INSTALLMENT LOAN MARKETING AND
SERVICING AGREEMENT
This Installment
Loan Marketing and Servicing Agreement (this “
Agreement ”) is dated as of July 21, 2005,
between First Bank of Delaware, a Delaware state bank (“
BANK ”), and ACE Cash Express, Inc., a Texas
corporation (“ ACE ”).
WHEREAS, BANK is a
Delaware state bank insured by the Federal Deposit Insurance
Corporation (the “ FDIC ”), and as such, is
authorized to extend credit to borrowers, subject to the federal
and Delaware financial institution and credit regulations in effect
and as applicable;
WHEREAS, ACE or
its affiliate, in performing duties under this Agreement, is a duly
authorized and validly existing corporation, authorized to do
business in the states of Texas, Arkansas and
Pennsylvania;
WHEREAS, in
accordance with its established lending criteria as may be amended
by BANK from time to time, BANK desires to originate short-term
installment loans (the “ Loans ”) to consumers
(“ Borrowers ”) in principal amounts not to
exceed an amount mutually agreed to by BANK and ACE (the “
Max Loan Amount ”), which Loans shall be secured by
delivery of the Borrowers’ personal checks (made payable to
BANK) to ACE to hold in trust and as bailee for BANK or by
Borrowers’ Automated Clearing House (“ ACH
”) debit authorization; and
WHEREAS, ACE, or
its affiliate, in performing duties under this Agreement, desires
to market and service the Loans on BANK’s behalf;
NOW, THEREFORE, in
consideration of the foregoing and of the mutual promises contained
in this Agreement, and other valuable consideration, the
sufficiency of which is hereby acknowledged, and intending to be
legally bound, BANK and ACE (together, the “ Parties
”) agree as follows:
1. BANK’s Responsibilities and Rights.
(a) BANK
in its sole discretion shall determine all of the conditions, terms
and features of the Loans, including, without limitation, loan
amounts (subject to the Max Loan Amount), fees and charges,
interest rates, credit limits, credit standards and all other terms
and conditions of the Loans, and shall be responsible for the form
of all Loan Documents (as that term is defined in
Section 2(d)(iii )). BANK shall make Loans to all
Applicants (as that term is defined in Section 2(a ))
who apply for Loans at retail locations of ACE that (i) are
located in the States of Texas, Arkansas or Pennsylvania (the
“ Market ”), (ii) are designated by ACE, in
its sole discretion, and (iii) meet BANK’s credit
standards and other qualifications, as determined by BANK in its
sole discretion (each an “ ACE Designated Location
”); provided, however, BANK shall not be required to
make any Loan if it has reason to believe that the making of the
Loan or its solicitation
will violate,
or has violated, any applicable federal or state statutes,
regulations, interpretations, orders, court decisions or other
applicable rules (collectively, “ Laws ”).
Neither ACE, nor BANK, nor their respective employees shall
indicate, directly or indirectly, to Applicants that Loans are made
or approved by ACE or that ACE (or any employee of ACE) can improve
an Applicant’s prospect of obtaining a Loan. BANK shall
maintain computer terminals at its offices in Delaware that connect
to its third party service provider (“ Service
Provider ”), which Service Provider is Teletrack, Inc. as
of the date of this Agreement, from which BANK may reject any Loan
at any time in its sole discretion.
(b) ACE
acknowledges that all rights of ownership in the Loans and Loan
Documents, including, without limitation, any Borrower Checks (as
defined in Section 2(c)(iv) ) or proceeds thereof,
Borrower Authorizations (as defined in Section 2(c)(iv
)) or proceeds thereof, Notes (as defined in
Section 2(c)(iii )), and payments on the Loans or other
collateral or security for the Loans, are and remain the sole
property of BANK, and ACE shall have no ownership or other rights
to or interests in, whether legal or equitable, such Loans, Loan
Documents, Borrower Checks or proceeds thereof, Borrower
Authorizations or proceeds thereof, and payments on the Loans or
other collateral or security for the Loans during the term of this
Agreement, and all such Loans, Loan Documents, Borrower Checks or
Borrower Authorizations, proceeds thereof, payments on the Loans or
other collateral or security for the Loans shall not be considered
property of ACE’s estate if a bankruptcy petition is filed by
or against ACE.
