Refund Anticipation Loan Operations Agreement - H & R Block Services Inc., H & R Block Tax Services Inc., HRB Royalty Inc., Household Tax Masters Inc., Beneficial Franchise Co. Inc. and Household Bank fsb
AMENDED AND RESTATED
REFUND ANTICIPATION LOAN
OPERATIONS AGREEMENT
THIS AMENDED AND RESTATED REFUND ANTICIPATION LOAN OPERATIONS AGREEMENT
dated as of January 6, 2003 (this "Agreement"), is made by and among H & R Block
Services, Inc., a Missouri corporation ("Block Services"), on behalf of itself
and in regard to its subsidiaries, H & R Block Tax Services, Inc., a Missouri
corporation ("Block Tax Services"), HRB Royalty, Inc., a Delaware corporation
("Royalty," and together with Block Services and Block Tax Services, the "Block
Companies"), Household Tax Masters Inc., a Delaware corporation ("Tax Masters"),
for itself or in its capacity as servicer for the RAL Originator (as such term
is defined herein) where appropriate under the circumstances, and Beneficial
Franchise Company Inc., a Delaware corporation ("Beneficial Franchise," and
together with Tax Masters, the "Household Companies"), and solely for purposes
of Sections 8.5 and 8.20 herein, Household Bank, f.s.b. ("HB").
RECITALS
A. Block Services is in the income tax preparation business through
various offices owned by Block Services or its Affiliates and participating
franchisees throughout the United States.
B. Royalty is the owner of certain service marks and trademarks involving
Block Companies.
C. In connection with the electronic processing of tax returns, Tax
Masters facilitates Refund Anticipation Loans ("RALs") that to date have been
made by HB or its predecessor and Refund Anticipation Checks ("RACs") that to
date have been issued by HB or its predecessor.
D. Beneficial Franchise is the owner of the entire right, title and
interest in and to United States Letters Patent No. 4,890,228 issued on December
26, 1989 and entitled: ELECTRONIC INCOME TAX REFUND EARLY PAYMENT SYSTEM,
together with all claims for damage by reason of past infringement by anyone of
said Letters Patent, by virtue of an assignment recorded in the U.S. Patent and
Trademark office on April 3, 1991 on Reel 5630, Frame 34.
E. Beneficial Franchise is the owner of the entire right, title and
interest in and to United States Letters Patent No. 5,193,057 issued on March 9,
1993 and entitled: ELECTRONIC INCOME TAX REFUND EARLY PAYMENT SYSTEM, together
with all claims for damage by reason of past infringement by anyone of said
Letters Patent, by virtue of an assignment recorded in the U.S. Patent and
Trademark Office on April 3, 1991 on Reel 5630, Frame 34.
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F. Block Services, Royalty, HB, Tax Masters and Beneficial Franchise
entered into that certain Refund Anticipation Loan Operations Agreement,
effective July 19, 1996 (the "Original RAL Operations Agreement"), as amended by
the First Amendment to the Refund Anticipation Loan Operations Agreement, dated
as of January 1, 2000 (the "First Operations Amendment"), the Second Amendment
to the Refund Anticipation Loan Operations Agreement, dated as of January 1,
2001 (the "Second Operations Amendment"), and the Third Amendment to the Refund
Anticipation Loan Operations Agreement, effective as of November 1, 2001 (the
"Third Operations Amendment," and together with the Original RAL Operations
Agreement, the First Operations Amendment, and the Second Operations Amendment,
the "RAL Operations Agreement").
G. HB has ceased its operations, and in connection therewith, Tax Masters
has engaged Imperial Capital Bank ("ICB") to perform the origination function
for RALs and issuing function for RACs.
H. Tax Masters and ICB have entered into a Sale and Servicing Agreement
for RALs and RACs, dated as of October 30, 2002, by and between Tax Masters and
ICB, which agreement such parties have amended to reflect the terms set forth in
an Amended and Restated Sale and Servicing Agreement for RALs and RACs (as so
amended and restated, the "Sale and Servicing Agreement"), which Sale and
Servicing Agreement has been delivered to Block Services as representing the
basic agreement between Tax Masters and ICB regarding the RAL Program pursuant
to which Tax Masters will be servicing the loans originated by ICB under the RAL
Program.
I. Block Companies and Household Companies have entered into a letter
agreement, dated November 5, 2002 (the "Expense Reimbursement Letter"),
regarding reimbursement of Block Companies' expenses in connection with
Household Companies' replacement of the RAL Originator.
J. Block Companies and Household Companies have entered into a letter
agreement, dated November 11, 2002 (the "Letter Agreement"), pursuant to which
Block Companies have consented to the substitution ("Substitution") of ICB for
HB as the RAL Originator under the RAL Operations Agreement subject to certain
conditions, including the condition that Block Companies and Household Companies
use their best efforts to reach agreement no later than January 20, 2003 as to
those changes to the RAL Operations Agreement and related agreements required to
effectuate the Substitution and those changes to such agreements that are
directly related to, and reasonably required to fairly take account of, the
Substitution.
K. The parties desire to amend and restate the RAL Operations Agreement to
reflect the termination of HB as a party to this Agreement in connection with
the termination of HB as originator of RALs and issuer of RACs, to confirm the
designation of ICB as the RAL Originator and RAC issuer for 2003 and to
implement certain changes to the RAL Operations Agreement hereinafter set forth.
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AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and of the
agreements of the parties hereto and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, Block Companies,
Household Companies and, solely for purposes of Sections 8.5 and 8.20 herein, HB
hereby covenant and agree that the RAL Operations Agreement is hereby amended
and restated in its entirety with respect to RALs made and RACs issued and other
acts and events that occur from and after the effective date hereof by deleting
the provisions of Sections 1.1 through 7.20 as the same now appear and by
substituting therefor the following Sections 1.1 through 8.21:
1. RIGHTS, DUTIES AND OBLIGATIONS OF BLOCK SERVICES.
1.1 Preparation and Filing of Returns. Block Services shall prepare and
file Federal, state and local income tax returns (collectively, the "Returns")
for RAL Customers and shall be solely responsible for any liability to the
Taxpayer, the Internal Revenue Service ("IRS") and other taxing authorities
arising out of its preparation and filing of such Returns. For purposes of this
Agreement, in connection with any RACs based on income tax refunds from state
taxing authorities, Block Services shall complete any processing and necessary
forms to enable the Electronic Filing of such state Returns, where available.
1.2 Marketing of RALs and RACs. Block Services agrees in connection with
the operation of the RAL Program: (a) to market RALs and RACs to potential RAL
Customers, including conducting marketing research, coordinating its RAL and RAC
products with the needs of its customers and preparing and disseminating
marketing and promotional materials; (b) to conduct such advertising; (c) to
prepare such forms and other written materials; (d) to equip its company-owned
offices with such computer equipment; (e) to develop or acquire such software;
(f) to hire and train such personnel; and (g) to incur such expenses in
connection with such marketing efforts; in each case as reasonably necessary in
order to market, advertise and disseminate information with respect to the
making of RALs and issuance of RACs to RAL Customers.
1.3 RAL Customers. With respect to RAL Customers, Block Services shall
obtain certifications from each RAL Customer pursuant to Section 1.4 below. With
respect to RAL Customers, Block Services shall also follow all qualifying
procedures for RALs as set forth in Schedule 1.3 attached hereto ("Qualifying
Procedures") that are being delivered by Tax Masters to Block Services in Tax
Masters' capacity as servicer for the RAL Originator after consultation with the
RAL Originator. The Initial Credit Criteria and Final Credit Criteria for any
year during the term hereof will be delivered to Block Services by Tax Masters
in Tax Masters' capacity as servicer for the RAL Originator after consultation
with the RAL Originator pursuant to the procedures set forth in Section 6.2
below.
1.4 RAL and RAC Application and Certification Process. Block Services
shall obtain information from each Applicant to complete an application for a
RAL or an application for a RAC (each such application being hereinafter
referred to, interchangeably, as "RAL Application") in a form developed by the
RAL Originator and printed by Block Services, which RAL Application shall
request from the Applicant certain information specified by Tax Masters
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as servicer for the RAL Originator after consultation with the RAL Originator.
In addition, the RAL Application shall contain an authorization signed by the
Applicant to use the Applicant's Return information for the loan application
process in accordance with Section 301.7216-3(b) of the U.S. Treasury Department
Regulations and shall also include such additional lawful consents, if any, as
shall allow Tax Masters, or any Affiliate thereof, to make collections on any
delinquent RAL as servicer for the RAL Originator and for Tax Masters and its
Affiliates to solicit any RAL Customers for present and future loans and related
products including, without limitation, deposit, insurance and mortgage loan
products, subject to the limitations set forth in Section 7.2 herein. Consents
for, and materials used in, the solicitation activities described in the
immediately preceding sentence shall not mention the RAL Program, any names,
logotypes or marketing slogans related to the RAL Program or any names,
logotypes or marketing slogans of Block Services, its subsidiaries or affiliates
without the prior written consent of Block Services. If an Applicant is in the
military, a photo identification containing a service identification number may
also be supplied and shall satisfy all requirements for acceptable forms of
identification for such individual. The RAL Application shall also contain,
among other certifications as Tax Masters, as servicer for the RAL Originator
after consultation with the RAL Originator, shall reasonably require, a
certification signed by the Applicant that he or she: (a) has not previously
filed any Return for the applicable Tax Year, does not have any previous tax
liabilities, delinquent student loans, or any other delinquent federally
guaranteed or sponsored loans, or delinquent child support payments; (b) has not
filed a petition (whether voluntary or involuntary) under any federal or state
bankruptcy or insolvency laws; and (c) has not filed any power of attorney with
the IRS or any state taxing authority and has no power of attorney presently in
effect to direct any tax refund to any third party.
1.5 Completion of IRS Form No. 8453. Block Services shall be responsible
for the completion of IRS Form 8453, which shall indicate the applicable check
routing number designated by the RAL Originator and applicable RAL Originator's
client account number consisting of an eight digit prefix followed by the
primary social security number of the RAL Customer and the name of the RAL
Originator as the financial institution. This form shall be signed by Block
Services as Electronic Return Originator (as defined by the IRS) and by the RAL
Customer and shall indicate that the account is a "checking" account and that
the source is "other". Block Services shall cause the same aforesaid information
to be contained in the appropriate data fields as part of the electronically
filed Return.
1.6 Customer Copies. Block Services shall ensure that the RAL Customer
receives a copy of the signed RAL Application, IRS Form 8453, together with any
agreements and other disclosures or documents which Tax Masters as servicer for
the RAL Originator may reasonably require. If the IRS Form 8453 needs to be
revised, Block Services need not obtain another RAL Application from the
Applicant.
1.7 Handling Documents. A copy of the signed RAL Application, the loan
agreement completed by the RAL Customer and the loan disclosure statement
provided to the RAL Customer shall be stored in each Applicant's client file
maintained by Block Services. Further, Block Services shall retain the ability
to regenerate a copy of the document notifying an Applicant of the reason the
RAL Application was not approved, if applicable, containing also the specific
reason marked on the document. Upon Tax Masters' written request, Block Services
shall exercise its best efforts to forward such documents to Tax Masters. Those
documents shall
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be sent to Tax Masters in accordance with the notice provisions contained in
this Agreement unless Tax Masters notifies Block Services otherwise in writing.
Block Services may dispose of such documents following the expiration of
forty-eight (48) months after the preparation or receipt of same.
1.8 Completion of RAL and RAC Disbursement Checks. Block Services shall
have the care and custody of consecutively numbered RAL Originator disbursement
checks upon which Block Services, at the direction of Tax Masters as servicer
for the RAL Originator, may affix a RAL Originator facsimile signature by way of
an imprint of the authorized RAL Originator signatory and which Block Services
shall keep secure and safeguard from any loss or misuse. Block Services shall
deliver such checks to RAL Customers only in accordance with this Agreement.
Such RAL and RAC checks shall be payable only at the RAL Originator. Block
Services shall be responsible for loss, alteration or misuse of such checks to
the extent set forth in Section 1.12 below.
