CREDIT SERVICES AGREEMENT
Exhibit 10.1
THIS CREDIT SERVICES AGREEMENT entered into this 25th day of February, 2006, (as
may be amended, modified or restated from time to time, this “Agreement”), by and between
TRUE FINANCIAL SERVICES, LP, a Texas limited partnership (“Lender”), and ACE CREDIT
SERVICES, LLC, a Texas limited liability company (“CSO”), with an effective date
(“Effective Date”) as set forth below in Section 9(r).
WHEREAS, Lender is permitted to extend credit to individuals for personal, family or household
purposes (“Consumers”), subject to applicable state and federal law and regulation;
WHEREAS, CSO is or will be registered as a credit services organization under Chapter 393 of
the Texas Finance Code to assist Consumers in obtaining an extension of consumer credit (“CSO
Services”);
WHEREAS, in accordance with Lender’s established lending criteria as may be amended from time
to time (“Lender’s Policies”), Lender desires to extend credit to Consumers
(“Loans”); and
WHEREAS, CSO desires to provide CSO Services to Consumers, including assisting Consumers in
obtaining an extension of consumer credit from Lender;
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained in this
Agreement, the sufficiency of which is hereby acknowledged, and intending to be legally bound,
Lender and CSO (singularly a “Party” and together, the “Parties”) agree as follows:
(1) Lender’s Making of Loans; Marketing Materials.
(a) Loans. Lender in its sole discretion shall determine all of the conditions, terms
and features of the Loans, including loan amounts, fees and charges, interest rates, credit limits,
credit standards and all other terms and conditions of the Loans. Notwithstanding the foregoing
sentence, Lender shall have no right to determine the fees and other compensation to be paid to CSO
by a Consumer in connection with the services provided by CSO to such Consumer. Subject to the
terms of this Agreement, Lender agrees that it will make Loans based on Lender’s criteria to
Consumers who submit an application through CSO and meet the credit standards set forth in Lender’s
Policies from time to time. CSO shall either contact Lender directly or, in the alternative, use
Teletrack, or another third-party underwriter designated by Lender, to obtain only “approvals” or
“denials” for applications based on Lender’s Policies, including Lender’s underwriting criteria and
scoring models. Neither Lender, nor CSO, nor their respective employees shall suggest to Consumers
that Loans are made or approved by CSO. Except as expressly provided in this Agreement, Lender
shall be the sole owner of all Loans made pursuant to this Agreement and CSO shall have no right,
title or interest in such Loans.
(b) Marketing. CSO shall (i) obtain Lender’s prior written consent to any brochures
or other marketing materials (including scripts for television or radio advertisements) that are
used to promote Loans offered by Lender or in any way refer to Lender (“Marketing
Materials”), which approval shall not be unreasonably withheld or delayed; and (ii) ensure that
all Marketing Materials comply with all federal, state and local laws, including all statutes,
regulations,
ordinances and judicial, regulatory and administrative interpretations thereof
(“Applicable Laws”); provided however, that the foregoing shall not apply to Marketing
Materials that are provided by Lender.
(2) CSO’s Services.
(a) CSO Services Provided by CSO. CSO shall determine the Consumers to whom it
desires to provide CSO Services and, in accordance with CSO’s procedures, enter into a signed,
written agreement with each such Consumer regarding the CSO Services it will provide, a form of
which CSO has provided to Lender (“CSO Agreement”). The CSO Services may include all or
some of the following services: (1) assisting Consumers in obtaining Loans from Lender in
accordance with Lender’s Policies as adopted from time to time; (2) determining whether a Consumer
satisfies CSO’s requirements for the issuance of a letter of credit, (3) issuing of a letter of
credit to Lender on behalf of a Consumer to secure such Loan; (4) assisting Consumers in completing
the Loan Documents (as that term is defined in Section 2(c)(iv) below); and (5) providing general
written information to Consumers about improving their credit rating. CSO may (i) sell to
Consumers goods or services other than the CSO Services listed in the foregoing sentence or (ii)
modify the CSO Agreement, only with Lender’s prior written consent, which consent shall not be
unreasonably withheld or delayed and shall be limited solely to the issue of whether the CSO and
lending programs as modified comply with Applicable Law. Without limiting the foregoing, Lender
may require CSO to obtain an update to the legal opinion provided under section 2(n) prior to
implementation of any such modifications, which update shall be acceptable to Lender and its
counsel and indicated that such modifications and all affected aspects of the CSO and loan programs
comply with Applicable Laws.
(b) No Ownership by Lender. It is expressly agreed that (i) Lender shall not hold any
ownership or leasehold interest in any CSO center or any personal property located therein, except
for Proceeds Drafts, Loan Documents, and payment instruments or cash reflecting Loan repayments as
may be located at such centers from time to time, and (ii) no Lender employees shall work in any
CSO center and Lender shall exercise no authority or control over CSO’s employees or methods of
operation, except as set forth in this Agreement.
(c) Servicing of Loan Applications.
(i) CSO employees shall accept an information worksheet and appropriate documentation required
by Lender from Consumers in order to complete an application in connection with a request for a
Loan (“Application”). CSO shall not discourage any prospective applicant from submitting
an Application for a Loan from Lender. As part of the CSO Services, CSO shall provide reasonable
assistance to each prospective applicant in completing an Application. All forms required by CSO
for CSO Services shall be prepared by CSO. CSO shall not discriminate against any Consumer in the
credit application process on any “prohibited basis,” as such term is defined in the Federal Equal
Credit Opportunity Act and Regulation B. CSO shall ensure that Applications for Loans are accepted
only at CSO centers located in Texas and, except as provided in clause (ii) below, only from
residents of Texas.
(ii) If CSO obtains Lender’s prior written consent, which consent will not be unreasonably
withheld, CSO may submit to Lender Applications from non-Texas residents who visit a CSO center in
Texas and Lender shall provide Loans to such non-Texas residents subject to the credit standards
set forth in the Lender’s Policies and the provisions of this Agreement. Without limiting the
foregoing, Lender may require CSO to provide a legal opinion
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or an update to the legal opinion provided under Section 2(n) that is satisfactory to Lender
regarding the application of Texas law to such transactions.
(iii) Based upon the information provided by Consumers to Lender through CSO and such other
credit-related information as obtained by CSO at the direction of Lender, as required by Lender’s
Policies, Lender shall be solely responsible for determining whether to extend credit to Consumers.
Subject to the terms of this Agreement, Lender shall extend credit to Consumers who meet Lender’s
criteria and submit Applications through CSO. For any Consumer whose Application is rejected based
upon Lender’s criteria, CSO shall provide to the Consumer, as Lender’s special, limited agent, an
appropriately completed adverse action notice (“Adverse Action Notice”) in the form
specified by Lender. Along with the Loan Agreement (as that term is defined in Section 2(c)(iv)
below), CSO shall provide to each Consumer, on behalf of Lender as Lender’s special, limited agent,
a financial privacy disclosure (“Privacy Disclosure”) in the form specified by Lender. The
Parties acknowledge and agree that, pursuant to the requirements of Applicable Law, CSO may provide
its own adverse action notice and financial privacy disclosure. CSO shall comply with Lender’s
Privacy Disclosure (and any financial privacy disclosure that CSO provides) in performance of its
services under this Agreement.
