Cash Services Agreement - Ace Cash Express Inc. and Texas Capital Bank NA
CASH SERVICES AGREEMENT
This agreement (the "AGREEMENT") is made to be effective as of December
17, 2002, by and between ACE CASH EXPRESS, INC., a Texas corporation ("ACE") and
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION ("TEXAS CAPITAL").
WITNESSETH:
A. ACE has leased a series of cash disbursement Self-Service Machines
(individually, an "SSM" and collectively, "SSMS") from Diebold Credit
Corporation or Diebold, Incorporated, or both, or other lessees acceptable to
Texas Capital ("LESSORS") which are located in the offices of H&R Block Tax
Services, Inc. ("H&R") listed on EXHIBIT A hereto, as amended with the consent,
in its sole discretion, of Texas Capital ("COVERED SSMS")
B. ACE and Texas Capital desire that, among other things, Texas Capital
furnish the U.S. currency, which for purposes of this Agreement shall include
(i) all cash in Covered SSMs, (ii) any Texas Capital cash in the vault of its
Contractor (defined below) or otherwise in Contractor's possession or control
that was requested by ACE from Texas Capital in connection with this Agreement,
and (iii) any Texas Capital cash in the vaults of its Correspondents (defined
below) or otherwise in any Correspondent's possession or control that was
requested by ACE from Texas Capital in connection with this Agreement
(collectively, the "CASH").
C. Cash will be used to stock the Covered SSMs in order to permit cash
withdrawals therefrom by customers of H&R pursuant to tax refund and tax loan
checks cashed in the Covered SSMs ("ICB CHECKS") issued by Imperial Capital Bank
("ICB") as advance fundings of income tax refunds.
D. In order to facilitate the availability of Cash under this
Agreement, Texas Capital may, from time to time, deposit U.S. currency into the
vaults of its correspondents listed on ANNEX III hereto (each a "CORRESPONDENT"
and collectively, the "CORRESPONDENTS").
E. Ten (10) of the Covered SSMs will permit Cash withdrawals without
use of ICB Checks (the "Non-Check SSMs") and reimbursement for such Cash
withdrawals shall be pursuant to an electronic presentment agreement
satisfactory to Texas Capital and subject to appropriate intercreditor agreement
with U.S. Bank National Association and DZ Bank AG Deutsche
Zentral-Genossenschaftbank Frankfurt am Main, as Administrative Agent.
NOW THEREFORE, in consideration of the premises herein contained and
other good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the undersigned agree as follows:
1. Services
(a) Texas Capital will provide Texas Capital's Cash to be loaded by its
Contractor (defined below) into Covered SSMs for disbursement to H&R customers
that cash ICB checks. No ownership of the Cash or any ICB Checks shall accrue,
transfer or otherwise inure to ACE or any of its agents or affiliates.
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(b) All handling of Non-Vault Cash (defined below), including all
loading and unloading of any of the Cash into or out of any of the Covered SSMs
and all counting and verification of Cash before it is placed in machine
cassettes and after its removal from machine cassettes for transfer to the
Correspondents, shall be performed by Loomis Fargo & Co. ("CONTRACTOR") for
Texas Capital pursuant to a contract with Texas Capital. "NON-VAULT CASH" means
Cash that is not in a Correspondent's vault.
(c) ACE has leased the Covered SSMs from Lessors and has entered into
an SSM servicing agreement pursuant to which Lessors service and maintain the
Covered SSMs. Neither Texas Capital nor any of its agents shall have any
responsibility for the repair, maintenance, care, or servicing of the Covered
SSMs.
(d) All of the Cash, ICB Checks, Settlement Funds (hereinafter
defined), Collection Account (hereinafter defined) and Fee/Expense Account
(hereinafter defined) are, and shall remain, the property of Texas Capital and
shall be treated by Texas Capital as its asset. Texas Capital shall have full
title, use, rights and benefits of and to the Cash and ICB Checks during the
time that they are in the possession, custody or control of Contractor or any
Correspondent or stored in any Covered SSM and, in the case of Cash, until such
time as the Cash is dispensed from any of the Covered SSMs to customers of H&R
in accordance with this Agreement and the operating procedures described on
ANNEX I hereto. Neither the Cash, ICB Checks, Settlement Funds, Collection
Account nor the Fee/Expense Account shall at any time become the property of ACE
or any of its agents. Neither the Cash, ICB Checks nor the Settlement Funds
shall be commingled with any other cash or accounts in the possession, custody
or control of Contractor or ACE. ACE confirms and agrees that neither it nor any
affiliate has any interest or any other right in the Cash, ICB Checks,
Settlement Funds, Collection Account, EP Amounts (hereinafter defined), or
Fee/Expense Account. "SETTLEMENT FUNDS" means an amount equal to the aggregate
of any and all Settlement Amounts (hereafter defined) at any time, and from time
to time, now or hereafter required to be remitted to the Reserve Account in
accordance with SUBPARAGRAPH 5(d) of this Agreement.
(e) ACE shall not have access to, or use of, any of the Cash after
delivery of the Cash to Contractor, whether during transportation or storage by
Contractor or any Correspondent or while it is stored in the machine cassettes
in the Covered SSMs, except that Lessors, the SSM servicing contractor, shall be
allowed to provide scheduled and unscheduled repair and maintenance to the
Covered SSMs in accordance with the terms of Operating Agreement between Lessors
and ACE (collectively, as amended, renewed, extended, or restated, the
"OPERATING AGREEMENT"). Once any of the Cash is delivered by Texas Capital to
Contractor or any Correspondent, it shall only be transported or stored by
Contractor or a Correspondent and finally placed in one of the Covered SSMs
pursuant to the terms of the Cash Vault Services Agreement dated May 1, 1999 (as
amended), and the Armored Car Service Agreement dated May 1, 1999 (as amended)
(collectively the "CONTRACTOR AGREEMENT") by and between Texas Capital and
Contractor and the Operating Agreement.
(f) During the term of this Agreement, the only U.S. currency to be
placed in any of the Covered SSMs shall be Texas Capital's Cash. None of the
Cash shall be placed in any SSMs other than the Covered SSMs.
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(g) Texas Capital may, for the purposes of reporting pursuant to
Regulation D of the Federal Reserve Board (12 CFR Section 204), treat the Cash
under this Agreement as "vault cash" on a continuous basis, and no other
financial institution (including Correspondents) shall report, treat or consider
such funds as "vault cash" for any similar reporting purposes.
