Cash Services Agreement - Ace Cash Express Inc. and Texas Capital Bank NA
CASH SERVICES AGREEMENT
This Cash Services Agreement (the "AGREEMENT") is made to be effective
as of December 30, 2003, by and between ACE CASH EXPRESS, INC., a Texas
corporation ("ACE") and TEXAS CAPITAL BANK, NATIONAL ASSOCIATION ("TEXAS
CAPITAL").
WITNESSETH:
A. ACE owns or leases a series of cash disbursement Self-Service
Machines (individually, an "SSM" and collectively, "SSMs") for the disbursement
of cash which are located in the offices of H&R Block Tax Services, Inc. ("H&R")
listed on EXHIBIT A hereto ("COVERED SSMs").
B. ACE and Texas Capital desire that, among other things, Texas
Capital furnish the U.S. currency and coin which for purposes of this Agreement
shall include (i) all cash in Covered SSMs and (ii) any Texas Capital cash in
the Contractor vault or otherwise in Contractor 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 ("ICB CHECKS") issued by Imperial Capital Bank ("ICB") as advance
fundings of income tax refunds.
D. Texas Capital and various correspondent banks (each, a
"CORRESPONDENT BANK") will distribute the Cash to H&R.
NOW THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned agree as follows:
1. Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ACE" means Ace Cash Express, Inc., a Texas corporation.
"Armored Car Service Agreement" means that certain Armored Car Service
Agreement dated as of May 1, 1999 (as amended) by and between Texas
Capital and Contractor.
"Business Day(s)" 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" has the meaning set forth in the introductory paragraph hereto.
"Cash Collection Account" means a segregated account established by
Texas Capital at Texas Capital's Correspondent Banks.
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"Cash Vault Services Agreement" means that certain Cash Vault Services
Agreement dated as May 1, 1999 (as amended) by and between Texas
Capital and the Contractor.
"Check Collection Account" means a segregated account established by
Texas Capital at Texas Capital's Correspondent Banks.
"Contractor" means Loomis Fargo & Co.
"Contractor Agreements" means collectively, the Armored Car Service
Agreement and the Cash Vault Services Agreement.
"Correspondent Bank" has the meaning set forth in the introductory
paragraph hereto.
"Correspondent Delivery Request" means a request by ACE directly to
Texas Capital to furnish and replenish the Covered SSMs with Cash from
a Correspondent Bank.
"Correspondent Redelivery Request" means a request by ACE, directly to
Texas Capital, to redeliver Cash and/or funds from collected ICB
Checks, previously delivered by Contractor to a Correspondent Bank, to
Texas Capital.
"Covered SSMs" has the meaning set forth in the introductory paragraph
hereto.
"Daily Cash Position" has the meaning set forth in Paragraph 6(a).
"Daily Report" means a report substantially in the form attached hereto
as Exhibit B or as otherwise agreed to in writing between ACE and Texas
Capital.
"Fee/Expense Account" means a special non interest bearing account at
Texas Capital against which Texas Capital will deposit Settlement
Funds, charge fees and expenses or any other amounts owing to Texas
Capital pursuant to this Agreement and all of the other related
agreements.
"Final Settlement" means with regards to all parties to this Agreement
and other related agreements, the closing settlement of each and every
account, including all fees and expenses, all Cash and other funds, and
all obligations and duties owed which are subject to this Agreement.
"H&R" has the meaning set forth in the introductory paragraph hereto.
"ICB" has the meaning set forth in the introductory paragraph hereto.
"ICB Checks" has the meaning set forth in the introductory paragraph
hereto.
"Operating Agreement or Operating Agreements" means that certain
Operating Agreement between Diebold and ACE dated as of September 29,
1999 (as amended, renewed, extended, or restated).
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"Overdraft" means a negative position or insufficient funds available
in any account, including insufficient account funds as the result of a
Correspondent Delivery Request in excess of the amount of funds
available to ACE to fund the Covered SSMs or as the result of a
Correspondent Redelivery Request to Texas Capital from a Cash
Collection Account or a Check Collection Account in excess of the
amount of Cash or the Collected ICB Checks.
"Protection Period" has the meaning set forth in Paragraph 2(b).
"Reserve Account" means a special non-interest bearing reserve account
with Texas Capital in an amount not less than $1,000,000.00 at any time
during the term of this Agreement; provided, however, at the start of
the Protection Period such amount shall be reduced to $100,000 to be
used to protect Texas Capital against Overdrafts in any Check
Collection Account.
"Service Provider of Service Providers" means Diebold and/or the other
equipment service providers listed on Annex 1.
"Settlement Amount" means 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.
"Settlement Funds" means an amount equal to the aggregate of any and
all Settlement Amounts at any time, and from time to time, now or
hereafter required to be remitted to Texas Capital for posting in
accordance with SUBPARAGRAPH 6(d) of this Agreement.
"SSM or SSMs" has the meaning set forth in the introductory paragraph
hereto.
"Texas Capital" means Texas Capital Bank, National Association.
"Texas Capital Collection Account" means the relationship between ACE
and Texas Capital in which Texas Capital records transactions of
certain Cash furnished, certain Cash received, and certain funds
received from the collection of ICB Checks by it pursuant to this
Agreement on its ledgers at Texas Capital. Such funds which are
received by Texas Capital are 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.
2. Services
(a) Texas Capital will perform the transaction described above and
will provide Texas Capital's Cash to be loaded by its Contractor, into Covered
SSMs to be disbursed 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.
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(b) During the term of this Agreement (and upon and after Final
Settlement, until August 31, 2004, the "PROTECTION PERIOD") ACE shall maintain a
Reserve Account which shall be pledged to Texas Capital pursuant to a pledge and
account control agreement to secure ACE's performance under this Agreement and
each related agreement including, but not limited to the payment of all fees and
expenses incurred by Texas Capital.