(iv) Lender’s Loans hereunder shall be evidenced by a consumer loan agreement containing a
waiver of jury trial and arbitration provision (the “Loan Agreement”), which shall be
signed by Lender with a computer-generated signature of an officer of Lender, any required
disclosures and such other documentation as required by Lender. Forms of the Application, the
Adverse Action Notice, the Loan Agreement and the Privacy Disclosure (collectively, the “Loan
Documents”) shall be provided to CSO. CSO, as Lender’s special, limited agent, shall complete
the Loan Documents on behalf of Lender in accordance with the Lender’s Policies, a copy of which
shall be provided to CSO. Lender will inform CSO in writing of any changes to the Loan Documents
or Lender’s Policies at least thirty (30) days before they are adopted and/or implemented by
Lender, unless such changes are mandated to be adopted and/or implemented earlier by Applicable
Laws. CSO will not use any Loan Documents in connection with the Loans made by Lender other than
Loan Documents approved in writing by Lender.
(v) For each Loan to a Consumer, CSO as Lender’s special, limited agent shall: (A) obtain from
the Consumer an executed Loan Agreement and such other documents as may be required by Lender
pursuant to the Lender’s Policies and an authorization to debit the Consumer’s bank account via the
Automated Clearinghouse System (the “ACH Authorization”), which ACH Authorization shall be for the
amount owing to the Lender as set forth in the Loan Agreement; (B) deliver to the Consumer a copy
of the Loan Agreement, and any required disclosures, in accordance with Applicable Laws; and (C)
upon receipt (and only upon receipt) of the signed Loan Agreement and ACH Authorization, deliver to
the Consumer a draft, signed by Lender with a computer-generated signature of an officer of Lender
for the principal amount of the Loan (the “Proceeds Draft”). If funds are available, CSO
may cash Lender’s Proceeds Draft for Consumer, at no cost to Consumer, at a CSO center.
(d) Proceeds Drafts. As part of its obligations hereunder in connection with the
Loans, CSO shall be solely responsible for the safe keeping and the proper preparation and
distribution of Proceeds Drafts, ensuring that all such Proceeds Drafts are delivered to Consumers
only as the result of Loans approved by Lender, are for the principal amount of the Loan, and
delivered properly to Consumers. All of Lender’s Proceeds Drafts shall be maintained in a safe and
secure place.
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(e) Collections on Loans. CSO shall accept payments on Loans from Consumers at its
CSO centers if the payments are made in cash. In addition, CSO shall use commercially reasonable
efforts to collect the Loans on behalf of Lender in accordance with the Lender’s Policies and all
Applicable Laws (including the federal Fair Debt Collection Practices Act if it applies to CSO).
Without limiting the foregoing, CSO shall maintain an ACH origination agreement with a member bank
in the ACH Association and shall institute on Lender’s behalf an ACH debit to the Consumer’s
deposit account for amounts owing to Lender if the Consumer does not make timely payment as
required by the applicable Loan Agreement. Within one (1) business day after receiving any payment
on a Loan in cash or receiving provisional credit for an ACH debit to a Consumer’s deposit account,
CSO shall initiate an ACH transfer in the amount of such cash payment or provisional ACH credit to
the deposit account of Lender in accordance with the requirements of Lender’s Policies. Payments
by CSO to Lender upon receipt of a provisional credit for an ACH debit to a Consumer’s deposit
account shall be provisional to Lender, on the condition of final payment to CSO for the ACH debit
to the Consumer’s deposit account. Any cash payments received by CSO from a Consumer regarding a
Loan, and the proceeds of any ACH debit to a Consumer’s deposit account, shall be held in trust by
CSO as Lender’s special, limited agent for Lender’s benefit until funds are transferred to Lender’s
deposit account by ACH transfer. CSO is authorized to issue payment receipts to Consumers on
behalf of Lender for payments received. CSO shall not have authority to agree to any modification
or amendment of any Loan Documents, or to waive or grant any exception to enforcement of the Loan
Documents in accordance with their terms (including amounts payable thereon) except as expressly
set forth in Lender’s Policies (which policies provide for a five (5) day forbearance period for
Loans to certain Consumers). CSO, as Lender’s special, limited agent, shall continue to accept
payments and otherwise collect on the Loans for up to thirty (30) days after termination of this
Agreement if requested by Lender.
(f) Document Retention. CSO as Lender’s special, limited agent shall maintain and
retain the original of all Loan Documents (either in paper or, with Lender’s written consent,
electronic format), except that CSO may retain copies of a Loan Document in lieu of the original if
the Consumer is required to receive the original under Applicable Laws or with Lender’s prior
written consent, for the period required by Applicable Laws, but not less than twenty-four (24)
months. CSO also shall maintain copies of any Proceeds Drafts and ACH Authorizations for the same
period of time. CSO shall provide Lender access to such documentation no later than five (5)
business days after requested. The records and documentation maintained by CSO pursuant to this
Agreement shall be maintained in a secure environment at all times and in compliance with
Applicable Laws.
(g) Letters of Credit.
(i) In connection with each Loan to a Consumer, CSO shall issue and deliver to Lender a letter
of credit in form and content reasonably satisfactory to Lender (each an, “Individual Letter of
Credit”) naming Lender as beneficiary in an amount equal to the outstanding balance of such
Loan including interest payable thereon as of the stated maturity date of the Loan, plus the
Letter-of-Credit Secured Portion of the NSF Fee (as determined in accordance with section
2(g)(v)). Lender shall have the right to draw on any Individual Letter of Credit up to the amount
of such Individual Letter of Credit for any amount not paid on the related Loan with respect to
principal, interest or the Letter-of-Credit Secured Portion of the NSF Fee, without regard to the
reason that such amount is unpaid. CSO shall issue the Individual Letter of Credit to Lender, and
shall deliver such Individual Letter of Credit to Lender in accordance with, and no later than the
date specified in, the Lender Policies. The Parties agree that CSO may issue a letter of credit
covering more than one Loan, in which case Lender shall have all the rights and
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CSO shall have all the obligations with respect to such letter of credit as the Parties would
have if Individual Letters of Credit were issued for each Loan.
(ii) Each Individual Letter of Credit shall contain an expiration date of one (1) year from
the date of issuance, and may be cancelled only if (A) the Consumer has repaid to Lender the
outstanding principal balance of the Loan, or (B) the CSO has made payment to Lender for the
account of the Consumer pursuant to the terms of this Agreement. CSO shall pay to Lender within
two (2) business days the principal amount of any Loan if the Consumer rescinds or cancels the CSO
Agreement and does not repay such principal amount to Lender. CSO shall bear any loss on reversal
of any ACH debits to the Consumer’s deposit account after expiration or cancellation of an
Individual Letter of Credit.