(h) Any and all Cash, ICB Checks and Settlement Funds collected or
received by ACE shall be held by ACE in trust, custody and safekeeping for the
benefit of Texas Capital. ACE shall have no claim to, nor right of withdrawal
of, Cash or Settlement Funds except to deliver such funds to the Reserve Account
in accordance with PARAGRAPH 5(d). The services provided in this Agreement are
in the nature of a bailment by Texas Capital for the mutual benefit of the
parties hereto and not as a transfer of ownership or any other property
interest. The Cash, ICB Checks and Settlement Funds shall not be subject to any
manner of lien, security interest, attachment or other process or agreement
created by, or relating to the property of, ACE or any of its affiliates, nor
shall ACE or any of its affiliates intentionally take any action that could
cause the Cash, ICB Checks or Settlement Funds to be treated as property of ACE
or any affiliate, nor shall ACE or any affiliate intentionally take any action
that could cause the Cash, ICB Checks or Settlement Funds to be treated as
property of ACE's or any affiliate's estate in a bankruptcy proceeding. It is
expressly agreed between ACE and Texas Capital that ACE shall take all necessary
and reasonable steps to identify and protect Texas Capital's property rights in
the Cash, ICB Checks and the Settlement Funds. ACE and Texas Capital expressly
agree that ACE has no possessory or ownership rights to the Cash, ICB Checks and
the Settlement Funds under Section 541 of the Bankruptcy Code, 11 U.S.C. Section
541.
(i) Upon written notice from Texas Capital, ACE shall use all
commercially reasonable efforts to comply or arrange for compliance with any
regulatory requirement imposed upon Texas Capital with respect to Covered SSMs
and the security of the Cash, ICB Checks and the Settlement Funds subject to
this Agreement, and with respect to any record-keeping or reporting requirement
imposed on Texas Capital relating to the Cash, ICB Checks and the Settlement
Funds, including, without limiting the generality of the foregoing, the
provisions of the regulations of the Office of the Comptroller of the Currency,
regarding minimum security devices and procedures, 12 C.F.R. Section 21.1, and
the provisions of the Bank Protection Act, as amended, 12 U.S.C. Section 1882 et
seq., as such provisions relate to the Covered SSMs in off-premises locations.
ACE shall fully cooperate with Texas Capital by furnishing all information
required by Texas Capital to meet such regulatory requirements. In the event
Texas Capital is or becomes subject to any legal or regulatory notice or action
which could adversely affect ACE's uninterrupted operation of the Covered SSMs,
Texas Capital shall, if not otherwise prohibited by law or regulation, notify
ACE of such event and shall, use commercially reasonable efforts to continue
performance of Texas Capital's obligations under this Agreement.
(j) Contractor will provide to Texas Capital and ACE (1) a strap
counting report each time it picks up Cash from a Correspondent verifying the
Cash received, and (2) a report of Cash removed from Covered SSMs each time Cash
is picked up from Covered SSMs.
2. Delivery of the Cash
(a) Subject to the availability of sufficient U.S. currency to Texas
Capital, Texas Capital will cause to be made available to Contractor or
Correspondents, or both, the Cash
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required to stock the Covered SSMs (or be available for restocking) in the
amount requested by ACE, which amount shall not exceed: (i) * ($*) per Covered
SSM; or (ii) the aggregate sum of One-Hundred Million Dollars ($100,000,000.00)
which shall include, for purposes of computing the aggregate amount, ICB Checks
for which Texas Capital shall not have received funds, unreimbursed amounts of
Cash withdrawn from Non-Check SSMs ("EP Amounts") and all Cash. Notwithstanding
the foregoing, in no event shall Cash in any Non-Check SSM exceed * ($*) and no
Cash shall be placed in any Non-Check SSM if, for any reason whatsoever, the
unreimbursed amount due to Texas Capital for Cash withdrawals from Non-Covered
SSMs is outstanding later than the first business day after receipt of funds by
U.S. Bank National Association or is greater than the aggregate amount then held
by Texas Capital in the Reserve Account.
(b) ACE shall provide Texas Capital's Correspondents with a request to
deliver to Contractor (which, solely with respect to currency, shall be for a
specified number of bundles) via the Correspondent's fax or touch-tone cash
ordering service two (2) business days before the business day Cash is to be
supplied to Contractor that specifies the amount and denomination of Cash to be
supplied to Contractor that is required to replenish the supply of currency and
coin in the Covered SSMs and will simultaneously send a file to Texas Capital's
electronic cash ordering service and to Contractor a confirmation of the order
listing the amount, Correspondent to whom the request was made, denominations of
cash ordered and machine locations to which the Cash will be delivered. In the
event that ACE desires to change the amount of Cash to be supplied from the
amount reflected on the order, ACE shall provide Texas Capital, Contractor and
the applicable Correspondents a change request reflecting the changed amount by
9:00 a.m. (Central Standard Time) on the business day immediately preceding the
business day that the Cash is to be delivered to a Contractor. For the purposes
of this Agreement, "BUSINESS DAY" means any day on which the offices of Texas
Capital are open to the public for carrying on substantially all business
functions, other than Saturday or Sunday. Cash requested by ACE will be
delivered on the later of (i) two business days after the business day on which
the Cash is requested by ACE or (ii) the first business day following the
business day on which the applicable Federal Reserve Bank (defined hereinafter)
or Correspondent makes such Cash available to Contractor for the benefit of
Texas Capital. At the time of Cash delivery, Contractor shall pick up any ICB
Checks in the Covered SSMs for delivery to Texas Capital within 48 hours. In
addition, at the time of Cash delivery to a Covered SSM, any Cash then remaining
in such Covered SSM shall be removed by Contractor for redelivery to the
Correspondents as provided herein and in Contractor's agreement with Texas
Capital.
(c) In the event the Federal Reserve Bank or any branch offices thereof
(collectively, "FEDERAL RESERVE Bank") or a Correspondent cannot supply Texas
Capital with the volume of fit U.S. currency and coin required to meet the
currency needs of the Covered SSMs, Texas Capital shall use its best
commercially reasonable efforts to obtain as much of such currency and coin as
possible to meet such currency and coin needs.
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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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3. Redelivery of the Cash to Texas Capital
(a) Texas Capital may demand, at any time without notice or
qualification, and direct Contractor and each Correspondent to the effect that
the Cash and ICB Checks then stored in the Covered SSMs or otherwise in the
possession, custody or control of Contractor or a Correspondent be delivered to
Texas Capital or its designee by Contractor or a Correspondent; provided,
however, Texas Capital shall use commercially reasonable efforts to give ACE
prior notice of such delivery request to allow Contractor to collect and deliver
the Cash to the applicable Correspondent or Texas Capital's designee in an
orderly fashion. Funds delivered to Texas Capital pursuant to this PARAGRAPH 3
shall in no event exceed the balance of all undispensed Cash stored in the
Covered SSMs and ICB Checks in the SSMs or otherwise in the possession, custody
or control of Contractor and the Correspondents. ACE shall be responsible for
taking all commercially reasonable action necessary to ensure that Lessors and
H&R cooperate with redelivery of Cash and delivery of ICB Checks to Contractor
once Texas Capital has directed Contractor to redeliver the same to the
Correspondent.
(b) Texas Capital shall not be liable for any damages incurred by ACE
due to the redelivery of the Cash to Texas Capital as provided in PARAGRAPH 3(a)
above, nor for the resulting inability of customers of H&R to use the Covered
SSMs because they then contain no currency or coin.
