Refund Anticipation Loan Participation Agreement - Block Financial Corp., Household Tax Masters Inc. and Household Bank fsb
AMENDED AND RESTATED
REFUND ANTICIPATION LOAN
PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED REFUND ANTICIPATION LOAN PARTICIPATION
AGREEMENT (this "Agreement"), dated as of January 6, 2003, is made by and among
BLOCK FINANCIAL CORPORATION, a Delaware corporation ("BFC"), HOUSEHOLD TAX
MASTERS INC., a Delaware corporation ("Tax Masters"), and solely for purposes of
Sections 7.9 and 7.15 herein, HOUSEHOLD BANK, f.s.b., a federal savings bank
("HB").
RECITALS
A. BFC, Beneficial National Bank, a national banking association
("BNB") and Beneficial Tax Masters Inc., a Delaware corporation ("Beneficial Tax
Masters"), entered into a Refund Anticipation Loan Participation Agreement dated
as of July 19, 1996 (the "Original Participation Agreement"), wherein BFC agreed
to purchase from BNB and Beneficial Tax Masters, and BNB and Beneficial Tax
Masters agreed to sell to BFC, a participation interest in refund anticipation
loans made by BNB to customers of both H&R Block Tax Services, Inc., a Delaware
corporation ("Block Tax Services"), and its affiliates and certain franchisees
of HRB Royalty, Inc., a Delaware corporation ("Royalty") and their affiliates.
B. BFC, BNB and Beneficial Tax Masters, entered into an amendment to
the Original Participation Agreement, dated as January, 1998 (the "Initial
Participation Amendment").
C. BFC, HB, as successor in interest to BNB, and Tax Masters (f/k/a
Beneficial Tax Masters), entered into a First Amendment to the Refund
Anticipation Loan Participation Agreement, dated as of January 1, 2000 (the
"First Participation Amendment"), wherein certain terms, conditions and
obligations provided in the Original Participation Agreement, as amended by the
Initial Participation Amendment, were modified, including, among others, the
substitution of HB for BNB as the originating bank, and the change in name of
Beneficial Tax Masters to Tax Masters.
D. BFC, Tax Masters and HB have entered into a Second Amendment to
the Refund Anticipation Loan Participation Agreement, dated as of January 1,
2002 (the "Second Participation Amendment," and together with the Original
Participation Agreement, the Initial Participation Amendment, and the First
Participation Amendment, the "RAL Participation Agreement").
E. 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.
<PAGE>
F. Tax Masters and ICB 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.
G. H&R Block Services, Inc., a Missouri corporation ("Block
Services"), on behalf of itself and its subsidiaries, Block Tax Services, and
Royalty (Block Services, Block Tax Services and Royalty are collectively
referred to herein as "Block Companies"), Tax Masters, Beneficial Franchise
Company, Inc., a Delaware corporation ("Beneficial Franchise") (Tax Masters and
Beneficial Franchise are collectively referred to herein as "Household
Companies"), and for certain limited purposes, HB, have entered into an Amended
and Restated Refund Anticipation Loan Operations Agreement, dated as of January
6, 2003, (as amended and restated, the "RAL Operations Agreement").
H. Block Companies, BFC, HB and Household Companies have entered
into a letter agreement, dated November 5, 2002 (the "Expense Reimbursement
Letter"), regarding reimbursement of Block Companies' and BFC's expenses in
connection with Household Companies' replacement of RAL Originator.
I. Block Services, Royalty, BFC, HB 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.
J. The parties desire to amend and restate the RAL Participation
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,
and to make certain other changes to the RAL Participation Agreement as
hereinafter set forth relating to the purchase by BFC of participation interests
in RALs made by the RAL Originator, and RACs issued by the RAL Originator to
certain customers of Block Services, Corporate Franchises, Major Franchisees,
subfranchisees of a Major Franchisee, or any Affiliate of any of the foregoing.
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
receipt and sufficiency of which are hereby acknowledged, BFC, Tax Masters and,
solely for purposes of Sections 7.9 and 7.15 herein, HB hereby covenant and
agree that the RAL Participation Agreement is hereby amended
2
<PAGE>
and restated in its entirety with respect to Participation Interests purchased
by BFC and certain other acts and events that occur from and after the effective
date hereof by deleting the provisions of Sections 1.1 through 7.13 as the same
now appear and by substituting therefor the following Sections 1.1 through 7.17:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the meaning set forth below:
"Accrual Period" shall have the meaning set forth in Section 2.4(b).