1.9 Additional Communication Equipment and Lines. An entity appointed by
Block Services shall order such communication lines between Columbus, Ohio (or
other applicable location), and the Chicago, Illinois metropolitan area, as are
determined by such entity to be necessary to support Block Services' projection
of its maximum daily RAL and RAC volume, as well as full RAL Application
follow-up information, within any one sixteen (16) hour day, using such protocol
and process as is mutually agreed upon by Tax Masters as servicer for the RAL
Originator and such entity. Such communication lines shall continue in place
until such time as the parties hereto shall mutually agree to discontinue the
same. If the parties mutually agree to discontinue the aforementioned
communication lines at the conclusion of any Tax Period, then the parties agree
for each subsequent Tax Period to order and install substantially similar
communication lines during the same time periods heretofore mentioned. The cost
of such communication lines shall not be borne by Block Services and Tax Masters
shall ensure such costs are paid by the appropriate party. Block Services shall
be responsible for, and shall bear the cost of, modems required for such
communication lines in Columbus, Ohio (or other applicable location). Tax
Masters shall be responsible for, and shall bear the cost of, modems required
for such communication lines in the Chicago, Illinois metropolitan area.
1.10 Processing RAL and RAC Requests. Block Services and Tax Masters shall
in good faith cooperate regarding the contents of Block Services' Electronic
Filing Software and Tax Masters' software in an effort to assure prompt and
efficient transmission of data between Block Services, Tax Masters and RAL
Originator. Block Services shall extract all RAL and RAC data from its IRS
transmission file each time a Return is sent to the IRS in accordance with the
Electronic Data Processing Guidelines established by the parties. The Electronic
Data Processing Guidelines may be revised upon mutual agreement of the parties
from time to time to accommodate any changes to Electronic Data Processing
Systems or software no later than July 15th of each year during the term of this
Agreement. With respect to a RAL Application which has been designated on behalf
of the RAL Originator by Tax Masters' software program as an Instant RAL
Application, Block Services shall first forward such RAL Application to Tax
Masters, after which Block Services shall electronically transmit the Return, or
cause it to be transmitted, to the IRS and then receive positive or negative
acknowledgment of the Return's acceptance from the IRS for Electronic Filing,
which acknowledgment shall also include, if available, the IRS explanation of
the reason the Return was rejected, as described in Chapter 3 of
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the IRS e-file Handbook for Authorized IRS e-file Providers of Individual Income
Tax Returns (Publication 1345, including Rev. Proc. 2000-31), as the same may be
amended from time to time ("Notification"). With respect to a RAL Application
which has not been designated on behalf of the RAL Originator by Tax Masters'
software program as an Instant RAL Application, Block Services shall not forward
such RAL Application to Tax Masters without having electronically transmitted
the Return, or causing it to be transmitted, to the IRS and without having
received positive acknowledgement of the Return's acceptance from the IRS for
Electronic Filing, which acknowledgment shall also include, if available to the
RAL Originator, the Notification. In the event it becomes infeasible to process
RAL Applications in the manner specified above in this Section 1.10 due to
circumstances or events beyond the control of the parties hereto, then the
parties shall endeavor in good faith to take all reasonable actions necessary to
promptly modify the RAL Program in a manner resolving the problems caused by
such unfeasibility to process RAL Applications. These modifications may include
without limitation, the Final RAL and RAC Fees, the Final Credit Criteria and a
reasonable fee to compensate Tax Masters as servicer for the RAL Originator for
any additional increase in the cost of funds resulting from a modification of
the aforesaid procedures; provided, however, that in all events the parties
shall retain their rights to terminate the Agreement in accordance with the
procedures hereinafter set forth. Block Services shall be responsible for
accurately transmitting to Tax Masters on behalf of Block Offices which use
Block Services to transmit such RAL Applications to Tax Masters as servicer for
the RAL Originator all material information contained in the RAL Application
including without limitation social security numbers ("Information"), as
received from the RAL Customer or the Corporate Franchise. Block Services shall
notify all Block Offices of the importance of accurate transmission of such
Information and shall consult with Tax Masters as servicer for the RAL
Originator to develop a system for eliminating, to the extent practicable,
errors in such transmission by such Block Offices. Tax Masters shall be
responsible for forwarding to the RAL Originator such Information received from
Block Services by Tax Masters pursuant to this Section 1.10 as requested by the
RAL Originator. Block Services shall pay Tax Masters as servicer for the RAL
Originator the amount of any RAL which is not collected by Tax Masters as
servicer for the RAL Originator to the extent, and only to the extent, that the
failure of Tax Masters as servicer for the RAL Originator to collect such RAL
(whether through Direct Deposit or collection from the RAL Customer) is the
result of the failure of Block Services to transmit accurately Information as
received from the RAL Customer or a Corporate Franchise; provided, however, that
Tax Masters as servicer for the RAL Originator must first show that diligent and
timely efforts were made to make such collections, such efforts to include an
initial contact with the RAL Customer within forty-five (45) days after the
clearance of the RAL check by RAL Originator. Such initial contact may consist
of the sending of a first collection notice to the RAL Customer and reasonable
efforts thereafter to effect collection. All amounts, if any, owed by Block
Services under this Section 1.10 shall be paid to Tax Masters as servicer for
the RAL Originator in one lump sum within sixty (60) days after Tax Masters
verifies that the failure of collection was caused by failure of Block Services
to transmit accurately the Information. Block Services shall have no obligation
to Tax Masters as servicer for the RAL Originator if the failure of collection
is due to either a RAL Customer or a Corporate Franchise giving Block Services
inaccurate Information.
1.11 Providing RAL Customer Returns. For collection purposes, Block
Services shall provide Tax Masters with a copy of each RAL Customer's
electronically filed Returns in the format prescribed by the IRS promptly after
the RAL Application is transmitted to Tax Masters,
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but in no event later than May 30th following such Tax Period. Should
interactive processing not be available, such transmission shall only be made
after interactive processing is available, or in one batch delivery or
transmission not later than May 30 following each Tax Period. In the event Tax
Masters needs any RAL Customer's Returns for collection purposes prior to May 30
following each year's Tax Period, then upon Tax Masters' request, and to the
extent practicable, Block Services shall promptly forward such RAL Customer's
Returns to Tax Masters.
1.12 Lost RAL or RAC Checks. If a RAL or RAC check disbursed by a Block
Office has become lost, or in the case where the RAL Customer has not received
the check within fourteen (14) days after such RAL Customer's check is mailed
when Tax Masters as servicer for the RAL Originator is mailing the check to a
RAL Customer in accordance with Section 8.8, Block Services shall notify Tax
Masters as servicer for the RAL Originator to stop payment upon notification
from the RAL Customer that the RAL Customer has lost or not received such Check.
In either case, Block Services shall directly contact Tax Masters as servicer
for the RAL Originator to have a new check issued and obtain from such RAL
Customer an indemnifying bond, in a form satisfactory to Tax Masters as servicer
for the RAL Originator, holding the RAL Originator free from all costs and
expenses or other losses in the event both checks are subsequently presented for
payment.
1.13 Compliance with Laws, Rules and Regulations. In connection with Block
Services' preparation of Returns, it shall comply with all applicable laws,
rules and regulations, and shall follow all instructions reasonably prescribed
by Tax Masters as servicer for the RAL Originator with respect to the
preparation and processing of RAL Applications.
1.14 Indemnification. Except as otherwise limited by this Agreement,
Royalty, Block Services and Block Tax Services (collectively, the "Block
Indemnifying Parties") shall indemnify, hold harmless and reimburse Beneficial
Franchise and/or Tax Masters and their respective Affiliates (whichever has
incurred the loss) (collectively the "Block Indemnified Parties"), its officers
and directors and employees, for all expenses and costs, including without
limitation, attorneys' fees, judgments, penalties, payments of other direct
expenses and payments in settlement or other disposition of, or in connection
with, any claims, disputes, controversies or litigation arising out of Block
Services' performance of its duties and responsibilities under this Agreement,
including without limitation, liability in connection with the loss, alteration
or misuse of disbursement checks or improper completion of disbursement checks,
regardless of by whom caused, after delivery of same to Block Services and prior
to delivery thereof to the RAL Customer. Notwithstanding any other provision
herein, if the Block Indemnifying Parties breach any of their obligations
hereunder and any such breach results in a claim for indemnification by the RAL
Originator against any Block Indemnified Party, such Block Indemnified Party
shall have the right to indemnification from the Block Indemnifying Parties
pursuant to the preceding sentence. Block Services may retain attorneys of its
own selection to represent it at Block Services' expense. Block Services shall
direct the defense of the claim; provided, however, Block Services shall not
compromise or settle any such claim or action without prior approval of Tax
Masters and Beneficial Franchise, as applicable. If Beneficial Franchise or Tax
Masters is named a party to any action or proceeding for which Block Services
has a duty of indemnification pursuant to this Section 1.14 Beneficial Franchise
and Tax Masters, as applicable, shall have the right to directly defend any such
action or proceeding by retaining attorneys of its own selection to represent it
at Block Services' expense. Neither Beneficial
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Franchise nor Tax Masters shall compromise or settle any such claim or action
without prior consultation with Block Services.
2. RIGHTS, DUTIES AND OBLIGATIONS OF TAX MASTERS.
2.1 Facilitating RAL Processing. Tax Masters shall act as a facilitator in
the processing of RALs between Block Services, Tax Masters and the RAL
Originator in accordance with the Electronic Data Processing Guidelines
established by the parties.
2.2 [RESERVED].
2.3 Compliance with Laws, Rules and Regulations. In connection with Tax
Masters facilitating the processing of RALs, Tax Masters shall comply with all
applicable laws, rules, and regulations.
2.4 Indemnification. Except as otherwise limited by this Agreement and as
specifically set forth in Section 1.12 with respect to the care and custody of
disbursement checks by Block Services, Tax Masters will indemnify, hold harmless
and reimburse Royalty, Block Services, Block Tax Services and/or Beneficial
Franchise or their respective Affiliates (whichever has incurred the loss) (the
"Tax Masters Indemnified Parties"), its officers, directors and employees for
all expenses and costs, including but not limited to, attorneys' fees,
judgments, penalties, payments of other direct expenses and payments in
settlement or other disposition of, or in connection with, any claims, disputes,
controversies or litigation arising out of any violation of the Federal Truth in
Lending Act or Regulation Z of the Federal Reserve Board and other applicable
federal and state banking and consumer finance laws and regulations, caused by
either Tax Masters or the RAL Originator involving any of the preprinted terms
and disclosures set forth on the check to RAL Customers from the RAL Originator,
relating to the procedures for applying for or obtaining RALs, relating to
cross-collections involving RAL Customers or customers of other financial
institutions, relating to the RAL Applications, or the failure of Tax Masters to
perform its duties and responsibilities under this Agreement. Tax Masters may
retain attorneys of its own selection to represent it at Tax Masters' own
expense. Tax Masters shall direct the defense of the claim; provided, however,
Tax Masters shall not compromise or settle any claim or action without the prior
approval of Block Services, Block Tax Services or Beneficial Franchise as
applicable. If Block Services, Block Tax Services or Beneficial Franchise is
named a party to any action or proceeding for which Tax Masters has a duty of
indemnification pursuant to this Section 2.4, Block Services, Block Tax Services
or Beneficial Franchise, as applicable, shall have the right to directly defend
any such action or proceeding by retaining attorneys of its own selection to
represent it at Tax Masters' expense. Provided, however, neither Block Services,
Block Tax Services nor Beneficial Franchise shall compromise or settle any such
claim or action without prior consultation with Tax Masters. Notwithstanding any
other provision herein, in connection with the defense of any such claim, Tax
Masters shall have the right to consult with the RAL Originator, including
providing any documentation to the RAL Originator that Tax Masters deems
reasonably appropriate. All documentation so provided to the RAL Originator
shall be subject to the provisions set forth in the agreement between Tax
Masters and the RAL Originator with respect to the RAL Originator's right to
retain such documentation.
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2.5 Cashiers' Checks. Pursuant to the terms of the agreement between Tax
Masters and the RAL Originator, all RAL checks, RAC checks, denied RAL and
excess checks issued by the RAL Originator will be cashier's checks.
