EXHIBIT 10.8
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE SYMBOL "[****]" HAS BEEN INSERTED IN PLACE OF THE PORTIONS SO
OMITTED.
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made this 7th day of November, 2003, by and
between Collegiate Funding Services, L.L.C. ("CFS") and ClassNotes Inc. d/b/a
Educaid and Wachovia Bank of Delaware, National Association (together "Lender").
RECITALS
WHEREAS, CFS and Educaid are parties to the Consolidation Loan Origination
Responsibility Agreement dated November 1, 2000, as amended (the "RWC
Agreement") and CFS and Wachovia are parties to the Private Consolidation Loan
Origination Responsibility Agreement dated as of June 12, 2001, as amended (the
"RWPC Agreement") (hereinafter collectively referred to as the "CFS
Agreements"); and
WHEREAS, the parties hereto wish to amend the CFS Agreements as set forth
herein (all capitalized terms used herein shall have the meaning ascribed to
them in the CFS Agreements except as expressly provided herein);
NOW THEREFORE, in consideration of the mutual promises contained in this
Amendment Agreement, and of other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties to this Amendment Agreement do
hereby agree to the following:
1. Without limiting any other provision of the CFS Agreements, Lender, its
representatives, attorneys or auditors, and the Comptroller of the Currency,
shall have the right upon no less than five (5) days prior written notice to
conduct information security reviews ("IS Review") at any time or times during
CFS's normal business hours on any of CFS's systems and/or applications used to
provide or perform marketing and/or loan origination activities under the CFS
Agreements. Such IS Reviews shall include, but not be limited to, physical
inspection, external scan, internal scan, code review, process reviews and
reviews of system configurations. Such IS Reviews shall be conducted in Lender's
discretion, by Lender or its designee, and at Lender's expense. CFS hereby
grants permission to Lender to perform such IS Reviews. Such IS Reviews shall
not disturb or disrupt the normal business operations of CFS. Should the
aforementioned IS Review result in the discovery of material security risks to
Lender Proprietary Information, Lender shall immediately notify CFS of such
risks detailing the material risks identified in the IS Review and CFS shall
respond to Lender in writing with CFS's plan to take reasonable measures to
promptly correct, repair or modify the said network or application to
effectively eliminate the risk, at no cost to Lender. CFS shall have ten (10)
business days from the date of receipt of such notice to cure such security
risk, unless the parties consent to a longer period of time for such cure, which
consent shall not be unreasonably withheld. In the event of a security risk,
Lender may review any system and transaction logs related thereto which contain
Lender information or data potentially compromised.
2. The right of Lender, its representatives, attorneys or auditors, and
the Comptroller of the Currency, to conduct IS Reviews, and any exercise of such
right, shall not in any way diminish or affect CFS's or Lender's duties and
liabilities under the CFS Agreements.
3. A breach of Sections 14(D), 14(E), 19 and 20(G) of the RWC Agreement
and Sections 4(I), 13(E), 18, and 19(H) of the RWPC Agreement may cause the
aggrieved party to suffer irreparable harm in an amount not easily ascertained
(e.g. CFS's or Lender's use or disclosure of Proprietary Information in any
manner inconsistent with the CFS Agreements). The non-breaching party shall have
the right to: (i) seek equitable and injunctive relief to prevent the
unauthorized, negligent or inadvertent use or disclosure of the other party's
confidential or proprietary information; and (ii) seek to recover the amount of
any damages (including attorneys' fees and expenses) to the non-breaching party
in connection with such use or disclosure, and (iii) pursue all other remedies
said party may have at law or in equity for breach or threatened breach of the
foregoing sections of the CFS Agreements.
4. For purposes of the CFS Agreements, "Electronic Incident" shall mean
any unauthorized action by a known or unknown person which, if successfully
completed, attempted, or threatened, should reasonably be considered one of the
following: an attack, penetration, denial of service, disclosure of confidential
customer or other sensitive information, misuse of system access, unauthorized
access or intrusion (hacking), virus intrusion, or any other activity that could
affect CFS's systems or data. For purposes of hereof, "CFS" shall include the
systems, networks, technology, content or web sites of third party vendors used
by CFS for the provision of Services. CFS shall report to Lender all known or
suspected Electronic Incidents. If an Electronic Incident occurs, CFS shall
immediately notify Lender at telephone number [▇▇▇-▇▇▇-▇▇▇▇], and provide the
following information: nature and impact of the Electronic Incident; actions
already taken by CFS; CFS's assessment of immediate risk; and corrective
measures to be taken, evaluation of alternatives, and next steps. CFS shall
continue providing appropriate status reports to Lender regarding the resolution
of the Electronic Incident and prevention of future such Electronic Incidents.
