Exhibit 10.2
Execution
Version
[*] designates portions of this
document that have been omitted pursuant to a request for
confidential treatment filed separately with the Securities and
Exchange Commission.
FIRST ADDENDUM TO
AMENDED AND RESTATED MARKETING
AGREEMENT
This Addendum, effective as of the
17th day of November, 2008 (“Effective Date”), is
attached to, and is part of, an Amended and Restated Marketing
Agreement between Company and Bank dated November 17, 2008
(“Agreement”). Except as otherwise set forth herein to
the contrary, all other terms and conditions of the Agreement shall
remain in full force and effect. In the event of a conflict between
the terms of this Addendum and the Agreement, the terms of this
Addendum shall prevail. Capitalized terms not defined in this
Addendum shall have the meanings set forth for such terms in the
Agreement.
RECITALS
WHEREAS, under the Agreement, Bank
has agreed to make Bank’s line of credit product known as
iPower Plus Line of Credit (“IPLOC” or “IPLOC
Program”) available to qualifying Cardholders, subject to
certain terms and conditions set forth in the Agreement;
WHEREAS, Bank and Company desire to
set forth in this Addendum Company’s obligation with respect
to the funding of excess losses, if any, attributable to loan
advances requested by Cardholders under the IPLOC Program during
the 2008/2009 Tax Season; and
WHEREAS, Bank and Company further
desire to set forth in this Addendum Bank’s obligation to pay
Company a commission from profits, if any, attributable to loan
advances requested by Cardholders under the IPLOC Program during
the 2008/2009 Tax Season.
NOW, THEREFORE, in consideration of
the foregoing, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as
follows:
ARTICLE I -
DEFINITIONS
Except as otherwise specifically
indicated, the following terms shall have the following meanings in
this Addendum (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
“ Actual Rate of
Repayment ” means the cumulative actual amount of IPLOC
principal collections as each RPD Date, expressed as a percentage
of the maximum total principal of IPLOC loans originated as of such
date.
“ Bank Commission Funding
Requirement ” has the meaning set forth in
Section 2.3.
[*]
“ Commission Funding
Account ” has the meaning set forth in
Section 2.3.
[*]
“ Goal Rate of
Repayment ” means the cumulative goal amount of IPLOC
principal collections as of each RPD Date, expressed as a
percentage of the total goal principal of IPLOC loans originated as
of such date, as shown in Column B of Exhibit A attached
hereto.
“ Expected Cash Flow
” means the amount, on any given date during the duration of
the IPLOC Program, which represents the total projected amount of
collections of principal and fees of IPLOC loan accounts originated
throughout the duration of the IPLOC Program. Generally, the
Expected Cash Flo