2.6 Review of Marketing and Collection Materials. At Block Services'
request, and in all cases where Tax Masters', the RAL Originator's or Beneficial
Franchise's name or trade names are used in such materials, Tax Masters as
servicer for the RAL Originator shall review, and shall have the right to
provide for the RAL Originator to review, the marketing materials in question
and shall make reasonable efforts to comment upon such materials within two (2)
weeks of receipt thereof. At Tax Masters' request, and in all cases if Block
Services' name or trade names are used in the materials, Block Services shall
review the marketing materials in question and shall make reasonable efforts to
comment upon the same within two (2) weeks of the receipt thereof. If any such
marketing materials describe performance of obligations in connection with the
RAL Program required by a party other than the party preparing same, such other
party's approval of the materials shall be obtained prior to use thereof. Any
collection letters developed by Tax Masters shall be in a format reasonably
acceptable to Block Services.
2.7 Review of RAL or RAC Checks and Disclosure Statement. Tax Masters
shall review the RAL or RAC checks of the RAL Originator and the disclosure
statement developed by RAL Originator and shall propose instructions to RAL
Originator, concerning the modifications it deems necessary to such checks and
disclosure statement in order to comply with the Federal Truth in Lending Act
and Regulation Z requirements, as Tax Masters deems necessary after consultation
and agreement with the RAL Originator. Tax Masters agrees to provide, at its
cost, such instruments (including the RAL and RAC checks of the RAL Originator
and envelopes containing Block Services' name on the outside) in accordance with
Block Services' specifications and Section 5.2 below, in order that such
instruments are compatible with Block Services' processing equipment and
standards of trademark usage.
3. RIGHTS, DUTIES AND OBLIGATIONS OF TAX MASTERS AS SERVICER FOR RAL
ORIGINATOR.
3.1 Establishment of RAL and RAC Accounts and Making of Loans.
(a) Designation of RAL Originator. In connection with HB's cessation
of operations, Tax Masters has designated ICB as the RAL Originator.
(b) Establishment of Accounts. Except as otherwise limited by this
Agreement, Tax Masters shall process RAL and RAC Applications for the 2003 Tax
Period and subsequent Tax Periods during the term of this Agreement as servicer
for the RALs and RACs with respect to such Applications received electronically
from Block Services by the RAL Originator according to the RAL Originator's
Final Credit Criteria, within the same day of the RAL Originator's receipt;
provided, however, in either case, such Applications must be received by Tax
Masters as servicer for the RAL Originator by 9:00 a.m. Eastern Standard or
Daylight Savings Time (as the case may be). On behalf of the RAL Originator, Tax
Masters as servicer shall establish an account ("RAL Account") for the RAL
Customer and the RAL Originator (and any successor participant in all or any
portion of a RAL) shall have the right to offset against the RAL and RAC all
sums received from the IRS or state taxing authorities which are deposited in
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the RAL Account in connection with such RAL Customer's refund up to the amount
of the RAL or RAC inclusive of any Final RAL and RAC Fee or other fees or
charges. In the event that a RAL Customer is mailed a refund check rather than
receiving the refund electronically in the RAL Account, or receives a refund
less than the amount anticipated, the RAL Originator shall have the right under
the RAL Check Loan Agreement with the RAL Customer to be paid directly by such
RAL Customer. Such check may be modified from time to time to comply with
regulatory requirements.
(c) Making of Refund Anticipation Loans. Notwithstanding the
foregoing, the RAL Originator is not obligated to make a loan to a RAL Customer
until such RAL Customer's RAL Application is approved by Tax Masters as servicer
for the RAL Originator in accordance with the RAL Originator's Final Credit
Criteria. Subject to the Final Credit Criteria and approval of the loans as
aforesaid, the RAL Originator has committed to (and Tax Masters shall ensure
that all future RAL Originators commit to) make RALs to all customers who make
RAL Applications for same at, or whose Returns or RAL Application is processed
through, any Block Office. Notwithstanding any other provision of this Agreement
to the contrary, Tax Masters as servicer for the RAL Originator shall process
such RALs or RACs on terms, and provide a level of services to RAL Customers,
which are reasonably competitive with the terms and level of services offered by
at least one or more Other RAL Originators (as defined below) to their
customers. In establishing such reasonably competitive terms, Tax Masters as
servicer for the RAL Originator shall in its good faith judgment design and
recommend for approval by the RAL Originator a RAL Program that balances the
need for high volumes with adequate fee pricing to generate optimum RAL Program
revenues. If Block Services notifies Tax Masters on or after January 1, but on
or before October 1 of any Tax Period during the term hereof that the terms
pursuant to which the RAL Originator makes loans to RAL Customers, or the level
of services provided to RAL Customers, are not reasonably competitive with the
terms or level of services being offered or to be offered by at least one or
more other RAL originators which make RALs or RACs similar to those contemplated
by this Agreement ("Other RAL Originators"), Tax Masters as servicer for the RAL
Originator shall recommend to the RAL Originator modifications to the RAL
Program, or to the level of services provided to such customers, in a manner
which makes such terms and level of services reasonably competitive with the
terms and level of services offered by at least one or more Other RAL
Originators. Any such modification shall be made effective for the first full
Tax Period following such notification. If such notification is given to Tax
Masters as servicer for the RAL Originator after October 1 of any Tax Period
during the term hereof, then the RAL Originator shall not be required to modify
its program as described above, if such modification cannot reasonably be made
more promptly, until the commencement of the second full Tax Period which begins
after such notification.
3.2 Deduction of Additional Charges. Tax Masters as servicer for the RAL
Originator shall upon receipt of a RAL Customer's check reconciliation record
remit on the same banking business day directly by way of an ACH credit to the
appropriate Block Offices' company account the additional fees or charges
authorized by the RAL Customer for payment to the Block Office, including
without limitation, tax preparation fees and electronic filing fees. In the
event it becomes necessary to process a significant number of RAL Applications
resulting in a significant backlog in Tax Masters as servicer for the RAL
Originator remitting to the Block Offices the aforesaid additional fees and
charges, then Tax Masters, as servicer for the RAL Originator, shall notify
Block Services of the delay and at such time the parties will negotiate in
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good faith a reasonable fee to compensate Block Services for any additional
increase in Block Services' cost of funds resulting from such delay in remitting
such fees and charges.
3.3 Replacement RAL and RAC Checks. In connection with Section 1.12
relating to lost checks, Block Services shall issue a RAL Originator replacement
check to the RAL or RAC Customer upon receipt from Tax Masters as servicer for
the RAL Originator of an electronic approval to issue such check within
twenty-four (24) hours after receiving an electronic indication from Block
Services that Block Services has in its possession an indemnifying bond executed
by the RAL Customer. Such electronic indication shall constitute a conclusive
presumption of receipt by Block Services of such indemnifying bond and Block
Services shall indemnify and hold Tax Masters and the RAL Originator harmless
from any loss in the event such indemnifying bond is lost or has in fact not
been obtained.
3.4 [RESERVED]
3.5 Compliance with Laws, Rules and Regulations. In connection with RAL
Applications and the procuring, processing and extension of RALs, Tax Masters as
servicer for the RAL Originator shall comply with all applicable laws, rules and
regulations. In addition, Tax Masters shall enforce the provisions of the
agreement between Tax Masters and the RAL Originator requiring the RAL
Originator to comply with all applicable laws, rules and regulations.
3.6 RAL Originator Sale and Servicing Agreement. Block Services
acknowledges that it has received a copy of the Sale and Servicing Agreement
entered into by Tax Masters with ICB. Without the prior written consent of Block
Services, such consent not to be unreasonably withheld, conditioned or delayed,
Tax Masters hereby agrees not to amend such agreement in any way that (a)
modifies or alters the rights of ICB to use (i) Block Services' or any of its
Affiliates' tradenames, trademarks and the like or (ii) RAL Customer information
other than in its capacity as a RAL Originator, or (b) would materially
adversely affect any of the rights of Block Services associated with the RAL
Program. Tax Masters shall strictly enforce the provisions of the Sale and
Servicing Agreement prohibiting ICB and its Affiliates from soliciting RAL
Customers for any other product or service.
3.7 Indemnification. Except as otherwise limited by this Agreement and
except as specifically set forth in Section 1.12 with respect to the care and
custody of disbursement checks by Block Services, Tax Masters will indemnify,
hold harmless and reimburse Beneficial Franchise, and any of the Block Companies
or their respective Affiliates (whichever has incurred the loss), its officers,
directors and employees for all direct out-of-pocket expenses and costs,
including but not limited to, attorneys' fees, judgments, penalties, payments of
other direct expenses and payments in settlement or other disposition of, or in
connection with, any claims, disputes, controversies or litigation arising out
of (i) the failure of Tax Masters to perform its duties and responsibilities
under this Agreement, or (ii) the failure of the RAL Originator to perform its
duties and responsibilities under any agreement between Tax Masters and the RAL
Originator relating to the RAL Program. Notwithstanding any other provision
herein, if Tax Masters breaches any of its obligations hereunder and any such
breach results in a claim for damages by the RAL Originator against any of the
Block Companies or their Affiliates, then such Block Company and such Affiliate
shall have the right to indemnification from Tax Masters
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pursuant to the preceding sentence. Tax Masters may retain attorneys of its own
selection to represent it at Tax Masters' expense. Tax Masters shall direct the
defense of the claim; provided, however, Tax Masters shall not compromise or
settle any claim or action without the prior approval of Block Services and Tax
Masters. If Block Services, Block Tax Services or Beneficial Franchise is named
a party to any action or proceeding for which Tax Masters has a duty of
indemnification pursuant to this Section 3.7, Block Services, Block Tax Services
or Beneficial Franchise, as applicable, shall have the right to directly defend
any such action or proceeding by retaining attorneys of its own selection to
represent it at Tax Masters' expense. Provided, however, neither Block Services
nor Block Tax Services nor Beneficial Franchise shall compromise or settle any
such claim or action without prior consultation with Tax Masters.
4. RIGHTS, DUTIES AND OBLIGATIONS OF BENEFICIAL FRANCHISE.
4.1 Licenses. Beneficial Franchise hereby grants to Block Services a
nonassignable, nonexclusive right and license under U.S. Patent No. 4,890,228
and U.S. Patent No. 5,193,057 ("Patent Rights") to use any data processing
system or any method falling within the scope of any claim of the Patent Rights.
Beneficial Franchise also grants to Block Services the exclusive right to grant
sublicenses to use any data processing system or method falling within the scope
of any claim of the Patent Rights to any Person or entity which is involved in
the processing of RALs or RACs (whether through Electronic Filing, or the
taking, presenting or handling of applications for RALs or RACs) but only to the
extent that the RAL or RAC is processed in any manner through an Electronic
Filing system majority owned or operated by Block Services or used by any Block
Office for a substantial portion of such office's Electronic Filings. Such
Person or entity shall hereinafter be referred to as a "Block RAL Processor".
Block Services agrees to grant such a sublicense to any Major Franchisee of
Block Services which selects RAL Originator to make RALs or RACs to customers of
such Major Franchisee or subfranchisees of such Major Franchisee. Any sublicense
granted by Block Services shall contain provisions corresponding to those of
this Agreement regarding termination of Block Services' Patent Rights and shall
not include the right to sublicense to other parties. Beneficial Franchise
hereby waives and fully releases Block Services and any Block RAL Processor from
any claims for infringement of Patent No. 4,890,228 and Patent No. 5,193,057
arising from RALs or RACs made prior to or during the terms of Block Services'
rights under the license granted in this Section.
4.2 Warranties. Beneficial Franchise represents and warrants that it is
the owner of Patent Rights and has the right to grant the rights and licenses
described herein. BENEFICIAL FRANCHISE MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE SUBJECT MATTER OF THESE LICENSES.
