EXHIBIT 10.26


 


Marketing
and Servicing Agreement between Republic Bank & Trust Company and Advance
America Servicing of Texas, LP (portions of the exhibit have been omitted
pursuant to a request for confidential treatment).


 


A mark of [***] in the text of this Exhibit indicates
that confidential material has been omitted.


 


This Exhibit, including the omitted portions, has been
filed separately with the Secretary of the Securities and Exchange Commission
pursuant to an application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934.


 


MARKETING
AND SERVICING AGREEMENT


 


This
Marketing and Servicing Agreement (this “Agreement”), dated as of the 15th day
of October, 2002, is by and between Republic Bank & Trust Company, a Kentucky
state-chartered bank (“BANK”), and Advance America Servicing of Texas, L.P. , a
Delaware Limited Partnership  (“ADVANCE
AMERICA”) .


 


WHEREAS,
ADVANCE AMERICA is a duly organized and validly existing Delaware corporation,
authorized to do business in the State of Texas ;


 


WHEREAS,
BANK is a Kentucky state-chartered bank insured by the Federal Deposit
Insurance Corporation and is authorized under applicable Kentucky and federal
law to engage in the transactions referred to herein;


 


WHEREAS,
ADVANCE AMERICA agrees that BANK shall have a first and exclusive right to all
TRANSACTIONS originated in the MARKET by Advance America up to a maxumum of [***], exclusive of TRANSACTIONS rejected by BANK;


 


WHEREAS,
in accordance with its established underwriting and other criteria as may be
amended from time to time, BANK desires to engage in the TRANSACTIONS in
compliance with Kentucky Revised Statutes (“KRS”) Chapter § 368; and


 


WHEREAS,
ADVANCE AMERICA desires to market and service the TRANSACTIONS on BANK’s behalf,
while retaining authority and control over, and responsibility for, its own
employees and methods of operation.


 


NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises
contained in this Agreement, and other valuable consideration, the sufficiency
of which is hereby acknowledged, and intending to be legally bound, BANK and
ADVANCE AMERICA (together, the “Parties”) agree as follows:


 


1.                 DEFINITIONS.


 


Terms
not specifically defined herein shall have the definitions ascribed to them
elsewhere in this Agreement.


 


(a)                                  “ADVANCE AMERICA” shall mean Advance America Servicing
of Texas, L. P., a Delaware Limited Partnership.


 


(b)                                 “ADVANCE AMERICA INDEMNIFIED PARTIES” shall be defined
as ADVANCE AMERICA and its parent, subsidiaries affiliates, officers,
directors, shareholders, employees, representatives, agents and attorneys.


 


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(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 


 


6





















 


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.


 


9





















 


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 insured or protected party against any insurable HARMFUL ACTS
committed by ADVANCE AMERICA and naming BANK as additional insured or loss
payee.  However, in no event shall BANK
be entitled to any insurance coverage over and above that available to ADVANCE
AMERICA .


 


(e)                                  The Parties agree that, if both BANK and ADVANCE
AMERICA are named as defendants in the same lawsuit, arbitration or other
proceeding, then Bank and ADVANCE AMERICA may enter into a Joint Defense
Agreement reasonably acceptable to Bank and ADVANCE AMERICA , provided that any
such Joint Defense Agreement shall not preclude any party from asserting any
counterclaim, cross-actions or third-party claims to which it may be entitled.


 


(f)                                    Such Joint Defense Agreement shall include an
agreement that ADVANCE AMERICA shall have the right to choose acceptable
counsel and otherwise direct the litigation but any settlement of such claims
must be agreed to by BANK.  [***] The Parties agree to meet as soon as practicable but
no less than ten (10) business days following the date of the filing of any
claim, complaint or action to determine and agree upon the Joint Defense
Agreement. Any failure to agree upon the Joint Defense Agreement or any
provision of this Section 6 shall in no way affect or negatively impact any
Indemnified Parties’ right to indemnity.


 


(g)                                 [***]


 


(h)                                 A party which may be entitled to be indemnified
pursuant to this Agreement (“Indemnified Party”) shall promptly notify the
party who may be liable for such indemnification (the “Indemnifying Party”) in
writing of any pending or threatened claim or demand which the Indemnified
Party has determined has given or could give rise to a right of indemnification
under this Agreement, within five (5) business days following the receipt of
any claim, complaint or filing of any action. Such written notice shall
describe in reasonable detail the facts and circumstances relating to such
claim or demand, and the activities or conduct giving rise to such claim or
demand, and the estimated Loss associated with such claim or demand.  The Parties agree that the failure to provide
such notice shall not release the Indemnifying Party from any of its
obligations under this Agreement except to the extent that the Indemnifying
Party is materially prejudiced by such failure.


 


(i)                                     The Indemnifying Party shall provide written
notification to the Indemnified Party as promptly as possible (but in any case
prior to the due date for the answer or response to a claim or demand)
confirming that the Indemnifying Party will indemnify the Indemnified Party
pursuant to the terms of this Agreement. 
The Indemnifying Party shall have the right to select and employ
competent, qualified counsel of its choice to defend any such claim or demand
asserted against the Indemnified Party. 
Counsel selected by the Indemnifying Party shall be reasonably
acceptable to the Indemnified Party.  The
Indemnified Party shall have the right to participate in the defense of any
such claim or demand at its own expense.


 


10





















 


(j)                                     The Indemnified Party shall make available to the
Indemnifying Party and/or its agents and counsel all records and other
materials in the Indemnified Party’s possession reasonably required by the
Indemnifying Party for its use in defending such claim or demand asserted
against the Indemnified Party.


 


(k)                                  The Parties agree to cooperate in the defense of such
claim or demand and to furnish the necessary records, information and
testimony, and to attend such conferences, discovery proceedings, hearings,
trials and appeals, as may be reasonably requested in connection with such
claim or demand.


