MARKETING AND SERVICING AGREEMENT

 

(c)                                   “ADVERSE ACTION NOTICE” shall be defined as an appropriately completed notice in compliance with Equal Credit Opportunity Act (ECOA), , Regulation B, and applicable law required to be provided to CUSTOMERS who are not eligible for for the PROGRAM.

 

(d)                                  “APPLICANT” shall be defined as a prospective CUSTOMER seeking to take advantage of or otherwise participate in the PROGRAM.

 

(e)                                   “APPLICATIONS” shall be defined as each of the forms filled out by a CUSTOMER seeking to take advantage of the PROGRAM as such forms may be amended or modified from time to time.

 

(f)                                     “BANK” shall be defined as Republic Bank & Trust Company, a Kentucky state-chartered bank.

 

(g)                                  “BANK DEPOSIT ACCOUNT” shall be defined as that bank account held at a bank or banks designated by BANK and made known to ADVANCE AMERICA and into which shall be deposited all the daily receipts collected by ADVANCE AMERICA for the benefit of BANK and applied to the TRANSACTIONS.

 

(h)                                  “BANK INDEMNIFIED PARTIES” shall be defined as BANK and its holding company, subsidiary and affiliates, and each of their officers, directors, shareholders, employees, representatives, agents and attorneys.

 

(i)                                      “BANK INTELLECTUAL PROPERTIES” shall be defined as the name, trade name, trademarks, service marks and logos of BANK.

 

(j)                                      “BANK POLICIES” shall be defined as the reasonable and lawful practices, policies and procedures established by BANK and communicated in writing to ADVANCE AMERICA from time to time with respect to the TRANSACTIONS.

 

(k)                                   “CONFIDENTIAL INFORMATION” shall be defined as all documents, materials and other information related to this Agreement which shall have been obtained during the course of the negotiations leading to, and during the performance of, this Agreement, excepting those items excluded from this definition by Section 9(c) of this Agreement.

 

(l)                                      “CUSTOMER” shall be defined as any person who participates in the PROGRAM.

 

(m)                                “CUSTOMER INFORMATION” shall be defined as all information derived from whatever source about any of the CUSTOMERS or the APPLICANTS, including without limitation names, addresses, demographic information and financial information.

 

(n)                                  “DISCLOSURES” shall be defined as all information required to be provided to an APPLICANT or CUSTOMER under federal law or applicable state law.

 

(o)                                  “EVENT OF DEFAULT” shall be defined in Section 7(d).

 

(p)                                  “FEES” shall be defined as the marketing and servicing fees set forth on Exhibit A attached hereto.

 

(q)                                  “HARMFUL ACTS” shall be defined as any fraud, theft, dishonesty, defamation, or other willful misconduct of any party to this Agreement, or any party’s officer, employee, director or agent.

 

(r)                                     “LOSSES” shall be defined as claims, losses, liabilities, damages, penalties, demands, judgments, settlements, costs and expenses, including reasonable attorneys’ fees.

 

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(s)                                   “MARKET” shall mean all ADVANCE AMERICA stores in Texas during the term of this Agreement.

 

(t)                                     “NET CHARGE OFFS” shall mean the difference between the sum of the principal and FEES of any TRANSACTIONS which have been charged off less any recoveries, payments or collections on such TRANSACTIONS.

 

(u)                                  “NOTES” shall be defined as those promissory notes or similar negotiable instruments which may be made by a CUSTOMER to secure the CUSTOMER’S obligations under any TRANSACTION.

 

(v)                                  “NSF CHARGE OFFS” shall be defined as items for which payment has not been received in a [***] period from the date such items are recorded by ADVANCE AMERICA which date shall be within a reasonable time from the date the drawee bank notifies ADVANCE AMERICA that such items are uncollected.

 

(w)                                “PROGRAM” shall be defined as the totality of the TRANSACTIONS contemplated under this Agreement with regard to the deferred deposit transactions.