(iii) The terms of the Individual Letter of Credit and Lender’s Policies shall set forth the
manner in which Lender is entitled to submit a draft under an Individual Letter of Credit for the
principal, interest owing by the Consumer under the Loan Documents and the Letter-of-Credit Secured
Portion of the NSF Fee and CSO shall pay Lender for such drafts. CSO agrees to provide Lender such
information as Lender may reasonably request, and at such time and in such format as Lender may
reasonably request, in order for Lender to be able to submit drafts under Individual Letters of
Credit for amounts owing on the Loans.
(iv) If Lender draws on an Individual Letter of Credit for amounts owing on a Loan, Lender’s
interest in the related Loan shall be assigned automatically to CSO, without any representation or
warranty, if CSO requests such an assignment in writing. CSO shall promptly remit to Lender the
amount of any late fees, NSF fees or other amounts owing under the Loan that CSO receives from
Consumer to the extent Lender has not received payment of such amounts as a result of its draw
under the Individual Letter of Credit.
(v) The “Letter-of-Credit Secured Portion of the NSF Fee” shall be determined for each
Individual Letter of Credit issued during a calendar quarter based on the chart attached as
Schedule 2(g) and the Applicable Percentage for the previous calendar quarter, where the
“Applicable Percentage” is the aggregate dollar amount of principal and interest payable on all
Loans on which Consumers actually paid NSF fees during such calendar quarter (excluding principal
and interest on any Loan where Lender receives less than all of the NSF fees owed by the Consumer),
divided by the aggregated dollar amount of principal and interest payable on all Loans with a due
date in such calendar quarter, expressed as a percentage; provided, however, that it shall be three
dollars ($3.00) for Individual Letters of Credit issued during the calendar quarter in which the
Effective Date occurs.
(h) Loan Renewals/Extensions. CSO shall not permit any extensions or rollovers in
connection with a Loan, except in accordance with the express terms of Lender’s Policies. The
Parties acknowledge that, to the extent an extension or rollover is permitted, the transaction will
be documented as a new Loan and CSO will provide Lender with a new Individual Letter of Credit with
respect to such new Loan.
(i) Reports. During the term of this Agreement, each Party shall provide the other
Party data submissions and reports reasonably required by the other Party for the purpose of
maintaining effective internal controls and to monitor results under this Agreement, including the
performance of the Loans and each Party’s obligations hereunder (“Program Administration”).
Such reports from CSO shall include, in a form agreed upon by Lender and CSO:
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(i) a weekly report showing Loans made, repaid and outstanding each day,
all amounts delinquent on each Loan, a list of all Loans, the sum of all outstanding balances
of all Loans and the sum of all amounts delinquent on all Loans, in a form agreed upon by Lender
and CSO; and
(ii) a monthly reconciliation report relating to all Loan origination, collection and other
activities that CSO is required to perform for Lender under this Agreement.
(j) Access to Centers, Books and Records and Employees. During the term of this
Agreement, Lender, any regulatory agencies with regulatory authority over Lender and any of
Lender’s internal or external auditors, shall have reasonable access upon prior written notice to
CSO centers in Texas and, to the extent reasonably necessary, CSO’s corporate offices, and to the
books and records of CSO and the officers, employees and accountants of CSO for the purpose of
Program Administration. In particular, it is agreed that any regulatory authorities of Lender
shall have the authority to conduct examinations of CSO, its employees, management and information
systems in order to ensure compliance with Lender’s Policies and all Applicable Laws relevant to
Lender and its operations. During the term of this Agreement CSO and any of its internal or
external auditors shall have reasonable access to Lender’s books and records and the officers,
employees and accountants for the purpose of Program Administration.
(k) Special Agent. In each and every instance, the acts that this Agreement
authorizes CSO to perform for or on Lender’s behalf shall solely constitute CSO a special, limited
agent of Lender to perform the duties and services set forth herein. In no event may CSO act as
Lender’s general agent or represent to others that it may act as Lender’s general agent.
(l) Commitment. During the term of this agreement, Lender shall have the right of
first refusal to make Loans to ONE HUNDRED PERCENT (100%) of the Consumers to whom CSO provides CSO
Services from its CSO centers in Texas as long as the aggregate amount owing on outstanding Loans
(including principal, interest and fees) is less than or equal to TEN MILLION AND NO/100 DOLLARS
($10,000,000) and, after such aggregate amount exceeds TEN MILLION AND NO/100 DOLLARS
($10,000,000), Lender shall have the right of first refusal to make a Loan to FIFTY PERCENT (50%)
of the Consumers to whom CSO provides CSO Services from its CSO centers in Texas. If CSO contracts
with another lender to provide loans to Consumers to whom CSO provides CSO Services from its CSO
centers in Texas, CSO shall not allocate applications between Lender and the other lender in a
manner that favors the other lender in any way over Lender. Notwithstanding anything in this
Agreement, Lender shall not be obligated to make a Loan pursuant to this Agreement if the aggregate
amount owing on outstanding Loans (including principal, interest and fees) exceeds NINETEEN MILLION
AND NO/100 DOLLARS ($19,000,000). For purposes of this subsection, the term “CSO” shall include
any individual or legal entity that controls, is controlled by or is under common control with CSO.
(m) Independence of CSO and Lender. It is the intention of CSO and Lender to comply
with Applicable Laws and to operate independently of each other in their respective capacities as
credit services organization and lender. In the event that either Party reasonably determines that
any provision of this Agreement or any aspect of the program contemplated by this Agreement (the
“Program”) requires an act that Applicable Laws disallow in order for CSO and Lender to operate
lawfully as an independent credit services organization and lender or otherwise causes a material
risk of violating Applicable Laws, then the Parties shall promptly and in good faith attempt to
agree to a modification of such provision or the Program so as to as to reduce or eliminate such
risk of not conforming to Applicable Laws. Either Party may
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terminate this Agreement upon written notice to the other Party if it is determined in such
Party’s reasonable discretion that modification of this Agreement or the Program to reduce or
eliminate the risk of not conforming to Applicable Laws makes it economically infeasible to
continue under the modified terms of this Agreement or the Program.
(n) Local Counsel Opinion. On or before the Effective Date, CSO shall deliver to
Lender a legal opinion from outside Texas counsel addressed to Lender, and in form and substance
satisfactory to Lender and its counsel, in their sole discretion, regarding the transactions
contemplated by this Agreement. CSO acknowledges and agrees that Lender is not obligated to make
any Loans unless such opinion is delivered. Notwithstanding anything in this Agreement, Lender
reserves the right to require CSO to deliver an updated opinion in form and substance satisfactory
to Lender in its sole discretion in connection with any changes to the activities of the Parties
relating to this Agreement, including any amendments to this Agreement.
(o) Guaranty. On or before March 3, 2006, CSO shall deliver to Lender a complete and
unconditional guaranty by ACE Cash Express, Inc. (“Guarantor”) of performance of all of
CSO’s obligations under this Agreement (“Guaranty”). Such Guaranty shall be in form and
substance satisfactory to Lender in its sole discretion.
