXXXXXXXX.XXX INCORPORATED and
FIRST USA BANK, N.A. (the "Agreement"). All capitalized terms used in this
Amendment but not defined herein shall have the meanings set forth in the
Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree that the Agreement is hereby
amended as follows:
SECTION 1: FEES. Schedule B to the Agreement is hereby amended as
follows:
(a) ACCOUNT ORIGINATION FEE. Paragraph 1 is hereby amended to
read in its entirety as follows:
"1. ACCOUNT ORIGINATION FEES. Subject to Paragraph 2 of this
SCHEDULE B, FUSA shall pay to the Company a fee (the "Account
Origination Fee") for every FUSA Account opened for which (a)
the application was generated by the marketing programs
conducted through Company Services and (b) at least one
statement with a balance due has been sent to the Company
Customer for such Account (each, a "Company-Sourced Account").
The Account Origination Fee for each Company-Sourced Account
shall be (x) [**] for each of the first [**]
Company-Sourced Accounts, (y) [**] for each of the next
[**] Company-Sourced Accounts, and (z) [**] for each
Company-Sourced Account over the first [**] Company
Sourced-Accounts. Account Origination Fees shall be paid in
accordance with the provisions of Section 5.3."
(b) APPLICATION VOLUME. Paragraph 3(a) is hereby amended by
deleting the phrase "Account Origination Fees under Paragraph
1" appearing in the first sentence of Paragraph 3(a), and
replacing the same with the phrase "Value-Added Payment under
Paragraph 5".
(c) VALUE ADDED PAYMENT. Paragraph 5 is hereby amended by deleting
the first sentence thereof and replacing the same with the
following:
"In addition to any other payment the Company is entitled to
under this Agreement, FUSA shall make to the Company a payment
(a "Value-Added Payment") for every approved Account
application at the time such
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Account application is approved by FUSA. The Value Added
Payment to be paid for each approved Account shall be (x)
[**] for each of the first [**] approved Account
applications, (y) [**] for each of the next [**] approved
Account applications, and (z) [**] for each approved Account
application over the first [**] approved applications."
SECTION 2: FRAUD PAYMENT. Article V of the Agreement is hereby amended
to include the following new Section 5.7:
"Section 5.7 FRAUD PAYMENT. Company shall pay FUSA one dollar
($1.00) for each account approved by FUSA pursuant to the terms of this
Agreement. The amount of the payment pursuant to this Section 5.7 shall offset
against fees earned by Company and shown on the monthly reconciliation report
required by Section 5.3 hereof."
SECTION 3: PAYMENT TERMS. Section 5.3 of the Agreement is hereby
amended by adding the following after the second sentence and before the third
sentence thereof:
"Any amount owing to FUSA and payable pursuant to the terms of
this Article V shall be paid within fifteen (15) days following the end of each
Quarter."
SECTION 4: NO FURTHER AMENDMENTS. Except as expressly amended herein,
all other terms of the Agreement shall remain unchanged and shall continue in
full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be executed
on its behalf by its duly authorized officer on the date set forth below.
FIRST USA BANK XXXXXXXXX.XXX INCORPORATED
("FUSA") ("Company")
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxx
Title: Senior Vice President Title: Chief Financial Officer
Date: 6/30/99 Date: 6/30/99
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[**] = Confidential treatment requested for redacted portion.