 

(x)                                    “PROMOTIONAL MATERIALS” shall be defined as all letters, advertising and promotional literature or material incorporating BANK INTELLECTUAL PROPERTIES and all related designs, artwork, logos, slogans, copy and other similar materials.

 

(y)                                  “REPAYMENT CHECKS” shall be defined as checks issued by a CUSTOMER as security for and in repayment of the TRANSACTIONS.

 

(z)                                    “RESTRICTED PARTY” shall be defined as any party who is bound by Section 9 of this Agreement with regard to the CONFIDENTIAL INFORMATION, including, without limitation, all agents, employees, officers, directors and other third-party agents of any of the Parties hereto.

 

(aa)                             “ROLLOVER” shall be defined as extending a TRANSACTION for an additional term by paying only the fee due and refinancing the remaining principal amount of the TRANSACTION for an additional fee.

 

(bb)                           “TRANSACTIONS” shall be defined as those certain deferred deposit transactions as provided under Kentucky and other applicable law.

 

(cc)                             “TRANSACTION DOCUMENTS” shall be defined as (i) all original APPLICATIONS and copies of all ADVERSE ACTION NOTICES and other documents relating to rejected APPLICATIONS; and (ii)  originals or copies, as applicable, of all APPLICATIONS, NOTES (including DISCLOSURES), REPAYMENT CHECKS and other documents provided to or received from CUSTOMERS.

 

(dd)                           “TRANSACTION LOSS RATE” shall have the meaning set forth in Exhibit A.

 

2.                                        INCORPORATION OF RECITALS.

 

The recitals set forth above are incorporated herein by reference.

 

3.                                        BANK’S SERVICES.

 

(a)                                   BANK in its sole discretion shall determine all of the conditions, terms and features of the TRANSACTIONS, including, without limitation, amounts, fees and charges, limits, credit standards, underwriting criteria, payment terms and all other terms and conditions of the TRANSACTIONS.

 

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BANK shall approve the form of all TRANSACTION DOCUMENTS.  BANK shall enter into the TRANSACTIONS with all APPLICANTS originated by ADVANCE AMERICA and who, in the sole discretion of BANK, meet such standards and other qualifications as established by BANK; provided that BANK shall not be required to enter into a TRANSACTION if it reasonably believes that the TRANSACTION or its solicitation will violate or has violated any applicable law.  Neither ADVANCE AMERICA, nor BANK, nor their respective employees shall state or suggest to APPLICANTS that TRANSACTIONS are made with or approved by ADVANCE AMERICA or that ADVANCE AMERICA (or any employee or agent of ADVANCE AMERICA) can improve or otherwise influence an APPLICANT’s prospect of entering into a TRANSACTION with BANK.  Subject to BANK policy and applicable law, BANK may reject any TRANSACTION or TRANSACTIONS, at any time, in its sole discretion.

 

(b)                                  ADVANCE AMERICA acknowledges that all rights of ownership in the TRANSACTIONS and the TRANSACTION DOCUMENTS are and remain the sole property of BANK, and ADVANCE AMERICA shall have no ownership rights to such TRANSACTIONS or TRANSACTION DOCUMENTS during the term of this Agreement.  Furthermore, ADVANCE AMERICA shall not in any way fund, or purchase any share or “participation interest” in, any TRANSACTION.

 

(c)                                   In its sole discretion, BANK may sell, transfer, grant an interest in, or otherwise assign any TRANSACTION, or any portion of any TRANSACTION, to a third party or parties provided that BANK shall not sell any TRANSACTION to any business or entity whose primary business is conducting or generating deferred deposit transactions.  Any sale, transfer or assignment by BANK of any such TRANSACTION shall comply with applicable law.

 

(d)                                  BANK shall forward to ADVANCE AMERICA, via facsimile, with a copy by first-class mail, within one (1) business day of receipt any written notices it receives that bankruptcy proceedings have been initiated with respect to any CUSTOMER.