(p) Standard of Performance. In connection with any matters that CSO performs on
Lender’s behalf as Lender’s special, limited agent, or services that CSO otherwise provides to or
for the benefit of Lender as provided in this Agreement, CSO shall act in accordance with
commercially reasonable practices and with no less care than CSO exercises in conducting its
operations on its own behalf.
(q) Reports to Credit Bureau. The Parties may mutually agree in writing that CSO
shall report performance on the Loans to credit bureaus and, only in such event, shall this Section
2(q) and the other provisions of this Agreement relating to reporting to credit bureaus apply. CSO
shall establish and maintain procedures for reporting performance on the Loans to credit bureaus
that are acceptable to Lender in its reasonable discretion and shall only report to credit bureaus
that are approved in writing by Lender in its reasonable discretion. CSO shall conduct all
reporting to credit bureaus in a complete and accurate fashion, and in accordance with Applicable
Laws. CSO shall, as part of its obligations under this Agreement, be responsible for resolving all
disputes from Consumers about the accuracy of information reported to credit bureaus, regardless of
whether a notice of dispute is received from a credit bureau or directly from a Consumer.
(r) Third Party Service Providers. CSO shall not, whether directly or indirectly,
retain any third party to assist it in performing its duties hereunder or to otherwise participate
in the program under which Loans are made to Consumers (a “Third Party Service Provider”),
except with the prior written consent of Lender, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the above, Lender acknowledges and agrees that (i) Guarantor is an
approved Third Party Service Provider, and (ii) any other affiliate and/or subsidiary companies of
CSO are approved Third Party Service Providers, provided CSO gives Lender written notice of such
affiliate or subsidiary company prior to the use of such company as a Third Party Service Provider
and Lender has given its written approval thereto. Lender agrees that any such approval shall not
be unreasonably withheld. Lender’s approval for CSO to use a Third Party Service Provider shall
not relieve CSO of responsibility for performance of the obligations undertaken by the Third Party
Service Provider. CSO shall be responsible for supervising any Third Party Service Providers
retained by it and ensuring their compliance with this Agreement and the Lender’s Policies.
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(s) CSO Centers. As part of its independent obligations hereunder as a special,
limited purpose agent of Lender, CSO will operate its centers where it provides CSO Services or
services Loans for Lender in accordance with this Agreement, the Lender’s Policies, and Applicable
Laws, and will follow commercially reasonable operating procedures in operating such centers,
including providing adequate security measures, hiring qualified employees, and being open for
business during normal business hours.
(t) Loan Program. As part of its independent obligations hereunder as a special,
limited purpose agent of Lender, CSO will cause the Loans to be originated, administered and
serviced in accordance with the terms and conditions of the Loans, this Agreement, the Lender’s
Policies, and all Applicable Laws, including any usury laws, consumer protection laws, racketeering
laws (including the federal Racketeering Influenced and Corrupt Organizations Act), the federal
Truth in Lending Act or Regulation Z, and limits on fraudulent or unconscionable conduct.
(u) Safeguarding. Each of CSO and Lender shall adopt and maintain reasonable
procedures relating to administrative, technical, and physical safeguards to (a) ensure the
security and confidentiality of NPI that such Party receives; (b) protect against any anticipated
threats or hazards to the security or integrity of NPI that such Party receives; (c) protect
against the unauthorized access to or use of NPI that such Party has in its possession which could
result in substantial harm or inconvenience to any Consumer; and (d) insure the proper disposal of
NPI that such Party has in its possession. For these purposes, “NPI” shall mean any
personally identifiable information about a Consumer obtained in connection with a Loan, CSO
Services or other financial services in the Program.
(3) Representations and Warranties.
(a) Lender hereby represents and warrants to CSO, as of the Effective Date and on a continuing
basis throughout the term of this Agreement, that:
(i) Lender is a duly organized and validly existing limited partnership, organized under the
laws of Texas, and has the power and authority and all requisite licenses, permits and
authorizations to execute and deliver this Agreement and perform its obligations hereunder.
(ii) This Agreement has been duly authorized by Lender, has been duly executed and delivered
by Lender, and constitutes the legal, valid and binding agreement of Lender, enforceable against
Lender in accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors’ rights and remedies generally and by general
principles of equity (regardless of whether in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not (A) violate or conflict with any provision of the
partnership agreement or other governing documents of Lender; or (B) violate or conflict with,
constitute a breach of or default under, result in the loss of any material benefit under, or
permit the acceleration of or entitle any party to accelerate any obligation under or pursuant to,
any material mortgage, lien, lease, agreement, instrument, order, law, arbitration award, judgment
or decree to which Lender is a party or by which Lender or any of its assets may be bound.
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(iv) There are no undisclosed regulatory actions, investigations, or lawsuits against Lender
or its affiliates, that would materially affect the ability of Lender to perform its obligations
under this Agreement, or relate to loans made in connection with the provision of CSO Services.
(v) To the best of Lender’s knowledge, no written or electronic information or financial
statements provided to CSO in contemplation of this Agreement contained any material omissions of
fact or were materially incorrect.
(b) CSO hereby represents and warrants to Lender, as of the Effective Date and on a continuing
basis throughout the term of this Agreement, that:
(i) CSO is a duly organized and validly existing limited liability company, formed under the
laws of the State of Texas and has the power and authority and all requisite licenses, permits and
authorizations (including a registration to do business in Texas as a credit services organization)
to execute and deliver this Agreement and perform its obligations hereunder.
(ii) This Agreement has been duly authorized by CSO, has been duly executed and delivered by
CSO, and constitutes its legal, valid and binding agreement, enforceable against CSO in accordance
with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors’ rights and remedies generally and by general principles of equity (regardless
of whether in a proceeding in equity or at law).
(iii) CSO is authorized under Applicable Laws to contract with a third party to provide loan
processing services not covered by this Agreement, and transmission by and between CSO and such
third party of information required for processing the Loans does not violate any Applicable Laws.
(iv) The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not (A) violate or conflict with any provision of its
operating agreement or other governing documents of CSO; or (B) violate or conflict with,
constitute a breach of or default under, result in the loss of any material benefit under, or
permit the acceleration of or entitle any party to accelerate any obligation under or pursuant to,
any material mortgage, lien, lease, agreement, instrument, order, law, arbitration award, judgment
or decree to which CSO is a party or by which CSO or any of its assets may be bound.
(v) There are no undisclosed regulatory actions, investigations, or lawsuits against CSO or
its affiliates that would materially affect the ability of CSO to perform its obligations under
this Agreement or relate to the provision of CSO Services, or the marketing, making or
administration of loans in connection with CSO Services.
(vi) To the best of its knowledge, no written or electronic information or financial
statements provided to Lender in contemplation of this Agreement contained any material omission of
fact or were materially incorrect.
(vii) The fees and charges that CSO and Lender contract for and charge to Consumers who obtain
Loans do not violate Applicable Laws.
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(4) Indemnification.