"Adjustment Date" shall have the meaning set forth in Section
2.4(c).
"Affiliate" of any Person shall mean any other Person controlling,
controlled by or under common control with such Person.
"Applicable Percentage" shall mean the percentage set forth for a
particular Tax Period in Section 2.5.
"Applicable Tax Period" shall mean any of the ten consecutive Tax
Periods commencing with and including the Tax Period beginning January 1, 1997
and ending with and including the Tax Period beginning January 1, 2006.
"Average Refund Balance" shall have the meaning set forth in Section
2.4(b).
"BFC" shall mean Block Financial Corporation, a Delaware
corporation.
"Base Purchase Price" shall have the meaning set forth in Section
2.3(a).
"Block Franchise" shall mean 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 tax returns.
"Block Office" shall mean (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 tax returns and (ii) a Corporate Franchise.
"Block Services" shall mean H&R Block Services, Inc., a Missouri
corporation.
"Block Tax Services" shall mean H&R Block Tax Services, Inc., a
Missouri corporation.
"Budget Period" shall mean, with respect to any Tax Period, the
period from January 1 before the commencement of such Tax Period to and
including the following December 31.
3
<PAGE>
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in Bridgewater, New Jersey are authorized or
obligated by law or executive order to be closed.
"CPI" shall mean the index known as United States Department of
Labor, U.S. Bureau of Labor Statistics, Consumer Price Index, United States City
Average, All Items (1982-84=100), or if discontinued, the successor index that
most closely approximates the foregoing index.
"Claim" shall have the meaning set forth in Section 6.2.
"Closing Date" shall mean with respect to a Participation Interest,
the date on which such Participation Interest is sold to BFC pursuant to this
Agreement.
"Collections" shall mean (i) all finally collected funds received by
Tax Masters as servicer for the RAL Originator and applied to Participated Pool
RALs, whether such finally collected funds arise from receipt of cash, checks,
wire transfers, ATM transfers, exercise of rights of offset or other form of
payment, (ii) promissory notes and/or other evidence of indebtedness accepted by
Tax Masters as servicer for the RAL Originator from or on behalf of Obligors in
payment of Participated Pool RALs (in which case such Collections shall be
deemed to be received by the RAL Originator for purposes of this Agreement on
the Business Day on which such promissory note or evidence of indebtedness was
received by the RAL Originator) and (iii) all fees charged by the RAL Originator
to customers of Block Offices for issuing Pool RACs (in which case such
Collections shall be deemed to be received by the RAL Originator for purposes of
this Agreement on the Business Day on which such RAC is delivered to the
customer).
"Corporate Pool RAL" shall have the meaning given such term in the
definition of "Pool RAL."
"Corporate Franchise" shall mean a Person authorized directly by
Block Services (or an Affiliate of Block Services) pursuant to a corporate
franchise agreement to operate a Block Office. "Corporate Franchise" does not
include a Person authorized by a major franchise agreement between a Major
Franchisee and 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, or a subfranchisee of a Major Franchisee.
"Defaulted Pool RAL" shall mean each Participated Pool RAL which, in
accordance with the RAL Guidelines and Tax Masters' customary and usual
servicing procedures for RALs, the RAL Originator has charged off as
uncollectible; provided, however, that no Pool RAL originated during any Tax
Period shall be classified as a Defaulted Pool RAL prior to January 1 of the
following year.
"Eligible RAL" shall mean each Pool RAL:
(a) that was created by the RAL Originator, and is in compliance in
all material respects, with the RAL Operations Agreement (or a Major
Franchisee RAL
4
<PAGE>
Agreement, as the case may be) and the federal Equal Credit Opportunity
Act, 15 U.S.C. Sections 1691 et seq.;
(b) (i) as to which any blank preprinted form of disclosure
statement supplied by Tax Masters on behalf of the RAL Originator to the
tax preparation office at which such Pool RAL was originated for use in
connection with the origination of such Pool RAL complied, as to form
(subject to proper completion), with the requirements of the federal
Truth-in-Lending Act, 15 U.S.C. Sections 1601 et seq. ("TILA") (it being
understood that the foregoing shall not be deemed a warranty by Tax
Masters that such form has been properly completed) and (ii) that was
created in compliance with the other requirements of TILA; and
(c) as to which, at the time of the sale of the Participation
Interest in such Pool RAL to BFC, Tax Masters had good and marketable
title thereto free and clear of all Liens arising under or through Tax
Masters or any of its Affiliates.