 


(l)                                     Neither the Indemnified Party nor the Indemnifying
Party shall settle or compromise any claim or demand for which indemnity is
sought under this Agreement without the prior written consent of the other
party, which should not be unreasonably withheld or delayed.


 


7.                                       Term and Termination.


 


(a)                                  The term of this Agreement shall commence as of
October 30, 2002  and shall automatically
terminate on October 30, 2005  provided
however, that the representations, covenants and warranties contained herein
shall continue for a period of three (3) years following such termination.


 


(b)                                 If the State of Texas enacts legislation governing the
TRANSACTIONS contemplated under this Agreement satisfactory to ADVANCE AMERICA,
then ADVANCE AMERICA may, in its sole discretion, upon thirty (30) days prior
written notice to BANK:


 


(i)                                     Require BANK to continue to engage in the TRANSACTIONS
according to the terms of this Agreement and, as requested by ADVANCE AMERICA,
pursuant to Texas law, in which instance ADVANCE AMERICA shall pay BANK the
difference, if any, between the sum BANK earns on each [***] of each TRANSACTION, and [***]; or


 


(ii)                                  Terminate this Agreement and execute with BANK a
Marketing and Servicing Agreement (the “Replacement Agreement”) for another
state, states or portions of states designated by ADVANCE AMERICA but
acceptable to BANK, which Replacement Agreement shall contain the same or
substantially similar terms, conditions and financial considerations as set
forth herein; or


 


(iii)                               Engage in deferred deposit transactions in the State of Texas
independently of BANK, and pay BANK [***] received by CUSTOMERS from ADVANCE AMERICA between the date of termination
and the original expiration date of this Agreement.


 


(c)                                  If BANK terminates this Agreement without cause, which
shall be defined as any reason not specified in Section 7(a), (d), (f), (g),
(h), (i) or (j), and if following such termination ADVANCE AMERICA continues to
engage in deferred deposit transactions in the State of Texas either
independently or in partnership with another bank, BANK shall pay ADVANCE AMERICA
(i) all of its costs and expenses associated with such termination, the costs
of its transition to making deferred deposit transactions in its own name
and/or its replacement of BANK with another bank partner, including, but not
limited to, reasonable attorneys’ fees; and (ii) the difference, if any,
between (a) [***] received by the
CUSTOMER under each deferred deposit transaction between the date of
termination and the original expiration date of this Agreement and  (b) the actual fee earned by ADVANCE AMERICA
on such deferred deposit transactions. 
If ADVANCE AMERICA cannot continue to engage in deferred deposit
transactions in the State of Texas either independently or in partnership with
another bank following BANK’s termination of the Agreement pursuant to Section
7(c), then BANK will pay ADVANCE AMERICA, for each month between the date of
termination and the original expiration date of this Agreement, a sum equal to [***]
 of the
average monthly amounts received by the CUSTOMERS from BANK, ADVANCE AMERICA
and/or an ADVANCE AMERICA bank partner in Texasduring the trailing [***]
prior to the date of termination.


 


11





















 


(d)                                 This Agreement also may be terminated six (6) months
after the occurrence of one or more of the following events, unless a more
specific time period is set forth below (each, an “EVENT OF DEFAULT”):


 


(i)                                     if either party hereto shall be in material breach of
any representation or warranty or covenant hereunder; or


 


(ii)                                  by ADVANCE AMERICA, if BANK shall file for protection
under any state or federal liquidation provision, or if either party is placed
into conservatorship or receivership with the Federal Deposit Insurance
Corporation or any body or any other duly appointed person or entity having
jurisdiction over said party; or


 


(iii)                               by BANK, if ADVANCE AMERICA shall file for protection under any chapter of
the federal Bankruptcy Code, an involuntary petition is filed against ADVANCE
AMERICA under any such chapter and is not dismissed within thirty (30) days of
such filing, or a receiver or any regulatory authority takes control of ADVANCE
AMERICA.


 


(e)                                  Provided that ADVANCE AMERICA is not in material
breach of this Agreement, ADVANCE AMERICA may terminate this Agreement by
giving written notice at least thirty (30) days in advance of termination if:
(i) BANK ceases generally to fund TRANSACTIONS marketed by ADVANCE AMERICA, and
BANK does not resume funding such TRANSACTIONS within such thirty (30) day
notice period; (ii) any amendment to or change in the terms of KRS Chapter 368,
or other applicable law, has an adverse effect upon ADVANCE AMERICA; or (iii)
BANK amends BANK POLICIES and/or the PROGRAM in a way that causes a material
adverse effect upon ADVANCE AMERICA.


 


(f)                                    Provided that BANK is not in material breach of this
Agreement, BANK may terminate this Agreement by giving written notice at least
thirty (30) days in advance of termination if: (i) any amendment to or change
in the terms of KRS Chapter 368, or other applicable law, has an adverse effect
upon BANK or (ii) ADVANCE AMERICA amends its internal or operating policies in
a way that causes a material adverse effect upon BANK.


 


(g)                                 BANK may terminate this Agreement on thirty (30) days’
written notice to ADVANCE AMERICA in the event that the NET CHARGE OFFS exceed [***]
of the aggregate amount of FEES originated
through ADVANCE AMERICA in any calendar quarter; provided
such notice is given not later than thirty (30) days following the end of such
calendar quarter.


 


(h)                                 In the event of an act of God or other natural
disaster which makes the carrying out of this Agreement impossible, or if a
party’s performance hereunder is rendered illegal or materially adversely
affected by reason of changes in law or regulations (either federal or state)
applicable to the TRANSACTIONS or to either party hereto, then either party may
terminate this Agreement upon thirty (30) days written notice unless an earlier
termination is mandated by a court of competent jurisdiction.