(c) In
its sole discretion, BANK may sell, transfer, grant an interest in,
or otherwise assign any Loan, or any portion of any Loan, to a
third party or parties. Any sale, transfer or assignment by BANK of
any such Loan shall comply with applicable Delaware and federal
law. ACE expressly and irrevocably consents to BANK’s sale,
assignment, and grant of a participation interest in and to the
Loans, as BANK may transact from time to time.
(d) BANK
shall forward to ACE via facsimile (with a copy by first-class
mail) as soon as possible, but no later than within three
(3) business days of receipt, any written notices it receives
that bankruptcy proceedings have been initiated with respect to any
Borrower.
(e) Upon
request of ACE, BANK shall, within forty five (45) days of the
last day of any calendar quarter, provide ACE with BANK’s
quarterly financial statements and, on or before each
April 15, shall provide ACE with BANK’s annual audited
financial statements, each to be prepared in accordance with
generally accepted accounting principles then in effect.
(f) BANK
shall deliver to ACE, as soon as possible following the execution
of this Agreement, an opinion of BANK’s counsel, in form and
substance reasonably satisfactory to ACE, confirming the legality
of the activities of BANK contemplated by this Agreement under
applicable law. ACE may, at its discretion, waive this
requirement.
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(g) BANK
shall develop and implement reasonable and lawful practices,
policies and procedures that are communicated in writing to ACE
from time to time with respect to the Loans (the “ BANK
Policies ”), which BANK Policies shall
(i) incorporate, without limitation, the Best Practices of the
Community Financial Services Association of America or the Code of
Conduct of the Financial Service Centers of America (the “
Industry Practices ”), and any guidelines and
recommendations governing installment loans and sub-prime lending
and loan classification promulgated or adopted by reference by the
FDIC or the Delaware Bank Commissioner, as the same may from time
to time be amended, and (ii) comply with all applicable Laws.
The BANK Policies shall include, but shall not be limited to,
developing guidelines and procedures for the Loan program
contemplated under this Agreement (the “ Program
”), performing routine audits of ACE and providing ACE with
helpline service to quickly respond to customer and Program
inquiries.
2. ACE’s Responsibilities and
Services.
(a)
General Duties of ACE; Standards of Performance : Commencing
upon the date that each of ACE and BANK agree upon the terms of the
Loans, agree upon the manner in which such Loans shall be approved
by BANK and serviced by ACE and execute a document designating such
date (the “ Product Definition Date ”), ACE
shall perform all services reasonably required to market and
service the Loans made by BANK at a minimum of 200 ACE Designated
Locations on or before the date sixty (60) days after the
Product Definition Date, and at a minimum of 300 ACE Designated
Locations on or before the date ninety (90) days after the
Product Definition Date, where Loan applicants (“
Applicants ”) may submit Loan applications (“
Applications ”) and receive disclosures required by
applicable Laws and where Borrowers may execute and deliver Loan
documentation and deliver Borrower Checks, Borrower Authorizations
or other payment on the Loans. In marketing the Loans and
performing its services hereunder, the Parties shall at all times
and in all material respects comply with applicable Laws. Before
initiating any marketing efforts in the Market, ACE shall agree
with BANK on a mutually agreeable protocol for communicating with
the appropriate regulatory authorities, and the Parties shall
reasonably cooperate with each other in implementing the Program in
such manner as to minimize the potential for regulatory objections.
Further, ACE shall use all of the reasonable documentation provided
by BANK and follow the Bank Policies. ACE shall train and supervise
its employees to act in conformity with the BANK Policies and the
requirements of applicable Laws pertaining to the employees’
duties. ACE will not accept any consideration from any Applicant
and will not agree or promise to procure a Loan for any Applicant
from BANK.
(i)
BANK hereby authorizes ACE during the term of this Agreement to
market Loans to Borrowers in compliance with all applicable Laws
and BANK Policies. BANK hereby grants to ACE a non-exclusive
license to reproduce the name, trade name, trademarks and logos of
BANK (collectively, the “ BANK Properties ”)
during the term of this Agreement in connection with this Agreement
on letters, print
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advertisements,
the Internet, television and radio communications and other
advertising and promotional materials (all such letters,
advertising and promotional materials incorporating BANK Properties
and all related designs, artwork, logos, slogans, copy and other
similar materials shall be referred to collectively herein as the
“ Promotional Materials ”); provided,
however , (x) ACE shall submit all Promotional Materials to
BANK for its written approval prior to any use thereof, and
(y) BANK shall not unreasonably withhold or delay such
approval. All rights not expressly granted to ACE herein are
reserved by BANK. Regardless of whether they incorporate the BANK
Properties, all advertising and promotional materials for the Loans
(A) shall prominently identify BANK as maker of the Loans,
(B) shall be accurate, (C) shall not be misleading,
(D) shall comply with all applicable Laws, and (E) shall
be submitted to BANK for approval in accordance with this
Section 2(b)(i ).