CFS or Lender may require that the Services be suspended, connectivity with CFS
be terminated, or other appropriate action be taken pending such resolution.
5. CFS shall provide disaster recovery and backup capabilities and
facilities through which CFS will be able to perform its obligations hereunder
to Lender with minimal disruptions or delays. Upon prior written request, CFS
shall make available to Lender at a CFS location, copies of the written plan or
plans for disaster recovery and backup arrangements for review. Due to the
highly confidential and proprietary nature of said documents, no copies of said
plan or plans shall be made or taken from the site. Lender shall remain
responsible for maintaining the confidentiality of said plan or plans.
6. Paragraphs 1-5 of this Amendment Agreement amend the CFS Agreements,
but only insofar as specifically stated herein. The CFS Agreements, as modified
by this Amendment Agreement, are hereby ratified and confirmed and remain in
full force and effect. This Amendment Agreement may be executed in counterparts,
each of which shall be an original but all of which, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the day and the year first above written.
COLLEGIATE FUNDING SERVICES, LLC WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- -------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇... Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇....
Title: President & Chief Executive Officer Title: Senior Vice President
CLASSNOTES INC. D/B/A EDUCAID
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇....
Title: President
AMENDMENT DATED MARCH 17, 2004
TO
PRIVATE CONSOLIDATION LOAN ORIGINATION
RESPONSIBILITY AGREEMENT
BETWEEN
COLLEGIATE FUNDING SERVICES, LLC
AND
WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION
This Amendment is entered into as of March 17, 2004 among Collegiate
Funding Services, L.L.C. ("CFS") and Wachovia Bank of Delaware, National
Association ("Lender") and collectively the "Parties".
WHEREAS, the Lender and CFS entered into the Private Consolidation Loan
Origination Responsibility Agreement dated as of June 12, 2001, as amended (the
"Agreement"); and
WHEREAS, the Parties desire to amend and/or supplement the Agreement for
the mutual benefit of the Parties, all as hereinafter set forth in greater
detail (all capitalized terms used herein shall have the meaning ascribed to
them in the Agreement except as expressly provided herein).
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each party, the Parties agree as
follows:
1. Paragraph 7 of the Agreement is amended to read as follows:
"7. Insurance:
CFS shall obtain and maintain in force until all Loans that
Lender funds hereunder are repaid in full or paid as a claim by
▇▇▇▇, and upon the request of the Lender furnish proof of, errors
and omissions and liability insurance policies acceptable to the
Lender providing coverage (with no per occurrence minimum and not
more than $100,000 deductible), with respect to claims by Lender,
arising from CFS's failure to perform any of its responsibilities
under, or from CFS's breach of its representations, warranties or
certifications made in, this Agreement, each in an amount of at
least $1,000,000 in the aggregate and per occurrence. Each such
policy shall be maintained with an insurer rated not lower than A by
A.M. Best Co. CFS shall provide Lender at least 60 days prior
written notice of any proposed cancellation, material modification,
reduction in coverage, or non-renewal of the above described
policies. Notwithstanding the foregoing, the policies shall not be
amended or modified in any manner which limits, restricts, or
conditions the coverage provided, decreases the amount of coverage
or increases the deductible, or in any other way reduces the
coverage provided, without the prior written consent of Lender and
Servicer, which shall not be unreasonably withheld."
2. Paragraph 9 of the Agreement is amended to read as follows:
"9. Loan Size:
Borrowers must have Loan indebtedness of at least $[****].
Lender shall have the right to terminate this Agreement upon
notice to CFS in the event that the average borrower indebtedness on
funded RWPCL Program Loans in any month is less than $[****] in each
of three (3) consecutive months."
3. Paragraph 12 of the Agreement is amended to read as follows:
"12. Referral Fee:
Effective June 1, 2004 the Lender agrees to pay a referral fee
as set forth in Exhibit C for each funded RWPCL Program Loan."