 


(i)                                     If a party is advised in writing by any regulatory
agency having or other body asserting jurisdiction over such party or the
TRANSACTIONS that the performance of that party’s obligations under this
Agreement is or may be unlawful or constitutes or may constitute an unsafe or
unsound banking practice or that such activity may jeopardize such party’s
standing with or applicable rating from such regulatory agency, then the party
unable to perform, or whose performance has been rendered illegal or who has
been so advised by a regulatory agency, may terminate this Agreement by giving
written notice at least six (6) months in advance of termination to the other
party, unless such changes in the laws or regulations or communication from
such regulatory agency require earlier termination, in which case termination
shall be effective upon such earlier required date.


 


                                                (j)                                     Upon the occurrence and during the continuation of an
EVENT OF DEFAULT (as defined above in Section 7(d)) by either
party, the non-defaulting 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 during such notice
period.


 


12





















 


(k)                                  Upon termination or expiration of this Agreement, BANK
shall pay ADVANCE AMERICA any FEES that are then due and payable under this
Agreement.  In order to preserve the
goodwill of each party with its CUSTOMERS, both Parties shall act in good faith
in order to ensure a smooth and orderly termination of their relationship and
the termination of the TRANSACTIONS and marketing and servicing PROGRAM
contemplated hereunder.  Unless
prohibited by applicable law or as otherwise provided in this Agreement or
unless otherwise requested by BANK, ADVANCE AMERICA shall continue to service
outstanding TRANSACTIONS following termination or expiration of this Agreement
until all TRANSACTIONS are repaid or charged off in accordance with BANK
POLICIES.  Upon the termination or
expiration of this Agreement, all rights herein granted to ADVANCE AMERICA
(except those set forth in Section 9(a)) shall revert to BANK, and ADVANCE
AMERICA shall immediately cease using BANK INTELLECTUAL PROPERTIES.


 


(l)                                     If an EVENT OF DEFAULT has occurred and is continuing,
the non-defaulting party shall be entitled to pursue, either before or after
termination, such rights and remedies as may be available at law and in equity,
in addition to those rights and remedies specifically provided for under the
terms of this Agreement.


 


(m)                               In the event that within twelve (12) months of the date of this Agreement
ADVANCE AMERICA decides to offer to Bank in writing ADVANCE AMERICA’S North
Carolina market under substanially the same terms as set forth in this
Agreement, this Agreement may terminate, at the sole discretion of ADVANCE
AMERICA on a date which will be mutually agreed upon and set by the Parties.


 


(n)                                 Either party may terminate this Agreement prior to
November 5, 2002 by giving the other party written notice if they receive an
opinion letter from Counsel indicating that the Transactions contemplated under
this Agreement can not be conducted lawfully or with the same fee structure in
place as set forth herein. In the event such an opinion letter is received, the
Parties agree that they will work diligently and in good faith to amend this
Agreement to allow the Transactions to be conducted lawfully and in keeping
with a fee structure mutually agreeable to the Parties.


 


8.    Notices.


 


Any
notice hereunder by a party shall be given to the other party at its address
set forth below or at such other address designated by notice in the manner
provided in this Section 8, by personal delivery, certified mail or
private courier service, or by facsimile with a confirmation copy by first
class mail, postage prepaid.  Any written
notice or demand to be given under this Agreement shall be duly and properly
given if delivered as described in this Section 8.  Such notice shall be deemed to have been
given (a) when received if by personal delivery or private courier
service, (b) when faxed if by facsimile, and (c) three (3) business
days after mailing, if sent by certified mail; provided, however, that any
notice given by a party changing its address for notice shall be deemed given
only upon actual receipt by the other party. 
Unless otherwise agreed, notice shall be sent to the contact persons at
the addresses or facsimile numbers, as the case may be, set forth below:


 


If to ADVANCE AMERICA: 
Advance America, Cash Advance

Centers of Texas, Inc.


Attention:


William
M. Webster, IV,  President


S. Sterling Laney, III, Vice
President and Counsel


135
North Church Street


Spartanburg,
SC 29306


Telephone:       (864)
515-5600


Facsimile:         (864)
342-5920


 


13





















 


	
  with a copy to:

  	
   

  	
   

  	
  Robert
  M. Buell, Esq.

  
	
   

  	
   

  	
   

  	
  Bowman
  and Brooke LLP

  
	
   

  	
   

  	
   

  	
  Riverfront
  Plaza West Tower

  
	
   

  	
   

  	
   

  	
  901
  East Byrd Street

  
	
   

  	
   

  	
   

  	
  Suite
  1500

  
	
   

  	
   

  	
   

  	
  Richmond,
  Virginia 23219

  
	
   

  	
  Telephone:

  	
   

  	
  (804)
  819-1109

  
	
   

  	
  Facsimile:

  	
   

  	
  (804)
  649-1762

  
	
   

  	
   

  	
   

  	
   

  
	
  If to
  BANK:

  	
   

  	
   

  	
  Michael
  Ringswald, Esq.

  
	
   

  	
   

  	
   

  	
  Republic
  Bank & Trust Company

  
	
   

  	
   

  	
   

  	
  One
  Republic Corporate Center

  
	
   

  	
   

  	
   

  	
  601 W.
  Market Street

  
	
   

  	
   

  	
   

  	
  Louisville,
  Kentucky 40202

  
	
   

  	
  Telephone:

  	
   

  	
  (502)
  561-7112

  
	
   

  	
  Facsimile:

  	
   

  	
  (502)
  561-7188

  
	
   

  	
   

  	
   

  	
   

  
	
  with a
  copy to:

  	
   

  	
   

  	
  Donald
  L. Cox, Esq.

  
	
   

  	
   

  	
   

  	
  Lynch,
  Cox, Gilman & Mahan, P.S.C.