(c) All handling of the Cash, including all loading and unloading
of any of the Cash into or out of any of the Covered SSMs, shall be performed by
Contractor, pursuant to a contract between Contractor and Texas Capital.
(d) ACE has purchased or leased the Covered SSMs from the Service
Providers and has entered into a SSM servicing agreement with each Service
Provider pursuant to which the Service Providers 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.
(e) All of the Cash, ICB Checks, Settlement Funds, the Cash
Collection Account, the Check Collection Account and Fee/Expense Account 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 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 II hereto. Neither the Cash, ICB Checks,
Settlement Funds, the Cash Collection Account, the Check 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 it has no interest or any
other right in the Cash, ICB Checks, Settlement Funds, the Cash Collection
Account, or the Check Collection Account. ACE's interest in the Fee/Expense
Account is limited to funds therein less all expenses and all fees due to Texas
Capital. Any such interest of Ace in the Fee/Expense Account shall exist only
after all funds and accounts have been settled and agreed to by Texas Capital
not sooner than the date of the Final Settlement.
(f) 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 while it is stored in the machine cassettes in the Covered SSMs,
except that the Service Providers, shall be allowed to provide scheduled and
unscheduled repair and maintenance to the Covered SSMs in accordance with the
terms of each Operating Agreement. Once any of the Cash is delivered by Texas
Capital to Contractor, it shall only be transported or stored by Contractor and
finally placed in one of the Covered SSMs pursuant to the terms of the
Contractor Agreements and the Operating Agreements.
(g) During the term of this Agreement, the only currency and coin
to be placed in any of the Covered SSMs shall be the Cash. None of the Cash
shall be placed in any SSMs other than the Covered SSMs.
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(h) 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 shall report, treat or consider such funds as "vault cash"
for any similar reporting purposes.
(i) Any and all Cash, ICB Checks and Settlement Funds collected or
received by ACE shall be held by ACE in 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 Texas Capital for posting in
accordance with PARAGRAPH 6(d). The services provided in this Agreement are in
the nature of a bailment for the mutual benefit of the parties hereto. 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, nor shall ACE intentionally take any actions
which could cause the Cash, ICB Checks or Settlement Funds to be treated as
property of ACE, nor shall ACE intentionally take any action which could cause
the Cash, ICB Checks or Settlement Funds to be treated as property of ACE'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.
(j) 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 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 SSMs in off-premises locations. ACE shall
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.
3. Delivery of the Cash
(a) Subject to the availability of sufficient currency and coin to
Texas Capital, Texas Capital will cause to be made available to Contractor the
Cash required to stock the Covered SSMs (or be available for restocking) in the
amount requested by ACE, which amount shall not exceed: (i) * Dollars ($*) per
Covered SSM; or (ii) the aggregate sum of One-Hundred Forty
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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.
CASH SERVICES AGREEMENT
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Million Dollars ($140,000,000.00) which shall include ICB Checks that have not
been collected and Cash.
(b) ACE shall provide Texas Capital with a Correspondent Delivery
Request to deliver to Contractor (which, solely with respect to currency, shall
be for a specified number of bundles) via Texas Capital's electronic cash
ordering service one (1) Business Day before the Business Day Cash is to be
supplied to Contractor which 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. 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 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 Contractor. Cash requested by ACE will
be delivered on the later of (i) one Business Day after the Business Day on
which the request by ACE is received by Texas Capital or (ii) the first Business
Day following the Business Day on which the applicable Correspondent Bank makes
such Cash available to Contractor.
(c) In no event shall Texas Capital be expected to provide Cash
until (i) ACE places a Correspondent Delivery Request for Cash to the applicable
Correspondent Bank, (ii) ACE provides to Texas Capital the same detailed
information provided to the Correspondent Bank in conjunction with the
Correspondent Delivery Request, and (iii) ACE, the Correspondent Bank and Texas
Capital collectively agree to the amount of funds to be delivered. Any requests
by ACE to Correspondent Banks without prior notification to Texas Capital shall
be considered a breach of this Agreement, and neither the Service Providers, the
Correspondent Banks, nor Texas Capital shall be obligated to honor any such
requests. In the event ACE desires to replenish the Covered SSMs with Cash from
a Correspondent Bank, ACE shall deliver a Correspondent Delivery Request in
accordance with PARAGRAPH 3(b) above, and Texas Capital, in its sole and
absolute discretion, may elect whether to honor a Correspondent Redelivery
Request.
(d) In the event a Correspondent Bank or any branch offices
thereof 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.
(e) ACE agrees that any Cash ordered pursuant to a Correspondent
Delivery Request will at no time result in an Overdraft.
4. Redelivery of the Cash to Texas Capital
(a) Texas Capital may demand, at any time without notice or
qualification, and direct Contractor 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 be delivered to Texas Capital or its designee by
Contractor; 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 Texas Capital or its designee in an orderly
fashion. Funds delivered to Texas Capital pursuant to this PARAGRAPH 4 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,
CASH SERVICES AGREEMENT
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custody or control of Contractor. ACE shall be responsible for taking all
actions reasonably necessary to ensure that the Service Providers and H&R
cooperate with redelivery of the Cash and delivery of ICB Checks by Contractor
once Texas Capital has directed Contractor to redeliver the same.
(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
4(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 4(a) above, Texas
Capital may elect to receive a Correspondent Delivery Request of 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, delivered to the
Main Office of Texas Capital, by wire transfer or any other mutually agreed upon
method.
(d) ACE shall be responsible for notifying Texas Capital to
redeliver funds, including Cash, collected ICB Checks and other funds from fees,
from the Correspondent Banks to Texas Capital. Funds which represent Cash,
collected ICB Checks and other funds from fees, may be redelivered to Texas
Capital upon receipt of a Correspondent Redelivery Request made directly to
Texas Capital in accordance with PARAGRAPH 4(a).