(ii) In
connection with ACE’s performance of its obligations under
this Agreement, it is expressly agreed that (A) BANK shall not
hold any ownership or leasehold interest in any ACE retail location
(including, without limitation, the ACE Designated Locations), or
any personal property located therein, except that BANK shall be
the exclusive owner of all Borrower Checks and proceeds thereof,
Borrower Authorizations and proceeds thereof, Notes, Loan
Documents, and cash reflecting Loan repayments as may be located at
an ACE Designated Location from time to time, (B) no BANK
employees shall work in any ACE retail location (except for BANK
auditors who may examine ACE Designated Locations from time to time
for compliance with BANK Policies), and (C) other than as may
be necessary to effectuate Section 2 , BANK shall
exercise no authority or control over ACE’s employees or
methods of operation. ACE will not post signage at its ACE
Designated Locations showing BANK’s name or logo unless
expressly authorized by BANK in its sole discretion; provided,
however, that this provision shall not prohibit ACE from
(x) providing documents or information to customers with
BANK’s name or logo that have been approved by BANK or
(y) posting fees and other information as required at ACE
Designated Locations to carry out its obligations under this
Agreement or pursuant to the Laws. Neither ACE nor any of its
employees, officers, directors, representatives or agents will hold
themselves out as an agent or employee of BANK.
(iii) The
Note shall disclose to the Borrower that BANK shall pay ACE a fee
for ACE’s services.
(iv) ACE
will make any reasonable change to its business operations and
information technology systems as reasonably requested by BANK, or
any regulatory agency that has authority over BANK, that is
reasonably necessary to comply with BANK Policies or Laws governing
the Loans contemplated in the Agreement as determined through the
audits and compliance reviews of BANK or any regulatory agency that
has authority over BANK. ACE agrees to maintain minimum IT
standards equal to or higher than those standards in place at ACE
as of the date of this Agreement.
(v)
In connection with the ongoing use of the Teletrack Extended
Underwriting System or other replacement system, BANK and ACE agree
that
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BANK shall have
no more than one Loan outstanding to a customer who is marketed and
serviced by ACE or any affiliate of ACE.
(c)
Servicing of Loan Applications :
(i) BANK
also hereby authorizes ACE to accept Applications from Applicants,
using an Application form approved by BANK. ACE shall make
Applications available to prospective Applicants and shall not
discourage any prospective Applicant from submitting an Application
and shall provide reasonable assistance to each prospective
Applicant in completing an Application. Without limiting the
generality of the foregoing, ACE shall not discriminate against or
discourage any Applicant in any aspect of the credit process on any
“ prohibited basis ,” as such term is defined in
the federal Equal Credit Opportunity Act (“
ECOA” ) and Federal Reserve Regulation B. ACE
shall forward all completed Applications to BANK (or its designated
loan processing agent) electronically, by telephone, or by other
appropriate means agreeable to both Parties.
(ii) Based
upon the information provided by Applicants to BANK in the
Applications and such other credit-related information as obtained
by ACE at the direction of BANK, or by BANK directly, and pursuant
to the credit granting standards adopted by BANK in its sole
discretion, BANK shall be solely responsible for determining
whether to extend credit to Applicants. BANK shall, either itself
or through the Service Provider, communicate to ACE its credit
decision on any Application, together with the reason for any
negative credit decision, electronically or by other means
acceptable to both Parties.
ACE shall, in
compliance with Regulation B and applicable state law, deliver
an appropriately completed adverse action notice (the “
Adverse Action Notice ”) to any Applicant whose
Application is rejected by BANK. In addition to containing the
information required by the ECOA, the Adverse Action Notice shall
contain any information required by the Fair Credit Reporting Act
(the “ FCRA ”) or by any applicable state credit
reporting law. Adverse Action Notices shall be developed by BANK
and provided to ACE prior to origination of Loans under this
Agreement. In compliance with the ECOA, the Adverse Action Notice
shall contain contact information for BANK and the Service
Provider.