4.3 Indemnification. Except as otherwise limited by this Agreement and as
specifically set forth in Section 1.12 with respect to the care and custody of
disbursement checks by Block Services, Beneficial Franchise will indemnify, hold
harmless and reimburse Tax Masters, Royalty and Block Services or their
respective Affiliates (whichever has incurred the loss) (the "Beneficial
Franchise Indemnified Parties"), its officers, directors and employees for all
direct out-of-pocket expenses and costs, including but not limited to,
attorneys' fees, judgments, penalties, payments of other direct expenses and
payments in settlement or other disposition of, or in connection with, any
claims, disputes, controversies or litigation arising out
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of the failure of Beneficial Franchise to perform its duties and
responsibilities under this Agreement or for any claims, disputes, controversies
or litigation arising out of or involving Patent Nos. 4,890,228 and 5,193,057.
Beneficial Franchise may retain attorneys of its own selection to represent it
at Beneficial Franchise's expense. Beneficial Franchise shall direct the defense
of the claim; provided, however, Beneficial Franchise shall not compromise or
settle any claim or action without the prior approval of Block Services and Tax
Masters, as applicable. If Block Services or Tax Masters is named a party to any
action or proceeding for which Beneficial Franchise has a duty of
indemnification pursuant to this Section 4.3, Block Services or Tax Masters, as
applicable, shall have the right to directly defend any such action or
proceeding by retaining attorneys of its own selection to represent it at
Beneficial Franchise's expense. Neither Block Services nor Tax Masters shall
compromise or settle any such claim or action without prior consultation with
Beneficial Franchise.
4.4 Expiration of Licenses. Block Services' licenses under Section 4.1
above shall run until the termination of this Agreement in accordance with
Sections 6.1 or 6.3, as applicable, except under those circumstances set forth
in Section 6.3, pursuant to which the licenses shall survive the termination of
this Agreement ("Survival Provisions"). Unless Block Services' licenses survive
termination pursuant to the Survival Provisions, termination of Block Services'
licenses under the Patent Rights shall terminate any sublicenses granted by
Block Services.
5. LICENSE AND SUBLICENSE TO TAX MASTERS OF CERTAIN RIGHTS.
5.1 Sublicense of Rights Under Patent. Block Services hereby grants to Tax
Masters (including in its capacity as servicer for the RAL Originator) a
nonexclusive and nonassignable right and license under the Patent Rights to use,
and the right to sublicense to the RAL Originator to use, any data processing
system or any method falling within the scope of any claim of the Patent Rights
in connection with the making of RALs and issuing of RACs to any RAL Customer
which uses a Block Office for Electronic Filing of a Return.
5.2 License of Trademarks. Royalty hereby grants to Tax Masters (including
in its capacity as servicer for the RAL Originator) a nonexclusive and
nonassignable right and license to use, and to sublicense to the RAL Originator
to use, the name and trade or service mark "H & R Block" and such other trade or
service marks that Block Services may from time to time designate for use in
connection with its RAL Program (collectively, the "Block Licensed Marks") in
connection with the making and processing of RALs and RACs for RAL Customers.
Neither Tax Masters nor its Affiliates shall use, nor shall any sublicense by
Tax Masters to the RAL Originator permit the RAL Originator to use, the Block
Licensed Marks for any purpose except the purposes specifically set forth
herein. Any use of the Block Licensed Marks and all goodwill generated thereby
shall inure to the benefit of Royalty. All uses of the Block Licensed Marks
shall be approved in advance by Royalty and shall be at all times in compliance
with any standards which Royalty may impose in writing from time to time
regarding such use. All rights in and to the Block Licensed Marks which are not
specifically granted to Tax Masters shall remain with Royalty. Tax Masters shall
cooperate, and shall cause the RAL Originator pursuant to the terms of any
sublicense to cooperate, with Royalty in the protection and defense of the Block
Licensed Marks and in the prosecution, at Royalty's sole option, of infringers
of the Block Licensed Marks. Tax Masters shall not register nor seek to
register, and any sublicense by Tax Masters to the RAL Originator shall prohibit
the RAL Originator from registering or seeking to
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register, any trade or service mark, logotype or commercial symbol used by
either of them in the exercise of the rights licensed under this Section 5.2 or
sublicensed by Block Services to Tax Masters pursuant to the immediately
preceding Section 5.1 of this Agreement. Royalty waives and releases Tax
Masters, from and against, any and all claims of liability arising in any manner
from the use by Tax Masters of the Block Licensed Marks prior to July 19, 1996.
5.3 Access to Block Offices. Tax Masters shall, with Block Services' prior
written consent, have access to the Block Offices (to the extent it is able to
do so with respect to Corporate Franchises) for the purpose of assisting and
facilitating the operation of the RAL Program at such Block Offices. Any consent
of Block Services shall be in accordance with a procedure mutually agreed upon
by Block Services and Tax Masters on or before August 1 of each Tax Year during
the term hereof.
5.4 License Fees. Tax Masters as servicer for the RAL Originator shall
cause to be paid to Block Services a license fee of $6.88 for each RAC issued by
the RAL Originator pursuant to this Agreement during the 2003 Tax Period and
future Tax Periods, except that there shall be no license fee for a RAC for
which a RAL Customer has chosen to receive his or her funds by Direct Deposit
into his or her IRA or Auto Investor account at an Affiliate of Block Companies.
Tax Masters as servicer for the RAL Originator shall also cause to be paid to
Block Services a license fee of $9.00 for each RAL approved by RAL Originator
pursuant to this Agreement that is originated out of a Block Office. The license
fees described in this Section 5.4 (the "License Fees") shall be paid by credit
to Block Services' account by ACH credit to the appropriate Block Office's
company account. The Block Licensed Marks and access granted by Block Services
to Tax Masters (including in its capacity as servicer for the RAL Originator)
shall terminate upon termination of this Agreement for whatever reason.
6. TERM; ANNUAL DETERMINATION OF RAL AND RAC FEES; TERMINATION; EFFECT OF
TERMINATION.
6.1 Term of Agreement; Renewal. The term of this Agreement shall commence
as of July 19, 1996 and shall expire on June 30, 2006 ("Term"). In the event
this Agreement has not been sooner terminated as set forth in Section 6.3 below,
the parties agree to review this Agreement prior to each Tax Period with a view
toward entering into reasonable, good faith discussions concerning revisions to
the relationship represented by the terms hereof, among Block Companies and
Household Companies regarding the making of RALs and issuing of RACs. Such
revisions, if any, shall be upon such terms as are mutually agreeable to the
parties thereto. If such revisions are not agreed to, this Agreement shall
continue on the terms and conditions set forth herein.
6.2 Annual Determination of RAL and RAC Fees and Credit Criteria.
(a) Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator, annually shall make an initial
determination of the RAL and RAC fees to be paid by each RAL Customer (the
"Initial RAL and RAC Fees"). Tax Masters shall provide Block Services with such
Initial RAL and RAC Fees no later than August 15 of each year, with the actual
final RAL and RAC fees to be established by Tax Masters as servicer for the RAL
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Originator, after consultation with the RAL Originator, no later than September
15 of each year ("Final RAL and RAC Fees").
(b) Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator, shall make an initial determination of the
RAL credit criteria no later than August 15 of any year during the Term
("Initial Credit Criteria") and, after consultation with the RAL Originator,
shall establish final credit criteria ("Final Credit Criteria") together with
the Qualifying Procedures on Schedule 1.3 no later than September 15 of such
year for the ensuing Tax Period.
(c) Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator, shall provide to Block Services as
Schedule I to this Agreement, the Initial Credit Criteria and the Initial RAL
and RAC Fees. Such Schedule may be updated by Tax Masters as servicer for the
RAL Originator, after consultation with the RAL Originator, on or before
September 15 of each year.
(d) On or before September 15 of each year, Tax Masters as servicer
for the RAL Originator, after consultation with the RAL Originator, agrees to
provide to Block Services as Schedule 1.3 to this Agreement the Qualifying
Procedures, and as Schedule II to this Agreement the Final Credit Criteria and
the Final RAL and RAC Fees for the ensuing Tax Period provided, however, that in
the event that significant external events or occurrences beyond Tax Masters'
control become known to Tax Masters at any time after Tax Masters' determination
of the Final Credit Criteria and Final RAL and RAC Fees each year that are
likely to affect materially net RAL and RAC revenues of Tax Masters and the RAL
Originator for that year, Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator may, after discussion with Block Services,
and upon not less than ten (10) days (or two (2) days during any Tax Period)
notice to Block Services promptly modify the RAL Program Final Credit Criteria
or Final RAL and RAC Fees but only to an extent which is reasonable under the
circumstances, and only until the effect of such event or occurrence ends or
until the end of the first Tax Period in which such event or occurrence has or
is likely to have the above-described effect.
(e) Notwithstanding any other provision in this Agreement, the RAL
Originator, in its exclusive discretion, shall, on advice and recommendation of
Tax Masters as servicer for the RAL Originator, establish the Initial RAL and
RAC Fees, the Final RAL and RAC Fees, the Initial Credit Criteria and the Final
Credit Criteria used by Tax Masters as servicer for the RAL Originator in the
RAL Program.
6.3 Termination and Cure.
(a) Termination. Any party may at its option terminate this
Agreement upon ten (10) days prior written notice to all other parties if (i)
any other party is in material default in the performance of any of its
obligations or duties under this Agreement and the party in default shall fail
to commence cure within such 10-day period or shall fail thereafter diligently
to prosecute a cure to completion within a reasonable time thereafter, which
reasonable time shall be based on the nature of the default and the steps
required to cure, but which in all events shall not exceed forty-five (45) days
from the notice of default (or ten (10) days from the notice of
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default during a Tax Period), provided, however, that in all events any such
cure must be accomplished without substantial unreimbursed expense or damage to
any other party by reason of the cure; (ii) the IRS and/or state taxing
authority withdraws or materially changes the implementing revenue procedures
sanctioning RALs or RACs to the substantial detriment of that party; (iii) the
operation of the RAL Program or the Electronic Filing program is made infeasible
or impractical by (x) legal or regulatory determinations, enactments or
interpretations or (y) significant external events or occurrences beyond that
party's control provided that the parties shall first mutually endeavor in good
faith to employ reasonable efforts to modify the program in a manner resolving
the problems caused by such legal, regulatory, or significant external events or
occurrences.
In the event that this Agreement is terminated by any party on the
basis of clause (i) if the party in default is Block Services, clause (ii) or
clause (iii), the non-exclusive license provided to Block Services by Beneficial
Franchise shall terminate effective upon the date of termination of this
Agreement. If this Agreement is terminated on the basis of clause (i) if Block
Services is not the party in default, the license provided by Beneficial
Franchise to Block Services under Section 4.1 and the right to sublicense under
Section 4.1 shall survive such termination.
(b) Certain Cure. For purposes of Section 6.3(a), if the default
with respect to which Block Services gives notice of termination is the failure
or inability of RAL Originator to make RALs or RACs as required by this
Agreement, then cure shall be accomplished, and no termination of this Agreement
shall result to the extent that Tax Masters arranges, subject to Block
Companies' rights under the Letter Agreement, for a substitute performance by
another RAL originator or RAC issuer, and such other RAL originator or RAC
issuer commences, within the appropriate cure period set forth in Section 6.3(a)
(45 days, or 10 days during the Tax Period), to make the RALs and issue RACs
which RAL Originator was unable to do. Block Services and Tax Masters as
servicer for the RAL Originator shall use their respective best efforts in
attempting to arrange for such substitute performance. The provisions of this
Section 6.3(b) shall not relieve Tax Masters as servicer for the RAL Originator
of its obligations to (i) diligently complete cure under Section 6.3(a) so that
RAL Originator can again make RALs and issue RACs notwithstanding substitute
performance under this Section 6.3(b) in the interim by an other RAL Originator;
and (ii) compensate Block Services for expenses and damages as described in
Section 6.3(a). Also, the provisions of this Section 6.3(b) shall not be used by
Tax Masters to avoid the provisions of Section 8.5 dealing with assignment of
rights and obligations under this Agreement.
6.4 Effect of Termination. After any termination, the RAL and RAC accounts
established by the RAL Originator will continue to be the property and
responsibility of the RAL Originator which established such RAL and RAC
accounts. Termination shall not affect existing obligations.