  
	
   

  	
   

  	
   

  	
  400
  West Market Street

  
	
   

  	
   

  	
   

  	
  Suite
  2200

  
	
   

  	
   

  	
   

  	
  Louisville,
  Kentucky 40202

  
	
   

  	
  Telephone:

  	
   

  	
  (502)
  589-4215

  
	
   

  	
  Facsimile:

  	
   

  	
  (502)
  589-4994

  



 


9.                                       Confidentiality and Use of CUSTOMER Information.


 


(a)                                  All CUSTOMER INFORMATION shall be the sole property of
BANK.  Subject to the Gramm Leach Bliley
Act and any rules or regulations promulgated thereunder, BANK hereby grants to
ADVANCE AMERICA a worldwide, exclusive license in perpetuity (and specifically
surviving any termination of this Agreement) to use the CUSTOMER INFORMATION
for advertising and solicitations for any deferred deposit product or those
products substantially similar to the deferred deposit product contemplated
herein; provided that ADVANCE AMERICA shall not
use the CUSTOMER INFORMATION (i) if the CUSTOMER at issue advises BANK or
ADVANCE AMERICA that it does not wish such information to be so used, or
(ii) if its use would violate any federal or state statutes, laws and/or
regulations. ADVANCE AMERICA may use its computer system to capture, maintain
and process CUSTOMER INFORMATION for the purposes allowed in this Agreement.


 


(b)                                 BANK agrees not to target the CUSTOMERS for any
solicitation of any deferred deposit product (other than general solicitations
for products or services directed to the public at large), and not to provide
any CUSTOMER INFORMATION to any person or entity not a party to this Agreement,
whether for purposes of soliciting any CUSTOMER for any product or otherwise,
except to the extent required to do so under applicable law or judicial,
administrative or regulatory process, without the prior written consent of
ADVANCE AMERICA.  BANK shall use
reasonable care to ensure that its agents do not violate this provision.


 


(c)                                  BANK and ADVANCE AMERICA agree to treat in confidence
the provisions of this Agreement and the CONFIDENTIAL INFORMATION, including
without limitation the reports referenced in Section 4(e), and not to
communicate CONFIDENTIAL INFORMATION to any third parties except that
CONFIDENTIAL INFORMATION may be provided to a regulatory agency having or
asserting jurisdiction over a party or the TRANSACTIONS, a party’s affiliates,
as such term is defined in the Securities Exchange Act of 1934, to counsel,
accountants, financial or tax advisors or persons conducting due diligence
reviews for a third party without the consent of the other party; provided that such Parties agree to hold such CONFIDENTIAL
INFORMATION in confidence.  As used
herein, the term “CONFIDENTIAL INFORMATION” does not include information which
(i) becomes generally available to the public other 


 


14





















 


than as a result of a disclosure by a
RESTRICTED PARTY, (ii) is independently developed by a RESTRICTED PARTY without
violating this Agreement, (iii) was available to the RESTRICTED PARTY on a
non-confidential basis prior to its disclosure to the RESTRICTED PARTY or (iv)
becomes available to the RESTRICTED PARTY on a non-confidential basis from a
source other than the other Party; provided that such source is not bound by a
confidentiality agreement with the other Party or otherwise prohibited from
transmitting the information to the RESTRICTED PARTY by a contractual, legal or
fiduciary obligation.


 


(d)                                 In the event that a RESTRICTED PARTY is
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, Civil Investigative Demand or similar
process) to disclose any CONFIDENTIAL INFORMATION, the RESTRICTED PARTY will
provide the other party with written notice of such request(s) at the time of
receipt of such notice so that the other party may seek an appropriate
protective order or other appropriate remedy and/or waive the RESTRICTED PARTY’s
compliance with the provisions of this Agreement.  In the event that the other party does not
seek such a protective order or other remedy, or such protective order or other
remedy is not obtained, or the other party grants a waiver hereunder, the
RESTRICTED PARTY may furnish that portion (and only that portion) of the
CONFIDENTIAL INFORMATION which the RESTRICTED PARTY is legally compelled to
disclose and will exercise such efforts to obtain reasonable assurance that
confidential treatment will be accorded any CONFIDENTIAL INFORMATION so
furnished as a RESTRICTED PARTY would reasonably exercise in assuring the
confidentiality of any of its own CONFIDENTIAL INFORMATION.


 


10.                                 Specific Performance in the Event of Breach.


 


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 Section 9 of this Agreement and,
therefore, the Parties agree that in the event of any such breach the
RESTRICTED PARTY, in addition to its other remedies available at law or in
equity, shall be entitled to an order requiring the RESTRICTED PARTY to
specifically perform its obligations under this Agreement or enjoining the
RESTRICTED PARTY from breaching this Agreement, and the RESTRICTED PARTY shall
not plead in defense thereto that there would be an adequate remedy at law.


 


11.                                 Miscellaneous


 


(a)                                  Neither the existence of this Agreement or any related
agreements, nor their execution, is intended to be, nor shall it be construed
to be, the formation of a partnership or joint venture between BANK and ADVANCE
AMERICA.  No employee of ADVANCE AMERICA
shall be deemed to be an employee of BANK, nor shall any employee of BANK be
deemed an employee of ADVANCE AMERICA. Each party to this Agreement shall be
deemed to be an independent contractor.


 


(b)                                 This Agreement and any related agreements supersede
any prior negotiations, discussions or communications between BANK and ADVANCE
AMERICA and constitute the entire agreement of BANK and ADVANCE AMERICA with
respect to the subject matter hereof.


 


(c)                                  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.


 


(d)                                 To the extent permissible by applicable law, 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 TRANSACTIONS or this Agreement or any
similar marketing and servicing agreement of third parties.


 


(e)                                  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.


 


15





















 


(f)                                    Except
for the provisions contained in Section (9), any controversy or claim arising
out of or relating to this Agreement, or the breach thereof, (“Disputed Matter”)
shall be settled by binding arbitration under the Federal Arbitration Act
pursuant to the provisions of this Section 11(f).  In the event of the occurrence of a Disputed
Matter, any party shall elect to have the Disputed Matter resolved by
arbitration at a mutually convenient location selected by the arbitrators,
according to the following procedure:


 


(i)                                     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 Commercial Arbitration Rules; 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.