The Parties further agree that each and every reference in the Agreement
to "application fee" shall hereinafter be deemed a reference to "referral fee".
4. The reference in Paragraph 13(B) of the Agreement to "[****]% is hereby
changed to read "[****]%".
5. Paragraph 13(E) of the Agreement is amended to read as follows:
"E. CFS agrees not to market RWPCL Loans for funding by Lender
to any individual who (i) is a consumer or customer of Lender or any
of its Affiliates as identified by Lender to CFS, or (ii) CFS may
not market to under Applicable Law. Whenever Lender provides CFS
with a report listing such individuals in a format to be mutually
agreed to by CFS and Lender, CFS shall promptly match each such
individual on such list against any file, database, or list of
consumers/customers maintained or used by CFS to promote the RWPCL
Program. CFS shall not market RWPCL Loans for funding by Lender to
individuals identified in such data-matching process. CFS agrees
that it will not directly market, advertise or promote (nor cause or
suffer any agent or designee to directly market, advertise, or
promote) products or services of any type or from any source other
than from Lender or Lender's affiliates to Borrowers who have
obtained a RWPCL Program Loan unless agreed to in advance by both
Lender and CFS. It is further understood and agreed that CFS may
market to individuals with applications submitted for processing
under this Agreement and for whom a RWPCL loan has not yet been
funded. However, CFS agrees that the marketing prohibitions in the
preceding sentences apply when an applicant's RWPCL loan is funded,
except that CFS may respond to requests, inquiries or applications
from individuals regarding products or services that CFS directly
marketed to such individuals prior to their RWPCL loan being
funded."
6. The contact and address information in Paragraph 21 of the Agreement is
amended to read as follows:
"If to CFS:
Mr. W. ▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
Collegiate Funding Services, LLC ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
cc: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President and General Counsel
If to Lender:
c/o Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Senior Vice President
Wachovia Bank of Delaware, N.A.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇"
7. Paragraph 23(A) of the Agreement is amended to read as follows:
"23. Term; Termination:
B. The parties agree that the term of this Agreement shall be
from the date first written above until December 31, 2005 "Initial
Term"). The Agreement shall thereafter automatically extend for
one-year periods (each an "Additional Term") unless one of the
parties notifies the others in writing of their intent not to renew
at least 90 days prior to the expiration of the Initial Term or
Additional Term, as applicable."
8. Paragraph 23(B)(5) of the Agreement is amended to read as follows:
"(5) By Lender upon written notice to CFS in the event that
the Guaranty Agreement between Lender and ▇▇▇▇ terminates.
Furthermore, Lender shall have no obligation to fund any Loans under
this Agreement after the date or for the period of time, if
applicable, that (i) ▇▇▇▇ limits or suspends issuing Guarantees on
RWPCL Loans, or (ii) the Office of the Comptroller of the Currency
or any other regulatory agency with jurisdiction over Lender directs
the Lender to discontinue its activities under this Agreement."
9. The "Applicable Rate" set forth in Exhibit C to the Agreement is
amended to read as follows:
"Applicable Rate
Based upon the Average Application amount during the preceding
Measurement Period, the applicable rate paid in a month will be
according to the following:
AVERAGE PRIMARY
APPLICATION BORROWER'S FICO PRIMARY BORROWER'S
UNDERLYING LOAN SCORE IS FICO SCORE IS
BALANCE <[****] >[****]
--------------- ------------------ -------------------
<$[****] [****]% [****]%
$[****]-$[****] [****]% [****]%
<$[****] [****]% [****]%
10. Notwithstanding any other provision of the Agreement, Lender may, but
in no case is required to, fund more than $[****] of RWPCL Program Loans in any
calendar year.
11. Except as explicitly set forth herein, nothing contained in this
Amendment is intended, nor shall it, release, remove, modify, alter, or amend
any obligation, duty, or responsibility of CFS or Lender as set forth in the
Agreement and as further set forth in the Amendment. The Agreement, as modified
by this Amendment, is hereby ratified and confirmed and remains in full force
and effect. This Amendment may be executed in counterparts, each of which may be
a fax copy of an original but all of which, taken together, shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the Parties have set their hands hereto.
WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION ("Lender")
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
COLLEGIATE FUNDING SERVICES, LLC ("CFS")
/s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
By: W. ▇▇▇▇▇ ▇▇▇▇▇▇