 

(e)                                   During the term of this Agreement, BANK shall promptly provide to ADVANCE AMERICA or its agents the data submission and reports necessary for ADVANCE AMERICA to maintain effective internal controls and to monitor results under this Agreement, including without limitation the performance of the TRANSACTIONS and BANK’s obligations hereunder.

 

4.                                        ADVANCE AMERICA’s SERVICES.

 

(a)                                   General Duties of ADVANCE AMERICA; Standards of Performance :  ADVANCE AMERICA shall perform all services reasonably required to market and service the TRANSACTIONS of BANK in the MARKET, including without limitation, the establishment of retail outlets in number and location determined by ADVANCE AMERICA in its sole discretion, where APPLICANTS may submit APPLICATIONS and receive DISCLOSURES required by applicable law and where CUSTOMERS may execute and deliver the TRANSACTION DOCUMENTS and deliver REPAYMENT CHECKS or other payment on the TRANSACTIONS for deposit by ADVANCE AMERICA to BANK DEPOSIT ACCOUNT.  In marketing the TRANSACTIONS and performing its services hereunder, ADVANCE AMERICA shall at all times and in all respects comply with applicable laws, rules and regulations.  ADVANCE AMERICA agrees to conduct such TRANSACTIONS in accordance with Exhibit B attached hereto and incorporated herein by reference and shall comply with BANK’S PROGRAM and protocols contemplated hereby.  Further, ADVANCE AMERICA shall use only TRANSACTION DOCUMENTS approved by BANK and shall follow BANK POLICIES.  ADVANCE AMERICA shall train and supervise its employees to act in conformity with BANK POLICIES and the requirements of applicable laws, rules and regulations.

 

(b)                                  Marketing of TRANSACTIONS :

 

(i)                                      BANK hereby authorizes ADVANCE AMERICA during the term of this Agreement to market TRANSACTIONS to prospective CUSTOMERS on BANK’s behalf.  BANK hereby grants to ADVANCE AMERICA the right to use BANK INTELLECTUAL PROPERTIES during the term of this Agreement in connection with this Agreement on letters, print advertisements, the Internet, television

 

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and radio communications and other advertising and PROMOTIONAL MATERIALS; provided, however , ADVANCE AMERICA shall submit all PROMOTIONAL MATERIALS to BANK for its written approval prior to any use thereof.  If BANK fails to reject any proposed PROMOTIONAL MATERIALS within five (5) business days of receipt of the request for approval, such PROMOTIONAL MATERIALS shall be deemed approved by BANK.  All rights to BANK INTELLECTUAL PROPERTIES not expressly granted to ADVANCE AMERICA herein are reserved by BANK.  Regardless of whether they incorporate BANK INTELLECTUAL PROPERTIES, all advertising and PROMOTIONAL MATERIALS for the TRANSACTIONS (A) shall prominently identify BANK as maker of the TRANSACTIONS, (B) shall be accurate, (C) shall not be misleading, and (D) shall comply with all applicable laws, rules and regulations.

 

(ii)                                   In connection with ADVANCE AMERICA’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 ADVANCE AMERICA store or any personal property located therein, except for REPAYMENT CHECKS, NOTES, TRANSACTION DOCUMENTS, and cash reflecting TRANSACTION repayments for the TRANSACTIONS, and (B) no BANK employees shall work in any ADVANCE AMERICA store except for BANK agents who may examine ADVANCE AMERICA stores from time to time, during regular business hours, for compliance with BANK POLICIES and other aspects of this Agreement.

 

(c)                                   Servicing of TRANSACTIONS and APPLICATIONS :

 

(i)                                      BANK also hereby authorizes ADVANCE AMERICA to obtain APPLICATIONS for TRANSACTIONS from APPLICANTS, using an APPLICATION approved by BANK.  ADVANCE AMERICA 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.  ADVANCE AMERICA shall not discriminate against or discourage any APPLICANT in any aspect of the application process on any “prohibited basis,” as such term is defined in the Equal Credit Opportunity Act (ECOA), Regulation B and KRS Section 344.400.

