Marketing and Servicing Agreement - Republic Bank & Trust Co. and ACE Cash Express Inc.
MARKETING AND SERVICING AGREEMENT
This Marketing and Servicing Agreement (this "AGREEMENT"), dated as of the
21st day of October, 2002, is by and between Republic Bank & Trust Company, a
Kentucky state-chartered bank ("BANK") and ACE Cash Express, Inc., a Texas
corporation ("COMPANY").
WHEREAS, COMPANY is a duly authorized and validly existing Texas
corporation, authorized to do business in the states of Texas, North Carolina
and Pennsylvania;
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 (as defined below) referred to herein;
WHEREAS, BANK agrees that during the term of the AGREEMENT, BANK will deal
with COMPANY with respect to TRANSACTIONS (as defined below) for all CUSTOMERS
(as defined below) located in the MARKET (as such term is defined hereinbelow)
at the time of the TRANSACTION;
WHEREAS, COMPANY agrees that BANK shall have the first and exclusive right
to all TRANSACTIONS originated in the MARKET by COMPANY stores up to a maximum
of $*, exclusive of TRANSACTIONS rejected by the BANK, at such time when
COMPANY, using commercially reasonable efforts, is able to terminate COMPANY'S
arrangements existing on the date hereof to offer and provide TRANSACTIONS or
any product that is the same as or substantially similar to the TRANSACTIONS
within the MARKET;
WHEREAS, the BANK acknowledges that franchisees of COMPANY and its
affiliates are not bound by this AGREEMENT, and may continue to offer
TRANSACTIONS and similar products without regard to this AGREEMENT and the
franchisees of the COMPANY located in the MARKET are set forth on Exhibit F as
updated from time to time;
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
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* 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.
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WHEREAS, COMPANY desires to market and service the TRANSACTIONS on the
BANK's behalf.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises contained in this AGREEMENT, and other valuable consideration, the
sufficiency of which is hereby acknowledged, and intending to be legally bound,
BANK and COMPANY (together, the "PARTIES") agree as follows:
1. DEFINITIONS.
(a) "ADVERSE ACTION NOTICE" shall be defined as an appropriately
completed notice in compliance with Regulation B and applicable law required to
be provided to CUSTOMERS whose TRANSACTIONS are not approved by the BANK in its
sole discretion.
(b) "APPLICANT" shall be defined as a prospective CUSTOMER seeking
to take advantage or otherwise participate in the PROGRAM.
(c) "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.
(d) "BANK DEPOSIT ACCOUNT" shall be defined as that bank account
held at a bank or banks designated by BANK and made known to COMPANY and into
which BANK shall deposit, via Automated Clearing House Network or other
electronic entries, as permitted by applicable law, the amounts set forth on
each REPAYMENT CHECK and the daily receipts otherwise collected by COMPANY for
the benefit of BANK and applied to the TRANSACTIONS.
(e) "BANK INDEMNIFIED PARTIES" shall be defined as BANK and its
holding company, and their officers, directors, employees, representatives,
agents and attorneys.
(f) "BANK INTELLECTUAL PROPERTIES" shall be defined as the name,
trade name, trademarks, service marks and logos of BANK.
(g) "BANK POLICIES" shall be defined as the reasonable and lawful
practices, policies and procedures established by BANK and communicated in
writing to COMPANY from time to time with respect to the TRANSACTIONS, a current
copy of which is attached hereto as Exhibit D.
(h) "CONFIDENTIAL INFORMATION" shall be defined as all documents,
materials, information about trade secrets, agreements, products, services,
licenses, costs, sales and pricing information, and any other information that
is generally
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not known in the trade or may not be known generally or publicly, 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.
(i) "CUSTOMER" shall be defined as any person who participates in
the PROGRAM.
(j) "CUSTOMER INFORMATION" shall be defined as all information
derived from TRANSACTIONS or APPLICATIONS about any of the CUSTOMERS or the
APPLICANTS, including, without limitation, names, addresses, demographic
information and financial information.
(k) "DISCLOSURES" shall be defined as all information required to be
provided to an APPLICANT or CUSTOMER under federal, state or local law.
(l) "COMPANY INDEMNIFIED PARTIES" shall be defined as COMPANY and
its parents, subsidiaries and affiliates, and each of their officers, directors,
employees, representatives, agents and attorneys.
(m) "EVENT OF DEFAULT" shall be defined as set forth in Section
7(b).
(n) "FEES" shall be defined as the marketing and servicing fees set
forth on Exhibit A attached hereto.
(o) "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 officers, employees, directors or agents.
(p) "LOSSES" shall be defined as claims, losses, liabilities,
damages, penalties, demands, judgments, settlements, costs and expenses,
including reasonable attorneys' fees.
(q) "MARKET" shall mean the states listed on Exhibit C.
(r) "NET CHARGE OFFS" shall mean for any calendar quarter the actual
charge offs of principal (which shall consist of the Total of Payments less the
Finance Charge, as those terms are used in the Notes) of the TRANSACTIONS plus
all FEES paid to COMPANY on the TRANSACTIONS in question less any prior charge
offs collected during the calendar quarter; except in the case of NSF charge
offs, in which case NET CHARGE OFFS shall consist of the Total of Payments, as
that term is used in the Notes, less any prior charge offs collected during the
calendar quarter.
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* 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.
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(s) "NOTES" shall be defined as those promissory notes or similar
negotiable instruments which may be made by a CUSTOMER to evidence and secure
the CUSTOMER'S obligations under any TRANSACTION.
(t) "PROGRAM" shall be defined as the totality of the activities in
connection with the TRANSACTIONS as contemplated under this AGREEMENT.
(u) "PROMOTIONAL MATERIALS" shall be defined as all such letters,
advertising, direct mail communications and promotional materials incorporating
BANK INTELLECTUAL PROPERTIES and all related designs, artwork, logos, slogans,
copy and other similar materials.
(v) "REPAYMENT CHECKS" shall be defined as checks issued by a
CUSTOMER as security for and in repayment of the TRANSACTIONS.
(w) "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.
(x) "TRANSACTIONS" shall be defined as the BANK'S deferred deposit
transactions in which, for consideration, the BANK will accept a check and hold
the check for a period of time prior to deposit or presentment in accordance
with an agreement with the maker of the check.
(y) "TRANSACTION DOCUMENTS" shall be defined as (i) all original
APPLICATIONS and copies of all ADVERSE ACTION NOTICES and other documents
relating to rejected APPLICATIONS; (ii) Automated Clearing House debit
authorizations and disclosures, as permitted by applicable law, (iii)
authorizations from each CUSTOMER to allow the BANK to grant COMPANY access to
CUSTOMER INFORMATION, and (iv) originals or copies, as applicable, of all
APPLICATIONS, NOTES, DISCLOSURES, REPAYMENT CHECKS and other documents provided
to or received from CUSTOMERS.