 


(ii)                                  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.


 


(iii)                               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 primarily a legal matter, a practicing lawyer of not less
than ten (10) years standing as such or a retired judge.  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.


 


(iv)                              Any
arbitration shall be conducted before said three (3) arbitrators pursuant to
the American Arbitration Association Commercial Arbitration Rules in force on
the effective date of this Agreement, as modified by the provisions of this
Section 11(f).  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) in its discretion.


 


(v)                                 The
Parties irrevocably agree that the decision or award in any arbitration
proceedings hereunder:  (A) Shall be
binding on all of them, without any right of appeal except as provided by the
Federal Arbitration Act; (B) Shall forthwith be carried into effect; and (C)
May be made an order of any court of competent jurisdiction.


 


(vi)                              It
is expressly agreed and understood by the Parties that, notwithstanding
anything to the contrary contained in this Section 11(f), the provisions hereof
will not deprive any party from any right or remedy available to it to obtain
preliminary or injunctive relief from a court of competent jurisdiction pending
the decision of the arbitrators.


 


(vii)                           The
provisions of this Section 11(f) shall continue to be binding on all Parties
notwithstanding any termination or cancellation of this Agreement.


 


(g)                                 ADVANCE
AMERICA shall not assign or delegate any of its rights and/or obligations
hereunder without BANK’s prior written consent, which consent shall not be
unreasonably withheld.  BANK shall not
assign any of its rights and/or obligations hereunder to any other party
without ADVANCE AMERICA’s prior written consent, which consent shall not be
unreasonably withheld.


 


(h)                                 This Agreement is for the sole and exclusive benefit
of the Parties and shall not be deemed to be for the benefit of any third
party, including any party to a TRANSACTION hereunder.


 


(i)                                     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.


 


16





















 


(j)                                     This Agreement may be executed by the Parties in
separate counterparts, each of which is an original but all of which together
shall constitute one and the same document. 
Facsimile signatures and photocopies shall be deemed as valid as though
they were originals.


 


(k)                                  Modifications to this Agreement can only be made in
writing signed by all Parties.


 


(l)                                     This Agreement shall not become effective until the
EFFECTIVE DATE.


 


(m)                               EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY ARBITRATION, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION IN ARBITRATION AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


(n)                                 Should any provision of this Agreement be declared
illegal or unenforceable by any court or tribunal of competent jurisdiction and
cannot be modified to be enforceable, such provision shall immediately become
null and void, leaving the remainder of this Agreement in full force and
effect.


 


(o)                                 In the event of a conflict between any of the Exhibits
to this Agreement and this Agreement, the terms and conditions set forth in
this Agreement shall govern the relationship between the Parties hereto.


 


IN WITNESS WHEREOF, BANK
and ADVANCE AMERICA, 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.


 


 


	
  ADVANCE
  AMERICA SERVICING OF TEXAS, L.P.

  (“ADVANCE AMERICA”)  

  	
  REPUBLIC
  BANK & TRUST COMPANY (“BANK”) 

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/
  William M. Webster IV

  	
   

  	
  By: 

  	
    Bill
  Petter 

  	
   

  
	
   

  	
   

  
	
  Its:

  	
    President

  	
   

  	
  Its:

  	
       EVP

  	
   

  
	
   

  	
   

  
	
  Date:

  	
    10/15/02

  	
   

  	
  Date:

  	
    10/15/02

  	
   

  
												



 


17





















 


EXHIBIT A


 


COMPUTATION OF MARKETING AND SERVICING FEES


 


1.               This
is Exhibit A to that certain Marketing and Servicing Agreement dated as of
October     , 2002 (the “Agreement”) between REPUBLIC BANK
& TRUST COMPANY  (“BANK”),  Advance America Servicing of Texas, L.P. (“ADVANCE
AMERICA”) All capitalized terms used herein and not otherwise defined are
defined in the Agreement.


 


2.               As
ADVANCE AMERICA’s sole compensation under the Agreement, BANK shall pay ADVANCE
AMERICA the marketing and servicing fees (“FEES”) set forth below.  BANK shall only be obligated to pay the FEES
on TRANSACTIONS, or portions thereof, collected during the term of this
Agreement.


 


3.               Commencing
on the first (1st) business day following the EFFECTIVE DATE of this
Agreement and continuing on each business day thereafter, ADVANCE AMERICA shall
deliver to BANK a daily report of business outlining the total amount advanced
to each CUSTOMER, total fees and the total TRANSACTIONS held as
receivable.  Additionally, the report
will detail the TRANSACTIONS collected from each CUSTOMER together with the
applicable fees that pertain to BANK and applicable FEES owed by BANK to
ADVANCE AMERICA, as well as such other information as is reasonably required by
BANK to manage the PROGRAM.


 


4.               On or
about the first (1st) and sixteenth (16th) calendar day
of each calendar month following a TRANSACTION repayment and continuing on or
about the first (1st) and sixteenth (16th) calendar day
of each calendar month thereafter, ADVANCE AMERICA shall deliver to BANK an
invoice, detailing by the day, the total TRANSACTIONS, the total fees earned by
BANK and the total amount of FEES due to ADVANCE AMERICA for the period
included in such invoice (an “Invoice”). 
Based on those Invoices, BANK will pay to ADVANCE AMERICA by Automated
Clearing House (ACH) transfer (or by other means agreeable to ADVANCE AMERICA
and BANK) the day following the delivery of each Invoice, the FEES to be paid
by BANK hereunder related to ADVANCE AMERICA’s activities for the Invoice
period; provided that if any payment date is not a business day for BANK, the
payment shall be made on the next business day for which BANK is open.  Each Invoice shall show (i) the Total of
Payments on TRANSACTIONS actually received by BANK during the Invoice period,
and (ii) the FEES owed by BANK to ADVANCE AMERICA, together with the calculation
thereof in the same detail as in the sample calculation attached hereto as
Exhibit A-1. ADVANCE AMERICA and BANK agree that the calculation of the FEES
owed by BANK shall be submitted with each of the foregoing Invoices and
performed strictly in accordance with the sample calculation attached.  ADVANCE AMERICA and BANK also agree that, for
purposes of performing such calculation, the following assumptions apply:


 


(a) The term “TRANSACTION LOSS RATE” shall be a
percentage which is equal [***].