6.5 Return of Confidential Information. Upon termination of this
Agreement, the parties will return to any furnishing party all confidential
information received in connection with this Agreement and certify in writing to
such furnishing party that such receiving party has not retained any copies of
such confidential information; provided, notwithstanding any other provision
herein, that any information that Tax Masters provides to the RAL Originator in
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carrying out its obligations under this Agreement that the RAL Originator is
required as a regulated institution to retain shall not be subject to the return
provisions herein during the period of such legally required retention.
7. CONFIDENTIALITY AND PRIVACY OF INFORMATION.
7.1 Proprietary Information. Each of the parties is informed and
acknowledges that implementation and operation of the service of offering of
RALs and RACs (the "RAL Program") described in this Agreement will involve the
use of certain systems, computer programs and/or other data including business
information or trade secrets ("Proprietary Information") that are proprietary to
the respective parties. Such Proprietary Information shall be identified as
"confidential" or "proprietary" by the respective parties. Each party will
retain in confidence all Proprietary Information received in connection with
this Agreement and limit access to or disclosure of such Proprietary Information
received in connection with this Agreement solely for the purpose of operation
of the RAL Program under this Agreement. To this end, the recipient will employ
the same degree of care to avoid disclosure of such information that it employs
with respect to its own information deemed confidential. Subject to Section 7.4,
such obligation of confidentiality shall not extend to any information which is
shown to have been known by the receiving party prior to disclosure to it by the
other party or parties hereto or generally known to others engaged in the same
trade or business as the furnishing party, or that is or shall become part of
public knowledge through no act or omission by the receiving party or its
directors, officers, employees, professional advisors or other representatives,
or that shall have been lawfully received by the receiving party from a third
party which the receiving party does not know and has no reason to believe is
under any obligation of confidentiality with respect to such information.
7.2 Privacy of Information.
(a) Privacy of Customer Information. Notwithstanding anything in
this Agreement to the contrary, a party receiving nonpublic personal information
(the "Receiving Party") from any party which obtained such nonpublic personal
information from a customer or consumer (the "Disclosing Party"), agrees that it
will not disclose such nonpublic personal information of customers and consumers
of Disclosing Party to non-affiliated third parties or use such nonpublic
personal information for any purpose other than satisfying Receiving Party's
duties and obligations under this Agreement, unless the consumer or customer has
consented to such use or it is otherwise permitted by applicable law, provided
that Tax Masters shall have the right to disclose to the RAL Originator
information it deems reasonably necessary to carry out its obligations under the
RAL Program. Any such use or disclosure by Receiving Party of nonpublic personal
information of customers and consumers of the Disclosing Party shall be in
compliance with federal and state laws, rules and regulations.
(b) Obligations of Receiving Party to Safeguard Customer
Information. In addition to any other obligations of Receiving Party set forth
in this Agreement, Receiving Party agrees to implement and maintain safeguards
for the nonpublic personal information of customers and consumers of Disclosing
Party, which shall be consistent with the requirements of 16 CFR 314, as
directed by the Disclosing Party, but in no event less than the standard of care
Receiving Party uses to protect its own information of similar sensitivity.
Receiving Party may
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permit access and usage of nonpublic personal information of customers and
consumers of Disclosing Party to Receiving Party's Affiliates in order to
exercise its rights and perform its obligations under this Agreement and any
related agreements among the parties (including but not limited to the rights
under Section 1.4), provided that Receiving Party shall require that any of its
Affiliates that are permitted such access and/or usage agree not to disclose
such information to any third party except as otherwise permitted by Section
7.2(a) herein. Receiving Party will allow Disclosing Party to reasonably audit
Receiving Party's compliance with its obligations under this Section 7.2. All
terms used in this Section shall have the same meanings, where the context
permits, as set forth in 16 CFR Parts 313 and Part 314.
7.3 Conduct Prohibited. Notwithstanding anything in this Section 7 to the
contrary and notwithstanding any consent from a RAL Customer, Tax Masters and
Beneficial Franchise agree that they will not, and Tax Masters shall enforce the
obligation of the RAL Originator under the agreement between Tax Masters and the
RAL Originator that the RAL Originator and any of its Affiliates not, (a) use
Block Services' name (including the H&R Block and the Block Financial
Corporation names), or the names of any of Block Services' Return preparers, in
any communications with RAL Customers or other Persons except in carrying out
RAL Originator's, Tax Masters' and Beneficial Franchise's obligations under this
Agreement and the agreement between Tax Masters and the RAL Originator; (b)
target or solicit Block Services' RAL Customers for any individual retirement
account or similar or alternative retirement account; or (c) use or disclose the
fact that a RAL Customer was a customer of Block Services or Block Financial
Corporation, without Block Services' prior written consent except as necessary
to carry out RAL Originator's, Tax Masters' and Beneficial Franchise's
obligations under this Agreement and the agreement between Tax Masters and the
RAL Originator.
7.4 Sharing of Return and RAL Application Data. Subject to Section 7.3,
Tax Masters may share any data from a RAL Customer's Return and RAL Application
with any of its Affiliates and, solely for purposes of carrying out its
obligations under this Agreement, to the RAL Originator; provided that it shall
obtain appropriate consents for such sharing that are compliant with 26 USC
Sections 7216 and regulations promulgated thereunder, and further provided that
it complies with the requirements of the Gramm Leach Bliley Act and 16 CFR 313.
Tax Masters, upon obtaining appropriate consents from RAL Customers, may share
any data from such RAL Customers' Returns and RAL Applications with any of their
Affiliates.
7.5 Survival. The obligations of the parties under this Section 7 shall
survive the expiration or termination of this Agreement.
8. MISCELLANEOUS.
8.1 Offering of RALs and RACs. Block Services, through Block Offices,
shall not offer directly or indirectly any RALs or RACs to any of its customers
except in connection with a RAL Program offered by or through Tax Masters as
servicer for the RAL Originator and Block Services through Block Offices, or
Major Franchisees or subfranchisees of Major Franchisees who are participating
in the RAL Program. In the event Tax Masters offers a RAL program (either
directly or through a RAL originator) to subscribers other than Block Services
with a RAL or RAC fee less than those offered in Tax Masters' RAL Program with
Block Services, Tax Masters shall provide RALs or RACs in conjunction with Tax
Masters' RAL Program with
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Block Services at the same or lower RAL or RAC fees offered in conjunction with
such other subscribers.
Block Services agrees that for each Tax Period during this
Agreement, except as otherwise agreed by the parties in the Letter Agreement,
RAL Originator will be the RAL originator and RAC issuer for 100% of Block
Offices, other than Corporate Franchises. Block Services shall use reasonable
good faith efforts to cause Tax Masters to be the facilitator of RALs and RACs
for 100% of the Corporate Franchises, but Block Services cannot assure or
guarantee that any such Corporate Franchise will use a particular RAL and RAC
facilitator.
8.2 Audit Rights of the Parties. Each party agrees that they will
each make the applicable files, books and records available to the nationally
recognized firm of independent certified public accountants of the other parties
as such parties may reasonably request in connection with any of the
requirements to be completed or payments to be made under this Agreement. Each
party shall furnish to the other parties all such information concerning
transactions and services provided by it pursuant to those sections as the
requesting parties may reasonably request, and permit the other parties and
their authorized representatives reasonable access, during normal business
hours, to audit the books and records of such party as they relate to any aspect
of those sections. In addition, Tax Masters shall have the right to obtain
access to such information for the RAL Originator to the extent necessary to
enable the RAL Originator to comply with its obligations under applicable laws
and regulations.
8.3 Other Agreements. Each party warrants that its execution of this
Agreement does not constitute a violation of any agreement or relationship to
which it is a party.
8.4 Use of Name; Agency. Except as otherwise set forth herein, Tax
Masters, Beneficial Franchise and Block Companies agree not to use the trade
names or service marks of any other party without the other party's express
written consent and Tax Masters agrees to enforce the obligation of the RAL
Originator under the agreement between Tax Masters and the RAL Originator that
the RAL Originator not use the trade names or service marks of Block Services or
its Affiliates without Block Services' express written consent. Block Services
also agrees not to use the name of the RAL Originator without first obtaining
Tax Masters' consent as servicer for the RAL Originator. This Agreement does not
establish or create a joint venture among any of the parties to this Agreement
or the employees, agents or representatives of the respective parties are not
the partners, agents or representatives of each other. Tax Masters and
Beneficial Franchise agree to Block Services' use during the term of this
Agreement of the trademark "Because it's your money" in connection with Block
Services' tax preparation and RAL Program and other products offered by Block
Services from time to time and related advertising; except that with respect to
such other non-tax related products of Block Services, if Tax Masters or its
Affiliates are using such trademark in connection with products that are
comparable to Block Services' (and not part of a joint offering with Block
Services), Block Services shall obtain prior approval from Tax Masters or its
Affiliates as the case may be for the use of such trademark.
8.5 Assignment. Except at set forth in Section 6.3(b), any party's
rights under this Agreement may not be assigned without the prior written
consent of the other parties upon thirty (30) days prior written notice, which
consent shall not be unreasonably withheld; provided that it
19
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is acknowledged by the parties that HB has ceased its operations and shall
assign, effective as of December 31, 2002, all of its rights and obligations
under the RAL Operations Agreement to Tax Masters.
8.6 Litigation. In the event of litigation among the parties with respect
to this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees from the losing party or parties, including such fees incurred
during any such litigation on appeal.
8.7 Excusable Delays. If the performance of the obligations hereunder of
any party to this Agreement is prevented, restricted or interfered with by
reason of fire, or other casualty or accident, strikes or labor disputes, war or
other violence; any law, order, proclamation, regulation, ordinance, demand, or
requirement of any government agency; or any act or condition whatsoever beyond
such party's reasonable control (provided, however, that the failure of any
computer hardware, software, or communication system maintained by Tax Masters
in connection with the RAL Program shall not be "excused" under this Section, to
the extent such failure is not caused by or the result of any of the
above-mentioned factors or conditions); such party, upon giving prompt notice to
the other parties, shall be excused from such performance to the extent of such
prevention, restriction or interference; and such non-performance shall not
constitute a default under this Agreement, provided, however, that such party
shall use reasonable efforts, including, without limitation, the best efforts
referred to in Section 6.3(b) to arrange for substitute performance and to avoid
or remove such causes of non-performance, and shall continue performance
hereunder whenever such causes are removed.
8.8 Contingent Issuing of Checks by RAL Originator. In the event it
becomes infeasible due to events or occurrences beyond the parties' control for
Block Offices to issue RAL or RAC disbursement checks directly to RAL Customers,
then the parties agree that Tax Masters as servicer for the RAL Originator shall
issue such checks directly to RAL Customers. If any check is mailed by the RAL
Originator, Tax Masters as servicer for the RAL Originator shall mail the check
to the RAL Customer within the same day of RAL Originator's receipt of the RAL
Customer's RAL Application provided, however, in either case, such RAL
Application must be received by the RAL Originator by 9:00 a.m. Eastern Standard
or Daylight Savings Time (as the case may be).
8.9 DISCLAIMERS. BLOCK COMPANIES' AND HOUSEHOLD COMPANIES' OBLIGATIONS
UNDER THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, EXCEPT
AS OTHERWISE PROVIDED IN SECTION 1.12 WITH RESPECT TO BLOCK SERVICES' CARE AND
CUSTODY OF THE DISBURSEMENT CHECKS, NEITHER BLOCK COMPANIES NOR HOUSEHOLD
COMPANIES WILL BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, LOSS OF PROFITS OR INCOME, LOSS OF USE OR OTHER BENEFITS ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED HEREUNDER.
PROVIDED, HOWEVER, WITH RESPECT TO BLOCK SERVICES' RESPONSIBILITIES UNDER
SECTION 1.12, THE PARTIES AGREE THAT BLOCK SERVICES WILL NOT BE LIABLE FOR
INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES BUT WILL BE LIABLE FOR ANY INTEREST
CHARGES. It is the responsibility of Block Services to ensure that all of its
files are adequately duplicated and documented. Tax Masters will not be
responsible for duplicating its files, or for the cost of
20
<PAGE>
reconstructing data stored on disc files, tapes, memories, etc., lost during the
course of performance of its obligations under this Agreement.