(e) ACE agrees that in no event shall it make a Correspondent
Redelivery Request to Texas Capital which shall cause or result in an Overdraft
in any Cash Collection Account or Check Collection Account.
5. SSM Transaction
The Cash loaded in each Covered SSM may be dispensed from Covered SSMs
only to customers of H&R by means ICB Checks and pursuant to a special personal
identification number of the customer provided by H&R.
6. 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 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 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.
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(c) All Cash delivered to Texas Capital by Contractor shall be
deposited into a Cash Collection Account. Pursuant to a Correspondent Redelivery
Request as described in PARAGRAPH 4, Texas Capital shall reconcile the amounts
in the Cash Collection Accounts and withdraw the Cash from the Cash Collection
Accounts. Each withdrawal from a Cash Collection Account shall then be posted by
Texas Capital to the Texas Capital Collection Account. The Cash may be
redelivered to ACE by Texas Capital pursuant to a Correspondent Delivery Request
in accordance with PARAGRAPH 3(b) or held by Texas Capital until the Final
Settlement.
(d) All ICB Checks delivered to Texas Capital by Contractor shall
be deposited into a Check Collection Account. Pursuant to a Correspondent
Redelivery Request as described in PARAGRAPH 4, Texas Capital shall reconcile
the amounts in the Check Collection Accounts and withdraw the Cash representing
the collected ICB Checks from the Check Collection Accounts. Each withdraw from
a Check Collection Account shall then be posted by Texas Capital to the Texas
Capital Collection Account. From the Cash from collected ICB Checks, Texas
Capital shall withdraw the Settlement Amount and deposit it to the Fee/Expense
Account. Cash from the collected ICB Checks may be redelivered to ACE by Texas
Capital pursuant to a Correspondent Delivery Request in accordance with
PARAGRAPH 3(b) or held by Texas Capital until the Final Settlement. Texas
Capital agrees to allow Cash from collected ICB Checks in the Check Collection
Account to be combined into the Cash in the Cash Collection Account on a daily
basis.
(e) Texas Capital may also establish any number of other accounts
at Texas Capital for the administrative convenience of Texas Capital, including
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
may be transferred by Texas Capital from the Settlement Funds posted to the
account of Texas Capital in accordance with this Agreement or any other account
of ACE referenced in this Agreement, 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 6(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 Cash
Collection Account, the Check Collection Account or the Reserve Account and
collect such fees as frequently as Texas Capital deems appropriate.
(f) Prior to the Final Settlement, 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 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 each Service Provider to determine that there
are no additional fees or expenses owing to any such Service Provider, (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
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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, 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 (less $100,000 which shall be retained by Texas Capital for
Overdraft protection in the Check Collection Accounts until August 31, 2004, and
on September 1, 2004, Texas Capital shall deliver to ACE the remaining balance,
if any, in the Reserve Account, and any ICB Checks that have been returned but
not yet delivered to ACE) and all other accounts maintained pursuant to this
Agreement. Notwithstanding anything contained in this PARAGRAPH 6, 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.
7. 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 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.
In the event of any loss 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 bad checks, chargebacks, theft, damage, or
destruction of the Cash and ICB Checks, ACE shall (i) notify Texas Capital of
such loss by 11:00 a.m. on the following Business Day, and (ii) wire the amount
of the loss to the Reserve Account. Upon receiving such notice, Texas Capital
shall (and ACE hereby authorizes Texas Capital to) immediately charge the
Reserve Account for the amount of the loss. In the event that this shall cause
the Reserve Account to have a balance of less than $1,000,000, ACE shall by
11:00 a.m. on the following Business Day deposit sufficient funds into the
Reserve Account to obtain a minimum balance of $1,000,000.
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8. Indemnity
(a) Regardless of the existence or continuation of an insurance
policy related to any of the matters described in this PARAGRAPH 8, 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 any Service Provider, but excluding
losses directly attributable to Contractor.
(b) In addition to the indemnification set forth in PARAGRAPH 8(a)
above, ACE agrees to indemnify, defend and hold harmless Texas Capital, its
officers, directors, employees 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 all Service Providers) or employees, but excluding
losses directly attributable to Contractor.
9. Fees and Expenses
Fees and expenses under this Agreement shall be determined and payable
in accordance with the provisions of ANNEX III hereto.
10. 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 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.
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(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.
11. Insurance
ACE shall maintain and furnish written evidence, including a
Certificate of Insurance, of insurance in the form attached hereto as EXHIBIT C
and such other insurance policies as may be reasonably requested by Texas
Capital, provided that such policy attached as EXHIBIT C shall (i) be in the
minimum amount of $15,000,000, (ii) have a deductible of no more than
$1,000,000, (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
policy such that the policy remains in effect.
12. Term; Termination; Survival
This Agreement shall be effective from the date of execution and shall
continue until the earlier to occur of: (i) May 1, 2004; or (ii) termination by
either party as provided in this PARAGRAPH 12. 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 12(b) and 12(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
(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.
CASH SERVICES AGREEMENT
11
<PAGE>
(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 11 above unless such
insurance is replaced by a carrier, on terms, reasonably acceptable to Texas
Capital;
(3) upon 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 demand; or
(5) upon receipt of notice from ACE that it cannot comply with
regulatory requirements referenced in PARAGRAPH 2(j) of this Agreement.
(c) If Texas Capital determines in its reasonable discretion that
a breach has occurred under PARAGRAPHS 2(e), 2(f) or 2(g):
(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
(2) Texas Capital may terminate this Agreement immediately upon
written notice to ACE, if there are any changes to Regulation D of the Board of
Governors of the Federal Reserve 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 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 III hereto.