"ERA Operations Agreement" shall mean the ERA Operations Agreement
to be entered into between BFC, Royalty, Tax Masters and Beneficial Franchise
effective January 1, 2003.
"Excluded RAL" shall have the meaning set forth in Section 5.2.
"Governmental Authority" shall mean the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative judicial, regulatory or administrative functions
pertaining to government.
"HB" shall mean Household Bank, f.s.b., a federal savings bank.
"ICB" shall mean Imperial Capital Bank, a California state chartered
commercial bank.
"Ineligible RAL" shall have the meaning set forth in Section 4.4(c).
"Initial Periodic Servicing Fee Percentage" shall mean the Periodic
Servicing Fee Percentage initially determined for a particular Budget Period
pursuant to Section 2.4(a)(iii).
"Initial Purchase Price" shall mean the initial purchase price for a
Participation Interest to be paid by BFC to Tax Masters as calculated pursuant
to Section 2.3.
"License Fees" shall mean the license fees paid or payable to Block
Services, a Corporate Franchise, a Major Franchisee or a subfranchisee of a
Major Franchisee as a result of the making of a Pool RAL or a Pool RAC, which
are paid or payable contemporaneously with or shortly after the making of such
Pool RAL or Pool RAC.
"License Fee Adjustment" shall have the meaning set forth in Section
2.3(b).
"Lien" shall mean any pledge, hypothecation, assignment,
encumbrance, security interest, lien (statutory or other) or other security
agreement of any kind or nature whatsoever,
5
<PAGE>
including (without limitation) any conditional sale or other title retention
agreement having substantially the same economic effect as any of the foregoing.
"Major Franchisee" shall mean the Person authorized by a major
franchise agreement with Block Services, or with an Affiliate of Block Services,
to operate a Block Office and to subfranchise others to operate a Block Office
within a specified territory.
"Major Franchisee Pool RAL" shall have the meaning given such term
in the definition of "Pool RAL."
"Major Franchisee RAL Agreement" shall mean an agreement from time
to time between Tax Masters and/or any one or more Affiliates of Tax Masters and
a Major Franchisee pursuant to which RALs are made to customers of Block Offices
of such Major Franchisee or its subfranchisees, as the same may be amended,
modified or supplemented from time to time.
"Notifying Party" shall have the meaning set forth in Section 5.2.
"Obligor" shall mean, with respect to any RAL, the Person or Persons
obligated to make payments to the RAL Originator, or an Affiliate of the RAL
Originator, with respect to such RAL.
"Originator Party" shall mean any Person or entity through whom Pool
RALs or Pool RACs are made or serviced, and any other Person or entity that
prepares or arranges for the preparation of a tax return for a Pool RAL or Pool
RAC customer, or that files, makes or transmits or assists or arranges for the
filing, making or transmission of any such tax return, refund request or Pool
RAL or Pool RAC request, or that acts as a network or service bureau in
connection with any of the foregoing, or that owns, distributes, licenses or
otherwise has an interest in any software or other intellectual property used in
connection with any of the foregoing or in any trademark, service mark or brand
name under which Pool RALs or Pool RACs are promoted.
"Participated Pool RAL" shall mean any Pool RAL in which a
Participation Interest has been sold to BFC pursuant to Section 2.1 and has not
been reassigned to Tax Masters or repurchased by Tax Masters pursuant to this
Agreement.
"Participation Interest" shall have the meaning set forth in Section
2.1.
"Periodic Servicing Compensation" for a Budget Period shall be equal
to (i) the sum, for all Participated Pool RALs made during the corresponding Tax
Period, of the Servicing Adjustments paid by BFC for the Participation Interests
corresponding to such Participated Pool RALs, plus (ii) any amount paid by BFC
to Tax Masters during such Budget Period pursuant to Section 2.4(c)(i), minus
(iii) any amount paid by Tax Masters to BFC during such Budget Period pursuant
to Section 2.4(c)(i).
