EXHIBIT 10.28


 


Marketing and Servicing Agreement between Republic
Bank & Trust Company and ACE Cash Express, Inc. (portions of the exhibit
have been omitted pursuant to a request for confidential treatment).


 


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


 


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


 


MARKETING AND SERVICING AGREEMENT


 


This Marketing and Servicing Agreement (this
“AGREEMENT”), dated as of the 21st day of October, 2002, is by and
between Republic Bank & Trust Company, a Kentucky state-chartered bank
(“BANK”) and ACE Cash Express, Inc., a Texas corporation (“COMPANY”).


 


WHEREAS, COMPANY is a duly authorized and
validly existing Texas corporation, authorized to do business in the states of
Texas, North Carolina and Pennsylvania;


 


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


 


WHEREAS, BANK agrees that during the term of
the AGREEMENT, BANK will deal with COMPANY with respect to TRANSACTIONS (as
defined below) for all CUSTOMERS (as defined below) located in the MARKET (as
such term is defined hereinbelow) at the time of the TRANSACTION;


 


WHEREAS, COMPANY agrees that BANK shall have
the first and exclusive right to all TRANSACTIONS originated in the MARKET by
COMPANY stores up to a maximum of [***], exclusive of TRANSACTIONS rejected by
the BANK, at such time when
COMPANY, using commercially reasonable efforts, is able to terminate COMPANY’S
arrangements existing on the date hereof to offer and provide TRANSACTIONS or
any product that is the same as or substantially similar to the TRANSACTIONS
within the MARKET;


 


WHEREAS, the BANK acknowledges that
franchisees of COMPANY and its affiliates are not bound by this AGREEMENT, and
may continue to offer TRANSACTIONS and similar products without regard to this
AGREEMENT and the franchisees of the COMPANY located in the MARKET are set
forth on Exhibit F as updated from time to time;


 


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


 


WHEREAS, COMPANY desires to market and
service the TRANSACTIONS on the BANK’s behalf.


 


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


 


1.                                         DEFINITIONS.


 


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(a)                                  “ADVERSE ACTION NOTICE” shall be defined as an
appropriately completed notice in compliance with Regulation B and applicable
law required to be provided to CUSTOMERS whose TRANSACTIONS are not approved by
the BANK in its sole discretion.


 


(b)                                 “APPLICANT” shall be defined as a prospective CUSTOMER
seeking to take advantage or otherwise participate in the PROGRAM.


 


(c)                                  “APPLICATIONS” shall be defined as each of the forms
filled out by a CUSTOMER seeking to take advantage of the PROGRAM as such forms
may be amended or modified from time to time.


 


(d)                                 “BANK DEPOSIT ACCOUNT” shall be defined as that bank
account held at a bank or banks designated by BANK and made known to COMPANY
and into which BANK shall deposit, via Automated Clearing House Network or
other electronic entries, as permitted by applicable law, the amounts set forth
on each REPAYMENT CHECK and the daily receipts otherwise collected by COMPANY
for the benefit of BANK and applied to the TRANSACTIONS.


 


(e)                                  “BANK INDEMNIFIED PARTIES” shall be defined as BANK
and its holding company, and their officers, directors, employees,
representatives, agents and attorneys.


 


(f)                                    “BANK INTELLECTUAL PROPERTIES” shall be defined as the
name, trade name, trademarks, service marks and logos of BANK.


 


(g)                                 “BANK POLICIES” shall be defined as the reasonable and
lawful practices, policies and procedures established by BANK and communicated
in writing to COMPANY from time to time with respect to the TRANSACTIONS, a
current copy of which is attached hereto as Exhibit D.


 


(h)                                 “CONFIDENTIAL
INFORMATION” shall be defined as all documents, materials, information about
trade secrets, agreements, products, services, licenses, costs, sales and
pricing information, and any other information that is generally not known in
the trade or may not be known generally or publicly, and other information
related to this AGREEMENT which shall have been obtained during the course of
the negotiations leading to, and during the performance of, this AGREEMENT,
excepting those items excluded from this definition by Section 9(c) of this
AGREEMENT.


 


(i)                                     “CUSTOMER” shall be defined as any person who
participates in the PROGRAM.


 


(j)                                     “CUSTOMER INFORMATION” shall be defined as all
information derived from TRANSACTIONS or APPLICATIONS about any of the
CUSTOMERS or the APPLICANTS, including, without limitation, names, addresses,
demographic information and financial information.


 


(k)                                  “DISCLOSURES” shall be defined as all information
required to be provided to an APPLICANT or CUSTOMER under federal, state or
local law.


 


(l)                                     “COMPANY INDEMNIFIED PARTIES” shall be defined as
COMPANY and its parents, subsidiaries and affiliates, and each of their
officers, directors, employees, representatives, agents and attorneys.


 


(m)                               “EVENT OF DEFAULT” shall be defined as set forth in
Section 7(b).


 


(n)                                 “FEES” shall be defined as the marketing and servicing
fees set forth on Exhibit A attached hereto.


 


(o)                                 “HARMFUL ACTS” shall be defined as any fraud, theft,
dishonesty, defamation, or other willful misconduct of any party to this
AGREEMENT, or any PARTY’S officers, employees, directors or agents.


 


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(p)                                 “LOSSES” shall be defined as claims, losses,
liabilities, damages, penalties, demands, judgments, settlements, costs and
expenses, including reasonable attorneys’ fees.


 


(q)                                 “MARKET” shall mean the states listed on Exhibit C.


 


(r)                                    “NET CHARGE OFFS” shall mean for any calendar quarter
the actual charge offs of principal (which shall consist of the Total of
Payments less the Finance Charge, as those terms are used in the Notes) of the
TRANSACTIONS plus all FEES paid to COMPANY on the TRANSACTIONS in question less
any prior charge offs collected during the calendar quarter; except in the case
of NSF charge offs, in which case NET CHARGE OFFS shall consist of the Total of
Payments, as that term is used in the Notes, less any prior charge offs
collected during the calendar quarter.


 


(s)                                  “NOTES” shall be defined as those promissory notes or
similar negotiable instruments which may be made by a CUSTOMER to evidence and
secure the CUSTOMER’S obligations under any TRANSACTION.


 


(t)                                  “PROGRAM” shall be defined as the totality of the
activities in connection with the TRANSACTIONS as contemplated under this
AGREEMENT.


 


(u)                                 “PROMOTIONAL MATERIALS” shall be defined as all such
letters, advertising, direct mail communications and promotional materials
incorporating BANK INTELLECTUAL PROPERTIES and all related designs, artwork,
logos, slogans, copy and other similar materials.


 


(v)                                 “REPAYMENT CHECKS” shall be defined as checks issued
by a CUSTOMER as security for and in repayment of the TRANSACTIONS.


 


(w)                               “RESTRICTED PARTY” shall be defined as any party who
is bound by Section 9 of this AGREEMENT with regard to the CONFIDENTIAL
INFORMATION, including, without limitation, all agents, employees, officers,
directors and other third-party agents of any of the PARTIES hereto.


 


(x)                                   “TRANSACTIONS” shall be defined as the BANK’S deferred
deposit transactions in which, for consideration, the BANK will accept a check
and hold the check for a period of time prior to deposit or presentment in
accordance with an agreement with the maker of the check.


 


(y)                                 “TRANSACTION DOCUMENTS” shall be defined as (i) all
original APPLICATIONS and copies of all ADVERSE ACTION NOTICES and other
documents relating to rejected APPLICATIONS; (ii) Automated Clearing House debit
authorizations and disclosures, as permitted by applicable law, (iii)
authorizations from each CUSTOMER to allow the BANK to grant COMPANY access to
CUSTOMER INFORMATION, and (iv)  originals or copies, as applicable, of all
APPLICATIONS, NOTES, DISCLOSURES, REPAYMENT CHECKS and other documents provided
to or received from CUSTOMERS.


 


(z)                                   “TRANSACTION LOSS RATE” shall have the meaning set
forth in Exhibit A.


 


2.                                       INCORPORATION OF RECITALS.


 


The recitals set forth above are incorporated
herein by reference.


 


3.                                         BANK’S SERVICES.


 


(a)                                  BANK in its sole discretion shall determine all of the
conditions, Program criteria that must be satisfied by CUSTOMERS to be eligible
to enter into a TRANSACTION, terms and features of the TRANSACTIONS, including,
without limitation, amounts, FEES and charges, limits, standards and all other
terms and conditions of the TRANSACTIONS. 
Bank shall prepare the form of all TRANSACTION DOCUMENTS.  BANK shall enter into the TRANSACTIONS with
all APPLICANTS who seek to take advantage of deferred deposit services offered
by BANK and marketed by COMPANY and who, in the sole discretion of the BANK,
meet such Program criteria, standards and other qualifications as contemplated
in Section 4(c)(ii) of this AGREEMENT; 


 


3





















 


provided that BANK shall not be required to enter into a
TRANSACTION if it reasonably believes that the TRANSACTION or its solicitation
will violate or has violated any applicable law.  Neither COMPANY, nor BANK, nor their respective
employees shall state or suggest to APPLICANTS that TRANSACTIONS are made with
or approved by COMPANY or that COMPANY (or any employee or agent of COMPANY)
can improve or otherwise influence an APPLICANT’s prospect of entering into the
TRANSACTION.  BANK may reject any
TRANSACTION or TRANSACTIONS at any time, in its sole discretion.