8.10 Applicable Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of Delaware.
8.11 Notices. All notices required or permitted to be given under this
Agreement shall be in writing and shall be given by registered or certified
mail, return receipt requested, addressed to each as follows:
If to Block Companies to: H & R Block Services, Inc.
4400 Main Street
Kansas City, Missouri 64111
Attn: Jeffery W. Yabuki
If to any one or more of Household
Companies to: Household Tax Masters Inc.
200 Somerset Corporate Blvd.
Bridgewater, New Jersey 08807
Attention: Patrick A. Cozza
Any party may change the address to which it desires notices to be
sent by giving the other parties ten (10) days prior notices of any such change.
Any notice shall be deemed given upon its receipt by the party to
whom the notice is addressed.
8.12 Other Financial Services. Block Services agrees to consult with Tax
Masters regarding financial products and services created by Block Services or
Tax Masters or their Affiliates that may be offered through Block Services'
company-owned tax offices. In the event Block Services determines to introduce a
financial product or service provided by a third party (other than a direct or
indirect subsidiary of H&R Block, Inc.) through company-owned tax offices (a
"Third-Party Product"), Block Services agrees to consult with Tax Masters
regarding such Third-Party Product and negotiate in good faith with Tax Masters
(or an Affiliate of Tax Masters) for Tax Masters (or such Affiliate or the RAL
Originator designated by Tax Masters) to offer and provide such Third-Party
Product through Block Services' company-owned tax offices. Notwithstanding the
foregoing sentence, this Section 8.12 shall not apply to any Third-Party Product
with respect to which (i) Block Services (or its Affiliates) are conducting
discussions within the six (6) month period ending on the date of this Agreement
or (ii) a third party approached Block Services or its Affiliates and initiated
discussions concerning such Third-Party Product subject to the terms of a
confidentiality agreement between Block Services (or its Affiliates) and such
third party; provided that, to the extent permitted by any applicable
confidentiality agreement (as determined by Block Services (or its Affiliates)
in its or their sole discretion), Block Services will consult with Tax Masters
(or its Affiliates) regarding such Third-Party Product.
8.13 Severability. If any provision of this Agreement, compensation to
Block Services described herein, Final Credit Criteria or Final RAL and RAC Fees
charged to customers of
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Block Services, shall for any reason be held to be invalid, illegal or
unenforceable, such invalidity shall not otherwise affect the validity of this
Agreement or any other provision hereof, and this Agreement shall be interpreted
and construed as if such provision, to the extent invalid, had not been
contained herein. In such event, the parties shall in good faith endeavor to
redesign the RAL Program or the terms hereof in a manner consistent with the
intent of this Agreement pursuant to Section 6 hereof.
8.14 Modifications to Agreement. This Agreement supersedes the RAL
Operations Agreement among Block Companies and Household Companies and HB. Each
party represents and warrants that there are no oral understandings between or
among them that differ from the terms and conditions of this Agreement. This
Agreement may be modified only by a written agreement signed by all of the
parties.
8.15 References to RALs. Unless otherwise specified in this Agreement, any
general reference to a RAL in this Agreement shall be meant to also refer to an
Instant RAL, which is a RAL under which a credit decision is made prior to Block
Services receiving positive acknowledgment of the underlying Return's acceptance
for Electronic Filing and the Notification from the IRS, and a Classic RAL,
which is the name sometimes used for a RAL to distinguish it from an Instant RAL
when Instant RALs are offered.
8.16 Instant RALs. Tax Masters, as servicer for the RAL Originator, may
offer Instant RALs to certain customers in the 2003 Tax Period. Tax Masters may,
however, upon forty-eight (48) hours prior written notice to Block Services,
stop offering Instant RALs at any time in its discretion during the 2003 Tax
Period. Tax Masters and its Affiliates shall retain ownership of its proprietary
rights, including intellectual property rights, in the Instant RAL product.
8.17 File Sharing. Tax Masters as servicer for the RAL Originator shall
provide the following files to Block Services for use in the 2003 Tax Period and
future Tax Periods:
(a) Guaranteed Loan Offer ("GLO") Processing File. This file is
generated from the 2003 GLO file received from Experian. It is coded and
incorporated into the TPS software. Block Services is prohibited from accessing
and decoding such software, except in response to, and to fulfill, a consumer's
request for a RAL. Block Services shall not use this file for any other purpose,
including but not limited to marketing its products.
(b) Block Services GLO Marketing File. This file is generated from
the 2003 GLO file received from Experian. Block Services may only use this file
to inform its customers that they qualify for a pre-approved RAL for the 2003
Tax Period. Block Services shall not use this file for any other purpose,
including but not limited to marketing its products.
(c) Advance RAL Processing File. This file is generated from the
2003 GLO file received from Experian. It is coded and incorporated into the TPS
software. Block Services is prohibited from accessing and decoding such
software, except in response to, and to fulfill, a consumer's request for a RAL.
Block Services shall not use this file for any other purpose, including but not
limited to marketing its products.
(d) History Processing File. This file is generated from the
experiences of the Household Companies. It consists of RAL payment history for
the last four (4) years and current
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bad debt. This data is used for scoring a potential Instant RAL customer, is
coded, and resides in the Instant RAL decision module incorporated into the TPS
software. Block Services is prohibited from accessing and decoding such
software, except in response to, and to fulfill, a consumer's request for a RAL.
Block Services shall not use this file for any other purpose, including but not
limited to marketing its products.
8.18 Representations and Warranties of Block Services. Block Services
hereby represents, warrants and covenants that it and its subsidiaries are and
shall be the owners of all Block Offices, except for offices of Corporate
Franchises through the term of this Agreement. Block Services hereby further
represents, warrants and covenants that it will cause its subsidiaries to
perform all of the obligations of Block Services required to be performed under
this Agreement. Block Services agrees to enforce the terms of any existing
agreement with Corporate Franchises relating to the RAL Program.
8.19 Effective Date. The effective date of this Agreement is January 1,
2003.
8.20 Termination of HB as a Party and Assignment of HB's Responsibilities
to Tax Masters; Events Prior to Amendment. HB is hereby terminated as a party to
this Agreement; provided that HB shall assign, effective as of December 31,
2002, to Tax Masters all of HB's agreements, duties and obligations under the
RAL Operations Agreement arising out of events occurring prior to the effective
date of this Agreement, and the receivables associated with the RAL Accounts
previously established by HB under the RAL Operations Agreement shall continue
to be the property and responsibility of Tax Masters or an Affiliate thereof to
whom such assets were assigned by HB; provided, however, that such assignment by
HB to Tax Masters is subject to all of the Block Companies' rights under the
Letter Agreement. Subject to HB's assignment of its rights and obligations to
Tax Masters and/or any of its Affiliates pursuant to the immediately preceding
sentence, the parties affirm that they are responsible for performing all of
their agreements, duties and obligations under the RAL Operations Agreement
arising out of events occurring prior to the effective date of this Agreement,
and the provisions of the RAL Operations Agreement shall survive and continue to
define the rights and obligations of the parties with respect to such prior
events.
8.21 Definitions. Unless otherwise defined herein, capitalized terms shall
have the meanings set forth in the Appendix of Defined Terms attached hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Refund Anticipation Loan Operations Agreement to be executed by their
respective officers thereunto duly authorized as of the date set forth above.
HOUSEHOLD TAX MASTERS INC.
By: /s/ Patrick A. Cozza
-----------------------------------
Name: Patrick A. Cozza
Title: President
BENEFICIAL FRANCHISE COMPANY INC.
By: /s/ Patrick A. Cozza
-----------------------------------
Name: Patrick A. Cozza
Title: Senior Vice President
H & R BLOCK SERVICES, INC.
By: /s/ Jeffery W. Yabuki
-----------------------------------
Name: Jeffery W. Yabuki
Title: President
H & R BLOCK TAX SERVICES, INC.
By: /s/ Jeffery W. Yabuki
-----------------------------------
Name: Jeffery W. Yabuki
Title: President
HRB ROYALTY, INC.
By: /s/ Rosalie A. Kenney
-----------------------------------
Name: Rosalie A. Kenney
Title: President
24
<PAGE>
And solely for purposes of Sections 8.5 and 8.20 of this Amended and Restated
Refund Anticipation Loan Operations Agreement:
HOUSEHOLD BANK, F.S.B.
By: /s/ Patrick A. Cozza
-----------------------------------
Name: Patrick A. Cozza
Title: Senior Vice President
25
<PAGE>
SCHEDULE I
INITIAL CREDIT CRITERIA AND
INITIAL RAL AND INITIAL RAC FEE AND INITIAL ACCOUNT
ADMINISTRATION FEE FOR TAX PERIOD
January 1, 2003 - June 30, 2003
Initial Credit Criteria
1. For a RAL Applicant applying for a RAL, which is defined as a loan in an
amount equal to the full amount of such Applicant's anticipated Federal Income
Tax Refund ("Refund"), and which RAL is secured by a Refund which may include in
part an Earned Income Credit ("EIC"), such RAL Applicant must qualify for
approval using RAL Originator credit criteria which includes an IRS debt code
indicating no debts or refund delays as well as credit criteria related to any
scorecards as applicable.
2. Have a valid Federal Income Tax Return for Tax Year 2002 acceptable by the
IRS for Electronic Filing and Direct Deposit with a Federal Tax Refund greater
than two-hundred ($200) dollars and no greater than five thousand ($5,000)
dollars. The maximum RAL amount for Non-EIC applicants is five thousand ($5,000)
dollars inclusive of any fees or charges. The maximum RAL amount for EIC
applicants is five thousand ($5,000) dollars inclusive of any fees or charges.
(Applicants showing a Refund greater than $5,000 shall receive a RAL up to
$5,000 and subsequently will be issued a check for the excess amount.)
3. Be 18 years of age or older or otherwise be eligible under state law to apply
for and receive a RAL.
If married filing joint, either applicant (primary or spouse) must meet the
minimum requirement.
If state of residence is:
Alabama - applicant must be 19 unless married, then 18.
Nebraska - applicant must be 19 unless married, then no age restriction.
Puerto Rico - applicant must be 21 years old unless they have parental or
guardian consent.
4. Comply with the Identification and Qualifying Procedures for a Refund
Anticipation Loan through RAL Originator as set forth on Schedule 1.3.
5. Not previously have filed any Federal Income Tax Return for the tax year
2002, not have any tax due and/or tax liens from prior tax years, not owe any
delinquent RALs, child support, alimony payments, student loans, V.A. loans or
other Federally sponsored loans.
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<PAGE>
6. Presently, not have a petition (whether voluntary or involuntary) filed or
anticipate filing, under federal bankruptcy laws.
7. Not have a RAL with RAL Originator, or any other RAL originator from a prior
year that has been discharged in bankruptcy.
8. Not have paid any estimated tax and/or did not have any amount of the 2001
return applied to the 2002 return.
9. Not be presently making regular payments to the IRS for prior year unpaid
taxes.
10. Not have power of attorney that is presently in effect or on file with the
IRS to direct the Federal Tax Refund to any third party.
11. Not be a non-resident alien.
12. Not be filing a Federal Income Tax Return for 2002 using a substitute W-2,
Form 4852, or any other form of substitute wage and tax documentation, unless
the source of the Form 4852 is a Military Leave and Earnings Statement.
13. Not be filing Form 8862, Earned Income Credit Eligibility for 2002, with the
Federal Income Tax Return.
14. Not be filing a Federal Income Tax Return for 2002 and be currently
incarcerated in a state or federal prison or have income earned while an inmate
at a penal institution and are claiming the Earned Income Credit.
15. Not be filing a return if the 2002 income reported is solely from Schedule C
or C-EZ (Profit & Loss from Business).
16. If Schedule C is present and EIC claimed, and return is not H & R Block
prepared, a RAL application is not permitted unless the taxpayer is a statutory
employee and the W-2 indicates statutory employee in Box 15.
17. Not be filing a return that contains a Schedule EIC and the modified
adjusted gross income on the Earned Credit Worksheet for Form 1040 is different
from the adjusted gross income reported on Form 1040.