"Periodic Servicing Fee Percentage" shall mean the Required
Servicing Compensation for a Tax Period, divided by the aggregate Principal
Amount of Participated Pool RALs made in such Tax Period, as determined
initially pursuant to Section 2.4(a) and adjusted from time to time pursuant to
Section 2.4(b).
6
<PAGE>
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pool RAC" shall mean any RAC issued by the RAL Originator through a
Block Office owned by Block Services, a Corporate Franchise, a Major Franchisee,
a subfranchisee of a Major Franchisee, or any Affiliate of any of the foregoing.
"Pool RAL" shall mean (a) any RAL made by the RAL Originator through
a Block Office owned by Block Services, a Corporate Franchise or either of their
Affiliates, pursuant to or under color of (i) the RAL Operations Agreement or
(ii) a referral to the RAL Originator by Block Services, such Corporate
Franchise or such Affiliates pursuant to a contractual electronic filing
arrangement with any other Person, (b) any electronic refund advance ("ERA")
made by the RAL Originator originated through On-Line Tax Preparation ("OTP")
software pursuant to the ERA Operations Agreement (a RAL or ERA described in
subclause (a) or (b) may hereinafter be referred to as a "Corporate Pool RAL")
and (c) any RAL made during any Tax Period by a Major Franchisee or a
subfranchisee of a Major Franchisee, pursuant to or under color of (i) a Major
Franchisee RAL Agreement or (ii) a referral to the RAL Originator by a Major
Franchisee, or a subfranchisee or such Major Franchisee, of an Obligor whose
federal income tax return was filed electronically by such Major Franchisee, or
subfranchisee of such Major Franchisee, pursuant to a contractual electronic
filing arrangement between such Major Franchisee or subfranchisee and any other
Person (a RAL described in this subclause (c) may hereinafter be referred to as
a "Major Franchisee Pool RAL"). Notwithstanding the foregoing, "Pool RAL",
"Corporate Pool RAL", and "Major Franchisee Pool RAL", shall not include any RAL
for which no RAL fee is charged to a customer (a "No Fee RAL"), provided that
any RAL offered in connection with the parties' "CADE" initiative test shall not
be deemed a No Fee RAL.
"Principal Amount" of a RAL, shall mean:
(a) the aggregate amount paid or payable by the RAL Originator to or
for the account of an Obligor in connection with a RAL, and shall in any
event include (i) the amount of any check properly issued or authorized to
be issued by the RAL Originator to the order of any such Obligor, and (ii)
any amounts paid or payable by the RAL Originator for the account of
Obligor to any Originator Party, the Internal Revenue Service or any other
Person (whether or not the RAL Originator has a right, contingent or
otherwise, to withhold or retain any portion of such amount). The
"Principal Amount" of a RAL shall not include any financing fee or refund
account fee payable by such Obligor to the RAL Originator for such RAL.
Each of the foregoing elements of a RAL shall be deemed to be made for
purposes of this Agreement on the Business Day on which the RAL check
clears the bank account used by the RAL Originator for the disbursement of
RALs and such fact has been recorded in the computer files the RAL
Originator uses for administering RALs; and
(b) shall also include any payment made at any time by the RAL
Originator with respect to any lost, altered or stopped check issued by or
on behalf of the RAL Originator in connection with a RAL described in
paragraph (a) (the "Underlying RAL"),
7
<PAGE>
as well as any payment by the RAL Originator with respect to any lost,
altered or stopped replacement check. Payments on any RAL described in
this paragraph (b) shall be deemed to be made for purposes of this
Agreement on the Business Day when the replacement RAL check clears the
bank account used by the RAL Originator for the disbursement of RALs and
such fact has been recorded in the computer files the RAL Originator uses
for administering RALs.