(z) "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, Program criteria that must be satisfied by CUSTOMERS to be eligible
to enter into a
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TRANSACTION, terms and features of the TRANSACTIONS, including, without
limitation, amounts, FEES and charges, limits, standards and all other terms and
conditions of the TRANSACTIONS. Bank shall prepare the form of all TRANSACTION
DOCUMENTS. BANK shall enter into the TRANSACTIONS with all APPLICANTS who seek
to take advantage of deferred deposit services offered by BANK and marketed by
COMPANY and who, in the sole discretion of the BANK, meet such Program criteria,
standards and other qualifications as contemplated in Section 4(c)(ii) of this
AGREEMENT; 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 COMPANY, nor BANK, nor their
respective employees shall state or suggest to APPLICANTS that TRANSACTIONS are
made with or approved by COMPANY or that COMPANY (or any employee or agent of
COMPANY) can improve or otherwise influence an APPLICANT's prospect of entering
into the TRANSACTION. BANK may reject any TRANSACTION or TRANSACTIONS at any
time, in its sole discretion.
(b) COMPANY acknowledges that all rights of ownership in the
TRANSACTIONS and the TRANSACTION DOCUMENTS are and remain the sole property of
BANK, and COMPANY shall have no ownership rights to such TRANSACTIONS or
TRANSACTION DOCUMENTS during the term of this AGREEMENT. Furthermore, COMPANY
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. Any sale, transfer or assignment by
BANK of any such TRANSACTION shall comply with applicable law.
(d) BANK shall forward to COMPANY, 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.
4. COMPANY'S SERVICES.
(a) General Duties of COMPANY; Standards of Performance: COMPANY
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 COMPANY in
its sole discretion, where APPLICANTS may submit APPLICATIONS and receive
DISCLOSURES required by applicable law (if any) and where CUSTOMERS may execute
and deliver the TRANSACTION DOCUMENTS and deliver REPAYMENT CHECKS or other
payment on the TRANSACTIONS. To facilitate deposit by the BANK of the REPAYMENT
CHECK into the BANK DEPOSIT ACCOUNT via Automated Clearing House Network entries
or other electronic payment, as permitted by applicable law, COMPANY shall
provide the BANK, on or after the date the NOTE evidencing a
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TRANSACTION becomes due, information from each REPAYMENT CHECK including the ABA
routing number, the check account number, the check number and the check amount.
In lieu thereof, COMPANY shall accept any CUSTOMER payments remitted to COMPANY
in cash in prepayment of the TRANSACTION and shall deliver an amount equal to
such CUSTOMER cash payments to BANK via Automated Clearing House Network
entries, as permitted by applicable law, on the next business day after receipt
of such cash payments. In marketing the TRANSACTIONS and performing its services
hereunder, COMPANY shall at all times and in all respects comply with applicable
laws, rules and regulations. Before initiating any marketing efforts for the
TRANSACTIONS in the MARKET, COMPANY shall agree with BANK on a mutually
agreeable protocol for communicating with the appropriate regulatory
authorities, and shall cooperate with BANK in implementing the TRANSACTION
program and protocols contemplated hereby. Further, COMPANY shall use the
documentation prepared by BANK and follow the BANK POLICIES. COMPANY shall train
and supervise its employees to act in conformity with the BANK POLICIES and the
requirements of applicable laws, rules and regulations.
(b) Marketing of TRANSACTIONS:
(i) BANK hereby authorizes COMPANY during the term of this
AGREEMENT to market TRANSACTIONS to prospective CUSTOMERS. BANK hereby grants to
COMPANY a nonexclusive license to use the BANK INTELLECTUAL PROPERTIES during
the term of this AGREEMENT in connection with this AGREEMENT on letters, print
advertisements, direct mail, the Internet, television and radio communications
and other advertising and PROMOTIONAL MATERIALS; provided, however, COMPANY
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 not expressly
granted to COMPANY herein are reserved by BANK. Regardless of whether they
incorporate the 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, (D) shall
comply with all applicable laws, rules and regulations for use in the time,
place and manner specified and (E) shall be submitted to BANK for prior
approval, which shall not be unreasonably delayed.
(ii) In connection with COMPANY'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 COMPANY store or any personal
property located therein, except for REPAYMENT CHECKS, NOTES, TRANSACTION
DOCUMENTS, and cash in an amount equal to the funds received by COMPANY in
repayment of TRANSACTIONS that COMPANY has not transmitted to BANK as
contemplated by this AGREEMENT; and (B) no BANK employees shall work in any
COMPANY store except for BANK agents who may examine COMPANY stores from
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time to time for compliance with BANK POLICIES and other aspects of this
AGREEMENT.
(c) Servicing of TRANSACTION Applications:
(i) BANK also hereby authorizes COMPANY to obtain TRANSACTION
applications from APPLICANTS, using the form of APPLICATION prepared by BANK.
COMPANY 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. COMPANY shall not discriminate against or discourage any
APPLICANT in any aspect of the process on any "prohibited basis," as such term
is defined in the Equal Credit Opportunity Act (ECOA), Regulation B and KRS
Chapter 344.
(ii) Based solely upon the underwriting standards and PROGRAM
criteria adopted by BANK from time to time, a current copy of which is attached
as Exhibit E hereto, and applied to the information provided by APPLICANTS to
BANK in the APPLICATIONS and such other credit-related information as obtained
by COMPANY at the direction of BANK, or by BANK directly, BANK shall determine
whether to enter into a TRANSACTION with an APPLICANT. BANK shall review and
evaluate completed APPLICATIONS and approve CUSTOMERS who satisfy the Program
criteria within a commercially reasonable time after receipt of the APPLICATION
from COMPANY. BANK shall, either itself or through its designated agent,
communicate to COMPANY its decision on any APPLICATION. COMPANY shall provide an
ADVERSE ACTION NOTICE to any APPLICANT whose APPLICATION is rejected by BANK.
For APPLICANTS whose APPLICATION is approved by the BANK, the BANK shall fund
the payment to the CUSTOMER in the amount of the REPAYMENT CHECK, less all
applicable fees and expenses, by a check or other negotiable instrument drawn on
a depository account in Kentucky designated by the BANK. BANK shall honor and
pay any properly payable check or other negotiable instrument drawn on any of
BANK'S depository accounts validly issued in connection with TRANSACTIONS
approved by the BANK.
(iii) The CUSTOMERS obligations under the TRANSACTION shall be
evidenced by a NOTE containing the DISCLOSURES and secured by a REPAYMENT CHECK.
(iv) COMPANY shall (A) deliver a copy of the NOTE to the
CUSTOMER; (B) obtain from the CUSTOMER the executed NOTE; (C) obtain from
CUSTOMER his or her REPAYMENT CHECK dated the date of the TRANSACTION and made
payable to BANK; and (D) maintain on behalf of BANK, separate and apart from
COMPANY's own assets and records, the REPAYMENT CHECK and NOTE.
(d) Collection of TRANSACTIONS.