 

(ii)                                   Based upon the information provided by APPLICANTS to BANK in the APPLICATIONS and such other credit-related information as obtained by ADVANCE AMERICA at the direction of BANK, or by BANK directly, and pursuant to the underwriting standards and criteria adopted by BANK in its sole discretion, BANK shall be solely responsible for determining whether to enter into a TRANSACTION with an APPLICANT.  BANK shall, either itself or through its designated agent, communicate to ADVANCE AMERICA its decision on each APPLICATION.  On BANK’s behalf, ADVANCE AMERICA shall provide an ADVERSE ACTION NOTICE to any APPLICANT whose APPLICATION is rejected by BANK.

 

(iii)                                The CUSTOMER’S obligations under the TRANSACTION shall be evidenced by a NOTE containing the DISCLOSURES and secured by a REPAYMENT CHECK.

 

(iv)                               ADVANCE AMERICA shall (A) obtain from the CUSTOMER the executed NOTE; (B) deliver an executed copy of the NOTE to the CUSTOMER; (C) obtain from the CUSTOMER his or her REPAYMENT CHECK, dated the due date of the NOTE and made payable to BANK for the Total of Payments set forth in the NOTE and held in trust separate and apart from ADVANCE AMERICA’s records;  and (D) shall not allow CUSTOMERS to engage in ROLLOVERS or to renew a TRANSACTION made pursuant to this Agreement except to the extent permitted by applicable law and BANK POLICIES.

 

(d)                                  Collection of TRANSACTIONS .

 

(i)                                      BANK hereby authorizes ADVANCE AMERICA to service the TRANSACTIONS by, among other things, (1) using its commercially reasonable efforts to collect payments on the TRANSACTIONS at and after maturity thereof on behalf of BANK (said collection efforts will include, but shall not be limited to, the representment of checks via the Automated Clearing House (ACH));

 

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(2) accurately recording and reporting payments of funds received from CUSTOMERS, which payments shall be kept in a cash drawer, separate in all respects from any cash or other assets of ADVANCE AMERICA; and (3) making prompt remittance to and settlement with BANK by daily deposits of the CUSTOMER funds in said cash drawer.  In collecting payments owed under the NOTES, ADVANCE AMERICA shall comply in all respects with applicable law, rules and regulations.  Without limiting the generality of the foregoing, ADVANCE AMERICA shall not, explicitly or implicitly, make any threats of criminal prosecution in connection with debt collection, or otherwise engage in any collection practices that violate any applicable law, rules and regulations; including without limitation, but only where applicable, the Fair Debt Collection Practices Act (“FDCPA”); any debt collection regulations or consumer protection laws applicable to BANK or ADVANCE AMERICA; and the Best Practices of the Community Financial Services Association of America (the “CFSA Best Practices”).

 

(ii)                                   ADVANCE AMERICA shall service the TRANSACTIONS at all times in accordance with the terms of the NOTES and the DISCLOSURES, the TRANSACTION DOCUMENTS and BANK POLICIES.  BANK shall notify ADVANCE AMERICA in writing at least thirty (30) days prior to any change in BANK POLICIES, unless such changes are required sooner by applicable law.

 

(iii)                                On each day ADVANCE AMERICA operates its stores for regular business, ADVANCE AMERICA shall deposit and transfer to BANK DEPOSIT ACCOUNT (A) all cash received from CUSTOMERS representing repayment of TRANSACTIONS and (B) all REPAYMENT CHECKS held by ADVANCE AMERICA with respect to TRANSACTIONS as to which repayment was not otherwise received on or before the due date, subject to such delay in deposit, as ADVANCE AMERICA may reasonably accommodate to secure repayment in cash from the CUSTOMER. However, in no event shall ADVANCE AMERICA hold a check more than ten (10) days past the due date.