"Qualified Expenses" shall mean all direct expenditures incurred in
good faith by Tax Masters or any of its Affiliates in connection with ordinary
and routine origination and servicing of Participated Pool RALs and Pool RACs or
the performance of Tax Masters' obligations hereunder (other than the cost of
repurchasing Participation Interests as required by Sections 4.3 or 4.4) or
under the RAL Operations Agreement (or a Major Franchisee RAL Agreement, as the
case may be), including (without limitation) fees and amounts paid or payable to
Originator Parties, salaries, employee benefits, data processing costs,
depreciation, equipment rent, equipment maintenance, space rent, maintenance,
credit reports, legal forms and supplies, non-litigation legal expenses,
telephone and telegraph, postage, delivery charges, travel, purchased services
and systems, professional and consulting, external staff training and other
personnel-related expenses, advertising, sales promotion, collection, systems,
systems development, check clearing, cash management, software purchase,
licensing or development, fees of licensing service marks, trademarks or other
intellectual property, the costs of obtaining the accountant's report obtained
pursuant to Section 2.4(f), and data processing expenses; provided, however,
that Qualified Expenses shall not include (i) any bad debt expense pertaining to
any Participated Pool RAL, (ii) License Fees, to the extent duplicative of
amounts as to which BFC has paid its proportionate share pursuant to Section
2.3(b), (iii) any allocated expenses not related directly to the origination of
Participated Pool RALs or the making of Pool RACs, the ordinary and routine
servicing of Participated Pool RALs or the performance by Tax Masters or any of
its Affiliates of its obligations under this Agreement or the RAL Operations
Agreement (or a Major Franchisee RAL Agreement, as the case may be), whether
such expenses are allocated internally by Tax Masters or allocated to Tax
Masters by any of its Affiliates, (iv) interest expense, if any, incurred by Tax
Masters or any of its Affiliates in connection with the portion of Participated
Pool RALs that was not sold to and purchased by BFC, (v) any expenses pertaining
to Tax Masters' fraud service bureau to the extent Tax Masters receives
reimbursement of such expenses by Persons other than BFC or its Affiliates, (vi)
collection costs or expenses with respect to delinquent Participated Pool RALs
with respect to which Tax Masters (or any of its Affiliates) receives a
collection fee pursuant to Section 3.4, (vii) allocations of corporate overhead
expenses (including, without limitation, corporate management salaries and
benefits and depreciation of general plant and equipment not specifically
related to the origination and servicing of Participated Pool RALs), (viii) any
cost or expense for which Tax Masters or its Affiliates are reimbursed by a
third party (other than an Affiliate of Tax Masters) (including, without
limitation, costs or expenses for which Tax Masters is reimbursed by Block
Services pursuant to the indemnification provisions of the RAL Operations
Agreement) or (ix) any expenditures for goods or services procured by Tax
Masters or any of its Affiliates that are not related directly to the
origination of Participated Pool RALs, the making of Pool RACs or the
performance by Tax Masters or any of its Affiliates of its or their obligations
under this Agreement or the RAL Operations Agreement (or a Major Franchisee RAL
Agreement, as the case may be).
8
<PAGE>
In the event any expenditure that pertains to more than one Budget
Period or should be capitalized and amortized or depreciated over more than one
Budget Period in accordance with generally accepted accounting principles, such
expenditure shall be capitalized and included in Qualified Expenses for a Budget
Period only to the extent that such capitalized expenditure is (or should be)
amortized or depreciated during such Budget Period in accordance with generally
accepted accounting principles.
Qualified Expenses shall be allocated to Participated Pool RALs for
a Budget Period on the following basis (it being understood that, to the extent
that the operating unit of Tax Masters or its Affiliates that services RALs and
RACs also deals with other electronic filing derivative products, Tax Masters
shall allocate as Qualified Expenses only the expenses of such unit that are
otherwise Qualified Expenses) as it estimates in good faith are allocable to
RALs and RACs and not to other electronic filing derivative products: (x) all
permitted expenses as described above of Tax Masters and its Affiliates for RALs
and RACs of all types (whether or not Pool RALs or Pool RACs) during a Budget
Period shall be aggregated, (y) the result shall be divided by the total number
of RALs and RACs of all types purchased by Tax Masters during the corresponding
Tax Period, and (z) the result shall be multiplied by the number of RALs and
RACs made by the RAL Originator during such Tax Period that are Participated
Pool RALs and Pool RACs (and such result shall be deemed the Qualified Expenses
allocable to Participated Pool RALs and Pool RACs for such Budget Period). An
illustrative example of the allocation of Qualified Expenses to Participated
Pool RALs and Participated Pool RACs is set forth in Exhibit B attached hereto.