In all other cases, Texas Capital may: (i) suspend its obligations
under PARAGRAPH 3(a) if such breach remains unremedied for 24 hours following
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 12,
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 4 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
CASH SERVICES AGREEMENT
12
<PAGE>
reasonable efforts to insure that no one interferes with Contractor such that
Contractor can redeliver Cash and deliver ICB Checks to Texas Capital in
accordance with the terms of this Agreement. Notwithstanding the termination of
this Agreement as provided in this PARAGRAPH 12, the obligations of the parties
hereto under PARAGRAPHS 4, 6, 7, 8, 9, 10 and 12 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, all fees and expenses payable under
ANNEX III shall be fully earned and payable upon the execution of this
Agreement.
13. Assignment
Neither party may assign this Agreement to any other person or business
entity without the other's prior written consent.
14. 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 14, 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: Mike Briskey
Fax Number: (972) 582-1442
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.
15. Representations and Warranties
ACE represents and warrants that as of the date of this Agreement, each
of the following statements are true and correct:
CASH SERVICES AGREEMENT
13
<PAGE>
(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 require 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
related hereto that are 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 hereunder or 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 material
agreement of ACE, and (other than as described in this PARAGRAPH 15 and in
PARAGRAPH 17) no other consent, 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 the Service Providers.
(h) ACE may pledge its interest in the Reserve Account to Texas
Capital to ensure payment and performance of its obligations under this
Agreement.
16. 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
Operating Agreements and the other agreement with the Servicer Providers
executed by ACE and related to this Agreement.
CASH SERVICES AGREEMENT
14
<PAGE>
\
(d) Maintain a balance of no less than $1,000,000.00 in the
Reserve Account ($100,000 during the Protection Period).
(e) Not charge any fee or other charge for use of any Covered SSMs
by H&R customers which fails to comply with any of the statutes, rules,
regulations, licenses, permits or authorizations related to such fees in each of
the states in which any Covered SSM is located.
(f) Not put any of its own U.S. currency or coin into any Covered
SSM or otherwise commingle any Cash, ICB Checks (other than returned checks
charged to the Reserve Account pursuant to PARAGRAPH 6(d) or Settlement Funds
with any other cash or accounts in the possession custody or control of
Contractor or ACE.
(g) Continue to provide the Daily Report in a form and format
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.
(i) Maintain the automatic endorsement of each check deposited
into a Covered SSM to read, "Pay to the order of Texas Capital Bank, N.A.".
(j) Maintain insurance in the amount of $15,000,000 as required by
PARAGRAPH 11.
(k) To the extent that the insurance company rating of the issuer
of the insurance policy attached as EXHIBIT C 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.
(l) 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 agreement with Wells Fargo, provide Texas Capital with written
notice detailing the nature and scope of such breach or default.
(m) During the term of this Agreement, keep in effect a directors'
and officers' and general liability insurance policy.
(n) No employee of ACE other than an employee, officer or director
covered by the insurance policy attached hereto as EXHIBIT C will have access to
any Cash, ICB Checks or any Covered SSM other than ICB Checks returned to ACE.
(o) ACE will take any and all actions as Texas Capital may, from
time to time, deem reasonably necessary or proper in connection with any of
ACE's obligations under this Agreement or any agreement related hereto.
CASH SERVICES AGREEMENT
15
<PAGE>
17. 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 Diebold and each Service Provider to execute
and acknowledge in the form of EXHIBIT E hereto that, among other things,
Diebold and the Service Providers have 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;
(d) ACE shall cause its Lender, Wells Fargo Bank, 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, 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) ACE shall provide to Texas Capital evidence that all insurance
premiums for the issuance of the insurance policies required by PARAGRAPH 11
have been paid in full;
(g) 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;
(h) ACE shall execute and deliver such other documents and
agreements reasonably requested by Texas Capital that are related to this
transaction;
(i) 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, N.A." or as otherwise similarly stated in order to
comply with state or local regulatory requirements; and
(j) ACE shall provide Texas Capital a copy of its effective
directors' and officers' and general liability insurance policy.
18. 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
CASH SERVICES AGREEMENT
16
<PAGE>
a custom or course of dealing or performance between the parties hereto, or
preclude the exercise of any other right, power or privilege.
19. Governing Law
This Agreement shall be governed by and interpreted under the laws of
the State of Texas.
20. 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.
21. Entire Agreement; Modification; Inconsistencies
This Agreement, as well as the Exhibits referenced herein, along with
the Operating Agreement 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.
22. 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 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. Any restrictions
regarding disclosure and confidentiality in this Agreement shall not extend to,
and either party may disclose without limitation of any kind, any information
with respect to the "tax treatment" and "tax structure" (in each case, within
the meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to such party relating to such tax treatment or
tax structure; provided that with respect to any document or similar item that
in either case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this sentence shall
only apply to portions of the document or similar item that relate to the tax
treatment or tax structure of the transactions contemplated hereby.
23. Arbitration
(a) Upon the demand of any party, any dispute shall be resolved by
binding arbitration (except as set forth in PARAGRAPH 23(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
CASH SERVICES AGREEMENT
17
<PAGE>
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 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
CASH SERVICES AGREEMENT
18
<PAGE>
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.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
CASH SERVICES AGREEMENT
19
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
ACE CASH EXPRESS, INC.