(a) CSO hereby indemnifies and agrees to hold harmless Lender and its affiliates, and the
respective officers, directors, members, employees, representatives, shareholders, agents and
attorneys of Lender and its affiliates (the “Lender Indemnified Parties”), against any and
all claims, losses, liabilities, damages, penalties, demands, judgments, settlements, costs and
expenses (“Losses”) suffered or incurred by such Lender Indemnified Parties as a result of,
or with respect to, or arising from: (i) any breach of this Agreement by CSO (including the breach
by CSO of any representation, warranty, covenant, duty or obligation contained herein), or any act
or omission by CSO, its employees, agents or representatives; (ii) any act or omission of
any Third Party Service Provider retained by CSO, the inaccuracy of any warranty or representation
made for the benefit of Lender by any Third Party Service Provider retained by CSO, or the breach
of any obligation owed to Lender by any Third Party Service Provider retained by CSO; (iii) any
claim or determination that the Loans or the activities of a Party hereunder are illegal under,
prohibited by or violate in any way any Applicable Laws, including any investigation by any
regulator authority; (iv) any burglary, robbery, fraud, or theft at the CSO locations marketing or
administration of the Loans by persons other than Lender, or its employees (including loss, theft
or misuse of Proceeds Drafts; and (v) any claim relating to reporting inaccurate, incomplete or
untimely information to a credit bureau.
(b) Except to the extent of Losses expressly excluded under this Section 4(b) or Losses for
which Lender is indemnified by CSO as set forth in Section 4(a), Lender hereby indemnifies and
agrees to hold harmless CSO and its affiliates, and the respective officers, directors, members,
employees, representatives, shareholders, agents and attorneys of CSO and its affiliates (the
“CSO Indemnified Parties”) against any and all Losses suffered or incurred by such CSO
Indemnified Parties as a result of, or with respect to, or arising from (i) any breach of this
Agreement by Lender (including the breach by Lender of any representation, warranty, covenant, duty
or obligation contained herein); (ii) any burglary, robbery, fraud or theft by Lender or its
employees; and (iii) any error or omission in the information or services rendered by any other
third party with whom Lender contracts to provide services not covered by this Agreement.
Notwithstanding the foregoing, there shall be no indemnification under this Agreement by Lender
for: (A) Losses caused by CSO’s breach of this Agreement (including the breach by CSO of any
representation, warranty, covenant, duty or obligation contained herein); (B) Losses caused by
burglary, robbery, fraud, or theft at the CSO locations marketing or administration of the Loans by
persons other than Lender or its employees; (C) Losses resulting from any claim, investigation or
allegation made by any regulatory or governmental authority or agency arising from or relating to
the Loans or the activities of CSO; (D) Losses related to any claim (including any settlement,
judgment or ruling with respect to such a claim) that CSO or Lender has violated any Applicable
Laws (including any usury laws, consumer protection laws, racketeering laws (including the federal
Racketeering Influenced and Corrupt Organizations Act), or the Federal Truth in Lending Act or
Regulation Z) or is liable for fraud or unconscionability; (E) negligence or misconduct of CSO or
its agents; (F) claims that any CSO Indemnified Party is in violation of federal or state
securities or corporate laws; (G) claims brought by employees or shareholders of any CSO
Indemnified Party; (H) a decline in the value of the stock of any CSO Indemnified Party; (I)
adverse publicity or customer relations problems encountered by any CSO Indemnified Party; (J)
non-monetary sanctions by any court or regulatory agency; (K) loss of non-Loan related business or
profits related thereto of any CSO Indemnified Party; (I) management time relating to attending
hearings and meetings with respect to indemnified matters; or (J) any action by Lender against CSO.
(c) Lender Indemnified Parties and the CSO Indemnified Parties are sometimes referred to
herein as the “Indemnified Parties” and CSO or Lender, as indemnitor hereunder, is
sometimes referred to herein as the “Indemnifying Party.”
10
(d) Any Indemnified Party seeking indemnification hereunder shall promptly notify the
Indemnifying Party, in writing, of any indemnified Loss hereunder, specifying in reasonable detail
the nature of the Loss, and, if known, the amount, or an estimate of the amount, of the Loss,
provided that failure to promptly give such notice shall only limit the liability of the
Indemnifying Party to the extent of the actual prejudice, if any, suffered by such Indemnifying
Party as a result of such failure. The Indemnified Party shall provide to the Indemnifying Party
as promptly as practicable thereafter information and documentation reasonably requested by such
Indemnifying Party to support and verify the claim asserted.
(e) The Indemnifying Party may assume the defense of a claim that it is indemnifying, or
prosecute a claim resulting from such indemnified claim, and may employ counsel chosen by the
Indemnifying Party (which counsel shall be reasonably acceptable to the Indemnified Party), at the
Indemnifying Party’s sole cost and expense. The Indemnified Party shall have the right, at its own
expense, to reasonably employ counsel separate from counsel employed by the Indemnifying Party in
any such action and to participate therein; provided, however, that the Indemnifying Party shall be
responsible for reasonable attorneys’ fees and legal expenses relating to separate counsel retained
by the Indemnified Party if the Indemnified Party reasonably concludes that the ability of the
Indemnified Party to prevail in the defense of any claim is materially improved if separate counsel
represents the Indemnified Party or separate counsel is appropriate because of legal ethics. The
Indemnifying Party shall not be liable for the settlement of any claim entered into without its
prior written consent, which shall not be unreasonably withheld, it being understood that the
Indemnifying Party shall have no right to object to any equitable relief the Indemnified Party may
agree to provide. However, if the Indemnifying Party does not assume the defense or prosecution of
a claim within thirty (30) days after notice thereof, the Indemnified Party may settle such claim
without the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement
of any claim which provides for any relief other than the payment of monetary damages by the
Indemnifying Party without the Indemnified Party’s prior written consent, which shall not be
unreasonably withheld. Whether or not the Indemnifying Party chooses to so defend or prosecute
such claim, all the Parties hereto shall cooperate in the defense or prosecution thereof and shall
furnish such records, information and testimony, and attend such conferences, discovery
proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith,
all at the Indemnifying Party’s sole cost and expense.
(f) The Parties agree that, if both Parties are named as defendants in the same lawsuit,
arbitration or other proceeding, the Parties may enter into a Joint Defense Agreement reasonably
acceptable to the Parties, provided that any such Joint Defense Agreement shall not preclude any
Party from asserting any counterclaims, cross-actions or third-party claims to which it may be
entitled.
(5) Termination.
(a) Term. Unless otherwise terminated in accordance with the terms and conditions of
this Agreement, the term of this Agreement will begin on the Effective Date and continue until the
third anniversary of the Effective Date and will automatically renew for successive renewal terms
of one (1) year each unless a Party provides written notice of non-renewal to the other Party at
least sixty (60) days before the scheduled expiration of the existing original or renewal term.
11
(b) Termination.