 


(b)                                 COMPANY acknowledges that all rights of ownership in
the TRANSACTIONS and the TRANSACTION DOCUMENTS are and remain the sole property
of BANK, and COMPANY shall have no ownership rights to such TRANSACTIONS or
TRANSACTION DOCUMENTS during the term of this AGREEMENT.  Furthermore, COMPANY shall not in any way
fund, or purchase any share or “participation interest” in any TRANSACTION.


 


(c)                                  In its sole discretion, BANK may sell, transfer, grant
an interest in, or otherwise assign any TRANSACTION, or any portion of any
TRANSACTION, to a third party or parties. 
Any sale, transfer or assignment by BANK of any such TRANSACTION shall
comply with applicable law.


 


(d)                                 BANK shall forward to COMPANY, via facsimile, with a
copy by first-class mail, within one (1) business day of receipt any written notices it receives that bankruptcy proceedings have
been initiated with respect to any CUSTOMER.


 


4.                                       COMPANY’s SERVICES.


 


(a)                                  General Duties of COMPANY; Standards of Performance:  COMPANY shall
perform all services reasonably required to market and service the TRANSACTIONS
of BANK in the MARKET, including without limitation the establishment of retail
outlets in number and location determined by COMPANY in its sole discretion,
where APPLICANTS may submit APPLICATIONS and receive DISCLOSURES required by
applicable law (if any) and where CUSTOMERS may execute and deliver the
TRANSACTION DOCUMENTS and deliver REPAYMENT CHECKS or other payment on the
TRANSACTIONS. To facilitate deposit by the BANK of the REPAYMENT CHECK into the
BANK DEPOSIT ACCOUNT via Automated Clearing House Network entries or other
electronic payment, as permitted by applicable law,  COMPANY shall provide the BANK, on or after
the date the NOTE evidencing a TRANSACTION becomes due, information from each
REPAYMENT CHECK including the ABA routing number, the check account number, the
check number and the check amount. In lieu thereof, COMPANY shall accept any
CUSTOMER payments remitted to COMPANY in cash in prepayment of the TRANSACTION
and shall deliver an amount equal to such CUSTOMER cash payments to BANK via
Automated Clearing House Network entries, as permitted by applicable law, on
the next business day after receipt of such cash payments. In marketing the
TRANSACTIONS and performing its services hereunder, COMPANY shall at all times
and in all respects comply with applicable laws, rules and regulations.  Before initiating any marketing efforts for
the TRANSACTIONS in the MARKET, COMPANY shall agree with BANK on a mutually
agreeable protocol for communicating with the appropriate regulatory
authorities, and shall cooperate with BANK in implementing the TRANSACTION
program and protocols contemplated hereby. 
Further, COMPANY shall use the documentation prepared by BANK and follow
the BANK POLICIES.  COMPANY shall train
and supervise its employees to act in conformity with the BANK POLICIES and the
requirements of applicable laws, rules and regulations.


 


(b)                                 Marketing of TRANSACTIONS:


 


(i)                                     BANK hereby authorizes COMPANY during the term of this
AGREEMENT to market TRANSACTIONS to prospective CUSTOMERS.  BANK hereby grants to COMPANY a nonexclusive
license to use the BANK INTELLECTUAL PROPERTIES during the term of this
AGREEMENT in connection with this AGREEMENT on letters, print advertisements,
direct mail, the Internet, television and radio communications and other
advertising and PROMOTIONAL MATERIALS; provided, however,
COMPANY shall submit all PROMOTIONAL MATERIALS to BANK for its written approval
prior to any use thereof.  If BANK fails
to reject any proposed PROMOTIONAL MATERIALS within five (5) business days of
receipt of the request for approval, such PROMOTIONAL MATERIALS shall be deemed
approved by BANK.  All rights not expressly
granted to COMPANY herein are reserved by BANK. 
Regardless of whether they incorporate the BANK INTELLECTUAL PROPERTIES,
all advertising and PROMOTIONAL MATERIALS for the TRANSACTIONS


 


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(A) shall prominently identify BANK as
maker of the TRANSACTIONS, (B) shall be accurate, (C) shall not be
misleading, (D) shall comply with all applicable laws, rules and
regulations for use in the time, place and manner specified and (E) shall
be submitted to BANK for prior approval, which shall not be unreasonably
delayed.


 


(ii)                                  In connection with COMPANY’s performance of its
obligations under this AGREEMENT, it is expressly agreed that (A) BANK
shall not hold any ownership or leasehold interest in any COMPANY store or any
personal property located therein, except for REPAYMENT CHECKS, NOTES,
TRANSACTION DOCUMENTS, and cash in an amount equal to the funds received by
COMPANY in repayment of TRANSACTIONS that COMPANY has not transmitted to BANK
as contemplated by this AGREEMENT; and (B) no BANK employees shall work in
any COMPANY store except for BANK agents who may examine COMPANY stores from
time to time for compliance with BANK POLICIES and other aspects of this
AGREEMENT.


 


(c)                                  Servicing of TRANSACTION Applications:


 


(i)                                     BANK also hereby authorizes COMPANY to obtain
TRANSACTION applications from APPLICANTS, using the form of APPLICATION
prepared by BANK.  COMPANY shall make
APPLICATIONS available to prospective APPLICANTS and shall not discourage any
prospective APPLICANT from submitting an APPLICATION and shall provide
reasonable assistance to each prospective APPLICANT in completing an
APPLICATION.  COMPANY shall not
discriminate against or discourage any APPLICANT in any aspect of the process
on any “prohibited basis,” as such term is defined in the Equal Credit
Opportunity Act (ECOA), Regulation B and KRS Chapter 344.


 


(ii)                                  Based solely upon the underwriting standards and
PROGRAM criteria adopted by BANK from time to time, a current copy of which is
attached as Exhibit E hereto, and applied to the information provided by
APPLICANTS to BANK in the APPLICATIONS and such other credit-related
information as obtained by COMPANY at the direction of BANK, or by BANK
directly, BANK shall determine whether to enter into a TRANSACTION with an
APPLICANT.  BANK shall review and
evaluate completed APPLICATIONS and approve CUSTOMERS who satisfy the Program
criteria within a commercially reasonable time after receipt of the APPLICATION
from COMPANY. BANK shall, either itself or through its designated agent,
communicate to COMPANY its decision on any APPLICATION.  COMPANY shall provide an ADVERSE ACTION
NOTICE to any APPLICANT whose APPLICATION is rejected by BANK. For APPLICANTS
whose APPLICATION is approved by the BANK, the BANK shall fund the payment to
the CUSTOMER in the amount of the REPAYMENT CHECK, less all applicable fees and
expenses, by a check or other negotiable instrument drawn on a depository
account in Kentucky designated by the BANK. BANK shall honor and pay any
properly payable check or other negotiable instrument drawn on any of BANK’S
depository accounts validly issued in connection with TRANSACTIONS approved by
the BANK.


 


(iii)                               The CUSTOMERS obligations under the TRANSACTION shall
be evidenced by a NOTE containing the DISCLOSURES and secured by a REPAYMENT
CHECK.


 


(iv)                              COMPANY shall (A) deliver a copy of the NOTE to the
CUSTOMER; (B) obtain from the CUSTOMER the executed NOTE; (C) obtain
from CUSTOMER his or her REPAYMENT CHECK dated the date of the TRANSACTION and
made payable to BANK; and (D) maintain on behalf of BANK, separate and
apart from COMPANY’s own assets and records, the REPAYMENT CHECK and NOTE.


 


(d)                                 Collection of TRANSACTIONS.


 


(i)                                     BANK hereby authorizes COMPANY to service the
TRANSACTIONS by, among other things, (1) using commercially reasonable
efforts, including the use of direct debits to a CUSTOMER’S depository account
via the Automated Clearing House Network as permitted by applicable law, to
collect payments on the TRANSACTIONS at and after maturity thereof on behalf of
BANK; (2) accurately recording and reporting the payments of funds from
CUSTOMERS and transmitting such payments to BANK in accordance with this
AGREEMENT; and (3) making remittance to and settlement with BANK in accordance
with this AGREEMENT. In collecting payments owed under the NOTES, COMPANY shall
comply in all respects with applicable law, rules and regulations.  Without limiting the generality of the
foregoing, COMPANY shall not, explicitly or implicitly, make 


 


5





















 


any threats of criminal prosecution in
connection with debt collection, or otherwise engage in any practices or
actions that violate any applicable laws, rules or regulations.


 


(ii)                                  COMPANY shall service the TRANSACTIONS at all times in
accordance with the terms of this AGREEMENT and the DISCLOSURES and the BANK
POLICIES.  BANK shall notify COMPANY in
writing at least ten (10) business days prior to any change in the BANK POLICIES,
unless such changes are required sooner by applicable laws, rules or
regulations.


 


(iii)                               On or after the date the NOTE evidencing a TRANSACTION
becomes due, COMPANY shall provide the BANK, information from each REPAYMENT
CHECK including the ABA routing number, the check account number, the check
number and the check amount and BANK shall deposit and transfer the amount of
the REPAYMENT CHECK to the BANK DEPOSIT ACCOUNT via Automated Clearing House
Network entries or other electronic payment as permitted by applicable law. In
lieu thereof, COMPANY shall deliver to BANK via Automated Clearing House
Network entries, as permitted by applicable law, all cash received by COMPANY
from CUSTOMERS representing repayment of TRANSACTIONS on the next business day
after receipt of such repayment.


 


(iv)                              COMPANY shall be responsible for any deficiency
between the amount of cash reported by COMPANY as collected on TRANSACTIONS and
the amount of cash actually received in repayment of TRANSACTIONS.  Any excess amounts of cash shall be the
property of the COMPANY.