(c) In lieu of the provisions of PARAGRAPH 3(a) above, Texas Capital
may elect to receive from ACE (upon ACE's agreement thereto) good funds in an
amount equal to the undispensed Cash and ICB Checks stored in the Covered SSMs
and in the possession, custody or control of Contractor or the Correspondents,
delivered to the Main Office of Texas Capital, by wire transfer or any other
mutually agreed-upon method.
(d) Non-Vault Cash removed by Contractor from Covered SSMs shall, after
counting by Contractor, be returned to the applicable Correspondent's vault for
credit to Texas Capital's account with such Correspondent. It is anticipated
that such return shall generally occur at the same time as Contractor picks up
the next Cash order placed by ACE with such Correspondent.
4. SSM Transactions
The Cash loaded in each Covered SSM (other than Non-Check SSMs) may be
dispensed from Covered SSMs only to customers of H&R by means ICB Checks and no
Cash in any Covered SSM may be dispensed except to customers of H&R pursuant to
a special personal identification number of the customer provided by H&R.
5. Settlement for Cash Disbursements
(a) On each business day following the initial delivery of the Cash to
any Covered SSM, ACE will deliver electronically to Texas Capital, at its
central cash vault, a report substantially in the form attached hereto as
EXHIBIT B or as otherwise agreed in writing between ACE and Texas Capital (the
"DAILY REPORT") describing the cash withdrawal transactions occurring at Covered
SSMs since the delivery of the previous Daily Report, including without
limitation, a statement of (i) the total number of transactions involving the
withdrawal of Cash from the Covered SSMs, (ii) the amount of Cash contained in
the Covered SSMs, (iii) the total
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Cash dispensed from the Covered SSMs, (iv) the total number of ICB Checks
deposited in each Covered SSM, and (v) any other information Texas Capital may
reasonably require to verify the amount of Cash stored in the Covered SSMs and
in the possession, custody or control of Contractor (together, the "DAILY CASH
POSITION").
(b) The Daily Report and any related data shall contain sufficient
detail and specificity to allow Texas Capital to accurately determine each day
the Daily Cash Position. Texas Capital may also rely upon Contractor's reports
and its Correspondents' on-line account reports in reconciling Cash and its
Daily Cash Position.
(c) All ICB Checks shall be delivered to Texas Capital by Contractor
and shall be deposited into a segregated account established at Texas Capital
(the "COLLECTION ACCOUNT") Each business day, Texas Capital shall reconcile the
amounts in the Collection Account, including the difference between the amount
Texas Capital collects for honoring ICB Checks through the Covered SSMs and the
amount dispensed to H&R customers in Cash through Covered SSMs (the "SETTLEMENT
AMOUNT") as reflected on the Daily Report. With respect to the Non-Check SSMs,
Texas Capital shall accept a wire for reimbursement that is transmitted pursuant
to a data file request made by ACE. ACE covenants and agrees that any such data
file shall segregate, with machine identification, ICB Cash withdrawn from
Non-Check SSMs.
(d) The Settlement Amount shall be withdrawn on a daily basis by Texas
Capital and deposited into a special non-interest bearing reserve account (the
"RESERVE ACCOUNT") established at Texas Capital and pledged by ACE to Texas
Capital pursuant to a pledge and account control agreement to secure ACE's
performance under this Agreement and each agreement related hereto, including
but not limited to the payment of all fees and expenses incurred by Texas
Capital related to Contractor expenses, legal fees and expenses, insurance
expenses and courier expenses. The Reserve Account will be held by Texas Capital
until the Final Settlement (defined hereinafter). To the extent that any ICB
Checks are unpaid for any reason after the normal collection process or Texas
Capital is not reimbursed the first business day after Cash is withdrawn from
Non-Check SSMs, Texas Capital is irrevocably authorized to debit such amounts
directly against the Reserve Account. If after any unpaid ICB Checks are charged
against the Reserve Account and the remaining balance in the Reserve Account is
equal to or exceeds $1,000,000, ACE shall be authorized to collect such ICB
Checks for its own account.
(e) After delivery by ACE of an officer's certificate from an
authorized officer covered by ACE's directors' and officers' general liability
policy certifying the accuracy of the reconciled amount within such period and
that there has been no breach by ACE of this Agreement, ACE will be paid the
Reserve Account minus (i) $1,000,000, (ii) all fees earned by Texas Capital
during such period and (iii) all expenses incurred by Texas Capital during such
period from the Reserve Account based on calculations as of the 15th day of each
calendar month and the first day of each calendar month commencing on January
15, 2003 through the Final Settlement, the payments for such periods to be
delivered to ACE no later than two business days after the end of each such
period, provided that in no case shall Texas Capital be required to reduce the
Reserve Account below $1,000,000.
(f) Texas Capital may also establish any number of other accounts at
Texas Capital for the administrative convenience of Texas Capital. Specifically,
Texas Capital will establish a
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Fee/Expense Account (the "FEE/EXPENSE ACCOUNT") against which Texas Capital will
charge on the 15th day of each calendar month and the first day of each calendar
month all known fees and expenses owing to Texas Capital pursuant to this
Agreement and all of the other agreements related hereto. Funds transferred into
the Fee/Expense Account shall be transferred from the Reserve Account and to the
extent the Reserve Account balance falls below $1,000,000 as a result of such
transfer, ACE shall replenish the Reserve Account to an amount equal to or
exceeding $1,000,000 by 11:00 a.m. on the business day following the business
day on which the Reserve Account balance fell below $1,000,000. Notwithstanding
any other provision in this PARAGRAPH 5(e), to the extent that ACE is in breach
of this Agreement or any agreement related hereto or this Agreement has been
terminated or any reason, Texas Capital may transfer funds into the Fee/Expense
Account from the Collection Account or the Reserve Account and collect such fees
as frequently as Texas Capital deems appropriate.