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(i) BANK hereby authorizes COMPANY to service the TRANSACTIONS
by, among other things, (1) using commercially reasonable efforts, including the
use of direct debits to a CUSTOMER'S depository account via the Automated
Clearing House Network as permitted by applicable law, to collect payments on
the TRANSACTIONS at and after maturity thereof on behalf of BANK; (2) accurately
recording and reporting the payments of funds from CUSTOMERS and transmitting
such payments to BANK in accordance with this AGREEMENT; and (3) making
remittance to and settlement with BANK in accordance with this AGREEMENT. In
collecting payments owed under the NOTES, COMPANY shall comply in all respects
with applicable law, rules and regulations. Without limiting the generality of
the foregoing, COMPANY shall not, explicitly or implicitly, make any threats of
criminal prosecution in connection with debt collection, or otherwise engage in
any practices or actions that violate any applicable laws, rules or regulations.
(ii) COMPANY shall service the TRANSACTIONS at all times in
accordance with the terms of this AGREEMENT and the DISCLOSURES and the BANK
POLICIES. BANK shall notify COMPANY in writing at least ten (10) business days
prior to any change in the BANK POLICIES, unless such changes are required
sooner by applicable laws, rules or regulations.
(iii) On or after the date the NOTE evidencing a TRANSACTION
becomes due, COMPANY shall provide the BANK, information from each REPAYMENT
CHECK including the ABA routing number, the check account number, the check
number and the check amount and BANK shall deposit and transfer the amount of
the REPAYMENT CHECK to the BANK DEPOSIT ACCOUNT via Automated Clearing House
Network entries or other electronic payment as permitted by applicable law. In
lieu thereof, COMPANY shall deliver to BANK via Automated Clearing House Network
entries, as permitted by applicable law, all cash received by COMPANY from
CUSTOMERS representing repayment of TRANSACTIONS on the next business day after
receipt of such repayment.
(iv) COMPANY shall be responsible for any deficiency between
the amount of cash reported by COMPANY as collected on TRANSACTIONS and the
amount of cash actually received in repayment of TRANSACTIONS. Any excess
amounts of cash shall be the property of the COMPANY.
(e) Reports; Access to Stores, Books and Records and Employees:
(i) During the term of this AGREEMENT, COMPANY shall promptly
provide to BANK or its agents data submissions and reports reasonably required
by BANK in order to maintain effective internal controls and to monitor results
under this AGREEMENT, including without limitation the performance of the
TRANSACTIONS and COMPANY's obligations hereunder. Such reports shall include a
daily report showing those TRANSACTIONS originated through COMPANY,
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outstanding and repaid each day, as agreed upon by BANK and COMPANY, as well as
COMPANY's monthly compliance review checklists and all periodic internal audit
reports for stores marketing and servicing the TRANSACTIONS.
(ii) COMPANY 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) COMPANY, on behalf of the BANK and without an ownership
interest by COMPANY, shall 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,
COMPANY 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 COMPANY hereunder
from COMPANY's other files and records.
(iv) The TRANSACTION DOCUMENTS shall be held by COMPANY on
behalf of BANK, pursuant to BANK'S record retention requirements, as more
particularly set forth in the BANK POLICIES attached hereto as Exhibit D and
incorporated herein by reference, and Bank has and shall continue to have
constructive possession and legal title to such documents, files and records. At
such time or times as BANK may reasonably request, and at BANK's cost, COMPANY
shall promptly deliver all copies of 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 COMPANY
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 COMPANY stores, to the books and records of COMPANY
(to the extent that such books and records pertain to the TRANSACTIONS), to the
officers, employees and accountants of COMPANY, and to copies of TRANSACTION
DOCUMENTS, all for the same purposes of ensuring that COMPANY is carrying out
the BANK POLICIES and is otherwise complying fully with its obligations under
this AGREEMENT. Such access shall include permission to maintain employees on
the premises of COMPANY during regular business hours to audit COMPANY's
services contemplated by this AGREEMENT.
(vi) In addition, and not as a limitation of the foregoing,
BANK shall have the right at COMPANY's expense, provided that the aggregate
expense to COMPANY shall not exceed $25,000 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
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conducted during normal business hours in a manner which does not unreasonably
interfere with COMPANY's normal business operations and CUSTOMER and employee
relations.
(f) FEES and Costs: In consideration for COMPANY's performance of
its obligations under this AGREEMENT, BANK shall pay COMPANY the FEES, as such
FEES may be changed from time to time by mutual agreement of the parties. Such
FEES shall be paid by BANK to COMPANY on or before the 5th business day
following transmittal of the INVOICE, as defined by, and containing the
information required by, Exhibit A. COMPANY 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 but by way
of example, 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 COMPANY; signage costs;
insurance and advertising costs.
(g) Procedures and Protocols. Notwithstanding any provision herein
to the contrary, the parties hereto agree that the Procedures and Protocol in
the form and substance of Exhibit B attached hereto and incorporated herein by
reference which shall govern the operations and management of the TRANSACTIONS.
Exhibit B may be reviewed periodically and shall only be amended or modified by
letter agreement which shall not necessitate or effect a modification or
amendment to this AGREEMENT but which said amendment or modification shall be
incorporated herein by reference.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) BANK hereby represents and warrants to COMPANY as of the date
hereof that:
(i) BANK is a duly organized Kentucky state-chartered bank
validly existing under the laws of the Commonwealth of
Kentucky, and is currently authorized to conduct its
business as described in this AGREEMENT in the states of
Texas and North Carolina and anticipates being
authorized to conduct its business as described in this
Agreement in the state of Pennsylvania. 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 as contemplated by this AGREEMENT.
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The Transactions and the documents prepared by BANK in
connection with the TRANSACTIONS currently comply with
all federal, state and local laws, statutes and
regulations and any and all licenses, permits and other
authorizations required of BANK in connection with the
TRANSACTIONS by federal, state or local laws, statutes,
and regulations (the "BANK AUTHORIZATIONS") have been
obtained, are in full force and effect and are valid
under applicable federal, state and local laws and the
continuation, validity and effectiveness of all of the
BANK AUTHORIZATIONS shall not be impaired or adversely
affected by the terms of this AGREEMENT;
(iii) This AGREEMENT has been duly executed and delivered by
BANK and upon due authorization and ratification by
BANK's Board of Directors, 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. Section 1821 (d) and (e), and any other
laws affecting creditors' rights and remedies generally;
(iv) 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 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;
(v) Except as may have already been obtained, no consent,
approval, authorization or order of any federal or state
regulatory agency or other governmental body is required
to be obtained by BANK to permit it to perform its
obligations under this AGREEMENT;
(vi) There are no claims of any kind or orders, actions,
suits, proceedings, arbitrations or investigations
asserted by or against BANK which would prevent or
challenge the performance of this AGREEMENT or any of
the transactions contemplated hereby or declare the same
unlawful or cause the rescission thereof;
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(vii) BANK is currently not a party to (a) any enforcement
action instituted by, or (b) any memorandum of
understanding or cease and desist order with, any
federal or state regulatory agency, and no such action,
memorandum or order has been threatened, and BANK has
not received any report of examination from any federal
or state regulatory agency which requires BANK to
address any problem or take any action relevant to the
TRANSACTIONS or other obligations of BANK under this
AGREEMENT which has not already been addressed or taken
in a manner satisfactory to the regulatory agency;
(viii) BANK warrants that it has the right to use and license
the BANK INTELLECTUAL PROPERTIES as set forth in this
AGREEMENT;
(ix) BANK has provided COMPANY copies of all documents and
correspondence from the Kentucky Department of Financial
Institutions regarding the TRANSACTIONS and the legality
of the TRANSACTIONS if performed as contemplated in this
AGREEMENT, except as prohibited by applicable law; and
(x) BANK is a current member of and in good standing with
the Community Financial Services Association of America
(the "CFSA").