(i) Upon the occurrence of an Event of Default (as hereinafter defined) by either Party, the
other Party may terminate this Agreement by giving written notice at least thirty (30) days in
advance of termination and an opportunity for the defaulting Party to cure the Event of Default,
provided that: (A) the non-defaulting Party may suspend its performance under this Agreement during
the thirty (30) day period prior to any cure of the Event of Default; and (B) the thirty (30) day
written notice requirement shall not apply if the Event of Default is the failure of CSO to remit
funds to Lender as required hereunder or pursuant to any other agreement between the Parties, and
shall be three (3) business days if the Event of Default is the Lender’s failure to fund any Loan
marketed by CSO as required under this Agreement or CSO’s failure to deliver the Guaranty.
(ii) It shall constitute an Event of Default by Lender hereunder if: (A) Lender shall be in
material breach of any duty, obligation, representation, warranty or covenant hereunder; (B) Lender
shall fail to fund a Loan arranged by CSO that satisfies Lender’s loan criteria as required under
this Agreement; or (C) Lender shall file for protection under any state or federal bankruptcy or
insolvency law, or an action shall be filed against Lender under any such law, or if Lender becomes
insolvent or unable to meet its obligations as they become due, or if any regulatory authority
takes control of Lender.
(iii) It shall constitute an Event of Default by CSO hereunder if (A) CSO shall be in material
breach of any duty, obligation, representation, warranty, or covenant hereunder; (B) CSO
discontinues servicing the Loans as required hereunder; (C) CSO fails to remit funds to Lender as
required hereunder; (D) CSO files for protection under any state or federal insolvency law, or an
action shall be filed against CSO under any such law, or if Lender becomes insolvent or unable to
meets its obligations as they become due, (E) there is an event of default under the Guaranty or an
event described in paragraph (D) of this clause (iii) occurs with respect to a Guarantor under the
Guaranty; or (F) the issuer of an Individual Letter of Credit revokes an Individual Letter of
Credit, or repudiates its obligations thereunder except as expressly provided herein.
(iv) Either Party may terminate this Agreement immediately if either Party is advised by any
federal or state regulatory agency which has or asserts jurisdiction over either Party or the Loans
that the performance of a Party’s obligations under this Agreement is or may violate any Applicable
Laws, constitute an unsafe or unsound practice, or jeopardize the Party’s standing with or any
rating from any regulatory agency.
(v) Either Party may terminate this Agreement immediately upon written notice to the other
Party if such Party determines in its reasonable discretion that the performance of a Party’s
obligations under this Agreement is or may be illegal under or prohibited by any Applicable Laws.
(vi) In the event an act of God or other natural disaster makes the carrying out of this
Agreement impossible.
(vii) CSO may terminate this Agreement by giving written notice at least ten (10) days in
advance of termination if Lender amends Lender’s Policies or the Loan credit underwriting criteria
in a way that causes a material adverse effect on CSO’s or its affiliates’ businesses and Lender
fails to modify such amendment so as to avoid such material adverse effect within such ten (10) day
notice period.
12
(viii) Either Party may terminate this Agreement on thirty (30) days’ written
notice to the other Party in the event the Party becomes aware of any adverse change in
Applicable Laws relevant to the Loans or the performance of the Parties obligations under this
Agreement (including positions of regulatory authorities on examination or enforcement matters)
that materially increases the Party’s litigation or risk exposure.
(ix) If the NSF Volume, as a percentage of the Total Loan Volume, is less than *
, Lender shall be entitled to terminate this Agreement by providing not less than one
hundred one twenty (120) days’ written notice to CSO; provided that (A) “NSF Volume” means the
aggregate dollar amount of principal and interest payable for all Loans on which a Consumer
incurred an NSF fee during the Calculation Period (whether or not such NSF fee was paid); (B)
“Total Loan Volume” means the aggregate dollar amount of principal and interest payable on all
Loans with a due date during the Calculation Period; (C) “Calculation Period” means the period from
the Effective Date through August 31, 2006; (D) Lender must provide such notice of termination no
later than October 1, 2006; and (E) Lender will provide CSO with an opportunity during any such one
hundred twenty (120) day notice period to propose changes to the terms of this Agreement that would
ensure that Lender’s profits on Loans made under the CSO program are acceptable to Lender.
(x) Sections 2 and 4 through 8 hereof shall survive the termination of this Agreement.
(6) Notices.
All notices, commitments, waivers and other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be deemed to have been delivered either
(i) upon the delivery date, if personally delivered, (ii) one (1) business day after delivery to
any national overnight courier directing delivery on the next business day, or (iii) three (3)
business days after deposit in the United States mail, registered or certified mail, return receipt
requested with adequate postage affixed thereto. Unless otherwise agreed, notice shall be sent to
the contact persons at the addresses set forth below:
If to CSO: | ACE Lending Services, LLC | |||
0000 Xxxxxxxx Xxxxx, Xxxxx 000 | ||||
Xxxxxx, Xxxxx 00000 | ||||
Attention: General Counsel | ||||
If to Lender: | True Financial Services, LP | |||
President | ||||
000 Xxxxxxxx Xxxxx | ||||
Xxxxxxxxx Xxxx, XX 00000 |
(7) Confidentiality and Use of Customer Information; Use of Confidential Business Information;
Non-Solicitation of Employees.
(a) The Parties agree and acknowledge that the Consumers referred by CSO to
* | Confidential treatment has been requested for certain portions of this document pursuant to an application for confidential treatment sent to the Securities and Exchange Commission. Such portions are omitted from this filing and filed separately with the Securities and Exchange Commission. |
13
Lender for Loans pursuant to this Agreement are customers of both Parties to the maximum
extent permitted by Applicable Law, and, except as provided in this Agreement, the Parties may use
information regarding Consumers jointly and severally, subject to Applicable Law. Lender agrees
that it will not solicit Consumers for any other product or service offered by Lender or others nor
divulge, except in accordance with Applicable Law, the names or other identification information
regarding the Consumers to others except with CSO’s prior written consent and then only in
accordance with the respective Privacy Policy of each Party and Applicable Law.
(b) The Parties agree and acknowledge that certain information regarding the Consumers is
nonpublic personal information and will not be provided to third parties except as necessary to
service, administer, process and enforce a transaction a Consumer requests or authorizes, marketing
of other products and services by CSO and Lender, marketing or offering other products and services
by CSO and any other third party, or as otherwise authorized by this Agreement and the respective
Privacy Policy of each Party. The Parties shall each implement an effective security program to
protect Consumer’s nonpublic personal information to ensure that the Parties do not violate the
respective Privacy Policy of either Party or Applicable Law. Such security program shall
incorporate methods for the secure destruction of confidential information, such as Loan Documents
and other records and documents no longer required to be maintained by either Party.