 


(b) Each Borrower shall be charged a fee equal to
[***] of the face amount of each deferred deposit transaction for each
[***],  which fee may be modified from
time to time upon agreement by ADVANCE AMERICA and BANK and allowed by
applicable law.


 


(c)  Upon
collection of a TRANSACTION, BANK shall pay to ADVANCE AMERICA a fee equal to
[***] received by the CUSTOMER for each deferred deposit transaction, which fee
may be modified from time to time upon agreement by ADVANCE AMERICA and BANK.


 


(d)  [***]


 


EXHIBIT A-1


 


SAMPLE CALCULATION


 


18





















 


MARKETING AND
SERVICING FEE


 


[***]


 


FIRST AMENDMENT
TO THE

MARKETING AND SERVICING AGREEMENT


 


THIS FIRST AMENDMENT TO THE MARKETING AND SERVICING
AGREEMENT is an addendum to the MARKETING AND SERVICING AGREEMENT dated October
15, 2002 by and between Republic Bank & Trust Company, a bank organized
under the laws of the state of Kentucky (the “BANK), and Advance America
Servicing of Texas, L.P., a Delaware Limited Partnership (“ADVANCE AMERICA”).


 


Pursuant to Section 11 (k) of the Marketing and
Servicing Agreement, the BANK and ADVANCE AMERICA do hereby agree to amend the
Marketing and Servicing Agreement to read in its entirety as follows:


 


Page
(1) one, paragraph four (4) of the Marketing and Servicing Agreement shall be
amended to read as:


 


WHEREAS, ADVANCE AMERICA agrees that BANK shall
have the first and exclusive right to all TRANSACTIONS originated in the MARKET
by ADVANCE AMERICA. The Parties agree that the Bank will continue to fund all
Transactions that are originated by ADVANCE AMERICA and meet the BANK’s
established underwriting criteria until and unless the BANK’s outstanding
Transactions under this Agreement and any other Marketing and Servicing
Agreement with ADVANCE AMERICA equals [***] exclusive of Transactions rejected
by BANK;


 


Page
12 Section 5(xv) shall be added to the Marketing and Servicing Agreement to
read as follows:


 


(xv)                          BANK will provide to ADVANCE
AMERICA any information system audits performed and will submit to ADVANCE
AMERICA BANK’s disaster recovery plan at least annually.


 


Page
(13) thirteen, Section 5 (b)(xi) and (xii) shall be added to the Marketing and
Servicing Agreement to read as follows:


 


(xi)                                On a quarterly basis ADVANCE
AMERICA will disclose. all contingencies relating to off-balance. sheet
guarantee arrangements and other significant events that may affect ADVANCE
AMERICA’s ability to perform under the Marketing and Servicing Agreement.


 


(xii)                             ADVANCE AMERICA shall conduct a SAS70
review and submit to BANK ADVANCE AMERICA’s disaster recovery plan at least
annually.


 


Page
14 Section 6(g) of the Marketing and Serving Agreement shall be amended to read
as follows:


 


[***]


 


Page
15 Section 6 (m) shall be added to the Marketing and Servicing Agreement to
read as follows:


 


6 (m)                   In addition to the above
indemnification BANK hereby indemnifies and agrees to hold harmless the ADVANCE
AMERICA INDEMNIFIED PARTIES from and against any and all losses suffered or
incurred by any ADVANCE AMERICA INDEMNIFIED PARTY as a result of placing data
on BANK’s FTP site.


 


Exhibit
A Section 4 (b) of the Marketing and Servicing Agreement shall be amended to
read as follows:


 


b)                                    Each Borrower shall be charged a
fee up to [***] of the face amount of each deferred deposit transaction for each [***], which fee may be modified from time to time upon agreement by ADVANCE
AMERICA and BANK and allowed by applicable law.


 


19





















 


In the
event of any conflict, inconsistency, or incongruity between the provisions of
this First Amendment and any of the provisions of the Marketing and Servicing
Agreement, the provisions of the First Amendment shall in all respects govern
and control.


 


In
WITNESS WHEREOF, ADVANCE AMERICA and BANK, each intending to be legally bound
hereby, have caused this First Amendment to be executed by its duly authorized
officer as of the 21st day of March 2003.


 


	
  REPUBLIC BANK &
  TRUST COMPANY

  	
  ADVANCE AMERICA

  
	
   

  	
  SERVICING OF TEXAS,
  L.P.

  
	
   

  	
   

  
	
  By:

  	
    /s/ Bill
  Petter

  	
   

  	
  By:

  	
  /s/ William M. Webster,
  IV

  	
   

  
	
   

  	
    William
  M. Webster, IV

  
	
   

  	
   

  
	
  Its:

  	
     EVP

  	
   

  	
  Its:

  	
  President

  	
   

  
								



 


 


SECOND
AMENDMENT TO THE

MARKETING AND SERVICING AGREEMENT


 


THIS SECOND AMENDMENT TO THE MARKETING AND SERVICING
AGREEMENT is an addendum to the MARKETING AND SERVICING AGREEMENT dated October
15, 2002 by and between Republic Bank & Trust Company, a bank organized
under the laws of the state of Kentucky (the “Bank”), and Advance America
Servicing of Texas, L.P., a Delaware Limited Partnership (“ADVANCE AMERICA”).


