CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.] THIRD AMENDMENT TO THE MARKETING AND...
Exhibit
10.20
[CERTAIN
INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED
AND
FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.]
THIRD
AMENDMENT
TO
THE
MARKETING
AND
ADMINISTRATIVE
SERVICES AGREEMENT
THIS
THIRD AMENDMENT TO THE MARKETING AND ADMINISTRATIVE SERVICES AGREEMENT,
hereinafter referred to as the “Second Amendment,” is effective on this 1st day
of April, 2005, by and between EDUCATION LENDING SERVICES, INC., a Delaware
corporation, formerly known as “Grad Partners, Inc.,” doing business as the
“Consolidation Assistance Program,” hereinafter referred to as “ELServices,”
having its principal place of business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and RELIANT PARTNERS LLC, a
California limited liability company, hereinafter referred to as “Marketer,”
having its business address as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS,
ELServices and Marketer desire to amend the Marketing and Administrative
Services Agreement between the parties, dated December 1, 2001, as amended
by
the First Amendment, dated April 1, 2002, Letter Agreement, executed February
7,
2003, and as amended by the Second Amendment, dated November 1, 2004,
hereinafter, collectively referred to as the “Marketing Agreement,” to grant
exclusivity to ELServices for one (1) year, to increase the Marketing Fee
payment, and to include privacy law, independent contractor, and publicly
trade
company information.
WHEREAS,
ELServices desires Marketer to exclusively market on behalf of ELServices
FFELP
Loans, Consolidation Loans and private Loan to Learn™ loans offered by
ELServices, or its affiliates, (“Private Loan to Learn™ Loans”) to current and
prospective customers of Marketer in the form of leads for Private Loan to
Learn™ Loans; and
WHEREAS,
Marketer desires to exclusively market on behalf of ELServices the FFELP
Loans,
Consolidation Loans, and Private Loan to Learn™ Loans offered by or through
ELServices, or its affiliates, on the terms and conditions hereinafter set
forth.
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 mutually agree as follows:
1
1. MARKETING
ACTIVITIES AND SERVICES.
1.1 As
to the
List of Marketing Activities and Services, Exhibit 1.2 is amended as set
forth
on Attachment “A” to this Third Amendment.
2. MARKETING
SERVICES.
2.1 Paragraph
1.1 of Section 1 of the Marketing Agreement is hereby amended in its entirety
as
follows:
“1.1
Marketer
shall exclusively
market,
for a one (1) year period, beginning on April 15, 2005 and expiring on April
14,
2006, to all of its current and prospective customers utilizing its Website
and
direct marketing activities the FFELP Loans, Consolidation Loans and authorized
under Sections 427 and 428 of the Higher Education Act of 1965, as amended
(hereinafter referred to as the “Act”), and Private Loan to Learn™ Loans that
are offered by and meet ELService’s FFELP Loan, Consolidation Loan, and Private
Loan to Learn™ Loan criteria. Marketer agrees that it will not use the loan
applications of ELServices or its affiliates for any FFELP Loan or Consolidation
Loan not meeting such loan criteria or for any other FFELP lender during
the
term of this Agreement.”
3. COMPENSATION
TO MARKETER.
3.1 Beginning
on the effective date of this Amendment, the amount of the Marketing Fee
set
forth in Exhibit 2.1 attached to the Marketing Agreement, for a compound
Consolidation Loan Application shall be [**].
3.2 Paragraph
3.4 of the Second Amendment to the Marketing Agreement is hereby amended
in its
entirety as follows:
Funded
Private Loans.
For
purposes of this Agreement, a “Funded Private Loan” for a Private Loan to
Learn™
Loan
shall mean a private loan application received and processed by ELServices
or
its third party lender wherein the third party lender has funded the Private
Loan to Learn™
Loan on
behalf of the respective borrower. All compensation due Marketer for Funded
Private Loans shall be paid within forty-five (45) days after the end of
the
prior calendar quarter during the term of this Agreement for which a payment
is
due Marketer. Each quarterly payment shall be accompanied by a report indicating
the number of Funded Private Loans for which ELServices received payment
from
its third party lender resulting from the marketing and administrative
activities of Marketer for the respective prior calendar quarter
period.”
4. PRIVATE
LOAN TO LEARN™
LOAN
MARKETING FEES.
4.1 The
words
“Private Consolidation Loan(s)” contained in the Marketing Agreement is hereby
removed and replaced with the words “Private Loan to Learn™
Loans”
effective the date of this Third Amendment.