(g) Prior to the final settlement (the "FINAL SETTLEMENT") of each of
the accounts described in this PARAGRAPH 5, ACE shall provide to Texas Capital a
certificate of an authorized officer of ACE who is covered by ACE's directors'
and officers' and general liability policy but not by the insurance policy
attached as EXHIBIT C hereto certifying that (i) ACE has used its best efforts,
by contacting ICB and taking other commercially appropriate action, to determine
that there are no outstanding and unpaid ICB Checks that will not be paid for
any reason, (ii) ACE has contacted Lessors to determine that there are no
additional fees or expenses owing to Lessors, (iii) to the best of such
officer's knowledge, there are no unpaid fees owing under this Agreement (other
than fees owed directly to Texas Capital for its services under this Agreement)
or any agreement related hereto and (iv) to the best of such officer's
knowledge, no employee, officer or director of ACE has had access to any Cash,
ICB Checks or any Covered SSM other than officers and employees covered by the
insurance policy attached as EXHIBIT C hereto. Within two business days after
ACE has provided the referenced officer's certificate, all accounts have been
reconciled, all fees and expenses of Texas Capital have been paid by ACE, all
ICB Checks have been collected by Texas Capital (or transferred to ACE under
Section 5(d), Contractor has delivered to Texas Capital all Cash and ICB Checks
from the Covered SSMs and all Cash supplied to ACE during the term of the
Agreement have been returned to Texas Capital in an amount not less that the
amount of Cash provided by Texas Capital to ACE during the term of this
Agreement, Texas Capital shall complete the process of Final Settlement and
deliver to ACE the remaining balance, if any, in the Reserve Account and all
other accounts maintained pursuant to this Agreement. Notwithstanding anything
contained in this PARAGRAPH 5, ACE will remain responsible to Texas Capital and
Texas Capital shall remain responsible to ACE for any fees or expenses that are
related to this Agreement or any agreement related hereto and that are
identified after Final Settlement. To the extent that any such fees or expenses
are identified, the obligated party shall pay all such fees and expenses within
two business days of receipt of notice of same. Both ACE and Texas Capital shall
endeavor to complete the Final Settlement process within 30 calendar days after
the earlier of the expiration or termination of this Agreement.
6. Risk of Loss
Upon deposit of the Cash by Contractor, or an ICB Check by a customer
of H&R, into a Covered SSM, ACE shall bear all risk of loss and all liability
with respect to any of the Cash, ICB Checks and any and all activities related
to the use of the Covered SSMs including, but not limited to, loss due to theft,
damage, or destruction of the Cash and ICB Checks, malfunction of
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any Covered SSM, injuries incurred or torts inflicted directly or indirectly
related to the use of any Covered SSM or the receipt of Cash or the misfeasance
or malfeasance of ACE its agents or employees, excepting, however, losses
directly attributable to Contractor. Texas Capital and ACE shall each cooperate
with and comply with all reasonable requests by each other for documents,
statements or any other proofs relating to any claims for reimbursement or
recovery from other persons.
7. Indemnity
(a) Regardless of the existence or continuation of an insurance policy
related to any of the matters described in this PARAGRAPH 7, ACE shall
indemnify, defend and hold harmless Texas Capital from, for and against any and
all losses, costs (including but not limited to legal and consulting fees and
expenses), expenses, claims, damages, suits, causes of action, and judgments
suffered by, asserted against, or recovered from Texas Capital as a result of
the transactions contemplated in this Agreement or breach of this Agreement by
ACE or otherwise in connection with or as a result of this Agreement or any
related documents, including but not limited to accidental loss, theft or
mysterious disappearance of any of the Cash or ICB Checks, or both, or losses of
or the failure of ICB to honor any ICB Check, however caused, THE NEGLIGENCE OF
TEXAS CAPITAL, EXCEPT FOR ANY LOSS RESULTING FROM THE SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT OF TEXAS CAPITAL OR ITS EMPLOYEES, AGENTS (OTHER THAN ACE) OR
REPRESENTATIVES, including, but not limited to, any loss resulting from the
operation or maintenance of the Covered SSMs, including any malfunctions
thereof, or losses resulting from actions of Lessors, but excluding losses
directly attributable to Contractor or Correspondents.
(b) In addition to the indemnification set forth in PARAGRAPH 7(a)
above, ACE agrees to indemnify, defend and hold harmless Texas Capital, its
officers, directors, employees, attorneys, accountants, and agents from, for and
against any and all losses, costs, claims, damages, suits, causes of action, and
judgments suffered by, asserted against, or recovered from Texas Capital or
liabilities or penalties (including, but not limited to, any penalties imposed
by any governmental entity or agency) and expenses (including, but not limited
to, reasonable attorneys' fees) suffered or incurred by Texas Capital as a
result of or arising out of, or attributed, directly or indirectly, to the
performance or non-performance of any services or of any obligation under this
Agreement by ACE, its agents (including Lessors) or employees, but excluding
losses directly attributable to Contractor or Correspondents.
8. Fees and Expenses
Fees and expenses under this Agreement shall be determined and payable
in accordance with the provisions of ANNEX II hereto.
9. Examinations and Audits
(a) ACE shall allow Texas Capital and its designees, including any
regulatory or supervisory body to which Texas Capital is subject, to examine and
audit such book, records, reports from audits conducted by ACE or its agents
regarding the Cash, ICB Checks and the Covered SSM facilities which Texas
Capital or its designees may reasonably deem appropriate
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in order to determine compliance with the terms of this Agreement, the Operating
Agreement and applicable laws and regulations. ACE shall have the right to have
an employee or agent present at all times during any examination or audit of its
records or facilities. Such routine examinations and audits shall be conducted
during ACE's normal business hours, if commercially possible. In the event of
any financial discrepancies, Texas Capital's records of the amounts disbursed,
amounts received by Texas Capital and amounts owed by ACE to Texas Capital shall
be presumptively correct, absent manifest error in computation.
(b) Texas Capital shall allow ACE and its designees, to examine and
audit such books, records and reports related to the ICB Checks and any of the
accounts established by Texas Capital or the Contractor in connection with this
Agreement.
10. Insurance
ACE shall maintain and furnish written evidence, including a
Certificate of Insurance, of insurance in the form attached hereto as EXHIBIT C
(the "SPECIAL POLICY") and such other insurance policies as may be reasonably
requested by Texas Capital, provided that the Special Policy shall (i) be in the
minimum amount of $15,000,000, (ii) have a deductible of no more than $500,000,
(iii) provide that Texas Capital shall receive no less than 30 days written
notice prior to the effectiveness of any policy change or cancellation and (iv)
shall provide that Texas Capital may pay any unpaid premium under the Special
Policy such that the policy remains in effect. In addition, ACE shall pay the
policy premiums for up to an additional $5,000,000 of coverage similar to the
Special Policy that may be purchased separately by Texas Capital for its sole
benefit.
11. Term; Termination; Survival
This Agreement shall be effective from the date of execution and shall
continue until the earlier to occur of: (i) March 31, 2003; or (ii) termination
by either party as provided in this PARAGRAPH 11. This Agreement may be
terminated upon the occurrence of any of the following conditions:
(a) By either party immediately:
(1) upon written notice from the non-breaching party to the breaching
party, in the event of material breach of any provision of this Agreement (other
than those events described in PARAGRAPHS 11(b) and 11(c) below), if such
material breach has not been cured within 24 hours of an earlier written notice
specifying the nature of the breach;
(2) in the event that either party to this Agreement shall: (i)
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or in the future in effect, (ii)
seek the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, (iii) make a
general assignment for the benefit of creditors, (iv) fail generally to pay its
debts as they become due, or (v) take any corporate action to authorize any of
the foregoing; or
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(3) in the event that an involuntary case or other proceeding shall be
commenced against either party to this Agreement seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or in the future in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or any order for relief shall be entered against any
party to this Agreement under the federal bankruptcy laws.