 


Pursuant to Section 11(k) of the Marketing and
Servicing Agreement, the BANK and ADVANCE AMERICA do hereby agree to amend the
Marketing and Servicing Agreement to read in its entirety as follows:


 


Page 7, Section 5(c)(ii) of the Marketing and Servicing Agreement shall
be amended to read as follows:


 


(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. Additionally, on BANK’s behalf, ADVANCE
AMERICA shall provide each APPLICANT with a copy of BANK’s privacy notice.


 


Page 9, Section 4(e)(iv) of the Marketing and Servicing Agreement shall
be amended to read as follows:


 


(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 records of ADVANCE AMERICA and
otherwise in such a manner as to facilitate their inspection by and delivery to
BANK, if so requested. ADVANCE AMERICA will maintain, through its policies,
procedures and practices, controls designed to safeguard the TRANSACTION DOCUMENTS
and related customer information as well as the confidentiality thereof.
TRANSACTION DOCUMENTS to BANK at its headquarters or such other location or
locations as BANK shall direct. In the event the security of the TRANSACTION
DOCUMENTS is breached or ADVANCE AMERICA learns of the unauthorized use of
information contained in the TRANSACTION DOCUMENTS, then ADVANCE AMERICA shall
promptly notify BANK of such breach or unauthorized use so that BANK shall be
able to take any and all appropriate and necessary action.


 


20





















 


Page 9, Section 4(e)(v) of the Marketing and Servicing Agreement shall
be amended to read as follows:


 


(v)                            During
the term of this Agreement and at all times thereafter, BANK and banking agencies
with regulatory authority over BANK including, but not limited to the FDIC and
the Kentucky Department of Financial Institutions 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 as well as all applicable laws and
regulations. Such access shall include permission to maintain employees on the
premises of ADVANCE AMERICA in Texas or such offices of ADVANCE AMERICA where
any information requested may be located during regular business hours in order
to audit ADVANCE AMERICA’s services contemplated by this Agreement and to
conduct on-site transaction testing and other operational reviews. BANK agrees
to provide reasonable advance notice of it or its banking agencies with
regulatory authority over its intent to audit any ADVANCE AMERICA store in
Texas.


 


Page 9, Section 4(e)(vii) shall be added to the Marketing and Servicing
Agreement and shall read as follows:


 


(vii)                      ADVANCE AMERICA will
address any and all customer complaints regarding the TRANSACTIONS
including any responsibility for forwarding such complaints to appropriate
third parties as well as any response thereto. Prior to addressing or
responding to customer complaints ADVANCE AMERICA will notify BANK of the
complaint as well as its recommended course of action. Upon receiving BANK’s
approval of its recommendation ADVANCE AMERICA will handle accordingly.


 


Page 9, Section 4(e)(viii) shall be added to the Marketing and Servicing
Agreement and shall read as follows:


 


(viii)                   ADVANCE
AMERICA will collect customer identification (“CIP”) information required by
the USAPatriot Act §326 and provide customers with adequate notice of the CIP
requirements prior to opening an account. CIP information includes name,
physical address, date of birth, and taxpayer identification number or other
unexpired government-issued photo identification number that allows ADVANCE
AMERICA to form a reasonable belief of (i.e., verify) the CUSTOMER’s true identity.
Records containing the required CIP information will be maintained by ADVANCE
AMERICA for a period of five (5) years from the date the CUSTOMER’s account is
closed and will be retrievable within 72 hours of any federal law enforcement
agency’s request.  In the event of any
conflict, inconsistency, or incongruity between the provisions of this Second
Amendment and any of the provisions of the Marketing and Servicing Agreement,
as amended, the provisions of the Second Amendment shall in all respects govern
and control.


 


IN WITNESS WHEREOF,
ADVANCE AMERICA and BANK, each intending to be legally bound hereby, have
caused this Second Amendment to be executed by its duly authorized officer as
of the 10  of September, 2003.


 


	
  REPUBLIC BANK &
  TRUST COMPANY

  	
  ADVANCE AMERICA, SERVICING
  OF TEXAS, L.P.

  
	
   

  	
   

  
	
  By:

  	
    /s/ Bill
  Petter

  	
   

  	
  By:

  	
  /s/ William M. Webster

  	
   

  
	
   

  	
  William
  M. Webster, IV

  
	
   

  	
   

  
	
  Its:

  	
  EVP

  	
   

  	
  Its:

  	
  President

  	
   

  
									



 


21





















 


THIRD AMENDMENT TO
THE

MARKETING AND SERVICING AGREEMENT


 


THIS THIRD AMENDMENT TO THE MARKETING AND SERVICING
AGREEMENT is an addendum to the MARKETING AND SERVICING AGREEMENT dated October
15, 2002, by and between Republic Bank & Trust Company, a bank organized
under the laws of the Commonwealth of Kentucky (the “Bank”) and Advance America
Servicing of Texas, L.P., a Texas limited partnership (“Advance America”).


 


Pursuant to Section 11(k) of the Marketing and
Servicing Agreement, the BANK and ADVANCE AMERICA do hereby agree to amend the
Marketing and Servicing Agreement to read in its entirety as follows:


 


1.                                       Page one (1), the introductory paragraph
of the Marketing and Servicing Agreement shall be amended to read:


 


This Marketing and Servicing Agreement (this “Agreement”),
dated as of the 15th day of October, 2002, is by and between
Republic Bank & Trust Company, a Kentucky state-chartered bank (“BANK’) and
Advance America Servicing of Texas, L.P., a Texas limited partnership (“ADVANCE
AMERICA”).