By: /s/ Mike Briskey
Name: Mike Briskey
Title: VP Finance & Asst. Treasurer
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>
CENTER (USER LOCATION) H&R BLOCK OFFICE ADDRESS CITY ZIP STATE
------ ---------------------------------------- ---- --- -----
6507 3200 SOUTH LANCASTER, #156A DALLAS 75216 TX
6511 2300 COLUMBUS ST BAKERSFIELD 93306 CA
6512 2512 WILSON RD BAKERSFIELD 93304 CA
6513 920 CHESTER AVE. BAKERSFIELD 93301 CA
6514 2437 NORTHGATE BLVD SACRAMENTO 95833 CA
6515 5211 FRUITRIDGE RD SACRAMENTO 95820 CA
6516 6622 FLORIN RD SACRAMENTO 95828 CA
6518 5723 WATT AVE NORTH HIGHLANDS 95660 CA
6521 12 W MAIN ST MERCED 95340 CA
6526 14210 E. 14TH ST. SAN LEANDRO 94578 CA
6528 397 W. HIGHLAND AVE SAN BERNARDINO 92404 CA
6531 4520 ATLANTIC AVE LONG BEACH 90807 CA
6533 891 N GAREY AVE POMONA 91768 CA
6534 2307 OAKDALE RD, BLDG #8, STE. #2 MODESTO 95355 CA
6535 519 N GOLDEN STATE BLVD TURLOCK 95380 CA
6548 3834 LA SIERRA AVE RIVERSIDE 92505 CA
6549 5411 E LANCASTER FT WORTH 76112 TX
6553 1904 MARTIN L. KING BLVD DALLAS 75227 TX
6554 2223 S. BUCKNER #237 DALLAS 75227 TX
6555 270 WYNNEWOOD VILLAGE DALLAS 75224 TX
6561 4243 EL CAJON BLVD. SAN DIEGO 92105 CA
6579 3302 GALLATIN ROAD NASHVILLE 37216 TN
6580 4616 ROSSVILLE BLVD CHATTANOOGA 37407 TN
6581 292 N. CLEVELAND MEMPHIS 38104 TN
6582 3180 N. THOMAS MEMPHIS 38107 TN
6583 1891 SOUTH THIRD MEMPHIS 38109 TN
6584 2721 PERKINS MEMPHIS 38118 TN
6618 3020 S. FIGUEROA STREET LOS ANGELES 90007 CA
6619 4855 W. PICO BLVD LOS ANGELES 90019 CA
6621 2620 LONG BEACH BLVD LONG BEACH 90806 CA
6622 1590 FT. CAMPBELL BLVD. CLARKSVILLE 37042 TN
6623 3580 M SANTA ANITA EL MONTE 91732 CA
6624 1313 PALM AVE IMPERIAL BEACH 91932 CA
6626 1714 N EUCLID AVE SAN DIEGO 92105 CA
6627 3250 E TULARE AVENUE FRESNO 93702 CA
6628 353 W. CHARTER WAY, SUITE C STOCKTON 95206 CA
6629 10331 FOLSOM BLVD. RANCHO CORDOVA 95670 CA
6634 1801 NILES ST BAKERSFIELD 93305 CA
6635 1215-B OLIVE DRIVE BAKERSFIELD 93308 CA
6636 1446 N. HUNTER ST. STOCKTON 95202 CA
6637 1240 W REDONDO BEACH BLVD GARDENA 90247 CA
6639 43537 13TH STREET WEST LANCASTER 93534 CA
EXHIBIT A
<PAGE>
6717 201 KEITH STREET CLEVELAND 37311 TN
6718 6654 CHARLOTTE PIKE NASHVILLE 37209 TN
6719 2941 NOLENSVILLE ROAD NASHVILLE 37211 TN
6720 4735 HIGHWAY 58 CHATTANOOGA 37416 TN
6721 2609-C ADAIR DRIVE KNOXVILLE 37918 TN
6722 4226 ASHEVILLE HWY. KNOXVILLE 37924 TN
6723 4409-B CHAPMAN HWY KNOXVILLE 37920 TN
6724 1035 S. RIVERSIDE DRIVE CLARKSVILLE 37040 TN
6725 3435 AUSTIN PEAY HWY. MEMPHIS 38128 TN
6726 8458 CAMP BOWIE WEST FORT WORTH 76116 TX
6728 6738-C LAKE WORTH BLVD. LAKE WORTH 76135 TX
6729 1221 W. AIRPORT FWY. #115 IRVING 75062 TX
6737 4049 N. BLACKSTONE #101 FRESNO 93726 CA
6738 3447 WATT AVE. SACRAMENTO 95821 CA
6741 5534 E. WHITTIER BLVD #C CITY OF COMMERCE 90022 CA
6745 9116 FOOTHILL BLVDE. #114 RANCHO CUCAMONGA 91730 CA
6746 2085 W. SHAW, #105 FRESNO 93711 CA
6750 113 E. WOOD ST. PARIS 38242 TN
6775 291 N LOWREY STREET SMYRNA 37167 TN
6777 170 CALDERWOOD STREET ALCOA 37701 TN
6778 158 WOODMERE MALL CROSSVILLE 38555 TN
6779 308 N. FAIRMONT MORRISTOWN 37814 TN
6780 315 N HIGH LONGVIEW 75601 TX
6782 5038 MONTANA EL PASO 79903 TX
6783 1307 E 8TH STREET ODESSA 79761 TX
6797 2313 N. ALEXANDER BAYTOWN 77520 TX
6800 2639 S. HAMPTON RD. DALLAS 75224 TX
6801 3095-B FT CAMPBELL BLVD CLARKSVILLE 37042 TN
6803 14519 VANOWEN ST VAN NUYS 91405 CA
6805 849 JEFFERSON BLVD, STE. #102 WEST SACRAMENTO 95691 CA
6819 1220 E. WASHINGTON #6 COLTON 92324 CA
Courtyard Shopping Center
6820 315 W. MAIN EL CAJON 92020 CA
EXHIBIT A
<PAGE>
EXHIBIT B
DAILY REPORT
EXHIBIT B
<PAGE>
Calc Ending ACE Ending
CENTER Delivery Amt Redeposit Amt Check Amt Fee Amt Cash Paid Out # Chks Cash Cash Difference
-------------------------------------------------------------------------------------------------------------------
6507
-------------------------------------------------------------------------------------------------------------------
6511
-------------------------------------------------------------------------------------------------------------------
6512
-------------------------------------------------------------------------------------------------------------------
6513
-------------------------------------------------------------------------------------------------------------------
6514
-------------------------------------------------------------------------------------------------------------------
6515
-------------------------------------------------------------------------------------------------------------------
6516
-------------------------------------------------------------------------------------------------------------------
6518
-------------------------------------------------------------------------------------------------------------------
6521
-------------------------------------------------------------------------------------------------------------------
6526
-------------------------------------------------------------------------------------------------------------------
6528
-------------------------------------------------------------------------------------------------------------------
6531
-------------------------------------------------------------------------------------------------------------------
6533
-------------------------------------------------------------------------------------------------------------------
6534
-------------------------------------------------------------------------------------------------------------------
6535
-------------------------------------------------------------------------------------------------------------------
6548
-------------------------------------------------------------------------------------------------------------------
6549
-------------------------------------------------------------------------------------------------------------------
6553
-------------------------------------------------------------------------------------------------------------------
6554
-------------------------------------------------------------------------------------------------------------------
6555
-------------------------------------------------------------------------------------------------------------------
6561
-------------------------------------------------------------------------------------------------------------------
6579
-------------------------------------------------------------------------------------------------------------------
6580
-------------------------------------------------------------------------------------------------------------------
6581
-------------------------------------------------------------------------------------------------------------------
6582
-------------------------------------------------------------------------------------------------------------------
6583
-------------------------------------------------------------------------------------------------------------------