 

(iv)                               ADVANCE AMERICA shall be responsible for any deficiency in the amount of cash reported and the actual amount of cash received from CUSTOMERS in repayment of TRANSACTIONS. Any deficiencies shall be refunded to BANK on a quarterly basis.

 

(e)                                   Reports; Access to Stores, Books and Records and Employees :

 

(i)                                      During the term of this Agreement, ADVANCE AMERICA shall promptly provide to BANK or its agents the data submissions and reports set forth on Exhibit B hereto in order for BANK to maintain effective internal controls and to monitor results under this Agreement, including without limitation the performance of the TRANSACTIONS and ADVANCE AMERICA’s obligations hereunder.

 

(ii)                                   ADVANCE AMERICA shall, as reasonably required by BANK, but no more often than quarterly, provide BANK with its most recent unaudited financial statements and its annual audited financial statements.

 

(iii)                                BANK agrees to allow ADVANCE AMERICA, as its agent and bailee, without an ownership interest by ADVANCE AMERICA, to maintain and retain possession of the TRANSACTION DOCUMENTS for the term of the Agreement and any additional period required by applicable law.  Except as otherwise allowed by Section 9 of this Agreement, ADVANCE AMERICA agrees to use such TRANSACTION DOCUMENTS solely to service the TRANSACTIONS and to segregate all such TRANSACTION DOCUMENTS, and all document files and records which relate to the services provided by ADVANCE AMERICA hereunder, from ADVANCE AMERICA’s other files and records.

 

(iv)                               The TRANSACTION DOCUMENTS shall be held by ADVANCE AMERICA, pursuant to BANK’S record retention requirements, as more particularly set forth in Exhibit B attached hereto and incorporated herein by reference in trust for BANK, and BANK will have 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, ADVANCE AMERICA shall promptly deliver copies of requested TRANSACTION DOCUMENTS to BANK at its headquarters or such other location or locations as BANK shall direct.  All such documents shall be maintained segregated from other books and

 

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records of ADVANCE AMERICA and otherwise in such a manner as to facilitate their inspection by and delivery to BANK, if so requested.

 

(v)                                  During the term of this Agreement and at all times thereafter, BANK and banking agencies with regulatory authority over BANK shall have reasonable access to ADVANCE AMERICA stores, to the books and records of ADVANCE AMERICA (to the extent that such books and records pertain to the TRANSACTIONS), to the officers, employees and accountants of ADVANCE AMERICA, and to copies of TRANSACTION DOCUMENTS, all for the purpose of ensuring that ADVANCE AMERICA is carrying out BANK POLICIES and is otherwise complying fully with its obligations under this Agreement.  Such access shall include permission to maintain employees on the premises of ADVANCE AMERICA in Texasor such offices of ADVANCE AMERICA where any information requested may be located during regular business hours to audit ADVANCE AMERICA’s services contemplated by this Agreement.  BANK agrees to provide reasonable advance notice of its intent to audit any ADVANCE AMERICA store.

 

(vi)                               In addition, and not as a limitation of the foregoing, BANK shall have the right at ADVANCE AMERICA’s expense, provided that the aggregate expense to ADVANCE AMERICA shall not exceed $15,000 per year, from time to time during the term of this Agreement, to conduct reasonable outside audits in any given year and other reasonable 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 ADVANCE AMERICA’s normal business operations and CUSTOMER and employee relations.