(b) Immediately upon written notice by Texas Capital:
(1) if the Reserve Account balance falls below $1,000,000 and ACE has
not replenished such account balance to at least $1,000,000 by 11:00 a.m. on the
business day following the business day of such deficiency;
(2) upon cancellation, reduction or non-renewal of insurance required
to be carried by ACE pursuant to PARAGRAPH 10 above unless such insurance has,
prior to cancellation, reduction or non-renewal, been replaced by a carrier and
on terms reasonably acceptable to Texas Capital;
(3) after 24 hours notice from Texas Capital to ACE that Texas Capital
has decided to terminate this Agreement for any reason;
(4) upon Texas Capital's determination that it needs the Cash to meet
depositor demands or regulatory requirements; or
(5) upon receipt of notice from ACE that it cannot comply with
regulatory requirements referenced in PARAGRAPH 1(i) of this Agreement.
(c) If Texas Capital determines in its reasonable discretion that a
breach has occurred under PARAGRAPHS 1(d), 1(e), 1(f) or L(h):
(1) Texas Capital may terminate this Agreement immediately upon written
notice to ACE, if Texas Capital has further determined (in its reasonable
discretion and in good faith) such breach was intentional on the part of ACE or
as a result of gross negligence; or
(2) Texas Capital may terminate this Agreement immediately upon written
notice to ACE if there are any changes to Regulation D or other applicable
regulations of the Board of Governors of the Federal Reserve System that either
(A) prohibit Texas Capital from performing under the Agreement, or (B) cause
performance by Texas Capital under the Agreement to become, in its reasonable
discretion, economically infeasible, unless ACE consents and agrees to pay to
Texas Capital an amount sufficient to compensation Texas Capital for the
economic consequences of such change.
(d) ACE may terminate this Agreement immediately upon 24 hours written
notice to Texas Capital for any reason and ACE shall only be liable for the fees
and expenses described on ANNEX II hereto.
In all other cases other than clause (a) through (c) above, Texas
Capital may: (i) suspend its obligations under PARAGRAPH 2(a) if such breach
remains unremedied for 24 hours following
10 CASH SERVICES AGREEMENT
<PAGE>
notice by Texas Capital to ACE of such breach (the "DEFAULT NOTICE"); and (ii)
immediately terminate this Agreement if such breach remains unremedied for 24
hours following the date of the Default Notice by Texas Capital to ACE.
Upon termination of this Agreement as provided in this PARAGRAPH 11,
ACE shall immediately, following demand by Texas Capital, cause each Covered SSM
to be available so Contractor can redeliver the Cash and ICB Checks as provided
in PARAGRAPH 3 above. ACE shall be responsible and liable for: (i) collecting
and delivering to Texas Capital all ICB Checks and Settlement Funds, if any, in
the possession of ACE; and (ii) using its best commercially reasonable efforts
to insure that no one interferes with Contractor such that Contractor can
redeliver Cash and deliver ICB Checks to Texas Capital or its Correspondents in
accordance with the terms of this Agreement. Notwithstanding the termination of
this Agreement as provided in this PARAGRAPH 11, the obligations of the parties
hereto under PARAGRAPHS 3, 5, 6, 7, 8, 9 and 11 shall survive and continue in
full force and effect so long as any of such obligations remain outstanding,
unperformed or unpaid.
Upon termination of this Agreement pursuant to PARAGRAPH 11(c)(2) or as
a result of Texas Capital requiring the Cash to meet depositor demands, Texas
Capital will refund to ACE a pro rated portion of the fee paid under ANNEX II,
PARAGRAPH (a) in an amount equal to the difference between the Minimum Fee
(defined in ANNEX II) and the amount of the utilization fee earned pursuant to
ANNEX II, PARAGRAPH (a). In all other events, all fees and expenses payable
under ANNEX II, PARAGRAPH (a) shall be fully earned and payable upon the
execution of this Agreement.
12. Assignment
Neither party may assign this Agreement to any other person, firm or
entity without the prior written consent of the other party.
13. Notices
All notices, requests and approvals required to be in writing by this
Agreement, unless otherwise provided in this Agreement, shall be in writing, (i)
mailed postage prepaid, or personally delivered by overnight or other courier
service, to the address of the parties as indicated below unless notice is given
in writing of a change in address pursuant to this PARAGRAPH 13, and then to
that address, or (ii) made by facsimile machine delivered or transmitted to the
party to whom such notice or communication is directed to the Fax Number
indicated below:
to Texas Capital: Texas Capital Bank, National Association
2100 McKinney Avenue, Suite 900
Dallas, Texas 75201
Attention: Ronald K. Baker, Executive Vice President
Fax Number: (214) 932-6607
to ACE: Ace Cash Express, Inc.
1231 Greenway Drive, Suite 600
Irving, Texas 75038
Attention: Joe Conner
Fax Number: (972) 582-1464
11 CASH SERVICES AGREEMENT
<PAGE>
Any notice or other communication shall be deemed to have been given
(whether actually received or not) on the day it is personally delivered as
aforesaid, or, if mailed (sent postage prepaid) three (3) days following the
date it is mailed as aforesaid; or, if transmitted by facsimile machine, or
personally delivered on the day that such notice is transmitted or delivered as
aforesaid.
14. Representations and Warranties
ACE represents and warrants that, as of the date of this Agreement,
each of the following statements are true and correct:
(a) ACE is a corporation duly organized, validly existing, and in good
standing under the laws of its state of incorporation.
(b) ACE is qualified to do business in all jurisdictions where the
nature of the business described in this Agreement requires qualification and
has each license, permit or other authorization necessary to conduct the
business contemplated by this Agreement and each other agreement related hereto.
(c) The board of directors of ACE has duly authorized the execution,
delivery, and performance of this Agreement and each of the agreements related
hereto and ACE has full legal right, power, and authority to execute, deliver,
and perform under this Agreement and the other agreements to be executed by ACE.
(d) The fees charged or proposed to be charged by ACE for use of the
Covered SSMs by H&R customers comply with all the statutes, rules, regulations,
licenses, permits and authorizations related to such fees in each of the states
in which any Covered SSM will be located.
(e) The execution or delivery of this Agreement or any of the other
agreements related hereto and performance thereunder does not conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of any other agreement of ACE which
would result in a material adverse effect on ACE, and no other consent, (other
than as described in this PARAGRAPH 14) approval, or other action by, notice to
or filing with any other person or entity is required for the effectiveness of
this Agreement.
(f) ACE is in compliance with each of the terms and conditions of its
agreements with H&R other than the number of operating SSMs.
(g) ACE is in compliance with each of the terms and conditions of its
agreements with Lessors.
(h) ACE may pledge its interest in the Reserve Account to Texas Capital
to secure payment and performance of its obligations under this Agreement and
such pledge does not
12 CASH SERVICES AGREEMENT
<PAGE>
violate in any material respect any other agreement to which ACE is a party or
by which its assets are bound.