 


(e)                                  Reports; Access to Stores, Books and Records and
Employees:


 


(i)                                     During the term of this AGREEMENT, COMPANY shall
promptly provide to BANK or its agents data submissions and reports reasonably
required by BANK in order to maintain effective internal controls and to
monitor results under this AGREEMENT, including without limitation the
performance of the TRANSACTIONS and COMPANY’s obligations hereunder.  Such reports shall include a daily report
showing those TRANSACTIONS originated through COMPANY, outstanding and repaid
each day, as agreed upon by BANK and COMPANY, as well as COMPANY’s monthly
compliance review checklists and all periodic internal audit reports for stores
marketing and servicing the TRANSACTIONS.


 


(ii)                                  COMPANY shall, as reasonably required by BANK, but no
more often than quarterly, provide BANK with its most recent unaudited
financial statements and its annual audited financial statements.


 


(iii)                               COMPANY, on behalf of the BANK and without an
ownership interest by COMPANY, shall maintain and retain possession of the
TRANSACTION DOCUMENTS for the term of the AGREEMENT and any additional period
required by applicable law.  Except as
otherwise allowed by Section 9 of this AGREEMENT, COMPANY agrees to use such
TRANSACTION DOCUMENTS solely to service the TRANSACTIONS and to segregate all
such TRANSACTION DOCUMENTS, and all document files and records which relate to
the services provided by COMPANY hereunder from COMPANY’s other files and
records.


 


(iv)                              The TRANSACTION DOCUMENTS shall be held by COMPANY on
behalf of BANK, pursuant to BANK’S record retention requirements, as more
particularly set forth in the BANK POLICIES attached hereto as Exhibit D
and incorporated herein by reference, and Bank has and shall continue to have
constructive possession and legal title to such documents, files and
records.  At such time or times as BANK
may reasonably request, and at BANK’s cost, COMPANY shall promptly deliver all
copies of TRANSACTION DOCUMENTS to BANK at its headquarters or such other
location or locations as BANK shall direct. 
All such documents shall be maintained segregated from other books and
records of COMPANY and otherwise in such a manner as to facilitate their
inspection by and delivery to BANK, if so requested.


 


(v)                                 During the term of this AGREEMENT and at all times
thereafter, BANK and banking agencies with regulatory authority over BANK shall
have reasonable access to COMPANY stores, to the books and records of COMPANY
(to the extent that such books and records pertain to the TRANSACTIONS), to the
officers, employees and accountants of COMPANY, and to copies of TRANSACTION
DOCUMENTS, all for the same purposes of ensuring that COMPANY is carrying out
the BANK POLICIES and is otherwise complying 


 


6





















 


fully with its obligations under this
AGREEMENT.  Such access shall include
permission to maintain employees on the premises of COMPANY during regular
business hours to audit COMPANY’s services contemplated by this AGREEMENT.


 


(vi)                              In addition, and not as a limitation of the foregoing,
BANK shall have the right at COMPANY’s expense, provided that the aggregate
expense to COMPANY shall not exceed $25,000 per year, from time to time during
the term of this AGREEMENT, to conduct reasonable outside audits in any given
year and other reasonable audits and/or compliance reviews of the services
provided hereunder, and the records generated thereunder; provided, that such
audit and review rights shall be conducted during normal business hours in a
manner which does not unreasonably interfere with COMPANY’s normal business
operations and CUSTOMER and employee relations.


 


(f)                                    FEES and Costs:  In consideration for COMPANY’s
performance of its obligations under this AGREEMENT, BANK shall pay COMPANY the
FEES, as such FEES may be changed from time to time by mutual agreement of the
parties. Such FEES shall be paid by BANK to COMPANY on or before the 5th
business day following transmittal of the INVOICE, as defined by, and
containing the information required by, Exhibit A.  COMPANY will be responsible for all costs,
expenses and taxes (of whatever nature or authority) associated with its stores
and its services under this AGREEMENT, including, without limitation but by way
of example, rental and occupancy costs; costs of up-fit and leasehold
improvements; equipment costs; processing costs; printing costs; maintenance
costs; staffing costs; taxes assessed to or against COMPANY; signage costs;
insurance and advertising costs.


 


(g)                                 Procedures and Protocols.  Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
Procedures and Protocol in the form and substance of Exhibit B attached
hereto and incorporated herein by reference which shall govern the operations
and management of the TRANSACTIONS.  Exhibit
B may be reviewed periodically and shall only be amended or modified by
letter agreement which shall not necessitate or effect a modification or
amendment to this AGREEMENT but which said amendment or modification shall be
incorporated herein by reference.


 


5.                                       Representations, Warranties and Covenants.


 


(a)                                  BANK hereby represents and warrants to COMPANY as of
the date hereof that:


 


(i)                                     BANK is a duly organized Kentucky state-chartered bank
validly existing under the laws of the Commonwealth of Kentucky, and is
currently authorized to conduct its business as described in this AGREEMENT in
the states of Texas and North Carolina and anticipates being authorized to
conduct its business as described in this Agreement in the state of
Pennsylvania.  The deposits of BANK are
insured by the FEDERAL DEPOSIT INSURANCE CORPORATION up to applicable
limits.  BANK has the corporate power and
authority and all requisite licenses, permits and authorizations to execute and
deliver this AGREEMENT and perform its obligations contemplated hereunder;


 


(ii)                                  BANK is authorized under applicable law to enter into
the TRANSACTIONS as contemplated by this AGREEMENT. The TRANSACTIONS and the documents prepared by
BANK in connection with the TRANSACTIONS currently comply with all federal,
state and local laws, statutes and regulations and any and all licenses,
permits and other authorizations required of BANK in connection with the
TRANSACTIONS by federal, state or local laws, statutes, and regulations (the
“BANK AUTHORIZATIONS”) have been obtained, are in full force and effect and are
valid under applicable federal, state and local laws and the continuation,
validity and effectiveness of all of the BANK AUTHORIZATIONS shall not be
impaired or adversely affected by the terms of this AGREEMENT;


 


7





















 


(iii)                               This AGREEMENT has been duly executed and delivered by BANK and upon due
authorization and ratification by BANK’s Board of Directors, constitutes its
legal, valid and binding agreement, enforceable against BANK in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship, and the rights and
obligations of receivers and conservators under 12 U.S.C. §§1821 (d) and (e),
and any other laws affecting creditors’ rights and remedies generally;


 


(iv)                              The execution, delivery and performance of this
AGREEMENT by BANK does not violate or conflict with (A) any provision of
the articles of incorporation or other governance documents of BANK; or
(B) any Kentucky or federal law, or any order, arbitration award, judgment
or decree to which BANK is a party or by which BANK or any of its assets may be
bound;


 


(v)                                 Except
as may have already been obtained, no consent,
approval, authorization or order of any federal or state regulatory agency or
other governmental body is required to be obtained by BANK to permit it to
perform its obligations under this AGREEMENT;


 


(vi)                              There
are no claims of any kind or orders, actions, suits, proceedings, arbitrations
or investigations asserted by or against BANK which would prevent or challenge
the performance of this AGREEMENT or any of the transactions contemplated
hereby or declare the same unlawful or cause the rescission thereof;


 


(vii)                           BANK
is currently not a party to (a) any enforcement action instituted by, or
(b) any memorandum of understanding or cease and desist order with, any
federal or state regulatory agency, and no such action, memorandum or order has
been threatened, and BANK has not received any report of examination from any
federal or state regulatory agency which requires BANK to address any problem
or take any action relevant to the TRANSACTIONS or other obligations of BANK
under this AGREEMENT which has not already been addressed or taken in a manner
satisfactory to the regulatory agency;


 


(viii)                        BANK warrants that it has the right to use and
license the BANK INTELLECTUAL PROPERTIES as set forth in this AGREEMENT;


 


(ix)                                BANK
has provided COMPANY copies of all documents and correspondence from the
Kentucky Department of Financial Institutions regarding the TRANSACTIONS and
the legality of the TRANSACTIONS if performed as contemplated in this
AGREEMENT, except as prohibited by applicable law; and


 


(x)                                   BANK is a current member of and in good standing
with the Community Financial Services Association of America (the “CFSA”).


 


(b)                                 COMPANY hereby represents and warrants to BANK, as of
the date hereof that:


 


(i)                                     COMPANY
is duly organized and validly existing under the laws of the State of Texas,
and is duly qualified to do business as contemplated under this AGREEMENT and
has all requisite licenses, permits and authorizations under Texas and federal
law, and anticipates having all requisite licenses, permits and authorizations
under North Carolina and Pennsylvania law, to execute and deliver this
AGREEMENT and perform its obligations contemplated hereunder.  COMPANY has the corporate power and authority
and all requisite licenses, permits and authorizations to execute and deliver
this AGREEMENT and perform its obligations hereunder;


 


8





















 


(ii)                                  COMPANY
currently has the corporate power and authority, and all requisite licenses,
permits and authorizations, to execute and deliver this AGREEMENT and to
perform hereunder.  This AGREEMENT has
been duly authorized by COMPANY’s Board of Directors, executed and delivered by
COMPANY and constitutes its legal, valid and binding agreement, enforceable
against COMPANY in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors’ rights and remedies generally;


 


(iii)                               The
execution, delivery and performance of this AGREEMENT by COMPANY does not
violate or conflict with (A) any provision of the governance documents of
COMPANY; or (B) any Texas or federal law, or any order, arbitration award,
judgment or decree to which COMPANY is a party or by which COMPANY or any of
its assets may be bound;


 


(iv)                              Except
as may have already been obtained, no
consent, approval, authorization or order of any federal or state regulatory
agency or other governmental body is required to be obtained by COMPANY to
permit it to perform its obligations under this AGREEMENT;


 


(v)                                 Except
as set forth in the COMPANY’S Annual Report on Form 10-K for the fiscal year
ended June 30, 2002, or as otherwise disclosed, there are no claims of any kind
or orders, actions, suits, proceedings, arbitrations or investigations asserted
by or against COMPANY which would prevent or challenge the performance of this
AGREEMENT or any of the transactions contemplated hereby or declare the same
unlawful or cause the rescission thereof;


 


(vi)                              Except
as set forth in the COMPANY’S Annual Report on Form 10-K for the fiscal year
ended June 30, 2002, or as otherwise disclosed, COMPANY is currently not a
party to (a) any enforcement action instituted by, or (b) any
memorandum of understanding or cease and desist order with, any federal or
state regulatory agency, and no such action, memorandum or order has been
threatened, and COMPANY has not received any report of examination from any
federal or state regulatory agency which requires COMPANY to address any
problem or take any action relevant to the TRANSACTIONS or other obligations of
COMPANY under this AGREEMENT which has not already been addressed or taken in a
manner satisfactory to the regulatory agency; and


 


(vii)                           COMPANY is a current member of and in good
standing with the Financial Service Centers of America (“FiSCA”).