(iii) Each
Loan hereunder shall be evidenced by a promissory note (“
Note ”) containing disclosures required by the federal
Truth-in-Lending Act and applicable state law (the “
Disclosures ”). The Note shall be issued for the
amount shown as the “ Total of Payments ” on the
Note (which shall be the sum of the amount shown as the “
Amount Financed ” plus the amount shown as the “
Finance Charge ,” and which amount shown as the
“ Finance Charge ” shall equal a variable amount
based solely on the term of the Loan. The amount of the Finance
Charge on each Loan Note shall be pre-computed. In the case where
BANK’s credit granting standards indicate that an Applicant
qualifies for a Loan, ACE shall provide to Borrower a check or a
voucher for the Amount Financed.
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(iv) ACE
shall (A) deliver a copy of the Note to the Borrower;
(B) deliver a copy of the Bank’s privacy policy to the
Borrower; (C) obtain from the Borrower the executed Note;
(D) obtain from Borrower his or her signed personal check or
checks, dated the due date of the final installment due under the
Note, made payable to BANK for the Total of Payments set forth in
the Note (the “ Borrower Check ”), or the
Borrower’s ACH debit authorization (the “ Borrower
Authorization ”); and (E) in accordance with
Section 1(b) , hold in trust and as bailee for BANK,
separate and apart from ACE’s own assets, the Borrower Check
or Borrower Authorization and Note.
(d)
Additional Servicing and Collection of Loans . ACE shall
perform the following servicing functions:
(i) ACE
shall be responsible for collecting payments on the Loans prior to,
at and after maturity thereof (said collection efforts will
include, but shall not be limited to, the presentment of Borrower
Checks or Borrower Authorizations, as applicable). ACE shall ensure
that for Borrowers who repay their entire Loan early, that such
Borrower’s interest will be accurately rebated according to
the actuarial method. In collecting payments owed under the Notes,
ACE shall comply with applicable Laws, including, without
limitation, where applicable, the Fair Debt Collection Practices
Act (the “ FDCPA ”), the operating rules of the
National Automated Clearing House Association (the “ NACHA
Rules ”), as well as debt collection regulations and
consumer protection laws applicable to BANK or ACE, and the
Industry Practices. ACE shall not encourage or allow its employees
to threaten or imply that failure to honor any payment instrument
in connection with any Loan shall subject the Borrower to potential
criminal prosecution and will not impose any charge for cashing a
check provided to a Borrower for the Amount Financed.
(ii) ACE
shall remit, to a bank account designated by BANK (“
BANK’s Deposit Account ”), all Borrower payments
on Loans recorded as collected by ACE, by no later than the next
business day following ACE’s receipt of such
payment.
(iii) ACE
shall maintain and retain all original Applications and copies of
all Adverse Action Notices and other documents relating to rejected
Applications for the period required by applicable Laws. ACE shall
maintain in a secure environment originals or copies, as
applicable, of all (x) Applications and copies of all Adverse
Action Notices and other documents relating to rejected and
incomplete Applications; and (y) originals or copies, as
applicable, of all Applications, Notes (including Disclosures),
Borrower Checks, Borrower Authorizations and other documents
provided to or received from Borrowers (all such documents
referenced in clauses (x) and (y) collectively, the
“ Loan Documents ”) for the period required by
applicable Laws. The obligations of ACE under this
Section 2(d)(iii) shall survive termination of this
Agreement. ACE will work with Service Provider to ensure that BANK
is provided timely information concerning the basis for each
Adverse Action Notice relating to a rejected
Application.
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(e)
Reports; Access to Stores, Books and Records and Employees
:
(i) During
the term of this Agreement, ACE shall provide to BANK data
submissions and reports reasonably required by BANK in order to
maintain effective internal controls and to monitor results under
this Agreement, including, without limitation, the performance of
the Loans and ACE’s obligations hereunder. Such reports shall
include a daily report showing those Loans originated through ACE,
the Loans outstanding, the Loans repaid, the Loans charged-off, the
Loan charge-off recoveries, a daily interest accrual report that
includes information on each Loan and ACH information required to
collect Loan repayments, as well as ACE’s monthly compliance
review checklists and periodic internal audit reports for ACE
Designated Locations marketing and servicing the Loans.