15. Covenants
As long as ACE has any continuing obligations under the terms of this
Agreement or any other agreement related hereto, ACE agrees to:
(a) Maintain each license, permit or other authorization required to
conduct the business contemplated by this Agreement and each other agreement
related hereto.
(b) Comply with each of the terms and conditions contained in the H&R
agreement executed by ACE and related to this Agreement.
(c) Comply with each of the terms and conditions contained in the
Lessors agreement executed by ACE and related to this Agreement.
(d) Maintain a balance of no less than $1,000,000 in the Reserve
Account.
(e) Not to charge any fee or other charge for use of any Covered SSMs
by H&R customers that fails to comply with any of the statutes, rules,
regulations, licenses, permits or authorizations related to such fees or charges
in each of the states in which any Covered SSM is located.
(f) Not put any of its own U.S. currency into any Covered SSM or
otherwise commingle any Cash, ICB Checks (other than returned checks charged to
the Reserve Account pursuant to PARAGRAPH 5(d) or Settlement Funds with any
other cash or accounts in the possession custody or control of Correspondents,
Contractor or ACE.
(g) Continue to provide the Daily Report in form, format and substance
acceptable to Texas Capital.
(h) Pay all legal fees and expenses of Texas Capital in connection with
a breach of any provision of this Agreement or any of the other agreements
related hereto, termination of the Agreement, collection of ACE's obligations,
or enforcement of Texas Capital's rights or remedies hereunder.
(i) Maintain the automatic endorsement of each check deposited into a
Covered SSM to read, "Pay to the order of Texas Capital Bank, National
Association".
(j) To the extent that the insurance company rating of the issuer of
the Special Policy shall fall below a Best rating of "A", provide a replacement
policy acceptable to Texas Capital with an insurance company with a Best rating
of "A" or higher.
(k) To the extent that ACE or any of its officers or directors
determines that it has breached any term of this Agreement or any of the
agreements related hereto or that ACE is in default of any such agreement or
ACE's credit facilities, provide Texas Capital with written notice detailing the
nature and scope of such breach or default.
13 CASH SERVICES AGREEMENT
<PAGE>
(l) During the term of this Agreement, keep in effect a directors' and
officers' and general liability insurance policy (in coverage and amount and
from a carrier satisfactory to Texas Capital).
(m) No employee of ACE other than an employee, officer or director
covered by the Special Policy will have access to any Cash, ICB Checks or any
Covered SSM other than ICB Checks returned to ACE under PARAGRAPH 5(d).
(n) ACE will take any and all actions as Texas Capital may, from time
to time, deem reasonably necessary or proper to effect the purposes of this
Agreement or in connection with any of ACE's obligations under this Agreement or
any agreement related hereto.
16. Conditions Precedent to Effectiveness and the Initial Funding
(a) ACE shall establish the Reserve Account with Texas Capital in a
minimum amount of $1,000,000 and shall pledge such account to Texas Capital
pursuant to a Deposit Account Security and Control Agreement;
(b) ACE shall cause H&R to execute and acknowledge in the form of
EXHIBIT D hereto that, among other things, H&R has no interest in the Cash or
ICB Checks in the Covered SSMs or any of the Settlement Funds from ICB Checks in
the Covered SSMs;
(c) ACE shall cause Lessors to execute and acknowledge in substantially
the form of EXHIBIT E hereto that, among other things, none of the Lessors have
any interest in the Cash or ICB Checks in the Covered SSMs or any of the
Settlement Funds from ICB Checks in the Covered SSMs;
(d) ACE shall cause its Lender, Wells Fargo Bank, N.A. as Agent, to
execute and acknowledge in the form of EXHIBIT F hereto that, among other
things, all Cash, Settlement Funds and ICB Checks located in the Covered SSMs or
in the process of collection are the sole property of Texas Capital and that
neither ACE nor Wells Fargo Bank, N.A., as Agent or otherwise, has any interest
in the same;
(e) ACE and Texas Capital shall execute and deliver this Agreement and
each related agreement to which they are parties in connection with this
transaction, and each such agreement will be signed by an officer or director of
ACE covered by ACE's directors' and officers' and general liability policy;
(f) [omitted intentionally]
(g) ACE shall provide to Texas Capital evidence that all insurance
premiums for the issuance of the insurance policies required by PARAGRAPH 10
have been paid in full;
(h) ACE shall caused to be delivered to Texas Capital a legal opinion
of counsel to ACE in form and substance acceptable to Texas Capital and its
counsel;
(i) [omitted intentionally]
14 CASH SERVICES AGREEMENT
<PAGE>
(j) ACE shall provide evidence that it has changed the automatic
endorsement of each check deposited into a Covered SSM to read, "Pay to the
order of Texas Capital Bank, National Association";
(k) ACE shall execute and deliver such other documents and agreements
reasonably requested by Texas Capital that are related to this transaction; and
(l) ACE shall provide Texas Capital a copy of its effective directors'
and officers' and general liability insurance policy and the Special Policy.
17. Waiver
No delay on the part of any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, and no single or
partial exercise of any right, power or privilege hereunder shall preclude other
or further exercise thereof, or be deemed to establish a custom or course of
dealing or performance between the parties hereto, or preclude the exercise of
any other right, power or privilege.
18. Governing Law
This Agreement shall be governed by and interpreted under the laws of
the State of Texas and the federal laws of the United States of America.
19. Section Headings
The Section headings in the Agreement are for purposes of reference
only and shall not limit or affect any of the terms herein.
20. Entire Agreement; Modification; Inconsistencies
THIS AGREEMENT, AS WELL AS THE EXHIBITS REFERENCED HEREIN, CONSTITUTE
THE ENTIRE AGREEMENT BETWEEN TEXAS CAPITAL AND ACE RELATING TO THE SUBJECT
MATTER HEREIN AND MAY NOT BE CHANGED ORALLY BUT ONLY BY A WRITTEN INSTRUMENT
SIGNED BY BOTH PARTIES. THERE ARE NO RESTRICTIONS, PROMISES, WARRANTIES,
COVENANTS OR UNDERTAKINGS, OTHER THAN THOSE EXPRESSLY SET FORTH OR REFERRED TO
HEREIN. THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
BETWEEN THE PARTIES WITH RESPECT TO SUCH SUBJECT MATTER. IN THE EVENT OF
INCONSISTENCIES BETWEEN THIS AGREEMENT AND ANY OTHER RELATED AGREEMENT, OR
INCONSISTENCIES BETWEEN THIS AGREEMENT AND THE OPERATING AGREEMENT, THE TERMS OF
THIS AGREEMENT SHALL PREVAIL.