 


(c)                                  BANK
hereby covenants and agrees as follows:


 


(i)                                     On
or prior to November 1, 2002, BANK will provide to COMPANY an opinion of
counsel to BANK opining as to the legality of (A) BANK engaging in the
transactions contemplated by this AGREEMENT and (B) BANK charging the fees
contemplated by this AGREEMENT to CUSTOMERS located in the MARKET; provided,
however, an opinion of counsel to BANK opining with respect to Pennsylvania law
shall be delivered to COMPANY within a reasonable time after execution of this
AGREEMENT but in no event later than November 30, 2002. In the event such
Pennsylvania opinion indicates that BANK may not legally engage in the
transactions or charge the fees contemplated in this AGREEMENT, BANK shall have
no obligation to engage in any TRANSACTION in Pennsylvania.


 


9





















 


 


(ii)                                  BANK shall use its reasonable best efforts to
comply in all material respects with the CFSA Best Practices in effect on the
date of this Agreement, and any reasonable Best Practices, or modifications to
such practices approved and adopted by the CFSA during the term of this
Agreement; provided the practices comply in all respects with all applicable
law, and the interpretation of such law by authorities with jurisdiction.


 


(d)                                 COMPANY
hereby covenants and agrees as follows:


 


(i)                                     On
or prior to November 1, 2002, COMPANY will provide to BANK an opinion of
counsel to COMPANY opining as to the legality of COMPANY engaging in the
marketing and servicing of the TRANSACTIONS for BANK as contemplated in this
AGREEMENT; provided, however, an opinion of counsel to COMPANY opining with
respect to Pennsylvania and North Carolina law shall be delivered to BANK
within a reasonable time after execution of this AGREEMENT but in no event
later than November 30, 2002. In the event such Pennsylvania or North Carolina
opinion indicates that COMPANY may not legally engage in the marketing and
servicing of the TRANSACTIONS as contemplated in this AGREEMENT, COMPANY shall
have no obligation to market or service any TRANSACTION in Pennsylvania or
North Carolina, as the case may be.


 


(ii)                                  COMPANY hereby agrees that during the term of
this Agreement the Total Shareholder’s Equity of the COMPANY, as such term is
used in the Consolidated Balance Sheet of its Audited Financial Statements,
shall be at least sixty (60) million dollars.


 


(iii)                               COMPANY shall use its reasonable best efforts to
comply in all material respects with the CFSA Best Practices, or its
equivalent, specifically FiSCA’s Code of Conduct, in effect on the date of this
Agreement, and any reasonable Best Practices or Code of Conduct, or
modifications thereto approved and adopted by CFSA, or its equivalent,
specifically FiSCA, during the term of this Agreement; provided the practices/code
of conduct comply in all respects with all applicable law, and the
interpretation of such law by authorities with jurisdiction.


 


6.                                       Indemnification; Insurance.


 


(a)                                  Each
of the PARTIES’ representations, warranties, covenants and agreements set forth
in this AGREEMENT shall survive the execution and delivery of this AGREEMENT.


 


(b)                                 BANK
shall indemnify and hold COMPANY harmless from and against, and shall pay to
COMPANY the full amount of, any LOSSES resulting to COMPANY, either directly or
indirectly, from (i) any inaccuracy in any representation or warranty, or any
breach of any covenant or agreement, by BANK contained in this AGREEMENT, (ii)
any fraud, theft, dishonesty, defamation or other willful misconduct of BANK or
its officers, directors, employees or agents, (iii) any claim against BANK or
COMPANY by the Kentucky Department of Financial Institutions, the Federal
Deposit Insurance Corporation, or any regulatory agency or other governmental
body having supervisory authority directly over BANK or (iv) any claim by any third party of service mark or
trademark infringement based upon COMPANY’S use of the BANK INTELLECTUAL
PROPERTIES.


 


(c)                                  COMPANY
shall indemnify and hold BANK harmless from and against, and shall pay to BANK
the full amount of, any LOSSES resulting to BANK, either directly or
indirectly, from (i) any inaccuracy in any representation or warranty, or any
breach of any covenant or agreement, by COMPANY contained in this AGREEMENT,
(ii) any fraud, theft, dishonesty, defamation or other willful misconduct of
COMPANY or its officers, directors, employees or agents, or (iii) any claim
that the TRANSACTIONS or the conduct of COMPANY 


 


10





















 


in connection with the
TRANSACTIONS are illegal, provided that, (A) at the time of such claim, BANK is
not in breach of any covenant or agreement contained in this AGREEMENT that
contributed to or caused the loss for which indemnification is sought and (B)
the claim is not by the Kentucky Department of Financial Institutions, the
Federal Deposit Insurance Corporation, or any regulatory agency or other
governmental body having supervisory authority directly over BANK.


 


(d)                                 The
fact that indemnification is provided in this Agreement for some actions of
either COMPANY or BANK does not mean that statutory or common law
indemnification or contribution is not available to either party for other acts
not enumerated herein.


 


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


 


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


 


(g)                                 Whenever
any claim shall arise for indemnification under this Paragraph 6, the party
seeking indemnification (the “INDEMNITEE”) shall promptly notify the other
party (the “INDEMNITOR”) of the claim and, when known, the facts constituting
the basis for such claim.  Such notice
shall specify, if known, the amount or a good faith estimate of the amount of
the liability arising therefrom.


 


(h)                                 In
connection with any claim or legal proceeding by a third party which may give
rise to indemnity hereunder (a “THIRD PARTY CLAIM”), the INDEMNITOR, at the
sole cost and expense of the INDEMNITOR, may assume the defense of any such
THIRD PARTY CLAIM by giving written notice to the INDEMNITEE.  The INDEMNITOR’s notice must be received by
the INDEMNITEE within twenty (20) days following INDEMNITOR’s receipt of notice
of such THIRD PARTY CLAIM and must acknowledge the INDEMNITOR’s obligation to
indemnify the INDEMNITEE with respect to such THIRD PARTY CLAIM.


 


(i)                                     If
the INDEMNITOR assumes the defense of any THIRD PARTY CLAIM, the INDEMNITOR
shall select counsel to conduct the defense of such claim, and the INDEMNITOR
shall take all reasonable steps necessary in the defense or settlement
thereof.  If the INDEMNITOR assumes the
defense of any THIRD PARTY CLAIM, the INDEMNITOR shall not be obligated to pay
any attorneys fees or investigation costs incurred by the INDEMNITEE in
connection with its participation in such defense, unless the INDEMNITOR
assumes the defense of such THIRD PARTY CLAIM at any time after the expiration
of the INDEMNITOR’s twenty (20) day notice period.  The INDEMNITEE shall cooperate with all reasonable
requests of the INDEMNITOR in connection with the INDEMNITOR’s defense of any
THIRD PARTY CLAIM.  The INDEMNITOR shall
not consent to a settlement of, or the entry of any judgment arising from, any
THIRD PARTY CLAIM, without the prior written consent of the INDEMNITEE, which
consent shall not be unreasonably withheld or delayed.  The INDEMNITEE shall be entitled to
participate in (but not control) the defense of any such action, with its own
counsel and at its own expense.


 


(j)                                     If
the INDEMNITOR does not assume the defense of any such THIRD PARTY CLAIM, the
INDEMNITEE may defend against such THIRD PARTY CLAIM in such manner as the
INDEMNITEE may deem appropriate, including, but not limited to, settling such
claim on such terms as the INDEMNITEE may deem appropriate, at the cost of
INDEMNITOR.  If the INDEMNITOR seeks to
question the manner in which the INDEMNITEE defended such THIRD PARTY CLAIM or
the amount of or nature of any such settlement, the INDEMNITOR shall have the
burden to prove by a preponderance of the evidence that the INDEMNITEE did not
defend such claim in a reasonably prudent manner.


 


11





















 


(k)                                  With
respect to any claim, dispute or controversy between BANK and COMPANY arising
out of or relating to the performance of this AGREEMENT, the parties agree that
prior to considering any remedies at law or in equity, that BANK and COMPANY
shall each appoint one or more executives who will meet with each other for the
purpose of resolving any claim, dispute or controversy between BANK and COMPANY
arising out of or relating to the performance of this AGREEMENT or any of the
TRANSACTIONS. The parties agree to operate in good faith in such agreements.