(b) COMPANY hereby represents and warrants to BANK, as of the date
hereof that:
(i) COMPANY is duly organized and validly existing 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
Texas and federal law, and anticipates having all
requisite licenses, permits and authorizations under
North Carolina and Pennsylvania law, to execute and
deliver this AGREEMENT and perform its obligations
contemplated hereunder. COMPANY has the corporate power
and authority and all requisite licenses, permits and
authorizations to execute and deliver this AGREEMENT and
perform its obligations hereunder;
(ii) COMPANY currently has the corporate power and authority,
and all requisite licenses, permits and authorizations,
to execute and deliver this AGREEMENT and to perform
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hereunder. This AGREEMENT has been duly authorized by
COMPANY's Board of Directors, executed and delivered by
COMPANY and constitutes its legal, valid and binding
agreement, enforceable against COMPANY 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 COMPANY does not violate or conflict with
(A) any provision of the governance documents of
COMPANY; or (B) any Texas or federal law, or any order,
arbitration award, judgment or decree to which COMPANY
is a party or by which COMPANY or any of its assets may
be bound;
(iv) Except as may have already been obtained, no consent,
approval, authorization or order of any federal or state
regulatory agency or other governmental body is required
to be obtained by COMPANY to permit it to perform its
obligations under this AGREEMENT;
(v) Except as set forth in the COMPANY'S Annual Report on
Form 10-K for the fiscal year ended June 30, 2002, or as
otherwise disclosed, there are no claims of any kind or
orders, actions, suits, proceedings, arbitrations or
investigations asserted by or against COMPANY which
would prevent or challenge the performance of this
AGREEMENT or any of the transactions contemplated hereby
or declare the same unlawful or cause the rescission
thereof;
(vi) Except as set forth in the COMPANY'S Annual Report on
Form 10-K for the fiscal year ended June 30, 2002, or as
otherwise disclosed, COMPANY is currently not a party to
(a) any enforcement action instituted by, or (b) any
memorandum of understanding or cease and desist order
with, any federal or state regulatory agency, and no
such action, memorandum or order has been threatened,
and COMPANY has not received any report of examination
from any federal or state regulatory agency which
requires COMPANY to address any problem or take any
action relevant to the TRANSACTIONS or other obligations
of COMPANY under this AGREEMENT which has not already
been addressed or taken in a manner satisfactory to the
regulatory agency; and
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(vii) COMPANY is a current member of and in good standing with
the Financial Service Centers of America ("FiSCA").
(c) BANK hereby covenants and agrees as follows:
(i) On or prior to November 1, 2002, BANK will provide to
COMPANY an opinion of counsel to BANK opining as to the
legality of (A) BANK engaging in the transactions
contemplated by this AGREEMENT and (B) BANK charging the
fees contemplated by this AGREEMENT to CUSTOMERS located
in the MARKET; provided, however, an opinion of counsel
to BANK opining with respect to Pennsylvania law shall
be delivered to COMPANY within a reasonable time after
execution of this AGREEMENT but in no event later than
November 30, 2002. In the event such Pennsylvania
opinion indicates that BANK may not legally engage in
the transactions or charge the fees contemplated in this
AGREEMENT, BANK shall have no obligation to engage in
any TRANSACTION in Pennsylvania.
(ii) 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.
(d) COMPANY hereby covenants and agrees as follows:
(i) On or prior to November 1, 2002, COMPANY will provide to
BANK an opinion of counsel to COMPANY opining as to the
legality of COMPANY engaging in the marketing and
servicing of the TRANSACTIONS for BANK as contemplated
in this AGREEMENT; provided, however, an opinion of
counsel to COMPANY opining with respect to Pennsylvania
and North Carolina law shall be delivered to BANK within
a reasonable time after execution of this AGREEMENT but
in no event later than November 30, 2002. In the event
such Pennsylvania or North Carolina opinion indicates
that COMPANY may not legally engage in the marketing and
servicing of the TRANSACTIONS as contemplated in this
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<PAGE>
AGREEMENT, COMPANY shall have no obligation to market or
service any TRANSACTION in Pennsylvania or North
Carolina, as the case may be.
(ii) COMPANY hereby agrees that during the term of this
Agreement the Total Shareholder's Equity of the COMPANY,
as such term is used in the Consolidated Balance Sheet
of its Audited Financial Statements, shall be at least
sixty (60) million dollars.
(iii) COMPANY shall use its reasonable best efforts to comply
in all material respects with the CFSA Best Practices,
or its equivalent, specifically FiSCA's Code of Conduct,
in effect on the date of this Agreement, and any
reasonable Best Practices or Code of Conduct, or
modifications thereto approved and adopted by CFSA, or
its equivalent, specifically FiSCA, during the term of
this Agreement; provided the practices/code of conduct
comply in all respects with all applicable law, and the
interpretation of such law by authorities with
jurisdiction.
6. INDEMNIFICATION; INSURANCE.
(a) Each of the PARTIES' representations, warranties, covenants and
agreements set forth in this AGREEMENT shall survive the execution and delivery
of this AGREEMENT.
(b) BANK shall indemnify and hold COMPANY harmless from and against,
and shall pay to COMPANY the full amount of, any LOSSES resulting to COMPANY,
either directly or indirectly, from (i) any inaccuracy in any representation or
warranty, or any breach of any covenant or agreement, by BANK contained in this
AGREEMENT, (ii) any fraud, theft, dishonesty, defamation or other willful
misconduct of BANK or its officers, directors, employees or agents, (iii) any
claim against BANK or COMPANY by the Kentucky Department of Financial
Institutions, the Federal Deposit Insurance Corporation, or any regulatory
agency or other governmental body having supervisory authority directly over
BANK or (iv) any claim by any third party of service mark or trademark
infringement based upon COMPANY'S use of the BANK INTELLECTUAL PROPERTIES.