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<PAGE>
INITIAL RAL, RAC, AND OTHER BANK PRODUCT FEES
The Initial RAL, RAC, and other bank product Fees established by the RAL
Originator for the Tax Period January 1, 2003 - June 30, 2003 shall be as listed
below:
2003 INITIAL BANK PRODUCT PRICING
(As of July 31, 2002)
H&R BLOCK OFFICE CHANNEL
RAL/IRAL TIERED PRICING -
Instant RAL Fee
Loan Amount RAL Fee (RAL + $15.00)
----------- ------- --------------
$200 to $500 $ 30.00 $ 45.00
$501 to $1000 $ 40.00 $ 55.00
$1001 to $1500 $ 60.00 $ 75.00
$1501 to $2000 $ 70.00 $ 85.00
$2001 to $5000 $ 90.00 $105.00
Maximum Loan Amount $5000.00
Earned Income Tax Credit Lending
(If qualified capped at $2,500.00)
AAF $ 25.00
RAC -
Maximum RAC Amount $5,500.00 $25.00
EXPRESS IRA/RAC -
No License Fee/No Participation $5.00 (paid by Block Services on
back-end)
EXPRESS IRA - RAL/RAC COMBO - Appropriate RAL Fee based on tier level
BALANCE DUE -
No License Fee/No Participation $0 Transaction Processing Fee for 2003
Tax Season
Prime + 13.9%
90 days same as cash
120 days TBD
ARAL -
No License Fee/No Participation $60.00
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<PAGE>
ON-LINE TAX PREPARATION (OTP) CHANNEL
ERA/RAL TIERED PRICING -
Loan Amount ERA Fee (RAL)
----------- -------------
$200 to $500 $30.00
$501 to $1000 $40.00
$1001 to $1500 $60.00
$1501 to $2000 $70.00
$2001 to $5000 $90.00
Maximum Loan Amount $5000.00
Earned Income Tax Credit Lending
(If qualified capped at $2,500.00)
AAF $25.00
EXPRESS IRA/RAC -
No license fee/No participation $5.00 (paid by Block Services on
back-end)
EXPRESS IRA - RAL/RAC COMBO - Appropriate RAL Fee
ONLINE RAC -
Via direct deposit
Block participates at $2.76 $10.00
TAX CUT TAX PREPARATION SOFTWARE CHANNEL
EXPRESS IRA/RAC -
No license fee/No participation $5.00 (paid by Block Services on
back-end)
No other bank products offered in 2003
PTS CHANNEL
No bank products offered in 2003
29
<PAGE>
SCHEDULE II
FINAL CREDIT CRITERIA AND
FINAL RAL AND FINAL RAC FEE AND FINAL ACCOUNT
ADMINISTRATION FEE FOR TAX PERIOD
January 1, 2003 - June 30, 2003
Final Credit Criteria
1. For a RAL Applicant applying for a RAL, which is defined as a loan in
an amount equal to the full amount of such Applicant's anticipated Federal
Income Tax Refund ("Refund"), and which RAL is secured by a Refund which may
include in part an Earned Income Credit ("EIC"), such RAL Applicant must qualify
for approval using RAL Originator credit criteria which includes an IRS debt
code indicating no debts or refund delays as well as credit criteria related to
any scorecards as applicable.
2. Have a valid Federal Income Tax Return for Tax Year 2002 acceptable by
the IRS for Electronic Filing and Direct Deposit with a Federal Tax Refund
greater than two-hundred ($200) dollars and no greater than five thousand
($5,000) dollars. The maximum RAL amount for Non-EIC applicants is five thousand
($5,000) dollars inclusive of any fees or charges. The maximum RAL amount for
EIC applicants is five thousand ($5,000) dollars inclusive of any fees or
charges. (Applicants showing a Refund greater than $5,000 shall receive a RAL up
to $5,000 and subsequently will be issued a check for the excess amount.)
3. Be 18 years of age or older or otherwise be eligible under state law to
apply for and receive a RAL.
If married filing joint, either applicant (primary or spouse) must
meet the minimum requirement.
If state of residence is:
Alabama - applicant must be 19 unless married, then 18.
Nebraska - applicant must be 19 unless married, then no age
restriction.
Puerto Rico - applicant must be 21 years old unless they have
parental or guardian consent.
4. Comply with the Identification and Qualifying Procedures for a Refund
Anticipation Loan through the RAL Originator as set forth on Schedule 1.3.
5. Not previously have filed any Federal Income Tax Return for the tax
year 2002, not have any tax due and/or tax liens from prior tax years, not owe
any delinquent RALs, child support, alimony payments, student loans, V.A. loans
or other Federally sponsored loans.
30
<PAGE>
6. Presently, not have a petition (whether voluntary or involuntary) filed
or anticipate filing, under federal bankruptcy laws.
7. Not have a RAL with the RAL Originator, or any other RAL originator
from a prior year that has been discharged in bankruptcy.
8. Not have paid any estimated tax and/or did not have any amount of the
2001 return applied to the 2002 return.
9. Not be presently making regular payments to the IRS for prior year
unpaid taxes.
10. Not have power of attorney that is presently in effect or on file with
the IRS to direct the Federal Tax Refund to any third party.
11. Not be a non-resident alien.
12. Not be filing a Federal Income Tax Return for 2002 using a substitute
W-2, Form 4852, or any other form of substitute wage and tax documentation,
unless the source of the Form 4852 is a Military Leave and Earnings Statement.
13. Not be filing Form 8379 (Injured Spouse Claim and Allocation) with the
2002 Federal Income Tax Return.
14. Not be filing Form 8862, Earned Income Credit Eligibility for 2002,
with the Federal Income Tax Return.
15. Not be filing a Federal Income Tax Return for 2002 and be currently
incarcerated in a state or federal prison or have income earned while an inmate
at a penal institution and are claiming the Earned Income Credit.
16. Not be filing a return if the 2002 income reported is solely from
Schedule C or C-EZ (Profit & Loss from Business).
17. If Schedule C is present and EIC claimed and return is not H & R Block
prepared, a RAL application is not permitted unless the taxpayer is a statutory
employee and the W-2 indicates statutory employee in Box 15.
18. Not be filing Form 1310 (Statement of Person Claiming Refund Due
Deceased Taxpayer) with the 2002 Federal Income Tax Return or filing a Federal
Income Tax Return 1040 on behalf of a deceased taxpayer.
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FINAL RAL, RAC, AND OTHER BANK PRODUCT FEES
The Final RAL, RAC, and other bank product Fees established by the RAL
Originator for the Tax Period January 1, 2003 - June 30, 2003 are listed below:
H&R BLOCK OFFICE CHANNEL
RAL/IRAL TIERED PRICING -
2003 RAL
Refund/RAL Tier RAL COST
Refund Account Fee Finance Charge RAL Total
------------------ -------------- ---------
$200 - $500 $24.95 $ 5.00 $29.95
$501 - $1,000 $24.95 $15.00 $39.95
$1,001 - $1,500 $24.95 $35.00 $59.95
$1,501 - $2,000 $24.95 $45.00 $69.95
$2,0001 - $5,000 $24.95 $65.00 $89.95
Maximum Loan Amount of $5,000
Earned Income Tax Credit Lending to $5,000 if qualified (some EIC customers will
be capped at $2,500 as in tax season 2002)
RAC Fee $24.95 -- --
Denied RAL (AAF) $24.95 -- --
2003 Full IRAL
Refund Tier Full IRAL Cost
Refund Acct. Fee IRAL Fee Finance Charge Total
---------------- -------- -------------- -----
$200 - $500 $ 24.95 $ 15.00 $ 5.00 $ 44.95
$501 - $1,000 $ 24.95 $ 15.00 $ 15.00 $ 54.95
$1,001 - $1,500 $ 24.95 $ 15.00 $ 35.00 $ 74.95
$1,501 - $2,000 $ 24.95 $ 15.00 $ 45.00 $ 84.95
$2,001 - $5,000 $ 24.95 $ 15.00 $ 65.00 $104.95
32
<PAGE>
2003 Partial $750 IRAL with Subsequent RAL
Refund Tier Partial $750 IRAL Cost RAL Cost IRAL +
(Day 1) (Day 2) RAL Total
Refund IRAL Fee Finance Partial Finance
Acct. Charge IRAL Total Charge
Fee
------- -------- ------- ---------- ------- ---------
$200 - $500* $ 24.95 $ 15.00 $ 5.00 $ 44.95 -- $ 44.95
$501 - $1,000 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 10.00 $ 54.95
$1,001 - $1,500 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 30.00 $ 74.95
$1,501 - $2,000 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 40.00 $ 84.95
$2,001 - $5,000 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 60.00 $104.95
* This is a Full IRAL since partial IRALs are for $750.00
2003 Partial $750 IRAL with Subsequent Denied RAL
Refund Tier Partial $750 IRAL Cost Denied IRAL +
(Day 1) RAL Cost Denied
RAL Total
Refund IRAL Fee Finance Partial Finance
Acct. Charge IRAL Total Charge
Fee
------- -------- ------- ---------- ------- ---------
$200 - $500* $ 24.95 $ 15.00 $ 5.00 $ 44.95 -- $ 44.95
$501 - $1,000 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 0 $ 44.95
$1,001 - $1,500 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 0 $ 44.95
$1,501 - $2,000 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 0 $ 44.95
$2,001 - $5,000 $ 24.95 $ 15.00 $ 5.00 $ 44.95 $ 0 $ 44.95
* This is a Full IRAL since partial IRALs are for $750.00
RAC -
Maximum RAC Amount $9,999.99 $24.95
(Maximum RAC first check amount of $5,500)
EXPRESS IRA/RAC -
No License Fee/No Participation $5.00 (paid by Block Services on
back-end)
EXPRESS IRA-RAL/RAC - COMBO - Appropriate RAL Fee based on tier
level
BALANCE DUE -
No License Fee/No Participation $0 Transaction Processing Fee for
2003 Tax Season
Prime + 13.9%
90 days same-as-cash
120 days same-as-cash for 2002 tax
year
extension filers only
33
<PAGE>
Discount RAL Tests for 2003 (2002 TY) - Pricing test as follows:
Test Markets and Client DRAL fees:
Minneapolis - St. Paul, MN - $39.95
Columbia, SC - $39.95
Charleston, SC - $39.95
Greenville, NC - $39.95
Youngstown, OH - fee as follows to DRAL clients:
Refund Tier Total DRAL Cost
----------- ---------------
$200 - $500 $29.95
$501 - $1,000 $39.95
$1,001 - $5,000 $49.95
IRALs in all markets will be charged an additional $15.00.
Other:
- A RAL constitutes a customer. A partial IRAL followed by a classic RAL for
the balance will not be considered two RALs.
ON-LINE TAX PREPARATION (OTP) CHANNEL
ERA/RAL PRICING
2003 RAL
Refund/RAL Tier RAL Cost
Refund Account Fee Finance Charge RAL TOTAL
------------------ -------------- ---------
$200 - $500 $10.00 $19.95 $29.95
$501 - $1,000 $10.00 $29.95 $39.95
$1,001 - $1,500 $10.00 $49.95 $59.95
$1,501 - $2,000 $10.00 $59.95 $69.95
$2,0001 - $5,000 $10.00 $79.95 $89.95
Maximum Loan Amount of $5,000
Earned Income Tax Credit Lending to $5,000 if qualified (some EIC customers will be capped at
$2,500 as in tax season 2002)
Denied RAL (AAF) $10.00 -- --
(Block license fee of $2.76)
34
<PAGE>
EXPRESS IRA/RAC -
No license fee/No participation $5.00 (paid by Block Services on
back-end)
EXPRESS IRA - RAL/RAC COMBO - Appropriate RAL fee
ON LINE RAC -
Via direct deposit $10.00
Block license fee of $2.76
TAX CUT TAX PREPARATION SOFTWARE CHANNEL
EXPRESS IRA/RAC -
No license fee/No participation $5.00 (paid by Block Services on
back-end)
No other bank products offered in 2003
PTS CHANNEL
No bank products offered in 2003
35
<PAGE>
SCHEDULE 1.3
IDENTIFICATION AND QUALIFYING PROCEDURES FOR A
REFUND ANTICIPATION LOAN
THROUGH THE RAL ORIGINATOR
A. NEW CUSTOMER. (An applicant who has not received a RAL Originator
Pre-approved Loan Offer.)