6584
-------------------------------------------------------------------------------------------------------------------
6618
-------------------------------------------------------------------------------------------------------------------
EXHIBIT B
<PAGE>
-------------------------------------------------------------------------------------------------------------------
6619
-------------------------------------------------------------------------------------------------------------------
6621
-------------------------------------------------------------------------------------------------------------------
6622
-------------------------------------------------------------------------------------------------------------------
6623
-------------------------------------------------------------------------------------------------------------------
6624
-------------------------------------------------------------------------------------------------------------------
6626
-------------------------------------------------------------------------------------------------------------------
6627
-------------------------------------------------------------------------------------------------------------------
6628
-------------------------------------------------------------------------------------------------------------------
6629
-------------------------------------------------------------------------------------------------------------------
6634
-------------------------------------------------------------------------------------------------------------------
6635
-------------------------------------------------------------------------------------------------------------------
6636
-------------------------------------------------------------------------------------------------------------------
6637
-------------------------------------------------------------------------------------------------------------------
6639
-------------------------------------------------------------------------------------------------------------------
6717
-------------------------------------------------------------------------------------------------------------------
6718
-------------------------------------------------------------------------------------------------------------------
6719
-------------------------------------------------------------------------------------------------------------------
6720
-------------------------------------------------------------------------------------------------------------------
6721
-------------------------------------------------------------------------------------------------------------------
6722
-------------------------------------------------------------------------------------------------------------------
6723
-------------------------------------------------------------------------------------------------------------------
6724
-------------------------------------------------------------------------------------------------------------------
6725
-------------------------------------------------------------------------------------------------------------------
6726
-------------------------------------------------------------------------------------------------------------------
6728
-------------------------------------------------------------------------------------------------------------------
6729
-------------------------------------------------------------------------------------------------------------------
6737
-------------------------------------------------------------------------------------------------------------------
6738
-------------------------------------------------------------------------------------------------------------------
6741
-------------------------------------------------------------------------------------------------------------------
6745
-------------------------------------------------------------------------------------------------------------------
EXHIBIT B
<PAGE>
-------------------------------------------------------------------------------------------------------------------
6746
-------------------------------------------------------------------------------------------------------------------
6750
-------------------------------------------------------------------------------------------------------------------
6775
-------------------------------------------------------------------------------------------------------------------
6777
-------------------------------------------------------------------------------------------------------------------
6778
-------------------------------------------------------------------------------------------------------------------
6779
-------------------------------------------------------------------------------------------------------------------
6780
-------------------------------------------------------------------------------------------------------------------
6782
-------------------------------------------------------------------------------------------------------------------
6783
-------------------------------------------------------------------------------------------------------------------
6797
-------------------------------------------------------------------------------------------------------------------
6800
-------------------------------------------------------------------------------------------------------------------
6801
-------------------------------------------------------------------------------------------------------------------
6803
-------------------------------------------------------------------------------------------------------------------
6805
-------------------------------------------------------------------------------------------------------------------
6819
-------------------------------------------------------------------------------------------------------------------
6820
-------------------------------------------------------------------------------------------------------------------
EXHIBIT B
<PAGE>
EXHIBIT C
INSURANCE POLICY
EXHIBIT C
<PAGE>
EXHIBIT D
H&R ACKNOWLEDGEMENT
EXHIBIT D
<PAGE>
"Exhibit D"
December 19, 2003
Texas Capital Bank, National Association
2100 McKinney Avenue, Suite 900
Dallas, Texas 75201
Attention: Ronald K. Baker
Executive Vice President
Ladies and Gentlemen:
We recognize that Texas Capital Bank ("TCB") is relying on the consent
and agreement contained herein from H&R Block Tax Services, Inc. ("HRB") in
entering into, and performing under, a Cash Services Agreement (so called
herein), to be effective as of December 19, 2003, between TCB and Ace Cash
Express, Inc. ("Ace").
HRB has entered into a License Agreement, dated as of November 22,
2000, with Ace, as amended by Addendum No. 1 dated as of May 31, 2001 (the "H&R
Block Agreement(s)").