 


(l)                                     COMPANY agrees
to purchase and maintain general business and liability insurance from a
nationally-recognized insurance provider which shall have limits for such
policy in a total amount not less than $5,000,000.


(m)                               BANK shall obtain and
maintain in full force and effect errors and omissions insurance in an amount
no less than $5,000,000 with such insurance companies as are reasonably
satisfactory to BANK and COMPANY.


 


7.             Term
and Termination.


 


(a)                                  The term of
this AGREEMENT shall commence as of the date of this AGREEMENT, and shall
continue until January 1, 2006, unless earlier terminated pursuant to terms of
this AGREEMENT.


 


(b)  This
AGREEMENT may be terminated upon the occurrence of one or more of the following
events, within the time periods set forth below (each, an “EVENT OF DEFAULT”):


 


(i)                                     By either PARTY, if the other PARTY hereto shall be in
material breach of any covenant or agreement hereunder or in the event of an
inaccuracy in any representation or warranty hereunder, provided that such
breach or inaccuracy has not been cured within 10 days following written notice
of such breach to the PARTY committing such breach; or


 


(ii)                                  by COMPANY, if BANK shall file for protection under
any state or federal liquidation provision, or if either PARTY is placed into
conservatorship or receivership with the FEDERAL DEPOSIT INSURANCE CORPORATION
or any regulatory body having jurisdiction over said PARTY or any other duly
appointed person or entity; or


 


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


 


(c)                                  Provided that COMPANY is not in material breach of
this AGREEMENT, COMPANY may terminate this AGREEMENT by giving written notice
at least ten (10) business days in advance of termination if: (i) BANK ceases
generally to fund TRANSACTIONS marketed by COMPANY; or (ii) any amendment to or
change in the terms of Kentucky Revised Statute Chapter 368, or other
applicable law, has an adverse effect upon COMPANY or may reasonably be
expected to have an adverse effect upon COMPANY, including placing COMPANY at a
competitive disadvantage with respect to other persons or entities engaged in
deferred deposit transactions or any product that is the same as or
substantially similar to the TRANSACTIONS.


 


(d)                                 Provided that COMPANY is not in material breach of
this AGREEMENT, COMPANY may, in addition to all other available remedies,
terminate this AGREEMENT immediately if BANK breaches its obligation under
paragraph 4(c)(ii) of this AGREEMENT to honor and pay any check or other
negotiable instrument drawn on any of BANK’S depository accounts validly
issued in connection with TRANSACTIONS approved by the BANK.


 


(e)                                  BANK may terminate this Agreement prior to November
30, 2002, if BANK is not reasonably satisfied with the results of BANK’S due
diligence review of the documents and other materials provided to BANK by
COMPANY and set forth on Exhibit G hereto.


 


12





















 


(f)                                    BANK may terminate this Agreement on ten (10) business
days’ written notice to COMPANY if by March 31, 2003, COMPANY has not
terminated COMPANY’S arrangements with parties other than BANK to offer and
provide TRANSACTIONS or any product that is the same as or substantially
similar to the TRANSACTIONS within the MARKET.


 


(g)                                 Either PARTY may terminate this AGREEMENT on ten (10)
business days’ written notice to the other PARTY if the aggregate NET CHARGE
OFFS [***] of the aggregate amount of
FEES originated through COMPANY in such quarter; provided
such notice is given not later than thirty (30) days following the end of such
calendar quarter.


 


(h)                                 If a PARTY’S performance hereunder is rendered illegal
or materially adversely affected by reason of changes in law or regulations
(either federal or state) applicable to the TRANSACTIONS or to either PARTY
hereto, then either PARTY may terminate this AGREEMENT.


 


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


 


(j)                                     Except
as may be prohibited by federal, state or local law, statutes, or regulations
or regulatory authorities, upon the expiration or termination of this
AGREEMENT, each PARTY will remit to the other PARTY all amounts owing to such
other party for transactions commencing on or before the expiration or
termination date, and each PARTY shall fulfill all of its obligations under
this AGREEMENT that arose or accrued before the expiration or termination date.
In order to preserve the goodwill of each PARTY
with its CUSTOMERS, both PARTIES shall act in good faith cooperation in order
to ensure a smooth and orderly termination of their relationship and the
termination of the TRANSACTION origination and marketing program contemplated
hereunder.   Upon the termination or
expiration of this AGREEMENT, all rights herein granted to COMPANY (except
those set forth in Section 9(a)) shall revert to BANK, and COMPANY shall
immediately cease using the BANK property.


 


(k)                                  Either party shall be entitled to pursue, either
before or after termination, such rights and remedies as may be available at
law and in equity, in addition to those rights and remedies specifically
provided for under the terms of this AGREEMENT.


 


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


 


	
   

  	
  If to COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Michael J. Briskey

  
	
   

  	
   

  	
  ACE Cash Express, Inc.

  
	
   

  	
   

  	
  1231 Greenway Drive, Suite 600

  



 


13





















 


	
   

  	
   

  	
  Irving, Texas 75038-9904

  
	
   

  	
   

  	
  Telephone:

  	
  972-753-2342

  
	
   

  	
   

  	
  Facsimile:

  	
  972-582-1447

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  R. James Straus

  
	
   

  	
   

  	
  Frost Brown Todd LLC

  
	
   

  	
   

  	
  400 W. Market Street

  
	
   

  	
   

  	
  32nd Floor

  
	
   

  	
   

  	
  Louisville, Kentucky 40202

  
	
   

  	
   

  	
  Telephone:

  	
  502-568-0221

  
	
   

  	
   

  	
  Facsimile:

  	
  502-581-1087

  
	
   

  	
   

  	
   

  
	
   

  	
  If to BANK:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Michael A. Ringswald

  
	
   

  	
   

  	
  Republic Bank & Trust Company

  
	
   

  	
   

  	
  One Republic Corporate Center

  
	
   

  	
   

  	
  Louisville, Kentucky 40202

  
	
   

  	
   

  	
  Telephone: 502-561-7112

  
	
   

  	
   

  	
  Facsimile: 502-561-7188

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Donald L. Cox

  
	
   

  	
   

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

  
	
   

  	
   

  	
  400 West Market Street, Suite 2200

  
	
   

  	
   

  	
  Louisville, Kentucky 40202

  
	
   

  	
   

  	
  Telephone: 

  	
  502-589-4215

  
	
   

  	
   

  	
  Facsimile:

  	
  502-589-4994

  
							



 


9.                                       Confidentiality and Use of CUSTOMER Information.


 


(a)                                  All CUSTOMER INFORMATION shall be the sole property of
BANK.  Subject to the Gramm-Leach-Bliley
Act of 1999 and any rules or regulations promulgated thereunder, BANK hereby
grants to COMPANY a worldwide, exclusive license in perpetuity (and
specifically surviving any termination of this AGREEMENT) to use the CUSTOMER
INFORMATION for advertising and solicitations for any deferred deposit product;
provided that COMPANY shall not use the
CUSTOMER INFORMATION (i) if the CUSTOMER at issue advises BANK or COMPANY
that it does not wish such information to be so used, or (ii) if its use
would violate any federal or state statutes, laws and/or regulations. COMPANY
may use its computer system to capture, maintain and process CUSTOMER
INFORMATION for the purposes allowed in this AGREEMENT.


 


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


 


(c)                                  BANK and COMPANY agree to treat in confidence the
provisions of this AGREEMENT and the CONFIDENTIAL INFORMATION, including
without limitation the reports referenced in Section 4(e), and not
to make use of or communicate CONFIDENTIAL INFORMATION to any third parties
except as required by this AGREEMENT and except that CONFIDENTIAL INFORMATION
may be provided to a regulatory agency 


 


14





















 


having or asserting jurisdiction over a PARTY
or the TRANSACTIONS, a PARTY’s affiliates, as such term is defined in the
Securities Exchange Act of 1934, to counsel, accountants, financial or tax
advisors or persons conducting due diligence reviews for third party without
the consent of the other PARTY; provided that
such PARTIES agree to hold such CONFIDENTIAL INFORMATION in confidence.  As used herein, the term “CONFIDENTIAL
INFORMATION” does not include information which (i) becomes generally available
to the public other than as a result of a disclosure by a RESTRICTED PARTY,
(ii) is independently developed by a RESTRICTED PARTY without violating this
AGREEMENT, (iii) was available to the RESTRICTED PARTY on a non-confidential
basis prior to its disclosure to the RESTRICTED PARTY or (iv) becomes available
to the RESTRICTED PARTY on a non-confidential basis from a source other than
the other PARTY; provided that such source is not bound by a confidentiality
agreement with the other PARTY or otherwise prohibited from transmitting the
information to the RESTRICTED PARTY by a contractual, legal or fiduciary obligation.


 


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


 


10.                                 Specific Performance in the Event of Breach.   The PARTIES agree that monetary damages
would not be adequate compensation in the event of a breach under Section 9 by
a RESTRICTED PARTY of its obligations under Section 9 of this
AGREEMENT and, therefore, the PARTIES agree that in the event of any such
breach the RESTRICTED PARTY, in addition to its other remedies at law or in equity,
shall be entitled to an order requiring the RESTRICTED PARTY to specifically
perform its obligations under Section 9 of this AGREEMENT or enjoining the
RESTRICTED PARTY from breaching Section 9 of this AGREEMENT, and the RESTRICTED
PARTY shall not plead in defense thereto that there would be an adequate remedy
at law.