 

(f)                                     FEES and Costs :  In consideration for ADVANCE AMERICA’s performance of its obligations under this Agreement, BANK shall pay ADVANCE AMERICA the FEES, as such FEES may be changed from time to time by mutual written agreement of the Parties. Such FEES shall be paid by BANK to ADVANCE AMERICA, as defined by, and containing the information required by Exhibit A.  ADVANCE AMERICA will be responsible for all costs, expenses and taxes (of whatever nature or authority) associated with its stores 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 or against ADVANCE AMERICA; signage costs; and advertising costs.  Other than the costs and expenses set forth in this section, ADVANCE AMERICA shall not be responsible for any other costs or expenses associated with TRANSACTIONS, provided, however, that each of the Parties hereto shall be responsible for their own corporate and other expenses resulting from negotiating and executing this Agreement.

 

5.                                        Representations and Warranties.

 

(a)                                   BANK hereby represents and warrants to ADVANCE AMERICA as of the date hereof and on a continuing basis throughout the term of this Agreement that:

 

(i)                                      BANK is a duly organized Kentucky state-chartered bank validly existing under the laws of the Commonwealth of Kentucky, and is authorized to conduct business as described in this Agreement in the State of Texas .  The deposits of BANK are insured by the Federal Deposit Insurance Corporation 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 enter into the TRANSACTIONS with CUSTOMERS in the MARKET in accordance with terms set forth in KRS Chapter 368;

 

(iii)                                This Agreement has been duly authorized and will be ratified by BANK’s Board of Directors at the next scheduled meeting of BANK’s Board of Directors following execution hereof.

 

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(iv)                               This Agreement has been duly executed and delivered by BANK and constitutes its legal, valid and 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;

 

(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 Kentucky or federal law, or (C) 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)                               BANK is authorized by applicable laws to contract with a third party agent to provide the services that ADVANCE AMERICA will provide under this Agreement;

 

(vii)                            BANK is authorized under applicable laws to contract with a third party to provide loan processing services not covered by this Agreement, and represents that transmission by and between ADVANCE AMERICA and such third party of information required for processing the TRANSACTIONS does not violate any applicable state laws or federal law;

 

(viii)                         During the term of this Agreement, but only to the extent permissible under applicable laws, regulations and regulatory practices, ADVANCE AMERICA and its auditors shall have complete access to BANK’S accounting records relating to TRANSACTIONS made in the MARKET. Subject to the foregoing limitations, ADVANCE AMERICA will also have access to the officers, employees and accountants of BANK for the same purposes as set forth above to discuss such records and TRANSACTIONS during normal business hours and with reasonable notice;

 

(ix)                                 There are no undisclosed regulatory actions, investigations, or lawsuits against BANK or its affiliates, relating to or potentially impacting upon the marketing and servicing of TRANSACTIONS or the performance of BANK’s obligations under this Agreement;

 

(x)                                    To the best of its knowledge, BANK represents that any and all written information and financial statements provided to ADVANCE AMERICA in contemplation of this Agreement did not contain any material omissions of fact and were materially correct;

 

(xi)                                 BANK is a current member of and in good standing with the Community Financial Services Association of America (the “CFSA”); and

 

(xii)                              BANK shall use its reasonable best efforts to comply in all material respects with the CFSA Best Practices in effect on the date of this Agreement, and any reasonable Best Practices, or modifications to such practices approved and adopted by the CFSA during the term of this Agreement; provided the practices comply in all respects with all applicable law, and the interpretation of such law by authorities with jurisdiction.

 

(xiii)                           Bank represents and warrants to Advance America that there have been no material decisions, changes, events, actions lawsuits, claims, demands, allegations or occurences regarding the BANK which could materially alter or affect the due diligence ADVANCE AMERICA conducted on BANK in July, 2002.

 

(xiv)                          Bank represents and warrants that Bank shall deliver to Advance America, by November 5, 2002  an opinion of Bank’s counsel in form and substance reasonably satisfactory to Advance America, confirming the legality of the activities of Bank contemplated by this Agreement under Kentucky and Texas law or as that law may be preempted or supplemented by Federal law.