(ii) Upon
request of BANK, ACE shall, within forty-five (45) days of the
last day of any calendar quarter, provide BANK with ACE’s
quarterly financial statements and, on or before each
April 15, shall provide BANK with ACE’s annual unaudited
financial statements, each to be prepared in accordance with
generally accepted accounting principles then in effect
.
(iii) Unless
otherwise directed by BANK, BANK agrees to allow ACE, as its
bailee, to maintain and retain possession of the Loan Documents in
trust for BANK for the term of the Agreement and any additional
period required by applicable Law. ACE agrees to use such Loan
Documents solely to service the Loans. Such Loan Documents shall be
held by ACE in trust and as bailee for BANK, which has and shall
continue to have constructive possession and legal title to such
documents, files and records. At such time or times as BANK may
reasonably request, and at BANK’s cost, ACE shall deliver a
copy of all Loan Documents to BANK at its headquarters or such
other location or locations as BANK shall direct in writing. All
such documents shall be maintained segregated from other books and
records of ACE and otherwise in such a manner as to facilitate
their inspection by and delivery to BANK, if so requested in
writing. During the term of this Agreement and at all times
thereafter as it relates to information pursuant to this Agreement,
BANK and banking agencies with regulatory authority over BANK shall
have reasonable access to ACE Designated Locations, to the books
and records of ACE (to the extent that such books and records
pertain to the Loans), to the officers, employees and accountants
of ACE, and to copies of Loan Documents, all for the same purposes
of ensuring that ACE is carrying out the BANK Policies and is
otherwise complying fully with its obligations under this
Agreement. Such access shall include permission to maintain
employees or agents of BANK, at BANK’s expense, and any
banking agency with regulatory authority over BANK, at BANK’s
expense, on the premises of ACE during regular business hours to
audit ACE’s services contemplated by this Agreement. In
addition, and not as a limitation of the foregoing, BANK and any
banking agency with regulatory authority over BANK shall have the
right, from time to time during the term of this Agreement, to
conduct audits and/or compliance reviews of the services provided
hereunder, and the records generated thereunder; provided, that
such audit and review rights shall be conducted during normal
business hours in a manner which does not unreasonably interfere
with ACE’s normal business operations and customer and
employee relations.
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(iv) ACE
will comply, as determined by BANK in BANK’s reasonable
discretion, with the Service Provider’s extended loan
underwriting system as administered by BANK.
(f)
Fees and Costs : In consideration for ACE’s
performance of its obligations under this Agreement, BANK shall pay
ACE the marketing and servicing fees set forth on
Exhibit A (the “ Fees ”), as such
Fees may be changed from time to time by mutual written agreement
of the Parties. ACE shall deliver to BANK the Invoices (as defined
in Exhibit A ) on the times and with the details
required in Exhibit A . Based on those Invoices, BANK
will pay to ACE the Fees in accordance with the terms set forth in
Exhibit A . ACE will be responsible for all principal
and fee losses related to the Loans. ACE will be responsible for
all costs associated with ACE Designated Locations and its services
under this Agreement, including without limitation rental and
occupancy costs; costs of up-fit and leasehold improvements;
equipment costs; processing costs; printing costs; maintenance
costs; staffing costs; taxes assessed to ACE; signage costs; and
advertising costs. BANK will be responsible for all banking agency
audit costs billed to BANK by such banking agency which result from
an audit of ACE by any banking agency with regulatory authority
over BANK . ACE will be responsible for any information
technology audits required by BANK to comply with FDIC
guidelines.
(g)
Set-Off . In the event of an indemnifiable event as
contemplated under Section 4 of this Agreement, ACE shall
have no right of set off for any fees or costs owing to ACE under
this Agreement, against any monies in ACE’s possession in
trust or as bailee for BANK, including without limitation any cash
payments on the Loans made directly by the Borrower to ACE or as a
result of deposit of any Borrower Checks or realization on any
other collateral or security for the Loans. In the event of an
indemnifiable event as contemplated under Section 4 of
this Agreement, BANK shall have a right of set off for any fees
owing to ACE for Losses (as defined in Section 4(a) )
incurred by BANK and not otherwise paid by ACE pursuant to the
terms and conditions set forth in Section 4(h)
.