 


11.                                 Miscellaneous.


 


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


 


(b)                                 This AGREEMENT and the Exhibits attached hereto
supersede any negotiations, discussions or communications between BANK and
COMPANY and constitute the entire agreement of BANK and COMPANY with respect to
the subject matter hereof.


 


(c)                                  Failure of any PARTY to insist, in one or more
instances, on performance by any other PARTY in accordance with the terms and
conditions of this AGREEMENT shall not be deemed a waiver or relinquishment of
any right granted hereunder or of the future performance of any such term or
condition or of any other term or condition of this AGREEMENT unless and to the
extent that such waiver is in a writing signed by or on behalf of the PARTY
alleged to have granted such waiver.


 


(d)                                 This AGREEMENT and the rights and duties described
herein shall be governed by, and interpreted in accordance with, the laws of
the United States and the Commonwealth of Kentucky, without reference to
Kentucky choice of law rules. An
action for breach of or to enforce this Agreement shall be brought in the
Jefferson County Circuit Court in Louisville, Kentucky.


 


15





















 


(e)                                  Neither PARTY shall assign any of its rights or
delegate any of its obligations hereunder without the other PARTY’s prior
written consent, which shall not be unreasonably withheld or delayed, except
that either PARTY may assign all or any part of its rights hereunder to any
affiliate of that PARTY without the other PARTY’s consent, provided further,
however, that any such assignment shall not relieve the assignor of any
liability or obligation for TRANSACTIONS entered into prior to the date of such
assignment.


 


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


 


(g)                               The headings of the several sections and subsections
of this AGREEMENT are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this AGREEMENT.


 


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


 


(i)                                     Neither
party shall be in breach or default of its obligations under this AGREEMENT to
the extent that delay or failure in its performance is caused by an act of God,
war, terrorism, fire, flood, severe weather conditions, utilities or
telecommunications failures, materials shortage, or unavailability of
transportation.


 


(j)                                     Except
as otherwise provided in this AGREEMENT, each party shall assume and pay its
own legal, accounting and other expenses incurred in connection with the transactions
contemplated by this AGREEMENT.


 


(k)                                  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS
AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


IN WITNESS WHEREOF, BANK and
COMPANY, intending to be legally bound hereby, have caused this AGREEMENT to be
executed by their duly authorized officers as of the day and year first set forth
above.


 


	
  ACE Cash Express, Inc.

  	
  Republic Bank & Trust Company (“COMPANY”)

  
	
  (“BANK”)

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael J. Brisky

  	
   

  	
  By:

  	
   

  	
  /s/ Bill Petter

  	
   

  
	
  Its:

  	
  VP Finance

  	
   

  	
   

  	
  Its:

  	
         EVP

  	
   

  
	
  Date: 

  	
  10/23/02

  	
   

  	
  Date:

  	
  10/23/02

  	
   

  
										



 


16





















 


EXHIBIT A


 


COMPUTATION OF SERVICING FEES


 


1.               This
is Exhibit A to that certain Marketing and Servicing AGREEMENT dated as of
October 21,  2002 (the
“AGREEMENT”) between REPUBLIC BANK & TRUST COMPANY (“BANK”), and ACE CASH
EXPRESS, INC. (“COMPANY”).  All
capitalized terms used herein and not otherwise defined are defined in the
AGREEMENT.


 


2.               As
COMPANY’s sole compensation under the AGREEMENT, BANK shall pay COMPANY the
marketing and servicing fees (“FEES”) set forth below.  BANK shall only be obligated to pay the FEES
on TRANSACTIONS, or portions thereof, originated during the period.


 


3.               The
marketing and servicing FEES owing to COMPANY and the fees owing to the BANK
under the AGREEMENT shall be calculated in accordance with the sample
calculation of transaction / fees attached as Exhibit A-1.


 


4.               Commencing
on the first business day following a TRANSACTION origination and continuing on
each business day thereafter, COMPANY shall deliver to BANK a daily report of
business outlining the total amount advanced to each customer, the fees
expected to be earned by Bank assuming repayment of the TRANSACTION, the FEES
earned by COMPANY, the total TRANSACTIONS held as receivable, and the total
charge offs for the TRANSACTIONS. 
Additionally, the report will detail the TRANSACTIONS collected from
each customer together with the applicable fees that pertain to BANK and
applicable FEES owed by BANK to COMPANY, as well as such other information as
is reasonably required by the BANK to manage the PROGRAM.


 


5.               Each
week, COMPANY shall deliver to BANK an invoice, detailing by the day, the total
TRANSACTIONS collected, the total fees earned by BANK and the total amount of
FEES due to COMPANY for the 7-day period included in such invoice (an
“INVOICE”).  Based on those INVOICES,
BANK will pay to COMPANY by Automated Clearing House (ACH) transfer (or by
other means agreeable to COMPANY and BANK) the fifth business day following the
delivery of each INVOICE, the FEES to be paid by BANK thereunder related to
COMPANY’s activities for the INVOICE period. Each INVOICE shall show (a) the
total of payments on TRANSACTIONS actually received by BANK during the INVOICE
period, and (b) the FEES owed by BANK to COMPANY. COMPANY and BANK agree that
the calculation of the FEES owed by BANK shall be submitted with each of the
foregoing INVOICES and performed strictly in accordance with the sample
calculation attached.  COMPANY and BANK
also agree that, for purposes of performing such calculation, the following
assumptions apply:


 


(a)                                  The
term “TRANSACTION LOSS RATE” shall mean the rate equal to [***].


 


(b)                                 In
connection with the TRANSACTIONS, BANK shall receive a fee from CUSTOMERS equal
to fifteen dollars ($15) per one hundred
dollars ($100) on the face amount of the deferred deposit check accepted by
BANK from the CUSTOMER in the TRANSACTION. For example, if a CUSTOMER
provides a deferred deposit check in the face amount of [***] then the CUSTOMER
will receive [***] and the fee will be [***]. The fee set forth in this paragraph may only be adjusted by the written
agreement of BANK and COMPANY.


 


(c)                                  For every [***] in fees collected from CUSTOMERS for the
TRANSACTIONS, (i) as consideration for the services rendered by COMPANY to BANK
under this AGREEMENT, BANK shall pay COMPANY FEES equal to [***], (ii) BANK
shall maintain reserves (the “RESERVES”) equal to [***] which shall be released
to make the adjustments set forth in paragraph 5(d) of this Exhibit A, and
(iii) BANK shall retain [***].


 


(d)                                 In each calendar quarter, the PARTIES shall make the
following adjustments based upon the TRANSACTION LOSS RATE:


 


17





















 


(i)                                     [***]


(ii)                                  [***]


 


(e)                                  The amounts due hereunder, if any, shall be paid within 10
days of the end of each calendar quarter.


 


(f)                                    BANK
and COMPANY shall perform an annual review of, and may make mutually agreed
upon amendments to, the RESERVES and the adjustments to the FEES set forth
herein to reflect a change in said RESERVES if the TRANSACTION LOSS RATE is
substantially different from [***].


 


EXHIBIT B


 


PROCEDURES AND PROTOCOLS


 


(1)                                  Each
of BANK and COMPANY shall each keep and use in its business any books,
accounts, and records the Kentucky Department of Financial Institutions (the
“DEPARTMENT”) may require to carry into effect the provisions of KRS 368.010 to
368.120 and the administrative regulations issued under those sections. BANK
and COMPANY shall preserve the books, accounts, and records for at least two
(2) years.


 


(2)                                  Any fee charged by BANK in connection with the
TRANSACTIONS shall be disclosed in writing to the bearer of the check prior to
cashing the check, and the fee shall be deemed a service fee and not interest.
BANK shall not charge a service fee in excess of fifteen dollars ($15) per one
hundred dollars ($100) on the face amount of the deferred deposit check. BANK
shall prorate any fee, based upon the maximum fee of fifteen dollars ($15).
This service fee shall be for a period of fourteen (14) days.


 


(3)                                  Before BANK shall deposit with any bank or other
depository institution a check cashed by BANK, the check shall be endorsed with
the actual name under which BANK is doing business and shall be dated the date
of the TRANSACTION.


 


(4)                                  Any personal check accepted from a CUSTOMER must
be payable to BANK. BANK shall not cash a check payable to a payee other than a
natural person unless BANK has previously obtained appropriate documentation
from the board of directors or similar governing body of the payee clearly
indicating the authority of the natural person or persons cashing the check,
draft, or money order on behalf of the payee.


 


(5)                                  Neither BANK nor COMPANY shall indicate through
advertising, signs, billhead, or otherwise that checks may be cashed without
identification of the bearer of the check; and any person seeking to cash a
check shall be required to submit reasonable identification as prescribed by
the DEPARTMENT.


 


(6)                                  Within five (5) business days after being advised
by the payor financial institution that a check, draft, or money order has been
altered, forged, stolen, obtained through fraudulent or illegal means,
negotiated without proper legal authority, or represents the proceeds of
illegal activity, BANK shall notify the DEPARTMENT and other proper
authorities. If a check, draft, or money order is returned to BANK by the payor
financial institution for any of these reasons, BANK shall not release the
check, draft, or money order without the consent of the investigating or other
proper law enforcement authority.


 


(7)                                  Neither BANK nor COMPANY shall alter or delete
the date on any check received from a CUSTOMER in a TRANSACTION.


 


(8)                                  Neither BANK nor COMPANY shall engage in unfair
or deceptive acts, practices, or advertising in the conduct of its business.
BANK must make a good faith effort to assess the CUSTOMER’s ability to repay
the TRANSACTION.


 


18





















 


(9)                                  BANK shall not require a CUSTOMER to provide
security for a TRANSACTION or require the CUSTOMER to provide a guaranty from
another person.