 

(b)                                  ADVANCE AMERICA hereby represents and warrants to BANK, as of the date hereof and on a continuing basis throughout the term of this Agreement that:

 

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(i)                                      ADVANCE AMERICA is a duly organized and validly existing corporation under the laws of the State of Delaware, and is duly qualified to do business as contemplated under this Agreement and has all requisite licenses, permits and authorizations under applicable state and federal law to execute and deliver this Agreement and perform its obligations contemplated hereunder;

 

(ii)                                   ADVANCE AMERICA has the corporate power and authority, and all requisite licenses, permits and authorizations, to execute and deliver this Agreement and to perform hereunder.  This Agreement has been duly authorized by ADVANCE AMERICA’s Board of Directors, has been executed and delivered by ADVANCE AMERICA and constitutes its legal, valid and binding agreement, enforceable against ADVANCE AMERICA in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights and remedies generally;

 

(iii)                                The execution, delivery and performance of this Agreement by ADVANCE AMERICA does not violate or conflict with (A) any provision of the governance documents of ADVANCE AMERICA; or (B) any applicable state or federal law; or (C) any order, arbitration award, judgment or decree to which ADVANCE AMERICA is a party or by which ADVANCE AMERICA or any of its assets may be bound;

 

(iv)                               ADVANCE AMERICA will operate its stores in Texas in accordance with this Agreement and will follow its normal operating procedures in operating these stores including providing adequate security measures, hiring appropriate employees, and being open for business during normal business operating hours;

 

(v)                                  There are no undisclosed regulatory actions, investigations, or lawsuits against ADVANCE AMERICA or its affiliates relating to the marketing and servicing of the TRANSACTIONS in the MARKET;

 

(vi)                               To the best of its knowledge, ADVANCE AMERICA represents that any and all written financial statements provided to BANK in contemplation of this Agreement did not contain any material omissions of fact and were materially correct;

 

(vii)                            ADVANCE AMERICA is a current member of and in good standing with the CFSA; and

 

(viii)                         ADVANCE AMERICA shall use its reasonable best efforts to comply in all material respects with the CFSA Best Practices in effect on the date of this Agreement, and any reasonable Best Practices, or modifications to such practices approved and adopted by the CFSA during the term of this Agreement; provided the practices comply in all respects with all applicable law, and the interpretation of such law by authorities with jurisdiction.

 

(ix)                                 ADVANCE AMERICA represents and warrants to BANK that there have been no material decisions, changes, events, actions, lawsuits, claims, demands, allegations or occurences regarding ADVACNE AMERICA which have or could have materially alter or affect the due dilligence BANK conducted on ADVANCE AMERICA in July 2002.

 

(x)                                    ADVANCE AMERICA shall deliver to BANK by November 5, 2002 an opinion of ADVANCE AMERICA’S counsel in form and substance reasonably satisfactory to BANK, confirming the legality of the activites of ADVANCE AMERICA contemplated by this Agreement under Kentucky and Texas law or as that law may be preempted or supplemented by Federal law.

 

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6.                                        Indemnification; Insurance.

 

(a)                                   ADVANCE AMERICA hereby indemnifies and agrees to hold harmless BANK INDEMNIFIED PARTIES from and against any and all LOSSES suffered or incurred by BANK as a result of any HARMFUL ACTS committed by ADVANCE AMERICA .

 

(b)                                  BANK hereby indemnifies and agrees to hold harmless the ADVANCE AMERICA INDEMNIFIED PARTIES from and against any and all LOSSES suffered or incurred by ADVANCE AMERICA , jointly or severally, as a result of any HARMFUL ACTS committed by BANK.

 

(c)                                   The fact that indemnification is provided in this Agreement for some HARMFUL ACTS does not mean that statutory or common law indemnification or contribution are not available to either party for other acts not enumerated herein.

 

(d)                                  ADVANCE AMERICA   agrees to purchase and maintain general business and liability insurance from a nationally-recognized insurance provider which shall, at a minimum, include a rider or riders expressly insuring ADVANCE AMERICA but naming BANK as an additional insur