(c) COMPANY shall indemnify and hold BANK harmless from and against,
and shall pay to BANK the full amount of, any LOSSES resulting to BANK, either
directly or indirectly, from (i) any inaccuracy in any representation or
warranty, or any breach of any covenant or agreement, by COMPANY contained in
this AGREEMENT, (ii) any fraud, theft, dishonesty, defamation or other willful
misconduct of COMPANY or its officers, directors, employees or agents, or (iii)
any claim that the
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TRANSACTIONS or the conduct of COMPANY in connection with the TRANSACTIONS are
illegal, provided that, (A) at the time of such claim, BANK is not in breach of
any covenant or agreement contained in this AGREEMENT that contributed to or
caused the loss for which indemnification is sought and (B) the claim is not by
the Kentucky Department of Financial Institutions, the Federal Deposit Insurance
Corporation, or any regulatory agency or other governmental body having
supervisory authority directly over BANK.
(d) The fact that indemnification is provided in this Agreement for
some actions of either COMPANY or BANK does not mean that statutory or common
law indemnification or contribution is not available to either party for other
acts not enumerated herein.
(e) The Parties agree that, if both BANK and COMPANY are named as
defendants in the same lawsuit, arbitration or other proceeding, then Bank and
COMPANY may enter into a Joint Defense Agreement reasonably acceptable to Bank
and COMPANY, 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
COMPANY 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) Whenever any claim shall arise for indemnification under this
Paragraph 6, the party seeking indemnification (the "INDEMNITEE") shall promptly
notify the other party (the "INDEMNITOR") of the claim and, when known, the
facts constituting the basis for such claim. Such notice shall specify, if
known, the amount or a good faith estimate of the amount of the liability
arising therefrom.
(h) In connection with any claim or legal proceeding by a third
party which may give rise to indemnity hereunder (a "THIRD PARTY CLAIM"), the
INDEMNITOR, at the sole cost and expense of the INDEMNITOR, may assume the
defense of any such THIRD PARTY CLAIM by giving written notice to the
INDEMNITEE. The INDEMNITOR's notice must be received by the INDEMNITEE within
twenty (20) days following INDEMNITOR's receipt of notice of such THIRD
----------
* 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.
16
<PAGE>
PARTY CLAIM and must acknowledge the INDEMNITOR's obligation to indemnify the
INDEMNITEE with respect to such THIRD PARTY CLAIM.
(i) If the INDEMNITOR assumes the defense of any THIRD PARTY CLAIM,
the INDEMNITOR shall select counsel to conduct the defense of such claim, and
the INDEMNITOR shall take all reasonable steps necessary in the defense or
settlement thereof. If the INDEMNITOR assumes the defense of any THIRD PARTY
CLAIM, the INDEMNITOR shall not be obligated to pay any attorneys fees or
investigation costs incurred by the INDEMNITEE in connection with its
participation in such defense, unless the INDEMNITOR assumes the defense of such
THIRD PARTY CLAIM at any time after the expiration of the INDEMNITOR's twenty
(20) day notice period. The INDEMNITEE shall cooperate with all reasonable
requests of the INDEMNITOR in connection with the INDEMNITOR's defense of any
THIRD PARTY CLAIM. The INDEMNITOR shall not consent to a settlement of, or the
entry of any judgment arising from, any THIRD PARTY CLAIM, without the prior
written consent of the INDEMNITEE, which consent shall not be unreasonably
withheld or delayed. The INDEMNITEE shall be entitled to participate in (but not
control) the defense of any such action, with its own counsel and at its own
expense.
(j) If the INDEMNITOR does not assume the defense of any such THIRD
PARTY CLAIM, the INDEMNITEE may defend against such THIRD PARTY CLAIM in such
manner as the INDEMNITEE may deem appropriate, including, but not limited to,
settling such claim on such terms as the INDEMNITEE may deem appropriate, at the
cost of INDEMNITOR. If the INDEMNITOR seeks to question the manner in which the
INDEMNITEE defended such THIRD PARTY CLAIM or the amount of or nature of any
such settlement, the INDEMNITOR shall have the burden to prove by a
preponderance of the evidence that the INDEMNITEE did not defend such claim in a
reasonably prudent manner.
(k) With respect to any claim, dispute or controversy between BANK
and COMPANY arising out of or relating to the performance of this AGREEMENT, the
parties agree that prior to considering any remedies at law or in equity, that
BANK and COMPANY shall each appoint one or more executives who will meet with
each other for the purpose of resolving any claim, dispute or controversy
between BANK and COMPANY arising out of or relating to the performance of this
AGREEMENT or any of the TRANSACTIONS. The parties agree to operate in good faith
in such agreements.
(l) COMPANY agrees to purchase and maintain general business and
liability insurance from a nationally-recognized insurance provider which shall
have limits for such policy in a total amount not less than $5,000,000.
(m) BANK shall obtain and maintain in full force and effect errors
and omissions insurance in an amount no less than $5,000,000 with such insurance
companies as are reasonably satisfactory to BANK and COMPANY.
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7. TERM AND TERMINATION.
(a) The term of this AGREEMENT shall commence as of the date of this
AGREEMENT, and shall continue until January 1, 2006, unless earlier terminated
pursuant to terms of this AGREEMENT.
(b) This AGREEMENT may be terminated upon the occurrence of one or
more of the following events, within the time periods set forth below (each, an
"EVENT OF DEFAULT"):
(i) By either PARTY, if the other PARTY hereto shall be in
material breach of any covenant or
agreement hereunder or in the event of an inaccuracy in any
representation or warranty hereunder, provided that such breach or inaccuracy
has not been cured within 10 days following written notice of such breach to the
PARTY committing such breach; or
(ii) by COMPANY, 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 regulatory body having jurisdiction over said PARTY or any other duly
appointed person or entity; or
(iii) by BANK, if COMPANY shall file for protection under any
chapter of the federal Bankruptcy Code, an involuntary petition is filed against
COMPANY 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 COMPANY.
(c) Provided that COMPANY is not in material breach of this
AGREEMENT, COMPANY may terminate this AGREEMENT by giving written notice at
least ten (10) business days in advance of termination if: (i) BANK ceases
generally to fund TRANSACTIONS marketed by COMPANY; or (ii) any amendment to or
change in the terms of Kentucky Revised Statute Chapter 368, or other applicable
law, has an adverse effect upon COMPANY or may reasonably be expected to have an
adverse effect upon COMPANY, including placing COMPANY at a competitive
disadvantage with respect to other persons or entities engaged in deferred
deposit transactions or any product that is the same as or substantially similar
to the TRANSACTIONS.
(d) Provided that COMPANY is not in material breach of this
AGREEMENT, COMPANY may, in addition to all other available remedies, terminate
this AGREEMENT immediately if BANK breaches its obligation under paragraph
4(c)(ii) of this AGREEMENT to honor and pay any check or other negotiable
instrument drawn on any of BANK'S depository accounts validly issued in
connection with TRANSACTIONS approved by the BANK.