(h)
Notice . Each Party shall provide the other with written
notice promptly (but not later than 5 business days) after becoming
aware of any threatened or actual investigation, regulatory action,
arbitration, lawsuit, fees or penalties pertaining to the Loans,
this Agreement or any similar marketing and servicing agreements of
third Parties, the effect of which may materially impact the
obligations or rights of the Parties under this
Agreement.
(i)
Opinion of Counsel . ACE shall deliver to BANK, as soon as
possible following the execution of this Agreement, memoranda of
law prepared by ACE’s counsel, in form and substance
reasonably satisfactory to BANK, confirming the legality of the
activities of ACE contemplated by this Agreement under the laws of
the States of Texas, Pennsylvania and Arkansas or as that law may
be preempted by federal law. BANK may, at its discretion, waive
this requirement.
(j)
Banking Regulation . If BANK is required to make any
notification to, or pay any costs or fees, excluding taxes, to the
Texas Secretary of State,
8
the Texas
Finance Commission, the Texas Department of Banking, the Texas
Office of the Consumer Credit Commissioner, the Comptroller of the
State of Texas, or any other person or office with the power to
enforce the laws of Texas, including, without limitation the
Attorney General of Texas, related to the Loans or the Program, ACE
shall promptly reimburse BANK for all costs and fees related
thereto after receipt of written notice of such costs and fees. ACE
shall reimburse the Bank for costs or fees, excluding taxes related
to any state or local agencies in Pennsylvania or
Arkansas.
(k)
Maintain Required Licenses and Registrations . ACE will
maintain its licenses at ACE Designated Locations from the Office
of the Consumer Credit Commissioner of Texas as an arranger of
loans under Chapter 342 of the Texas Finance Code and, if
required, will obtain any other appropriate business license for
each ACE Designated Location. ACE will also maintain necessary
licenses in Pennsylvania and Arkansas. In addition, ACE will obtain
and maintain all licenses and registrations required by any Laws
and applicable to the activities of ACE (or its affiliates) under
and throughout the term of this Agreement. ACE will provide copies
of these licenses and registrations if so requested by
BANK.
(l)
Regulatory Examinations and Audits . ACE agrees to submit to
any examination which may be required by any regulatory authority
with audit and examination authority over BANK, to the fullest
extent that such regulatory authority may require, and ACE
specifically agrees and acknowledges that it will permit
examination by the FDIC to the extent required for BANK to remain
in compliance with law .
3. Representations and Warranties.
(a) BANK
hereby represents and warrants to ACE as of the date hereof
that:
(i) BANK
is a duly organized Delaware state bank validly existing under the
laws of the State of Delaware, and is authorized, as a matter of
Delaware law, to conduct its business as described in this
Agreement The deposits of BANK are insured by the FDIC up to
applicable limits. BANK has the corporate power and authority and
all requisite licenses, permits and authorizations to execute and
deliver this Agreement and perform its obligations contemplated
hereunder.
(ii) BANK
is authorized under applicable Law to make the Loans under this
Agreement and is not prohibited by applicable Law from contracting
with a third party to provide the services which ACE will provide
under this Agreement.
(iii) BANK
is authorized under applicable Law to contract with Service
Provider, and transmission by and between ACE and Service Provider
of information required for and provided solely for the purpose of
processing the Loans does not violate applicable Law.
(iv)
This Agreement has been duly authorized by BANK’s Board of
Directors, executed and delivered by BANK and constitutes its
legal, valid and
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binding
agreement, enforceable against BANK in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship, and the
rights and obligations of receivers and conservators under 12
U.S.C. §§1821 (d) and (e), and any other laws
affecting creditors’ rights and remedies generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The
execution, delivery and performance of this Agreement by BANK does
not violate or conflict with (A) any provision of the articles
of incorporation or other governance documents of BANK or
(B) any Delaware or federal law, or any order, arbitration
award, judgment or decree to which BANK is a party or by which BANK
or any of its assets may be bound.
(vi) Except
as may be set forth on Exhibit B hereto, there are no
claims, actions, suits, orders or investigations, either at law or
in equity, or any proceedings by or before any court or
governmental authority or arbitrator pending, or to the knowledge
of BANK threatened, against BANK or any of its affiliates that
(A) if asserted and decided adversely to BANK or any
affiliate, would materially and adversely affect BANK
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