 


(10)                            BANK
shall not have more than one TRANSACTION from any one CUSTOMER at any one time,
with a face value greater than five hundred dollars ($500).


 


(11)                            BANK (through COMPANY) shall inquire of any
person seeking to engage in a TRANSACTION, whether the person has any
outstanding deferred deposit transaction with any person. If the CUSTOMER
represents in writing that the CUSTOMER has no more than one deferred deposit
transaction outstanding and that the face value of the outstanding deferred
deposit transaction issued by the CUSTOMER does not equal or exceed five
hundred dollars ($500), BANK may accept a deferred deposit transaction in an
amount that, when combined with the CUSTOMER’s other outstanding deferred
deposit transaction, does not exceed five hundred dollars ($500). If the
CUSTOMER represents in writing that the CUSTOMER has more than one deferred
deposit transaction outstanding or if the face value of the deferred deposit
transaction issued by the CUSTOMER equals or exceeds five hundred dollars
($500), BANK shall not accept another deferred deposit transaction from that
CUSTOMER until the CUSTOMER represents to BANK in writing that the CUSTOMER
qualifies to issue a new deferred deposit transaction under the requirements
set forth in this paragraph.


 


(12)                            Neither BANK nor COMPANY shall use any device or
agreement, including agreements with affiliated parties, with the intent to
obtain greater charges than are authorized in Chapter 368 of the Kentucky
Revised Statutes.


 


(13)                            BANK shall not agree to hold a TRANSACTION for
less than fourteen (14) days or more than thirty one (31) days.


 


(14)                            Each TRANSACTION shall be made according to a
written agreement that shall be dated and signed by the CUSTOMER and BANK or an
authorized agent of BANK, and made available to the DEPARTMENT upon request.
The CUSTOMER shall receive a copy of this agreement.  The agreement must contain BANK’s name, the
date of the TRANSACTION, the amount of the deferred deposit check, a statement
of the total amount of fees charged, expressed both as a dollar amount and as
an annual percentage rate (APR), and the earliest date on which the deferred
deposit check may be deposited. The agreement must also contain a notice of the
name and address of the Office of Consumer Credit Commissioner and the
telephone number of the CUSTOMER helpline. Additionally, BANK shall provide a
notice to the CUSTOMER that reads as follows: “This cash advance is not
intended to meet long-term financial needs. This loan should only be used to
meet immediate short-term cash needs.”


 


(15)                            BANK shall not for a fee renew, roll over, or
otherwise consolidate a TRANSACTION for a CUSTOMER. Each CUSTOMER shall have
the right to prepay the TRANSACTION and redeem the deferred deposit check at
any time prior to the due date.


 


(16)                            No
individual who enters into a TRANSACTION with BANK shall be convicted under the
provisions of KRS 514.040 regarding theft by deception.


 


(17)                            Neither BANK nor COMPANY shall prosecute or
threaten to prosecute an individual under the provisions of KRS 514.040 in
connection with a TRANSACTION.


 


(18)                            BANK and COMPANY shall conspicuously display in
every COMPANY retail location in the MARKET a sign that gives the following
notice: “No person who enters into a post-dated check or deferred deposit check
transaction with this business establishment will be prosecuted or convicted of
writing cold checks or of theft by deception under the provisions of KRS
514.040.”


 


(19)                            BANK shall give the CUSTOMER the disclosures
required by the Consumer Credit Protection Act (15 U.S.C. sec. 1601). Proof of
this disclosure shall be made available to the DEPARTMENT upon request.


 


(20)                            BANK and COMPANY shall conspicuously display a
schedule of all fees, and charges for all services provided by BANK that are
authorized by KRS 368.010 to 368.120. The notice shall be posted at every
COMPANY retail location in the MARKET.


 


19





















 


(21)                            BANK may charge, collect, and receive check
collection charges made by a financial institution for each check returned or
dishonored for any reason, provided that the terms and conditions upon which
check collection charges will be charged to the CUSTOMER are set forth in the
written disclosure. Collection practices must be in accordance with 7 T.A.C.
Section 1.605 and with the Texas Debt Collection Practices Act, Texas Finance
Code, Section 392.001 et seq.


 


(22)                            BANK shall provide customer service for
CUSTOMERS who have questions about their TRANSACTION, APPLICATION, or
APPLICATION denials.


 


(23)                            BANK will address the safety and soundness,
compliance, consumer protection, and other risks including credit, transaction,
and reputation risks discussed in agency guidelines and advisory materials
issued from time to time by the Federal Deposit Insurance Corporation and any
other applicable regulatory agencies. BANK will comply with all applicable
federal, state and local laws, statutes and regulations including, without
limitation, the Equal Credit Opportunity Act, the Truth In Lending Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and all
other applicable consumer protection and lending laws.


 


(24)                            BANK
shall maintain a safety and soundness CAMEL rating of [***] on examinations
conducted by each of the Federal Deposit Insurance Corporation and the
DEPARTMENT.  BANK shall advise COMPANY
immediately upon (i) BANK’S receipt of information that the CAMEL rating has
been or may be downgraded or (ii) commencement of proceedings, examinations, or
other investigations by a regulatory agency or other governmental body that may
materially affect the obligations of either BANK or COMPANY under this
AGREEMENT.


 


EXHIBIT C


 


MARKET


 


[***]


 


EXHIBIT D


 


BANK POLICIES


 


[***]


EXHIBIT E


 


PROGRAM CRITERIA


 


[***]


EXHIBIT F


 


COMPANY FRANCHISEES


 


[***]


EXHIBIT G


 


DUE DILIGENCE


 


[***]


 


FIRST
AMENDMENT TO


MARKETING AND SERVICING AGREEMENT


 


This First Amendment to Marketing and Servicing
Agreement dated as of January      , 2003 (this
“Amendment”), is by and between Republic Bank & Trust Company, a Kentucky
state-chartered bank (“Bank”), and ACE Cash Express, Inc., a Texas corporation
(“Company”). 


 


WHEREAS, Bank and Company have previously entered into
that certain Marketing and Servicing Agreement dated as of October 21, 2002
(the “Marketing Agreement”); and


 


20





















 


WHEREAS, Bank and Company desire to amend the
Marketing Agreement to (i) adjust the amount of customer fees charged, (ii)
revise the market area serviced by Company to delete North Carolina and add
Arkansas, and (iii) revise Company disclosure and reporting requirements.


 


NOW, THEREFORE, the parties hereby agree as follows:


 


1.                                       Fees.
Exhibit A to the Marketing Agreement is hereby amended to read in its entirety
as attached hereto.


 


2.                                       Market
Area. Exhibit C to the Marketing Agreement is hereby amended to read in its
entirety as follows:


 


“Market: Texas,
Arkansas, Pennsylvania”


 


3.                                       Disclosure.
Section 4(e)(ii) of the Marketing Agreement is hereby amended to read in its
entirety as follows:


 


“COMPANY shall, as
reasonably required by BANK, but no more often than quarterly, provide BANK
with (a) its most recent unaudited financial statements, (b) its annual audited
financial statements, (c) copies of all periodic reports and current reports
filed with the Securities and Exchange Commission (the “COMMISSION”) on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by the
COMMISSION, and such other periodic reports, documents and information that
COMPANY furnishes to the COMMISSION or to its stockholders or other security
holders generally, and (d) COMPANY’s disaster contingency/recovery plan, if
any. COMPANY shall, as reasonably required by BANK, but no more often than
annually, undergo a SAS 70 examination and provide a copy of the SAS 70 report
to BANK.”


 


4.                                       Effect
of Amendment.  Except as expressly
modified by this Amendment, the terms and provisions of the Marketing Agreement
are ratified and confirmed and shall continue in full force and effect.  Bank and Company hereby confirm that the
Marketing Agreement, as amended hereby, is a legally binding contract which
governs the relationship of the Bank and Company.


 


IN WITNESS WHEREOF, BANK and COMPANY, intending to be
legally bound hereby, have caused this Amendment to be executed by their duly
authorized officers as of the day and year first set forth above.


 


 


	
   

  	
  ACE Cash Express, Inc.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Michael J. Brisky

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  VP
  Finance

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  1/28/03

  	
   

  
	
   

  	
   

  
	
   

  	
  Republic Bank & Trust Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Bill Petter

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  EVP

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  2/3/03

  	
   

  
								



 


21





















 


EXHIBIT A


COMPUTATION OF SERVICING FEES


 


1.               This
is Exhibit A to that certain Marketing and Servicing AGREEMENT dated as of
October 21, 2002, as amended, (the “AGREEMENT”) between REPUBLIC BANK &
TRUST COMPANY (“BANK”), and ACE CASH EXPRESS, INC. (“COMPANY”).  All capitalized terms used herein and not
otherwise defined are defined in the AGREEMENT.


 


2.               As
COMPANY’s sole compensation under the AGREEMENT, BANK shall pay COMPANY the
marketing and servicing fees (“FEES”) set forth below.  BANK shall only be obligated to pay the FEES
on TRANSACTIONS, or portions thereof, originated during the period.


 


3.               The
marketing and servicing FEES owing to COMPANY and the fees owing to the BANK
under the AGREEMENT shall be calculated in accordance with the sample
calculation of transaction / fees attached as Exhibit A-1.