Applicant must have two forms of valid identification, one must be a picture and
at least one must be from Group A.
B. PRE-APPROVED CUSTOMERS
One acceptable form of identification must be obtained. If Resident Alien ID is
presented, proof of qualifying child's residence for EIC is not required.
GROUP A GROUP B
------- -------
IRS Mailing label Copy of Form 8453 or E-File Authentication
(within last 10 years) Authorization (within last 10 years) signed by
Electronic Return Originator
IRS Telefile Tax Record
Copy of Prior Year Return
*Military ID (within last 10 years) including 1040 PC.
*City/State/County Issued ID
Prior Client on File
Driver's License
Check Cashing ID
*Employee ID
Current Pay Stub
*Food Stamp ID
Department Store/Gas Credit Card
*Indian Tribal Card
Motor Vehicle Registration
Major Credit Card (Visa, MC, Amex,
Discover, Optima) *School ID
Social Security Card
**Resident Alien ID
Union Membership ID
*State Welfare ID
Voter Registration Card
*U.S. Passport
IRS ITIN or ATIN Letter
Consular Card
*Must be a picture ID.
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Only one ID issued in the current year is acceptable and IDs marked as duplicate
are not allowed.
**Resident alien taxpayers claiming EIC must provide proof of qualifying child's
minimum six month residence in the USA. Such proof, in order of preference, must
be a school registration or ID card for the child, a report card, a school
health or attendance record, doctor bills for the child, a utility bill in the
parent's name, the birth certificate of the child showing birth in the USA or
other document establishing residence of the child in the USA.
PHONE CONTACT
If the telephone number for the primary taxpayer's residence is not available, a
telephone number where the primary taxpayer can be reached is required.
A work telephone number is required for each taxpayer that is employed.
EARNED INCOME CREDIT
Schedule EIC must meet all IRS specifications and pass all IRS reject criteria.
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APPENDIX OF
DEFINED TERMS
"ACH" means the Automated Clearing House System commonly used for
electronic payment transactions.
"AFFILIATE" of any Person means any other Person controlling,
controlled by or under common control with such Person. RAL Originator shall not
be deemed an Affiliate of Tax Masters.
"AGREEMENT" means this Amended and Restated Refund Anticipation Loan
Operations Agreement and all amendments hereof and supplements hereto.
"APPLICANT" means a Person who has filed a RAL Application during
the current Tax Period.
"BENEFICIAL FRANCHISE" means Beneficial Franchise Company Inc., a
Delaware corporation.
"BENEFICIAL FRANCHISE INDEMNIFIED PARTIES" shall have the meaning
set forth in Section 4.3 of this Agreement.
"BLOCK COMPANIES" means, collectively, Block Services, Block Tax
Services and Royalty.
"BLOCK FRANCHISE" means an office owned by a franchisee of Block
Services or its subsidiaries that operates under the "H&R Block" name that is
open to the public for the preparation of Returns.
"BLOCK INDEMNIFIED PARTIES" shall have the meaning set forth in
Section 1.14 of this Agreement.
"BLOCK INDEMNIFYING PARTIES" shall have the meaning set forth in
Section 1.14 of this Agreement.
"BLOCK LICENSED MARKS" shall have the meaning set forth in Section
5.2 of this Agreement.
"BLOCK OFFICE" means (i) an office owned by Block Services or its
subsidiaries that operates under the "H&R Block" name and is open to the public
for the preparation of Returns and (ii) a Corporate Franchise.
"BLOCK RAL PROCESSOR" shall have the meaning set forth in Section
4.1 of this Agreement.
"BLOCK SERVICES" means H & R Block Services, Inc., a Missouri
corporation, and its subsidiaries.
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"BLOCK TAX SERVICES" means H & R Block Tax Services, Inc., a
Missouri corporation.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a day
on which banking institutions are authorized or obligated by law or executive
order to be closed.
"CLASSIC RAL" shall have the meaning set forth in Section 8.15 of
this Agreement.
"CORPORATE FRANCHISE" means a Person authorized by Block Services
(or an Affiliate of Block Services) pursuant to a corporate franchise agreement
to operate a Block Franchise. "Corporate Franchise" does not include a Person
authorized by a Major Franchise Agreement with Block Services (or an Affiliate
of Block Services) to operate a Block Franchise and subfranchise others to
operate a Block Franchise within a specified territory, or a subfranchisee of a
Major Franchisee.
"DIRECT DEPOSIT" means the deposit of a Taxpayer's refund by the IRS
directly into a bank account designated by a Taxpayer on his or her Return.
"DISCLOSING PARTY" shall have the meaning set forth in Section
7.2(a) of this Agreement.
"ELECTRONIC FILING" means the filing of a Return with the IRS, or
the applicable state taxing authority, by Block Services via its Electronic
Filing Software.
"ELECTRONIC FILING SOFTWARE" means the proprietary software owned by
Block Services, which is used to electronically file Returns with the IRS.
"ELECTRONIC DATA PROCESSING GUIDELINES" means the guidelines
established by the parties hereto related to the process of filing Returns.
"ELECTRONIC DATA PROCESSING SYSTEMS" means those electronic systems
used to either electronically file Returns with the IRS or to facilitate the
origination of RALs or the issuance of RACs.
"EXPENSE REIMBURSEMENT LETTER" means the letter agreement dated
November 5, 2002, by and among Block Companies and Household Companies.
"FIRST OPERATIONS AMENDMENT" means the First Amendment to the Refund
Anticipation Loan Operations Agreement as of January 1, 2000, by and among Block
Tax Services, Tax Masters, HB, as successor in interest to BNB, and Beneficial
Franchise.
"FINAL CREDIT CRITERIA" shall have the meaning set forth in Section
6.2(b) of this Agreement.
"FINAL RAL AND RAC FEES" shall have the meaning set forth in Section
6.2(a) of this Agreement.
Appendix-2
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"GOVERNMENTAL ENTITY" means any federal, state, municipal, foreign
or other governmental department, authority, commission, board, court,
administrative agency bureau, body or instrumentality.
"GLO" shall have the meaning set forth in the heading of Section
8.17(a) of this Agreement
"HB" means Household Bank, f.s.b., a federal savings bank.
"HOUSEHOLD COMPANIES" means, collectively, Tax Masters and
Beneficial Franchise.
"ICB" has the meaning set forth in Recital G.
"INFORMATION" shall have the meaning set forth in Section 1.10 of
this Agreement.
"INITIAL CREDIT CRITERIA" shall have the meaning set forth in
Section 6.2(b) of this Agreement.
"INITIAL RAL AND RAC FEES" shall have the meaning set forth in
Section 6.2(a) of this Agreement.
"INSTANT RAL APPLICATION" means the application completed by a RAL
Applicant to obtain an Instant RAL from the RAL Originator that must contain,
among those other things as the RAL Originator shall reasonably require, a
certification signed by the RAL Applicant that he or she: (a) has not previously
filed any Return for the applicable Tax Year, does not have any previous tax
liabilities, delinquent student loans, or any other delinquent federally
guaranteed or sponsored loans, or delinquent child support payments; (b) has not
filed a petition (whether voluntary or involuntary) under any federal or state
bankruptcy or insolvency laws; and (c) has not filed any powers of attorney with
the IRS or any state taxing authority and has no power of attorney presently in
effect to direct any tax return to any third party.
"INSTANT RAL" means a RAL of which a credit decision is made prior
to Block Services receiving both (i) positive acknowledgement of the underlying
Tax Return's acceptance for Electronic Filing and (ii) the Notification from the
IRS.
"IRS" shall have the meaning set forth in Section 1.1 of this
Agreement.
"LETTER AGREEMENT" means the letter agreement dated November 11,
2002, by and among Block Companies and Household Companies.
"LICENSE FEES" means the fees paid to Block Services by Tax Masters
pursuant to the terms of Section 5.4 of this Agreement.
"MAJOR FRANCHISE AGREEMENT" means an agreement between a Major
Franchisee and Block Services (or an Affiliate of Block Services) authorizing
the Major Franchisee to
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operate a Block Franchise and to subfranchise others to operate a Block
Franchise within a specified territory.
"MAJOR FRANCHISEE" means a Person authorized by a Major Franchise
Agreement with Block Services (or an Affiliate of Block Services) to operate a
Block Franchise and to subfranchise others to operate a Block Franchise within a
specified territory.
"NOTIFICATION" shall have the meaning set forth in Section 1.10 of
this Agreement.
"ORIGINAL RAL OPERATIONS AGREEMENT" means the Refund Anticipation
Loan Operations Agreement, effective July 19, 1996, by and among Block
Companies, Beneficial Tax Masters, BNB and Beneficial Franchise.
"PATENT RIGHTS" shall have the meaning set forth in Section 4.1 of
this Agreement.
"PERSON" means any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organizations, Governmental Entity or other entity of
similar nature.
"PROPRIETARY INFORMATION" shall have the meaning set forth in
Section 7.1 of this Agreement.
"RAC" means a refund anticipation check issued by the RAL Originator
and delivered to a Taxpayer pursuant to the Refund Anticipation Check Service.
"RAL" or "REFUND ANTICIPATION LOAN" means a loan to a Taxpayer
secured by such Taxpayer's federal income tax refund.
"RAL ACCOUNT" shall mean an account established by the RAL
Originator for each RAL Customer.
"RAL APPLICATION" shall have the meaning set forth in Section 1.4 of
this Agreement.
"RAL CUSTOMERS" shall means individuals or entities that apply for
RALs or RACs under the program through Block Services (or its subsidiaries),
Corporate Franchises, and Major Franchisees and subfranchisees of Major
Franchisees that have elected to participate in the RAL Program.
"RAL OPERATIONS AGREEMENT" shall have the meaning set forth in
Recital F.
"RAL ORIGINATOR" means the insured depository institution engaged by
Tax Masters to serve as originator under the RAL Program.
"RAL PROGRAM" has the meaning set forth in Section 7.1 of this
Agreement.
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"RECEIVING PARTY" shall have the meaning set forth in Section 7.2 of
this Agreement.
"REFUND ANTICIPATION CHECK SERVICE" shall mean a service pursuant to
which a check in the amount of a Taxpayer's federal income tax refund, less the
sum of (a) fees charged for the making of the check, (b) tax preparation and
electronic filing fees and (c) other properly withheld amounts, is delivered to
a taxpayer on account of a direct deposit refund (other than in connection with
a RAL made in advance of receipt of the related refund). "Refund Anticipation
Check Service" includes the delivery of a direct deposit refund check to a
Taxpayer in connection with such Taxpayer's denied RAL Application.
"RETURNS" shall have the meaning set forth in Section 1.1 of this
Agreement.
"ROYALTY" means HRB Royalty, Inc., a Delaware corporation.
"SALE AND SERVICING AGREEMENT" has the meaning set forth in Recital
H of this Agreement.
"SECOND OPERATIONS AMENDMENT" means the Second Amendment to the
Refund Anticipation Loan Operations Agreement dated as of January 1, 2001, by
and among Block Tax Services, Tax Masters, HB and Beneficial Franchise.
"SUBSTITUTION" shall have the meaning set forth in Recital J of this
Agreement.
"SURVIVAL PROVISIONS" shall have the meaning set forth in Section
4.4 of this Agreement.
"TAX MASTERS" means Household Tax Masters Inc., a Delaware
corporation.
"TAX MASTERS INDEMNIFIED PARTIES" shall have the meaning set forth
in Section 2.4 of this Agreement.
"TAX PERIOD" means January 1 through June 30 of a year in which
individuals typically pay income taxes for income earned in the Tax Year.
"TAX YEAR" means the period beginning on January 1 of the year
immediately prior to the current Tax Period and ending on December 31 of the
year immediately prior to the current Tax Period.
"TAXPAYER" means a Block Services customer for any of its services.
It refers to both to individual taxpayers filing individual Tax Returns and to
joint taxpayers filing joint Tax Returns.
"TERM" shall have the meaning set forth in Section 6.1 of this
Agreement.
"THIRD OPERATIONS AMENDMENT" shall have the meaning set forth in
Recital F of this Agreement.
Appendix-5