21. Confidentiality
The terms of this Agreement are confidential and, except for disclosure
on a confidential basis to accountants, attorneys and other professional
advisors retained in connection with this Agreement and the documents related to
this Agreement or as may be required by statute, law or
15 CASH SERVICES AGREEMENT
<PAGE>
regulation, may not be disclosed in whole or in part to any other person or
entity without the prior written consent of the party not seeking such
disclosure.
22. Arbitration
(a) Upon the demand of any party, any dispute shall be resolved by
binding arbitration (except as set forth in PARAGRAPH 22(e) below) in accordance
with the terms of this Agreement. Any party may by summary proceedings bring an
action in court to compel arbitration of a dispute. Any party who fails or
refuses to submit to arbitration following a lawful demand by any other party
shall bear all costs and expenses incurred by such other party in compelling
arbitration of any dispute.
(b) Arbitration proceedings shall be administered by the American
Arbitration Association ("AAA") or such other administrator as the parties shall
mutually agree upon in accordance with the AAA Commercial Arbitration Rules. All
disputes submitted to arbitration shall be resolved in accordance with the
Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any
conflicting choice of law provision in any of the foregoing documents. The
arbitration shall be conducted at a location in Dallas, Texas selected by the
AAA or other administrator. If there is any inconsistency between this Paragraph
and such rules and statutes, this Paragraph shall govern and control. All
statutes of limitation applicable to any dispute shall apply to any arbitration
proceeding. All discovery activities shall be expressly limited to matters
directly relevant to the dispute being arbitrated. Judgment upon any award
rendered in an arbitration may be entered in any court having jurisdiction;
provided however, that nothing contained herein shall be deemed to be a waiver
by any party that is a bank of the protections afforded to it under Section 91
of Title 12 of the United States Code or any similar applicable state law.
(c) No provision hereof shall limit the right of any party to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or ancillary
remedies, including without limitation, injunctive relief, sequestration,
attachment, garnishment or the appointment of a receiver from a court of
competent jurisdiction before, after or during the pendency of any arbitration
or other proceeding. The exercise of any such remedy shall not waive the right
of any party to compel arbitration hereunder.
(d) Any dispute under this Agreement or any agreement related thereto
shall be settled pursuant to arbitration conducted by a single arbitrator in
Dallas, Texas. The arbitrator must be an active member of the Texas State Bar
with expertise in the substantive law applicable to the subject matter of the
dispute. The arbitrator is empowered to resolve disputes by summary rulings in
response to motions filed prior to the final arbitration hearing. The arbitrator
(i) shall resolve all disputes in accordance with the substantive law of the
State of Texas, (ii) may grant any remedy or relief that a court of the State of
Texas could order or grant within the scope hereof and such ancillary relief as
is necessary to make effective any award, and (iii) shall have the power to
award recovery of all costs and fees, to impose sanctions and to take such other
actions as they deem necessary to the same extent a judge could pursuant to the
Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure or other
applicable law. Any dispute in which the amount in controversy is $5,000,000 or
less shall be decided by a single arbitrator who
16 CASH SERVICES AGREEMENT
<PAGE>
shall not render an award of greater than $5,000,000 (including damages, costs,
fees and expenses).
(e) Notwithstanding anything herein to the contrary, in any arbitration
in which the amount in controversy exceeds $25,000,000, the arbitrator shall be
required to make specific, written findings of fact and conclusions of law. In
such arbitrations (i) the arbitrator shall not have the power to make any award
which is not supported by substantial evidence or which is based on legal error,
(ii) an award shall not be binding upon the parties unless the findings of fact
are supported by substantial evidence and the conclusions of law are not
erroneous under the substantive law of the State of Texas, and (iii) the parties
shall have in addition to the grounds referred to in the Federal Arbitration Act
for vacating, modifying or correcting an award the right to judicial review of
(1) whether the findings of fact rendered by the arbitrator are supported by
substantial evidence, and (2) whether the conclusions of law are erroneous under
the substantive law of the State of Texas. Judgment confirming an award in such
a proceeding may be entered only if a court determines the award is supported by
substantial evidence and not based on legal error under the substantive law of
the State of Texas.
(f) To the maximum extent practicable, the AAA, the arbitrator and the
parties shall take all action required to conclude any arbitration proceeding
within 180 days of the filing of the dispute with the AAA. Neither the
arbitrator nor other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a dispute, the arbitration provision most
directly related to the foregoing documents or the subject matter of the dispute
shall control. If any provision of this Agreement shall be held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or any remaining provisions of this Agreement. This
arbitration provision shall survive termination, amendment or expiration of any
of the foregoing documents or any relationship between the parties.
(g) Texas Capital and ACE hereby agree to keep all disputes and
arbitration proceedings strictly confidential, provided, however, that Texas
Capital and ACE may disclose such confidential information as is necessary in
any litigation between Texas Capital and ACE or as required by applicable law
and, on a confidential basis, to accountants, attorneys and other consultants in
the ordinary course of business.
17 CASH SERVICES AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
ACE CASH EXPRESS, INC.
By: /s/ Joe W. Conner