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<PAGE>
(e) BANK may terminate this Agreement prior to November 30, 2002, if
BANK is not reasonably satisfied with the results of BANK'S due diligence review
of the documents and other materials provided to BANK by COMPANY and set forth
on Exhibit G hereto.
(f) BANK may terminate this Agreement on ten (10) business days'
written notice to COMPANY if by March 31, 2003, COMPANY has not terminated
COMPANY'S arrangements with parties other than BANK to offer and provide
TRANSACTIONS or any product that is the same as or substantially similar to the
TRANSACTIONS within the MARKET.
(g) Either PARTY may terminate this AGREEMENT on ten (10) business
days' written notice to the other PARTY if the aggregate NET CHARGE OFFS exceed
* of the aggregate amount of FEES originated through COMPANY in such quarter;
provided such notice is given not later than thirty (30) days following the end
of such calendar quarter.
(h) 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.
(i) If a PARTY is advised in writing by any regulatory agency having
or asserting jurisdiction over such PARTY or the TRANSACTIONS that the
performance of its 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) Except as may be prohibited by federal, state or local law,
statutes, or regulations or regulatory authorities, upon the expiration or
termination of this AGREEMENT, each PARTY will remit to the other PARTY all
amounts owing to such other party for transactions commencing on or before the
expiration or termination date, and each PARTY shall fulfill all of its
obligations under this AGREEMENT that arose or accrued before the expiration or
termination date. In order to preserve the goodwill of each PARTY with its
CUSTOMERS, both PARTIES shall act in good faith cooperation in order to ensure a
smooth and orderly termination of their relationship and the
----------
* 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.
19
<PAGE>
termination of the TRANSACTION origination and marketing program contemplated
hereunder. Upon the termination or expiration of this AGREEMENT, all rights
herein granted to COMPANY (except those set forth in Section 9(a)) shall revert
to BANK, and COMPANY shall immediately cease using the BANK property.
(k) Either 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.
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 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 COMPANY:
Michael J. Briskey
ACE Cash Express, Inc.
1231 Greenway Drive, Suite 600
Irving, Texas 75038-9904
Telephone: 972-753-2342
Facsimile: 972-582-1447
with a copy to:
R. James Straus
Frost Brown Todd LLC
400 W. Market Street
32nd Floor
Louisville, Kentucky 40202
Telephone: 502-568-0221
Facsimile: 502-581-1087
If to BANK:
20
<PAGE>
Michael A. Ringswald
Republic Bank & Trust Company
One Republic Corporate Center
Louisville, Kentucky 40202
Telephone: 502-561-7112
Facsimile: 502-561-7188
with a copy to:
Donald L. Cox
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 of 1999 and any rules or regulations
promulgated thereunder, BANK hereby grants to COMPANY 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; provided that COMPANY shall not use the CUSTOMER
INFORMATION (i) if the CUSTOMER at issue advises BANK or COMPANY 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. COMPANY 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 COMPANY. BANK shall use
reasonable care to ensure that its agents do not violate this provision.
(c) BANK and COMPANY 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 make use of or communicate
CONFIDENTIAL INFORMATION to any third parties except as required by this
AGREEMENT and except that CONFIDENTIAL INFORMATION may be provided to a
regulatory agency having or asserting jurisdiction over a PARTY or the
21
<PAGE>
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 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 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
prompt notice of such request(s) 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
under Section 9 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 at law or in equity,
shall be entitled to an order requiring the RESTRICTED PARTY to specifically
perform its obligations under Section 9 of this AGREEMENT or enjoining the
RESTRICTED PARTY from breaching Section 9 of this AGREEMENT, and the RESTRICTED
PARTY shall not plead in defense thereto that there would be an adequate remedy
at law.
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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 COMPANY. No
employee of COMPANY shall be deemed to be an employee of BANK, nor shall any
employee of BANK be deemed an employee of COMPANY. Each party to this AGREEMENT
shall be deemed to be an independent contractor.
(b) This AGREEMENT and the Exhibits attached hereto supersede any
negotiations, discussions or communications between BANK and COMPANY and
constitute the entire agreement of BANK and COMPANY 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) This AGREEMENT and the rights and duties described herein shall
be governed by, and interpreted in accordance with, the laws of the United
States and the Commonwealth of Kentucky, without reference to Kentucky choice of
law rules. An action for breach of or to enforce this Agreement shall be brought
in the Jefferson County Circuit Court in Louisville, Kentucky.
(e) Neither PARTY shall assign any of its rights or delegate any of
its obligations hereunder without the other PARTY's prior written consent, which
shall not be unreasonably withheld or delayed, except that either PARTY may
assign all or any part of its rights hereunder to any affiliate of that PARTY
without the other PARTY's consent, provided further, however, that any such
assignment shall not relieve the assignor of any liability or obligation for
TRANSACTIONS entered into prior to the date of such assignment.
(f) 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.
(g) 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.
(h) 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
23
<PAGE>
and the same document. Facsimile signatures and photocopies shall be deemed as
valid as though they were originals.
(i) Neither party shall be in breach or default of its obligations
under this AGREEMENT to the extent that delay or failure in its performance is
caused by an act of God, war, terrorism, fire, flood, severe weather conditions,
utilities or telecommunications failures, materials shortage, or unavailability
of transportation.
(j) Except as otherwise provided in this AGREEMENT, each party shall
assume and pay its own legal, accounting and other expenses incurred in
connection with the transactions contemplated by this AGREEMENT.
(k) 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 COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, BANK and COMPANY, 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.
ACE CASH EXPRESS, INC. REPUBLIC BANK & TRUST COMPANY
("COMPANY") ("BANK")
BY: MICHAEL J. BRISKEY BY: /S/ BILL PETTER
---------------------------- ---------------------------------
ITS: VICE PRESIDENT OF FINANCE ITS: EXECUTIVE VICE PRESIDENT AND
CHIEF OPERATING OFFICER
DATE: OCTOBER 21, 2002 DATE: OCTOBER 21, 2002
24
<PAGE>
EXHIBIT A
COMPUTATION OF SERVICING FEES
*
----------
* 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.
25
<PAGE>
EXHIBIT B
PROCEDURES AND PROTOCOLS
(1) Each of BANK and COMPANY shall each keep and use in its business any
books, accounts, and records the Kentucky Department of Financial Institutions
(the "DEPARTMENT") may require to carry into effect the provisions of KRS
368.010 to 368.120 and the administrative regulations issued under those
sections. BANK and COMPANY shall preserve the books, accounts, and records for
at least two (2) years.
(2) Any fee charged by BANK in connection with the TRANSACTIONS shall be
disclosed in writing to the bearer of the check prior to cashing the check, and
the fee shall be deemed a service fee and not interest. BANK shall not charge a
service fee in excess of fifteen dollars ($15) per one hundred dollars ($100) on
the face amount of the deferred deposit check. BANK shall prorate any fee, based
upon the maximum fee of fifteen dollars ($15). This service fee shall be for a
period of fourteen (14) days.