**
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
2
5. COMPLIANCE.
5.1 Paragraph
4.2 is hereby added to Section 4 of the Marketing Agreement as follows:
“4.2
Marketer
represents and shall ensure that all of its marketing activities hereunder,
including, but not limited to its marketing materials and internet sites,
comply
with Regulations B, P and Z, and all other applicable federal and state laws
and
regulations governing the disclosure of consumer credit terms and privacy
matters, as the same are in effect at the time. For purposes of this Agreement,
“Regulation B” means the federal regulations governing the Equal Credit
Opportunity
Act
as it
appears in Title 12, Code
of Federal Regulations,
Part
202, “Regulation P” means the federal regulations governing the Privacy
of Consumer Financial Information
as it
appears in Title 12, Code
of Federal Regulations,
Part
216, and “Regulation Z” means the federal regulations governing the Truth
in Lending Act
as it
appears in Title 12, Code
of Federal Regulations,
Part
226, as each may be amended from time to time. Failure of Marketer to comply
with the foregoing provisions is a material breach of this Agreement and
subject
to the termination provisions set forth in Section 5 below.”
6. TERM
AND TERMINATION.
6.1 Paragraph
5.2 of Section 5 of the Marketing Agreement is hereby amended in its entirety
as
follows:
“5.2
At
the
end of any calendar quarter during the term hereof beginning with the third
(3rd) calendar quarter of year 2005, the average loan balance of all Completed
Applications received from Marketer by CAP for such quarter period is less
than
THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000.00);”
7. INDEPENDENT
CONTRACTOR.
6.1 Section
22,
along with Paragraph 22.1 is hereby added to the Marketing Agreement as
follows:
“22.1
The
parties intend that the Marketer shall be an independent contractor and not
an
employee of CAP. This Agreement shall be construed and interpreted for all
purposes in a manner necessary to carry out such intent. Marketer shall be
free
to exercise independent judgment as to the time and manner in which Marketer
performs Marketer’s services hereunder. Marketer may use independent contractors
and/or Registered Representatives to fulfill its obligations under this
Agreement. Provided, however, Marketer shall bind any and all such contractors
and Registered Representatives to the terms of this Agreement in writing.
ELServices may, from time to time, prescribe rules and regulations with respect
to the conduct of the business covered hereby, provided such rules and
regulations shall not interfere with Marketer’s free exercise of independent
judgment as set forth above. Marketer shall be responsible for providing
worker’s compensation insurance for Marketer’s employees and agents, if any, and
shall hold harmless, defend and indemnify ELServices from and against any
and
all claims arising out of any injury, disability, or death of any of Marketer’s
employees or agents. Marketer is responsible for paying when due all income
and
other taxes including estimated taxes, incurred as a result of the compensation
paid by ELServices to Marketers for services under this Agreement.”
3
8. PUBLICLY
TRADED COMPANY.
8.1 Section
23, along with Paragraph 23.1 is hereby added to the Marketing Agreement
as
follows:
“23.1
Marketer
hereby acknowledges that it is aware that the parent of ELServices, being
“Education Lending Group, Inc.,” is a wholly owned subsidiary of CIT Group Inc.,
a publicly traded entity subject to the United States Securities Laws which
prohibits any person who has received from an issuer (i.e., CIT Group Inc.)
or
its affiliates material nonpublic information from purchasing or selling
securities of such issuer or from communicating such information to any other
party under circumstances in which it is reasonably foreseeable that such
person
is likely to purchase or sell such securities.”
9. MARKETING
AGREEMENT.
9.1 Except
as
amended by this Third Amendment to the Marketing Agreement, the terms and
conditions of the Marketing Agreement, the First Amendment, the Letter Agreement
and the Second Amendment shall remain in full force and effect between
ELServices and Marketer and are incorporated herein by this
reference.
IN
WITNESS THEREOF, the parties have executed this Third Amendment to the Marketing
and Administrative Services Agreement effective on the date first set forth
above.
| ELServices: | Marketer: | ||
|
EDUCATION LENDING SERVICES,
INC.
a Delaware corporation
|
RELIANT
PARTNERS LLC
a California limited liability
company
|
||
| By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | By: /s/ ▇▇▇ ▇▇▇▇▇▇ | ||
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Executive Vice President and
Secretary
|
▇▇▇ ▇▇▇▇▇▇
Chief Operating
Officer
|
4
ATTACHMENT
“A”
EXHIBIT
“1.2”
(As
amended for additional services)
LIST
OF
MARKETING
ACTIVITIES AND SERVICES
11. Provide
prospective applicants (i.e.
students and parents) with:
| · |
Comparative
cost and benefit analysis forecasting the long term financial impact
of
various consolidation options and benefit programs.
|
| · |
Private
consumer debt seeking refinancing options.
|
| · |
Financing
options to pursue higher education
|
| · |
Detailed
advice concerning the FASFA application process and PLUS and ▇▇▇▇▇▇▇▇
program terms and application processes.
|
| · |
Advice
on how to build credit scores through consolidation, (debt to income
information).
|
| · |
Extensive
deferment and forbearance consultations.
|
| · |
▇▇▇▇▇▇▇
loan forgiveness referrals for those consumers who appear to qualify
and
are not knowledgeable of possible forgiveness alternatives.
|
5