 


2.                                       Page one (1), first recital paragraph of
the Marketing and Servicing Agreement shall be amended to read:


 


WHEREAS, ADVANCE AMERICA is a duly organized and
validly existing Texas limited partnership, authorized to do business in the
State of Texas;


 


3.                                       Page one (1), third recital paragraph of
the Marketing and Servicing Agreement shall be amended to read:


 


WHEREAS, BANK desires that ADVANCE AMERICA market
and service, on behalf of BANK, all TRANSACTIONS originated by BANK in the
MARKET and ADVANCE AMERICA agrees to do so. The Parties agree that BANK will
continue to fund all TRANSACTIONS that are originated in the MARKET pursuant to
BANK’s established underwriting criteria and serviced by ADVANCE AMERICA until
and unless BANK’s outstanding TRANSACTIONS under this Agreement together with
any other Marketing and Servicing Agreement with ADVANCE AMERICA equals [***]
exclusive of TRANSACTIONS rejected by BANK.


 


3.                                       Page one (1), Section 1(a) of the
Marketing and Servicing Agreement shall be amended to read as follows:


 


(a)                               “ADVANCE
AMERICA” shall mean Advance America Servicing of Texas, L.P., a Texas Limited
Partnership.


 


4.                                       Page seven (7), Section 4(c)(iv) of the
Marketing and Servicing Agreement shall be amended to read as follows:


 


(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 transaction 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) not allow CUSTOMERS to engage
in ROLLOVERS.


 


5.                                       Page eight (8), Section 4(d)(iii) of the
Marketing and Servicing Agreement shall be amended to read as follows:


 


22





















 


(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 fourteen (14) days
past the due date.


 


6.                                       Page twelve (12), Section 5(b)(i) of the
Marketing and Servicing Agreement shall be amended to read as follows:


 


(i) ADVANCE
AMERICA is a duly organized and validly existing limited partnership under the
laws of the State of Texas, 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;


 


7.                                       Page twenty-two (22), Section 11(e) of
the Marketing and Servicing Agreement shall be amended to read as follows:


 


(e) 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 Commonwealth of Kentucky, except that the Arbitration provisions
shall be governed by the Federal Arbitration Act.


 


8.                                       Exhibit A, Section 4(d) of the Marketing
and Servicing Agreement shall be amended to read as follows:


 


[***]


 


9.                                       Exhibit A-1, “Sample Calculation” of the
Marketing and Servicing Agreement shall be amended to read as follows:


 


SAMPLE
CALCULATION


 


MARKETING
AND SERVICING FEE


 


[***]


 


In the event of any conflict, inconsistency, or
incongruity between the provisions of this Third Amendment and any of the
provisions of the Marketing and Servicing Agreement, as amended, the provisions
of this Third Amendment shall in all respects govern and control.


 


IN WITNESS WHEREOF, ADVANCE AMERICA and BANK, each
intending to be legally bound hereby, have caused this Third Amendment to be
executed by its duly authorized officer ass of the 15th of July,
2004.


 


	
  REPUBLIC BANK &
  TRUST COMPANY

  
	
   

  
	
  By:

  	
       /s/
  Bill Petter

  	
   

  
	
   

  
	
  Its:

  	
   

  	
   

  



 


23





















 


	
  ADVANCE AMERICA
  SERVICING OF

  
	
  TEXAS, L.P.

  
	
   

  
	
  By:

  	
  /s/
  William M. Webster, IV

  	
   

  
	
   

  	
  William
  M. Webster IV, President

  
	
   

  	
  Advance
  America, Cash Advance

  
	
   

  	
  Centers
  of Texas, Inc., its General

  
	
   

  	
  Partner

  



 


FOURTH
AMENDMENT TO THE

MARKETING AND SERVICING AGREEMENT


 


THIS FOURTH AMENDMENT TO THE MARKETING AND SERVICING
AGREEMENT is an addendum to the MARKETING AND SERVICING AGREEMENT dated October
15, 2002, by and between Republic Bank & Trust Company, a bank organized
under the laws of the Commonwealth of Kentucky (the “Bank”) and Advance America
Servicing of Texas, L.P., a Texas limited partnership (“Advance America”).


 


Pursuant to Section 1 l(k) of the Marketing and
Servicing Agreement, the BANK and ADVANCE AMERICA do hereby agree to amend the
Marketing and Servicing Agreement to read in its entirety as follows:


 


1.                                       Page one (1), third recital paragraph of
the Marketing and Servicing Agreement shall be amended to read:


 


WHEREAS, BANK desires that ADVANCE AMERICA market
and service, on behalf of BANK, all TRANSACTIONS originated by BANK in the
MARKET and ADVANCE AMERICA agrees to do so. The Parties agree that BANK will
continue to fund all TRANSACTIONS that are originated in the MARKET pursuant to
BANK’s established underwriting criteria and serviced by ADVANCE AMERICA until
and unless BANK’s outstanding TRANSACTIONS under this Agreement together with
any other Marketing and Servicing Agreement with ADVANCE AMERICA equals [***]
exclusive of TRANSACTIONS rejected by BANK.


 


In the event of any conflict, inconsistency, or
incongruity between the provisions of this Fourth Amendment and any of the
provisions of the Marketing and Servicing Agreement, as amended, the provisions
of this Fourth Amendment shall in all respects govern and control.


 


IN WITNESS WHEREOF, ADVANCE AMERICA and BANK, each
intending to be legally bound hereby, have caused this Fourth Amendment to be
executed by its duly authorized officer as of the 17th of January,
2005.


 


 


	
  REPUBLIC BANK &
  TRUST COMPANY

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Bill Petter

  	
   

  
	
   

  
	
  Its:

  	
  Executive
  Vice President

  	
   

  
	
   

  	
  &
  Chief Executive Officer

  
	
   

  
	
  ADVANCE AMERICA SERVICING OF TEXAS, L.P.

  	
   

  
					



 


24





















 


	
  By:

  	
  /s/
  William M. Webster, IV

  	
   

  
	
   

  	
  William
  M. Webster IV, President

  	
   

  
	
   

  	
  Advance
  America, Cash Advance

  	
   

  
	
   

  	
  Centers
  of Texas, Inc., its General

  	
   

  
	
   

  	
  Partner

  	
   

  



 


25