Recognizing that TCB is relying hereon in entering into and performing
under the Cash Services Agreement and making U.S. currency and coin ("Cash")
available for use in 74 self-service machines ("SSMs") located on our business
premises referred to on Annex 1 (respectively, the "Covered SSMs" and "Covered
Locations"), we agree as follows, intending to be legally bound, during the
period the Cash Service Agreement is in effect and until the Cash and Checks
have been completely removed from the Covered Locations:
1. We acknowledge that we do not have any interest in the Cash or
Checks (defined below) in the covered SSMs and waive and disclaim any and all
interest (whether ownership, security or otherwise and whether at law or in
equity) in any Cash in the Covered SSMs and tax refund and tax loan checks
issued by Household Bank for which Cash has been dispensed from Covered SSMs
("Checks"). We agree that TCB is the sole legal and equitable owner of all such
Cash and Checks free and clear of all liens, interest, claims and other rights
by, through and under us;
2. We acknowledge that Loomis Fargo & Co. ("Contractor") will
acting as TCB's agent in placing the Cash in Covered SSMs and removing Checks
therefrom, and we will permit the Contractor access to the Covered Locations and
the Covered SSMs at all times;
3. We recognize that TCB must have the right to recall the Cash
to satisfy depositor demands and, accordingly, agree that TCB and your
Contractor shall have 24 hour per day access to the Covered SSMs for the purpose
of retrieving Cash and Checks, and that we will
EXHIBIT D
<PAGE>
provide to a list of contact persons who will open the Covered Locations during
non-business hours for such purposes;
4. We will give TCB notice prior to taking any action against Ace
for any default by Ace under the H&R Block Agreements and shall permit TCB to
remove the Cash and Checks from the Covered ATMs prior to our taking action
against Ace;
5. Except with respect to the number of SSMs required under the
H&R Block Agreements, no defaults currently exist under the H&R Block
Agreements;
6. We will immediately notify TCB if any Cash from Covered SSMs
or Checks for which Cash has been dispensed come into our possession or under
our control, and will promptly return the same to TCB; and
7. We acknowledge that TCB does not have any liability or
responsibility under the H&R Block Agreements and that we will look solely to
Ace for any performance, indemnity and payment obligations under the H&R Block
Agreements.
We recognize that TCB is relying on this letter in entering into the
Cash Services Agreement and performing thereunder.
Yours very truly,
H&R Block Tax Services Inc.
By: /s/ Bernie Wilson
Authorized Signatory
ACCEPTED:
TEXAS CAPITAL BANK,
NATIONAL ASSOCIATION
By: /s/ Ronald K. Baker
Ronald K. Baker
Executive Vice President
EXHIBIT D
<PAGE>
EXHIBIT E
SERVICE PROVIDERS ACKNOWLEDGEMENT
EXHIBIT E
<PAGE>
"Exhibit E"
December ______, 2003
Texas Capital Bank, National Association
2100 McKinney Avenue, Suite 900
Dallas, Texas 75201
Attention: Ronald K. Baker
Executive Vice President
Ladies and Gentlemen:
We recognize that you are relying on our consent and agreement
contained herein in entering into, and performing under, a Cash Services
Agreement (herein so called), to be effective as of December 31, 2003, between
you and Ace Cash Express Inc. ("Ace"). One or both of us have entered into a
Master Lease Agreement, No. 10532, with Ace, related Lease Schedules and
maintenance agreements (collectively, the "Diebold Agreements").
Recognizing that you are relying hereon in entering into and performing
under the Cash Services Agreement and making U.S. currency and coin ("Cash")
available for use in 74 self-service machines ("SSMs") leased from us by Ace
(the "Covered SSMs") and located on the premises of H&R Block Tax Service, Inc.
listed on Annex I (the "Covered Locations"), we agree as follows, intending to
be legally bound, during the period the Cash Service Agreement is in effect and
until the Cash and Checks have been completely removed from the Covered
Locations:
1. We acknowledge that we do not have any interest in, and waive
and disclaim any and all interest (whether ownership, security or otherwise and
whether at law or in equity) in, any Cash in the Covered SSMs or in the
Contractor's possession and control for loading into Covered SSMs and in all tax
refund and tax loan checks issued by Household Bank ("Checks"), and agree that
you are the sole legal and equitable owner of all such Cash and Checks free and
clear of all liens, interest, claims and other rights arising by, through or
under us;
2. We acknowledge that Loomis Fargo & Co. ("Contractor") will be
acting as your agent in placing Cash in Covered SSMs and removing Checks
therefrom;
3. We recognize that you must have the right to recall the Cash
to satisfy depositor demands and, accordingly, agree that you and your
Contractor may have 24 hour per day access to the Covered SSMs for the purpose
retrieving your Cash and Checks, we will not interfere or object to any such
removal, and we will cooperate with you in recalling Cash and removing Checks;
EXHIBIT E
<PAGE>
4. We will give you notice prior to taking any action against Ace
for any default by Ace under the Diebold Agreements and shall permit you to
remove the Cash and Checks from the Covered SSMs prior to our taking action
against Ace or repossessing or otherwise preventing access to the Covered SSMs;
5. No default currently exists under the Diebold Agreements;
6. We will immediately notify you if any Cash from a Covered SSM
or Checks come into our possession or under our control and will promptly return
the same to you; and
7. We acknowledge that you do not have any liability or
responsibility under the Diebold Agreements and that we will look solely to Ace
for any performance, indemnity and payment obligations under the Diebold
Agreements.
We recognize that you are relying on this letter in entering into the
Cash Services Agreement and performing thereunder.
Yours very truly,
Diebold Credit Corporation
By: /s/ Jeffrey Van Cleve
Authorized Signatory
Diebold, Incorporated
By: /s/ Jeffrey Van Cleve
Authorized Signatory
ACCEPTED:
TEXAS CAPITAL BANK,
NATIONAL ASSOCIATION
By:/s/ Ronald K. Baker
Ronald K. Baker
Executive Vice President
EXHIBIT E
<PAGE>
EXHIBIT F
WELLS FARGO ACKNOWLEDGEMENT
ANNEX I
<PAGE>
"Exhibit F"
December 19, 2003
Texas Capital Bank, National Association
2100 McKinney Avenue, Suite 900
Dallas, Texas 75201
Attention: Ronald K. Baker
Executive Vice President
Ladies and Gentlemen:
We recognize that you are relying on our consent and agreement
contained herein in entering into, and performing under, a Cash Services
Agreement (herein so called), to be effective as of December _____, 2003,
between you and Ace Cash Express Inc. ("Ace") pursuant to which you will provide
your cash, including your vault cash (as defined in Section 204(k)(i) of
Regulation D of the Board of Governors of the Federal Reserve System) (your
"Cash") or other cash for use in up to 100 self-service machines ("Covered
SSMs") located in H&R Block Tax Service Inc. locations listed on Schedule I. The
Cash will be used to cash Checks (being Household Bank checks evidencing income
tax refund loans or advances by H&R Block Tax Service, Inc. for income tax
refunds) by withdrawal of funds from the Covered SSMs.