(c) The Parties shall jointly and severally own all information relating to Consumers
(collectively, “Consumer Information”), including: (i) names, addresses, and telephone
numbers; (ii) all account, payment and other information regarding Consumers who have been approved
or denied; and (iii) all records, data, and information pertaining to the foregoing; provided,
however, that neither Party may use any Consumer Information except to the extent permitted by such
Party’s Privacy Policy, as set forth in this Agreement, the Lender’s Policies, or the Loan
Documents. Notwithstanding the foregoing, without the need for obtaining Lender’s consent, CSO
shall be free to use Consumer Information for purposes of marketing, offering, selling, brokering,
underwriting and providing other products and services, including, without limitation, other loan
products and services that may be offered to Consumers by CSO or its affiliates, any third party
service provider of CSO or any other lenders through the distribution channels of CSO and any third
party service provider of CSO, provided that, in all cases, however, any use by CSO of any such
Consumer Information shall comply with Applicable Law and CSO’s Privacy Policy. In addition,
notwithstanding that Lender has an ownership interest in the Consumer Information, Lender agrees
that it will not use the Consumer Information to market other products or services to the Consumers
or to applicants who have been approved or denied Loans without prior written consent of CSO, which
consent CSO may withhold in its sole discretion.
(d) The Parties agree that all information received by one Party from the other Party or from
any other source on that Party’s behalf pursuant to this Agreement is “Confidential Business
Information” and shall be maintained in confidence and not disclosed, used or duplicated except
as described in this Section 7. Notwithstanding the foregoing, the term “Confidential Business
Information” shall not include any information which (i) is or becomes available to a Party
(the “Restricted Party”) from a source other than the other Party, (ii) is or becomes
available to the public other than as a result of disclosure by the Restricted Party or its agents
in violation of its intended obligations or Applicable Laws, (iii) is Consumer Information, or (iv)
is required to be disclosed under Applicable Laws (but only to the extent it must be disclosed).
14
(e) A Restricted Party may use the other Party’s Confidential Business Information in
connection with its performance under this Agreement, and may disclose such other Party’s
Confidential Business Information to its affiliates who may only use the Confidential Business
Information to the same extent which the Restricted Party may use and disclose Confidential
Business Information. Further, a Restricted Party may disclose and use the other Party’s
Confidential Business Information in its ordinary course of business in order to service and carry
out its duties under or in connection with this Agreement or Applicable Law. Except as provided in
this Agreement, any Confidential Business Information of a Party shall be returned to such Party as
requested once the services contemplated by this Agreement have been completed. Notwithstanding
the foregoing, the forms of Loan Documents may be retained by CSO or its affiliates as business
forms and utilized in their respective businesses.
(f) Except as set forth and authorized under this Agreement or to the extent required by any
Applicable Laws (including federal securities law), CSO shall not advertise, market or otherwise
make known to others any information relating to the subject matter of this Agreement. If CSO
proposes to disclose Lender’s Confidential Business Information to a non-affiliated third party in
order to perform under this Agreement, CSO must first obtain the written consent of Lender to make
such disclosure and CSO must enter into a confidentiality agreement with such third party under
which the third party would be restricted from disclosing, using or duplicating Lender’s
Confidential Business Information, except as consistent with this Agreement. Except as set forth in
this Agreement, if requested by Lender, any employee, representative, agent or subcontractor of CSO
shall enter into a non-disclosure agreement with Lender to protect Lender’s Confidential Business
Information satisfactory to Lender. CSO agrees that in the event the security of any of Lender’s
Confidential Business Information is breached or CSO learns of any unauthorized use of Lender’s
Confidential Business Information, then it will promptly notify Lender of such breach or
unauthorized use so Lender may respond accordingly.
(g) Lender agrees not to use information about Consumers or Loans that is obtained in
connection with performance of its obligations under this Agreement to market or solicit such
Consumers for any product or service. Notwithstanding anything in this Agreement, Lender or its
affiliates may engage in general marketing efforts that are not directed specifically to Consumers
to whom CSO provides (or has provided) CSO Services.
(h) The provisions of this Agreement and all documents executed in connection herewith, and
results of any business conducted between the Parties pursuant to this Agreement shall also be
considered Confidential Business Information of both Parties, and each Party agrees, subject to the
requirements of any Applicable Laws (including federal securities law), not to communicate such
Confidential Business Information to any third party without the prior written consent of the other
Party. Confidential Business Information may be provided to a Party’s affiliates (as such term is
defined in the Securities Exchange Act of 1934) counsel, accountants, and financial or tax advisors
(“Related Parties”), provided that the Party shall ensure that such Related Parties hold
such Confidential Business Information in confidence.
(i) The Parties agree that monetary damages would not be adequate compensation in the event of
a breach by a Restricted Party of its obligations under this Section 7 and, therefore, the Parties
agree that in the event of any such breach by the Restricted Party, the other Party, in addition to
its other remedies at law or in equity, shall be entitled to an order requiring the Restricted
Party to specifically perform its obligations under Section 7 or enjoining the Restricted Party
from breaching Section 7, and the Restricted Party shall not plead in defense thereto that there
would be an adequate remedy at law.
15
(j) Each Party agrees that it shall not directly or indirectly solicit, hire or otherwise
retain or engage, whether as an employee, independent contractor or otherwise, any employee or
other personnel of the other Party.
(k) A Party shall not issue any press releases, make any public statements or other statements
to third parties, or make any filings that indicate Lender is making Loans to Consumers; provided
that if a Party is required under Applicable Laws (including federal securities law) to file a copy
of this Agreement with a governmental agency, such Party shall have the right to file a copy of
this Agreement after (i) notifying the other Party in writing not less than ten (10) days prior to
any such filing of this Agreement (or such shorter time as may be required by Applicable Law), (ii)
redacting such terms of this Agreement as the other Party may reasonably request and may be
excluded under Applicable Laws (including the other Party’s name), and (iii) filing a confidential
treatment request as part of any such filing.
(8) Arbitration.
Any controversy or claim arising out of or relating to this Agreement, or the relationship
between the Parties (“Disputed Matter”) shall be settled by binding arbitration pursuant to
the provisions of this Section 8. In the event of the occurrence of a Disputed Matter, any Party
may elect to have the Disputed Matter resolved by arbitration at a location selected by the
arbitrators, according to the following procedure:
(a) The arbitration shall be held: (A) In a summary manner, i.e., on the basis that it shall
not be necessary to observe or carry out either the usual formalities or procedure required by any
arbitration act or rules of civil procedure, or the strict rules of evidence, except as required by
the Commercial Arbitration Rules of the American Arbitration Association; and (B) Immediately, and
with a view of its being completed within ninety (90) days after it is demanded, unless otherwise
agreed to in writing by both Parties, having particular regard to any urgency regarding the matter
in issue.
(b) In the event that a Party requires that a Disputed Matter be arbitrated hereunder, such
Party shall give written notice thereof to the other Party, which notice shall specify the dispute
and the relief that the Party requests at the arbitration. Upon the giving of such notice, each
Party shall have fifteen (15) days in which to select one (1) arbitrator and the two (2) selected
arbitrators shall in turn choose a third arbitrator.
(c) The third arbitrator shall be: (A) If the question in issue is primarily an accounting
matter, an independent certified public accountant; or (B) If the question in issue is any other
matter, a practicing or retired lawyer or judge of not less than ten (10) years legal experience.
If the arbitrators chosen by the Parties cannot agree on the choice of such accountant or lawyer
within fourteen (14) days of their appointment, such person is to be appointed in accordance with
rules and procedures of the American Arbitration Association.