-----------------------------------------------------
Name: Joe W. Conner
Title: Sr. Vice President and Chief Financial Officer
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION
By: /s/ Ronald K. Baker
-----------------------------------------------------
Ronald K. Baker, Executive Vice President
CASH SERVICES AGREEMENT
SIGNATURE PAGE
<PAGE>
EXHIBIT A
COVERED SSMS
EXHIBIT A
<PAGE>
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
Texas Capital Bank Locations
CENTER # H&R BLOCK OFFICE ADDRESS CITY STATE OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6615 3750 WEST MCDOWELL PHOENIX AZ 85009
6616 5127 W Indian School Rd PHOENIX AZ 92105
6617 5851 SO CENTRAL PHOENIX AZ 90007
6632 657 WEST VALENCIA ROAD TUCSON AZ 93308
6633 7342 W. INDIAN SCHOOL RD. PHOENIX AZ 95202
6734 1062 N ARIZONA AVE CHANDLER AZ 80916
6735 114 WEST 2ND STREET CASA GRANDE AZ 67217
6736 4337 W BETHANY HOME RD. GLENDALE AZ 66112
6511 2200 Columbus St Bakersfield CA 85040
6512 2512 Wilson Road Bakersfield CA 85706
6513 920 CHESTER AVE. Bakersfield CA 85033
6514 2437 NORTHGATE BLVD SACRAMENTO CA 85225
6515 5211 Fruitridge Road SACRAMENTO CA 85222
6516 6622 Florin Rd SACRAMENTO CA 85301
6518 5723 Watt Ave NORTH HIGHLANDS CA 93305
6521 12 W Main St Merced CA 93304
6526 14210 E. 14TH ST. SAN LEANDRO CA 93301
6528 397 W. Highland Ave. SAN BERNARDINO CA 95833
6529 9810 Sierra Ave # F Fontana CA 95820
6530 12901 HAWTHORNE BLVD HAWTHORNE CA 95828
6531 4520 ATLANTIC AVE Long Beach CA 95660
6533 891 N GAREY AVE POMONA CA 95340
6534 2307 Oakdale Rd Bldg #8, Ste. #2 MODESTO CA 94578
6535 519 N GOLDEN STATE BLVD TURLOCK CA 92404
6548 3834 La Sierra Ave Riverside CA 92335
6561 4243 EL CAJON BLVD. San Diego CA 95380
6618 3020 S. FIGUEROA STREET LOS ANGELES CA 90019
6619 4855 W. PICO BLVD LOS ANGELES CA 90301
6620 515 E MANCHESTER BLVD INGLEWOOD CA 90806
6621 2620 LONG BEACH BLVD Long Beach CA 91732
6623 3580 M SANTA ANITA EL MONTE CA 91932
6624 1181 PALM AVE IMPERIAL BEACH CA 92054
6625 1829 S. COAST HIGHWAY Oceanside CA 92105
6626 1762 N EUCLID AVE San Diego CA 93702
6627 3250 E TULARE AVENUE Fresno CA 95206
6628 353 W. CHARTER WAY, SUITE C STOCKTON CA 95670
6629 10331 FOLSOM BLVD. RANCHO CORDOVA CA 93305
6634 1801 NILES ST BAKERSFIELD CA 90247
6635 1215-B OLIVE DRIVE BAKERSFIELD CA 93534
6636 1446 N. HUNTER ST. STOCKTON CA 93726
6637 1240 W REDONDO BEACH BLVD GARDENA CA 95821
6639 43537 13TH STREET WEST LANCASTER CA 95116
6737 4049 N. BLACKSTONE #101 FRESNO CA 68112
6738 3447 WATT AVE. SACRAMENTO CA 68776
6739 1939 ALUM ROCK, #C SAN JOSE CA 68510
6741 5534 E. WHITTIER BLVD #C CITY OF COMMERCE CA 89431
6742 2111 W. SUNSET BLVD. LOS ANGELES CA 89502
6743 509/511 SWEETWATER ROAD SPRING VALLEY CA 89701
6745 9116 FOOTHILL BLVDE. #114 RANCHO CUCAMONGA CA 89109
6746 2085 W. SHAW, #105 FRESNO CA 89030
6803 14519 VANOWEN ST VAN NUYS CA 30114
6804 5095 TELEGRAPH AVE OAKLAND CA 30161
6805 849 JEFFERSON BLVD, STE. #102 WEST SACRAMENTO CA 21061
6806 4300 SONOMA BLVD, STE. 108 VALLEJO CA 43213
6640 2919 & 2921 W. 38TH AVE. DENVER CO 90022
6748 3123 SOUTH ACADEMY BLVD. COLORADO SPRINGS CO 75216
6749 122 N. BEACH STREET DAYTONA BEACH FL 76112
6755 1552 RIVERSTONE PKWY., #140 CANTON GA 75227
6758 400 EAST 2ND AVE. ROME GA 75227
6670 2561 SOUTH SENECA, SUITE 30 WICHITA KS 90026
6760 7616-18 STATE AVE KANSAS CITY KS 75224
6763 123 N. CRAIN HWY. SUITE B GLEN BURNIE MD 76116
6612 7446 N 30 ST OMAHA NE 92505
6688 2601 CORNHUSKER AVE. SOUTH SIOUX CITY NE 91977
6689 2365 O STREET LINCOLN NE 91730
6690 2219 ODDIE BLVD SPARKS NV 93711
6766 1025 S. WELLS AVE. RENO NV 76133
6767 1426 EAST WILLIAM ST. CARSON CITY NV 76135
6788 3450 S. MARYLAND PKWY./BLVD. M LAS VEGAS NV 79761
6792 2105 CIVIC CENTER DR. N. LAS VEGAS NV 78043
6712 3350 CLEVELAND AVE COLUMBUS OH 43224
6773 4005 E. BROAD STREET WHITEHALL OH 75062
6507 3200 SOUTH LANCASTER, #156A DALLAS TX 85031
<PAGE>
6549 5411 E Lancaster FT Worth TX 90250
6553 1904 Martin L. King Blvd. DALLAS TX 90807
6554 2223 S. BUCKNER #237 DALLAS TX 91768
6555 270 WYNNEWOOD VILLAGE DALLAS TX 95355
6726 8458 CAMP BOWIE WEST FORT WORTH TX 91405
6727 6246-A MCCART STREET FORT WORTH TX 94609
6728 6738-C LAKE WORTH BLVD. LAKE WORTH TX 95691
6729 1221 W. AIRPORT FWY. #115 IRVING TX 94589
6730 809 E BERRY FORT WORTH TX 80211
6780 315 N HIGH LONGVIEW TX 76104
6781 1809 W. LOOP 281 #114 LONGVIEW TX 75601
6782 5038 MONTANA EL PASO TX 75604
6783 1307 E 8TH STREET ODESSA TX 79903
6793 2310 GUADALUPE ST. LAREDO TX 78745
6794 512 W. STASSNEY, STE. 112 AUSTIN TX 78666
6795 925B HIGHWAY 80 SAN MARCOS TX 77301
6796 1130 W. DALLAS ST. CONROE TX 77520
6797 2313 N. ALEXANDER BAYTOWN TX 78041
6798 1501 SAN BERNARDO LAREDO TX 75224
6800 2639 S. HAMPTON RD. DALLAS TX 32114
<PAGE>
ANNEX II
FEE AND EXPENSE SCHEDULE
(a) ACE shall pay Texas Capital for the Cash delivered under PARAGRAPH
2 and ICB Checks outstanding a utilization fee of *.
(b) *.
(c) ACE shall pay Texas Capital all other reasonable third-party
expenses and fees that Texas Capital occurs in connection with this Agreement
and each other related agreement, including but not limited to those fees
charged by Contractor and Correspondents, strapping fees, insurance or bond
coverage fees, fees for counting straps and currency, overnight delivery service
fees and legal fees and expenses, SAVE AND EXCEPT, that ACE shall not be
responsible for (i) the fees and expenses of Texas Capital's legal counsel in
connection with the preparation and negotiation of this Agreement, and (ii)
audit fees and expenses of the third-party auditor retained by Texas Capital.
(d) All fees under this ANNEX II will be reported to ACE in the monthly
account analysis statement ("STATEMENT") which will be provided to ACE within
fifteen (15) days after the end of each calendar month. ACE hereby authorizes
Texas Capital to, and Texas Capital will, debit ACE's Reserve Account maintained
with Texas Capital on the fifteenth (15th) day of each calendar month and on the
last day of each calendar month in an amount equal to the unpaid fees and
expenses under this ANNEX II as of the end of such period, as calculated by
Texas Capital in accordance with this Agreement, which calculation shall be
binding and conclusive absent manifest error.
----------
* 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.
ANNEX II
<PAGE>
ANNEX III
LIST OF CORRESPONDENTS
U.S. Bank National Association
Wells Fargo Bank, N.A.
Bank of America, N.A.
ANNEX III