Wells Fargo Bank, National Association, successor-by-merger to Wells
Fargo Bank Texas, National Association serves as Agent for certain lenders
pursuant to that certain Credit Agreement dated effective as of March 31, 2003,
as amended (the "Credit Agreement") and executes this letter in such capacity.
We agree as follows, intending to be legally bound:
1. We agree and acknowledge that all Cash, all Checks and all
Settlement Funds (being monies received by you as a result of the collection
process for Checks) are intended to be and shall be your property and not that
of Ace, and agree that you are the sole legal and equitable owner of all such
Cash, Checks and Settlement Funds;
2. We recognize that you will be opening and maintaining one or
more bank accounts in Texas Capital Bank's name to effect the transactions
contemplated above and confirm that we do not claim any interest therein or in
the funds in such Texas Capital Bank accounts and to the extent such funds are
derived from the transactions referred to above; and
3. Upon your request, we will use our best efforts to obtain the
above acknowledgements and recognition from the other lenders party to the
Credit Agreement and from the Collateral Trustee referred to therein.
ANNEX I
<PAGE>
We recognize that you are relying on this letter in entering into the
Cash Services Agreement and performing thereunder.
Yours very truly,
Wells Fargo Texas, National Association,
as Agent
By: /s/ Christina M. Roche
Christina M. Roche
Assistant Vice President
ACCEPTED:
TEXAS CAPITAL BANK,
NATIONAL ASSOCIATION
By: /s/ Ronald K. Baker
Ronald K. Baker
Executive Vice President
ANNEX I
<PAGE>
ANNEX I
SERVICE PROVIDERS
None.
ANNEX I
<PAGE>
ANNEX II
OPERATING PROCEDURES
ANNEX I
<PAGE>
ACE 2004
OPERATING PROCEDURES
ACE RESPONSIBILITIES
1. ACE will be responsible for monitoring the machine cash level. Once it is
determined that cash is required, ACE will place an order for cash.
- A Correspondent Delivery Request will be sent to Texas Capital
Bank which indicates the machine, the bank, the date and the
amount.
- ACE will then notify the correspondent bank and Loomis of the
cash order.
- ACE will place the order with the appropriate correspondent bank,
once the Correspondent Delivery Request is approved.
- ACE will certify that it will not order insufficient funds to
cover the cash order requested which would create an over draft
2. Reconcile deposit request with actual deposit made by Loomis.
Provide Texas Capital Bank with the deposit verification report. Note the
exceptions that need to be worked/resolved. Note that it may take 1-2 days
to resolve any exceptions.
3. Obtain activity per machine. Provide a report to Texas Capital
Bank of the SSM activity.
4. Reconcile everyday. Notify Texas Capital Bank of any
discrepancies that may require research by Texas Capital Bank.
5. ACE will consolidate cash collected in TCB's Check Collection
Account into the Correspondent Cash Collection Account from which cash is
wired by TCB back to the TCB Collection Account or used to fill change
orders.
6. ACE will notify TCB of any cash/checks that need to be withdrawn
and returned to pay down the Texas Capital Bank Collection Account (GL).
TEXAS CAPITAL BANK RESPONSIBILITIES
1. Upon approval of the Correspondent Delivery Request, wire the cash order
amount(s) to the appropriate bank(s).
2. The day after the cash order is placed; reconcile the cash order file with
the bank statement. Any discrepancies will immediately be reported to ACE.
3. Reconcile and report any discrepancies between the amount of cash ordered
per machine and the amount picked up by Loomis. Any amount not picked up
the following day by Loomis should be withdrawn by Texas Capital Bank and
returned to pay down the GL (per ACE directive).
4. Reconcile SSM report from ACE against Loomis report against bank statement.
Report any discrepancies that look questionable. Discrepancies will exist
due to timing.
5. Upon a Correspondent Re-Delivery Request, reconcile, withdraw and wire
funds to the Texas Capital Bank Collection Account (GL).
ANNEX II
<PAGE>
LOOMIS RESPONSIBILITIES
1. Once notified of a cash order from ACE, pick up the cash from the bank(s)
and deliver to the Loomis vault. The cash will be strap counted and a
report sent to Texas Capital Bank of the deposit pickup amount per machine.
2. Deliver cash to machine. Pick up cash and checks in machine. Loomis will
perform a 'swap' of the cash in the machine with the deposit they are
delivering.
3. Report activity of cash put into machine, residual cash and checks picked
up from each machine. 4. Report activity of bank deposit of cash and checks
per machine.
BANK RESPONSIBILITIES
1. Report change order pick up's by machine number. This is so Texas Capital
Bank can reconcile the change order with the Loomis pickup.
2. Report all activity by deposit ticket number. The deposit ticket number
will reside in the micr line and will relate one-to-one to a machine
number.
ANNEX II
<PAGE>
ACE CASH EXPRESS - PROCESS FLOW
[ACE CASH EXPRESS FLOW CHART]
ANNEX II
<PAGE>
ANNEX III
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 $* per $* of the
aggregate amount of the average daily balance of Cash and unpaid ICB Checks
processed through a Covered SSM.
(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, strapping fees, insurance or bond coverage fees, auditing fees,
overnight delivery service fees and legal fees (other than the initial legal
fees incurred by Texas Capital in documenting this Agreement) and expenses.
(d) All fees under this ANNEX III 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 III 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 III