 


4.               Commencing
on the first business day following a TRANSACTION origination and continuing on
each business day thereafter, COMPANY shall deliver to BANK a daily report of
business outlining the total amount advanced to each customer, the fees
expected to be earned by Bank assuming repayment of the TRANSACTION, the FEES
earned by COMPANY, the total TRANSACTIONS held as receivable, and the total
charge offs for the TRANSACTIONS. 
Additionally, the report will detail the TRANSACTIONS collected from
each customer together with the applicable fees that pertain to BANK and
applicable FEES owed by BANK to COMPANY, as well as such other information as
is reasonably required by the BANK to manage the PROGRAM.


 


5.               Each
week, COMPANY shall deliver to BANK an invoice, detailing by the day, the total
TRANSACTIONS collected, the total fees earned by BANK and the total amount of
FEES due to COMPANY for the 7-day period included in such invoice (an
“INVOICE”).  Based on those INVOICES,
BANK will pay to COMPANY by Automated Clearing House (ACH) transfer (or by
other means agreeable to COMPANY and BANK) the fifth business day following the
delivery of each INVOICE, the FEES to be paid by BANK thereunder related to
COMPANY’s activities for the INVOICE period. Each INVOICE shall show (a) the
total of payments on TRANSACTIONS actually received by BANK during the INVOICE
period, and (b) the FEES owed by BANK to COMPANY. COMPANY and BANK agree that
the calculation of the FEES owed by BANK shall be submitted with each of the
foregoing INVOICES and performed strictly in accordance with the sample
calculation attached.  COMPANY and BANK
also agree that, for purposes of performing such calculation, the following
assumptions apply:


 


(a)                                  The
term “TRANSACTION LOSS RATE” shall mean the rate equal to [***].


 


(b)                                 In
connection with the TRANSACTIONS, BANK shall receive a fee from CUSTOMERS equal
to fifteen dollars ($15) per one hundred
dollars ($100) on the face amount of the deferred deposit check accepted by
BANK from the CUSTOMER in the TRANSACTION. For example, if a CUSTOMER
provides a deferred deposit check in the face amount of [***] then the CUSTOMER
will receive [***] and the fee will be [***]. The fee set forth in this paragraph may only be adjusted by the written
agreement of BANK and COMPANY.


 


(c)                                  For every [***] in fees collected from CUSTOMERS for the
TRANSACTIONS, (i) as consideration for the services rendered by COMPANY to BANK
under this AGREEMENT, BANK shall pay COMPANY FEES equal to [***], (ii) BANK
shall maintain reserves (the “RESERVES”) equal to [***] which shall be released
to make the adjustments set forth in paragraph 5(d) of this Exhibit A, and
(iii) BANK shall retain [***].


 


(d)                                 In each calendar quarter, the PARTIES shall make the
following adjustments based upon the TRANSACTION LOSS RATE:


 


(i)                                     [***]


 


(ii)                                  [***]


 


22





















 


(e)                                  The amounts due hereunder, if any, shall be paid within 10
days of the end of each calendar quarter.


 


(f)                                    BANK
and COMPANY shall perform an annual review of, and may make mutually agreed
upon amendments to, the RESERVES and the adjustments to the FEES set forth
herein to reflect a change in said RESERVES if the TRANSACTION LOSS RATE is
substantially different from [***].


 


SECOND AMENDMENT TO THE


MARKETING AND SERVICING AGREEMENT


 


THIS SECOND AMENDMENT TO THE MARKETING AND SERVICING AGREEMENT dated as
of September     , 2003 (this “Amendment”) is an Amendment
to the MARKETING AND SERVICING AGREEMENT effectively dated October 21, 2003, as
amended, by and between Republic Bank & Trust Company, a bank organized
under the laws of the state of Kentucky (the “BANK”), and ACE Cash Express,
Inc., a Texas corporation (“COMPANY”).


 


WHEREAS, BANK and COMPANY have previously entered into that certain
MARKETING AND SERVICING AGREEMENT dated as of October 21, 2002, as amended,
(the “Marketing Agreement”); and


 


WHEREAS, BANK and COMPANY desire to amend the Marketing Agreement in
order to more fully comply with the FDIC Guidelines for Payday Lending,


 


NOW, THEREFORE, the parties hereby agree as follows:


 


Section 4, Company’s Services, (c), (iv) shall be amended to read in
its entirety as follows:


 


(iv) COMPANY shall (A) deliver a copy of the NOTE to the CUSTOMER; (B)
obtain from the CUSTOMER the executed NOTE; (C) obtain from CUSTOMER his or her
REPAYMENT CHECK dated the date of the TRANSACTION and made payable to BANK; and
(D) maintain of behalf of BANK, separate and apart from COMPANY’S own assets
and records, the REPAYMENT CHECK AND NOTE. Additionally, on BANK’s behalf,
COMPANY shall provide each APPLICANT with a copy of BANK’s Privacy Notice in
the form provided to COMPANY by BANK which shall comply with all applicable law
and regulation.


 


Section 4, Company’s Services, (e), (iv) shall be amended to read in
its entirety as follows:


 


(iv) The TRANSACTION DOCUMENTS shall be held by COMPANY on behalf of
BANK, pursuant to BANK’s record retention requirements, as more particularly
set forth in the BANK’s POLICIES attached hereto as EXHIBIT D and
incorporated herein by reference, and BANK has and shall continue to have
constructive possession and legal title to such documents, files and records.
At such time or times as BANK 

may reasonably request, and at BANK’s cost, COMPANY shall promptly deliver all
copies of TRANSACTION DOCUMENTS to BANK at its headquarters or such other
location or locations as BANK shall direct. All such documents shall be
maintained segregated from other books and records of COMPANY and otherwise in
such a manner as to facilitate their inspection by and delivery to BANK, if so
requested. In the event that the COMPANY becomes aware that the security of the
TRANSACTION DOCUMENTS is breached or COMPANY learns of the unauthorized use of
information contained in the TRANSACTION DOCUMENTS, then COMPANY shall promptly
notify BANK of such breach or unauthorized use so that BANK shall be able to
take any and all appropriate and necessary action.


 


Section 4, Company’s Services, (e), (v) shall be amended to read in its
entirety as follows:


 


(v) During the term of this Agreement and at all times thereafter, BANK
and banking agencies with regulatory authority over BANK including, but not
limited to the FDIC and the Kentucky Department of Financial Institutions shall
have reasonable access to 


 


23





















 


COMPANY stores, to the books and records of COMPANY (to the extent that
such books and records pertain to the TRANSACTIONS), to the officers, employees
and accountants of COMPANY, and to copies of TRANSACTION DOCUMENTS, all for the
purpose of ensuring that COMPANY is carrying out BANK POLICIES and is otherwise
complying fully with its obligations under this Agreement as well as all
applicable laws and regulations. Such access shall include permission to
maintain employees on the premises of COMPANY or offices of COMPANY where any
information requested may be located during regular business hours in order to
audit COMPANY’s services contemplated by this Agreement and to conduct
reasonable on-site transaction testing and other reasonable operational
reviews. BANK agrees to provide COMPANY with reasonable advance notice of the
audit of any COMPANY store.


 


Section 4, Company’s Services, (e), (vii) shall be added to the
Marketing Agreement and shall read as follows:


 


(vii) COMPANY will notify BANK of any and all customer complaints
regarding the TRANSACTIONS, including complaints regarding collection
activities of COMPANY on behalf of the BANK, as well as how it recommends
handling and/or responding thereto; provided, however, that COMPANY shall not
be required to notify BANK of any customer complaint regarding service or
personnel issues pertaining to any COMPANY store. BANK will make qualified
personnel available to receive and respond to COMPANY’s notifications to BANK
during COMPANY’s normal business hours. BANK shall approve, and advise COMPANY
of, a course of action to handle each customer complaint. COMPANY will handle
each customer complaint in accordance with BANK’s reasonable direction and
advise BANK of all outcomes.


 


Section 4, Company’s Services, (e), (viii) shall be added to the
Marketing Agreement and shall read as follows:


 


COMPANY will collect the customer identification (“CIP”) information
that BANK notifies COMPANY is required by the USA Patriot Act Section 326 and,
to the extent and in the manner o instructed by BANK, provide customers with
adequate notice of the CIP requirements prior to opening an account. CIP
information includes name, physical address, date of birth, and taxpayer
identification number or other un-expired government-issued photo
identification number that allows COMPANY to form a reasonable belief of (i.e.,
verify) the CUSTOMER’S true identity. Verification constitutes a logical comparison
of the photo ID’s location of issuance, date of issuance, expiration date and
reference number format to the CUSTOMER’S characteristics (e.g. age, photo
match, discrepancies in address, etc.), as well as the standard format for the
locale and/or state where the transaction is taking place. COMPANY will
maintain all records containing the required CIP information along with
specific reference to the type of unexpired government-issued photo
identification that the customer presents, including the location of issuance,
date of issuance, expiration date and reference number. The records must be
maintained for a period of 5 years from the date the CUSTOMER’S account being
closed, and be retrievable within 72 hours upon federal law enforcement agency
request. COMPANY will submit CUSTOMER information to BANK to allow BANK to
compare to any applicable list(s) provided by the federal government under
authority of the USA Patriot Act in accordance with BANK procedures.


 


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


 


IN WITNESS WHEREOF, COMPANY and BANK, each intending to be legally
bound hereby, have caused this Amendment to be executed by its duly authorized
officer as of the 30th of September, 2003.


 


	
  REPUBLIC BANK & TRUST COMPANY

  	
  ACE CASH EXPRESS, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Bill Petter

  	
   

  	
  By:

  	
  /s/ Michael J. Briskey

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
  EVP

  	
   

  	
  Its:

  	
  VP Finance

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  9/30/03

  	
   

  	
  Date:

  	
  9/30/03

  	
   

  
											



 


24