(d) Any arbitration shall be conducted before said three (3) arbitrators pursuant to the
American Arbitration Association Arbitration Rules in force on the Effective Date, as modified by
the provisions of this Section 8. The panel shall render its decision in writing in accordance
with applicable substantive laws. The panel shall have the right and power to apportion the costs
and expenses of the arbitration (including the Parties’ attorneys’ fees and expenses, and the fees
and expenses of the arbitrators) in its discretion. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SUBJECT TO ARBITRATION HEREUNDER.
16
(e) The Parties irrevocably agree that the decision or award in any arbitration proceedings
hereunder: (i) Shall be binding on all of them, without any right of appeal except as provided by
the Federal Arbitration Act; (ii) Shall forthwith be carried into effect; and (C) May be made an
order of any court of competent jurisdiction.
(f) It is expressly agreed and understood by the Parties that, notwithstanding anything to the
contrary contained in this Section 8, the provisions hereof will not deprive any Party from any
right or remedy available to it to obtain preliminary relief, including preliminary injunctive
relief, from a court of competent jurisdiction pending the decision of the arbitrators.
(g) The provisions of this Section 8 shall continue to be binding on all Parties
notwithstanding any termination or cancellation of this Agreement. Notwithstanding any other
provision of this Agreement, the Parties agree that this Agreement is entered into in the course of
interstate commerce and the provisions of this Section 8 shall be governed by the Federal
Arbitration Act, 9 U.S.C. §§ 1-16.
(9) Miscellaneous
(a) Independent Contractor. Neither the existence of this Agreement, nor its
execution, is intended to be, nor shall it be construed to be, the formation of a partnership,
association, or joint venture between Lender and CSO. CSO is the special agent of Lender solely
for the purposes set forth in this agreement. No general agency is created by this agreement.
Neither Party is granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other Party, except as
expressly provided in this Agreement. Each Party shall be responsible only for its obligations and
liabilities as set forth in this Agreement.
(b) Entire Agreement. This Agreement supersedes any negotiations, discussions or
communications between Lender and CSO and constitute the entire agreement of Lender and CSO with
respect to the Loans and the Loan Documents.
(c) Financial Reporting. CSO shall on a timely basis provide Lender with its monthly
financial statements, and its annual financial statements, certified by an appropriate officer of
CSO. Lender shall on a timely basis provide CSO with its quarterly financial statements, and its
annual financial statements, certified by an appropriate officer of Lender.
(d) Pending Legal Action. To the extent permissible by Applicable Laws, the Parties
agree to promptly notify each other in the event either Party becomes aware of any threatened or
actual investigation, regulatory action, allegation, arbitration or lawsuit pertaining to the Loans
or this Agreement or any similar credit services agreement of third parties.
(e) No Waiver. Failure of any Party to insist, in one or more instances, on
performance by any other Party in accordance with the terms and conditions of this Agreement shall
not be deemed a waiver or relinquishment of any right granted hereunder or of the future
performance of any such term or condition or of any other term or condition of this Agreement
unless and to the extent that such waiver is in a writing signed by or on behalf of the Party
alleged to have granted such waiver.
(f) Governing Law. This Agreement and the rights and duties described herein shall be
governed by, and interpreted in accordance with Federal law and to the extent applicable, the laws
of the State of Delaware except that the Arbitration provisions shall be governed by the
Federal Arbitration Act.
17
(g) Assignment. CSO shall not assign or delegate any of its rights and/or obligations
hereunder without Lender’s prior written consent, which consent shall not be unreasonably withheld.
Lender shall not assign any of its rights and/or obligations hereunder to any other party without
CSO’s prior written consent, which consent shall not be unreasonably withheld.
(h) Headings; Construction. The headings of the several sections and subsections of
this Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement. When used in this Agreement, all references to
“include,” “includes” or “including” shall be deemed to be followed by the words “without
limitation.”
(i) Training. CSO shall use its reasonable best efforts to train and supervise its
employees to act in conformity with Lender’s Policies provided in writing to CSO by Lender and the
requirements of Applicable Laws pertaining to their duties.
(j) Violation. Neither Party shall take or omit to take any action that would cause
such Party to violate any of its representations or warranties hereunder.
(k) Notice of Bankruptcy. Lender shall forward to CSO within five (5) business days
of receipt any written notices it receives that bankruptcy proceedings have been initiated with
respect to any person known to be a Consumer.
(l) Amendment. This Agreement may only be amended or modified by the written
agreement of an authorized representative of both Parties.
(m) Binding Agreement. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto, their respective heirs, representatives, agents, insurers, successors and
permitted assigns.
(n) Severable. The provisions of this Agreement are severable, and in the event that
any portion of this Agreement shall be adjudged to be invalid or unenforceable, such adjudication
shall have no effect on any remaining portions hereof, and all such remaining provisions shall
continue in full force and effect.
(o) Additional Documents. The Parties agree that upon the request of any one of them,
they will execute and deliver any such further documents and undertake any such further action as
may reasonably be required to fully implement the terms of this Agreement.
(p) Expenses. Except as specified in this Agreement, each Party shall bear the
expenses of performing its obligations under this Agreement.
(q) Implied Obligations. Lender shall have no implied obligations under this
Agreement and makes no implied covenants, representations or warranties to CSO. Lender’s
obligations, covenants, representations and warranties are limited to those expressly stated in
this Agreement.
(r) Effective Date. The Effective Date shall be February 27, 2006. After the
Effective Date, this Agreement shall supersede and replace the Credit Services Agreement – Test
Pilot between the Parties, dated February 21, 2006 (“Test Pilot Agreement”), and shall
18
apply to all transactions under the Test Pilot Agreement that occurred prior to the Effective
Date of this Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
19
IN WITNESS WHEREOF, Lender and CSO, intending to be legally bound hereby, have caused this
Agreement to be executed by their duly authorized officers as of the day and year first set forth
above.
True Financial Services, LP | ACE Credit Services, LLC | |||||||
By:
|
True Capital, LLC | |||||||
Its General Partner | ||||||||
By:
|
/s/ Xxxxxx X. Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxx | |||||
Xxxxxx X. Xxxxxxx, Vice President | Xxxxxx X. Xxxxx, Vice President |
20
Schedule 2(g)
LETTER-OF-CREDIT SECURED | ||||
APPLICABLE PERCENTAGE | PORTION OF THE NSF FEE | |||
0.90%or less |
$ | * | ||
more than 0.90%, but not more than 1.81% |
$ | * | ||
more than 1.81%, but not more than 2.71% |
$ | * | ||
more than 2.71%, but not more than 3.61% |
$ | * | ||
more than 3.61%, but not more than 4.52% |
$ | * | ||
more than 4.52%, but not more than 4.74% |
$ | * | ||
more than 4.74% |
$ | * |
* | Confidential treatment has been requested for certain portions of this document pursuant to an application for confidential treatment sent to the Securities and Exchange Commission. Such portions are omitted from this filing and filed separately with the Securities and Exchange Commission. |
21