(3) Before BANK shall deposit with any bank or other depository
institution a check cashed by BANK, the check shall be endorsed with the actual
name under which BANK is doing business and shall be dated the date of the
TRANSACTION.
(4) Any personal check accepted from a CUSTOMER must be payable to BANK.
BANK shall not cash a check payable to a payee other than a natural person
unless BANK has previously obtained appropriate documentation from the board of
directors or similar governing body of the payee clearly indicating the
authority of the natural person or persons cashing the check, draft, or money
order on behalf of the payee.
(5) Neither BANK nor COMPANY shall indicate through advertising, signs,
billhead, or otherwise that checks may be cashed without identification of the
bearer of the check; and any person seeking to cash a check shall be required to
submit reasonable identification as prescribed by the DEPARTMENT.
(6) Within five (5) business days after being advised by the payor
financial institution that a check, draft, or money order has been altered,
forged, stolen, obtained through fraudulent or illegal means, negotiated without
proper legal authority, or represents the proceeds of illegal activity, BANK
shall notify the DEPARTMENT and other proper authorities. If a check, draft, or
money order is returned to BANK by the payor financial institution for any of
these reasons, BANK shall not release the check, draft, or money order without
the consent of the investigating or other proper law enforcement authority.
(7) Neither BANK nor COMPANY shall alter or delete the date on any check
received from a CUSTOMER in a TRANSACTION.
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<PAGE>
(8) Neither BANK nor COMPANY shall engage in unfair or deceptive acts,
practices, or advertising in the conduct of its business. BANK must make a good
faith effort to assess the CUSTOMER's ability to repay the TRANSACTION.
(9) BANK shall not require a CUSTOMER to provide security for a
TRANSACTION or require the CUSTOMER to provide a guaranty from another person.
(10) BANK shall not have more than one TRANSACTION from any one CUSTOMER
at any one time, with a face value greater than five hundred dollars ($500).
(11) BANK (through COMPANY) shall inquire of any person seeking to engage
in a TRANSACTION, whether the person has any outstanding deferred deposit
transaction with any person. If the CUSTOMER represents in writing that the
CUSTOMER has no more than one deferred deposit transaction outstanding and that
the face value of the outstanding deferred deposit transaction issued by the
CUSTOMER does not equal or exceed five hundred dollars ($500), BANK may accept a
deferred deposit transaction in an amount that, when combined with the
CUSTOMER's other outstanding deferred deposit transaction, does not exceed five
hundred dollars ($500). If the CUSTOMER represents in writing that the CUSTOMER
has more than one deferred deposit transaction outstanding or if the face value
of the deferred deposit transaction issued by the CUSTOMER equals or exceeds
five hundred dollars ($500), BANK shall not accept another deferred deposit
transaction from that CUSTOMER until the CUSTOMER represents to BANK in writing
that the CUSTOMER qualifies to issue a new deferred deposit transaction under
the requirements set forth in this paragraph.
(12) Neither BANK nor COMPANY shall use any device or agreement, including
agreements with affiliated parties, with the intent to obtain greater charges
than are authorized in Chapter 368 of the Kentucky Revised Statutes.
(13) BANK shall not agree to hold a TRANSACTION for less than fourteen
(14) days or more than thirty one (31) days.
(14) Each TRANSACTION shall be made according to a written agreement that
shall be dated and signed by the CUSTOMER and BANK or an authorized agent of
BANK, and made available to the DEPARTMENT upon request. The CUSTOMER shall
receive a copy of this agreement. The agreement must contain BANK's name, the
date of the TRANSACTION, the amount of the deferred deposit check, a statement
of the total amount of fees charged, expressed both as a dollar amount and as an
annual percentage rate (APR), and the earliest date on which the deferred
deposit check may be deposited. The agreement must also contain a notice of the
name and address of the Office of Consumer Credit Commissioner and the telephone
number of the CUSTOMER helpline. Additionally, BANK shall provide a notice to
the CUSTOMER that reads as follows: "This cash advance is not intended to meet
long-term financial needs. This loan should only be used to meet immediate
short-term cash needs."
27
<PAGE>
(15) BANK shall not for a fee renew, roll over, or otherwise consolidate a
TRANSACTION for a CUSTOMER. Each CUSTOMER shall have the right to prepay the
TRANSACTION and redeem the deferred deposit check at any time prior to the due
date.
(16) No individual who enters into a TRANSACTION with BANK shall be
convicted under the provisions of KRS 514.040 regarding theft by deception.
(17) Neither BANK nor COMPANY shall prosecute or threaten to prosecute an
individual under the provisions of KRS 514.040 in connection with a TRANSACTION.
(18) BANK and COMPANY shall conspicuously display in every COMPANY retail
location in the MARKET a sign that gives the following notice: "No person who
enters into a post-dated check or deferred deposit check transaction with this
business establishment will be prosecuted or convicted of writing cold checks or
of theft by deception under the provisions of KRS 514.040."
(19) BANK shall give the CUSTOMER the disclosures required by the Consumer
Credit Protection Act (15 U.S.C. sec. 1601). Proof of this disclosure shall be
made available to the DEPARTMENT upon request.
(20) BANK and COMPANY shall conspicuously display a schedule of all fees,
and charges for all services provided by BANK that are authorized by KRS 368.010
to 368.120. The notice shall be posted at every COMPANY retail location in the
MARKET.
(21) BANK may charge, collect, and receive check collection charges made
by a financial institution for each check returned or dishonored for any reason,
provided that the terms and conditions upon which check collection charges will
be charged to the CUSTOMER are set forth in the written disclosure. Collection
practices must be in accordance with 7 T.A.C. Section 1.605 and with the Texas
Debt Collection Practices Act, Texas Finance Code, Section 392.001 et seq.
(22) BANK shall provide customer service for CUSTOMERS who have questions
about their TRANSACTION, APPLICATION, or APPLICATION denials.
(23) BANK will address the safety and soundness, compliance, consumer
protection, and other risks including credit, transaction, and reputation risks
discussed in agency guidelines and advisory materials issued from time to time
by the Federal Deposit Insurance Corporation and any other applicable regulatory
agencies. BANK will comply with all applicable federal, state and local laws,
statutes and regulations including, without limitation, the Equal Credit
Opportunity Act, the Truth In Lending Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, and all other applicable consumer protection
and lending laws.
28
<PAGE>
(24) BANK shall maintain a safety and soundness CAMEL rating of * on
examinations conducted by each of the Federal Deposit Insurance Corporation and
the DEPARTMENT. BANK shall advise COMPANY immediately upon (i) BANK'S receipt of
information that the CAMEL rating has been or may be downgraded or (ii)
commencement of proceedings, examinations, or other investigations by a
regulatory agency or other governmental body that may materially affect the
obligations of either BANK or COMPANY under this AGREEMENT.
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* 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.
29
<PAGE>
EXHIBIT C
MARKET
*
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* 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.
30
<PAGE>
EXHIBIT D
BANK POLICIES
*
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* 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.
31
<PAGE>
EXHIBIT E
PROGRAM CRITERIA
*
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* 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.
32
<PAGE>
EXHIBIT F
COMPANY FRANCHISEES
*
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* 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.
33
<PAGE>
EXHIBIT G
DUE DILIGENCE
*
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* 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.
34
<PAGE>
EXHIBIT 10.1 (b)
FIRST AMENDMENT TO
MARKETING AND SERVICING AGREEMENT
This First Amendment to Marketing and Servicing Agreement dated as of
January __, 2003 (this "Amendment"), is by and between Republic Bank & Trust
Company, a Kentucky state-chartered bank ("Bank"), and ACE Cash Express, Inc., a
Texas corporation ("Company").
WHEREAS, Bank and Company have previously entered into that certain
Marketing and Servicing Agreement dated as of October 21, 2002 (the "Marketing
Agreement"); and
WHEREAS, Bank and Company desire to amend the Marketing Agreement to (i)
adjust the amount of customer fees charged, (ii) revise the market area serviced
by Company to delete North Carolina and add Arkansas, and (iii) revise Company
disclosure and reporting requirements.
NOW, THEREFORE, the parties hereby agree as follows:
1. Fees. Exhibit A to the Marketing Agreement is hereby amended to read in
its entirety as attached hereto.
2. Market Area. Exhibit C to the Marketing Agreement is hereby amended to
read in its entirety as follows:
"Market: Texas, Arkansas, Pennsylvania"
3. Disclosure. Section 4(e)(ii) of the Marketing Agreement is hereby
amended to read in its entirety as follows:
"COMPANY shall, as reasonably required by BANK, but no more often
than quarterly, provide BANK with (a) its most recent unaudited
financial statements, (b) its annual audited financial statements,
(c) copies of all periodic reports and current reports filed with
the Securities and Exchange Commission (the "COMMISSION") on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated
by the COMMISSION, and such other periodic reports, documents and
information that COMPANY furnishes to the COMMISSION or to its
stockholders or other security holders generally, and (d) COMPANY's
disaster contingency/recovery plan, if any. COMPANY shall, as
reasonably required by BANK, but no more often than annually,
undergo a SAS 70 examination and provide a copy of the SAS 70 report
to BANK."
4. Effect of Amendment. Except as expressly modified by this Amendment,
the terms and provisions of the Marketing Agreement are ratified and confirmed
and shall continue in full force and effect. Bank and Company hereby confirm
that the Marketing Agreement, as amended hereby, is a legally binding contract
which governs the relationship of the Bank and Company.
<PAGE>
[SIGNATURE PAGE TO FOLLOW]
<PAGE>
IN WITNESS WHEREOF, BANK and COMPANY, intending to be legally bound
hereby, have caused this Amendment to be executed by their duly authorized
officers as of the day and year first set forth above.
ACE Cash Express, Inc.
By: /s/ Michael J. Briskey
------------------------------
Title: Vice President of Finance
Date: January 28, 2003
Republic Bank & Trust Company
By: /s/ Bill Petter
---------------
Title: Executive Vice President and
Chief Operating Officer
Date: January 28, 2003
<PAGE>
EXHIBIT A
COMPUTATION OF SERVICING FEES
1. This is EXHIBIT A to that certain Marketing and Servicing AGREEMENT
dated as of October 21, 2002, as amended, (the "AGREEMENT") between REPUBLIC
BANK & TRUST COMPANY ("BANK"), and ACE CASH EXPRESS, INC. ("COMPANY"). All
capitalized terms used herein and not otherwise defined are defined in the
AGREEMENT.
2. As COMPANY's sole compensation under the AGREEMENT, BANK shall pay
COMPANY the marketing and servicing fees ("FEES") set forth below. BANK shall
only be obligated to pay the FEES on TRANSACTIONS, or portions thereof,
originated during the period.
3. The marketing and servicing FEES owing to COMPANY and the fees owing to
the BANK under the AGREEMENT shall be calculated in accordance with the sample
calculation of transaction / fees attached as Exhibit A-1.
4. Commencing on the first business day following a TRANSACTION
origination and continuing on each business day thereafter, COMPANY shall
deliver to BANK a daily report of business outlining the total amount advanced
to each customer, the fees expected to be earned by Bank assuming repayment of
the TRANSACTION, the FEES earned by COMPANY, the total TRANSACTIONS held as
receivable, and the total charge offs for the TRANSACTIONS. 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
COMPANY, as well as such other information as is reasonably required by the BANK
to manage the PROGRAM.
5. Each week, COMPANY shall deliver to BANK an invoice, detailing by the
day, the total TRANSACTIONS collected, the total fees earned by BANK and the
total amount of FEES due to COMPANY for the 7-day period included in such
invoice (an "INVOICE"). Based on those INVOICES, BANK will pay to COMPANY by
Automated Clearing House (ACH) transfer (or by other means agreeable to COMPANY
and BANK) the fifth business day following the delivery of each INVOICE, the
FEES to be paid by BANK thereunder related to COMPANY's activities for the
INVOICE period. Each INVOICE shall show (a) the total of payments on
TRANSACTIONS actually received by BANK during the INVOICE period, and (b) the
FEES owed by BANK to COMPANY. COMPANY 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. COMPANY
and BANK also agree that, for purposes of performing such calculation, the
following assumptions apply:
(a) The term "TRANSACTION LOSS RATE" shall mean the rate equal to *.
(b) In connection with the TRANSACTIONS, BANK shall receive a fee
from CUSTOMERS equal to fifteen dollars ($15) per one hundred dollars ($100) on
the face amount of the deferred deposit check accepted by BANK from the CUSTOMER
in the TRANSACTION. For example, if a CUSTOMER provides a deferred deposit check
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* 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.
<PAGE>
in the face amount of $* then the CUSTOMER will receive $* and the fee will be
$*. The fee set forth in this paragraph may only be adjusted by the written
agreement of BANK and COMPANY.
(c) For every $* in fees collected from CUSTOMERS for the
TRANSACTIONS, (i) as consideration for the services rendered by COMPANY to BANK
under this AGREEMENT, BANK shall pay COMPANY FEES equal to $*, (ii) BANK shall
maintain reserves (the "RESERVES") equal to $* which shall be released to make
the adjustments set forth in paragraph 5(d) of this Exhibit A, and (iii) BANK
shall retain $*.
(d) In each calendar quarter, the PARTIES shall make the following
adjustments based upon the TRANSACTION LOSS RATE:
(i) *.
(ii) *.
(e) The amounts due hereunder, if any, shall be paid within 10 days
of the end of each calendar quarter.
(f) BANK and COMPANY shall perform an annual review of, and may make
mutually agreed upon amendments to, the RESERVES and the adjustments to the FEES
set forth herein to reflect a change in said RESERVES if the TRANSACTION LOSS
RATE is substantially different from *.
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* 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.