"RAC" means a check issued by the RAL Originator and delivered to a
taxpayer pursuant to a Refund Anticipation Check Service.
"RAL" shall mean any refund anticipation loan from time to time made
by the RAL Originator.
"RAL Guidelines" shall mean the RAL Originator's policies and
procedures from time to time relating to the operation of its refund
anticipation loan business, including (without limitation) the policies and
procedures for determining the credit worthiness of refund anticipation loan
customers, the extension of credit to refund anticipation loan customers and
relating to the collection and charge off of refund anticipation loans.
"RAL Originator" shall mean the insured depository institution
engaged by Tax Masters (subject to the Block Companies' rights under the Letter
Agreement) to serve as the originator under the RAL Program.
"RAL Operations Agreement" shall have the meaning set forth in
Recital G.
"RAL Participation Agreement" shall have the meaning set forth in
Recital D.
"RAL Program" shall have the meaning assigned to it in the RAL
Operations Agreement.
"Reassignment Amount" shall have the meaning set forth in Section
4.3.
9
<PAGE>
"Reassignment Date" shall have the meaning set forth in Section 4.3.
"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.
"Repurchase Value" of a Participated Pool RAL at any time shall mean
the Principal Amount of such Participated Pool RAL, less any Collections
received with respect to such Participated Pool RAL.
"Required Servicing Compensation" means the amount of compensation
the RAL Originator is entitled to receive for originating and servicing
Participated Pool RALs and Pool RACs for a particular Budget Period as computed
pursuant to Section 2.4(a)(iv).
"Servicing Adjustment" shall have the meaning set forth in Section
2.3(c).
"Tax Period" for any year shall mean the period from and including
January 1 of such year to and including August 15 of such year.
"Tax Masters" shall mean Household Tax Masters, Inc., a Delaware
corporation.
"UCC" shall mean the Uniform Commercial Code, as amended from time
to time, as in effect in any specified jurisdiction.
"Underlying RAL" shall have the meaning given that term in paragraph
(b) of the definition of "Principal Amount".
Section 1.2. Other Definitional Provisions. Unless the context of
this Agreement otherwise clearly requires, references to the plural include the
singular, the singular the plural and the part the plural. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement; and Section and subsection references contained in this
Agreement are references to Sections and subsections in this Agreement unless
otherwise specified.
ARTICLE II
PURCHASE AND SALE OF INTERESTS IN POOL RALS
Section 2.1. Purchase and Sale of Participation Interests in Pool
RALs.
(a) Purchase and Sale. Subject to the conditions set forth in this
Agreement, Tax Masters agrees to sell to BFC, and BFC agrees to purchase
from Tax Masters, from time to time, on a "checks cleared" basis, an
undivided ownership interest in, and in an amount equal to the Applicable
Percentage of, all of Tax Masters' right, title and interest
10
<PAGE>
in and to each Pool RAL hereafter created, including all monies due or to
become due with respect thereto and all Collections pertaining thereto and
other proceeds (as defined in the UCC as in effect in the State of
Delaware) thereof (a "Participation Interest"). Subject to the conditions
set forth herein BFC agrees to pay for, purchase and accept all
Participation Interests from time to time as provided herein. Except for
the representations and warranties expressly made by Tax Masters in this
Agreement, Participation Interests (and acquisition thereof by BFC) shall
be without recourse to Tax Masters. Tax Masters represents and warrants to
BFC that the Pool RALs were originated in compliance with the Final Credit
Criteria and Final RAL and RAC Fees (as defined in the RAL Operations
Agreement) and applicable law, excluding, however, any failure to comply
which results from (i) any misrepresentation or omission to state a
material fact by a RAL Customer, or (ii) action or inaction by any Block
Office, Major Franchisee or subfranchisee of a Major Franchisee to perform
its explicit obligations under this Agreement, a corporate franchise
agreement between Block Services and a Corporate Franchise, a Major
Franchisee RAL Agreement, or a subfranchisee agreement relating to the RAL
Program between a Major Franchisee and a subfranchisee, as applicable
(except for any action or inaction by such entities due to changes to the
RAL Program required by the RAL Originator or Tax Masters outside of the
deadlines set forth in this Agreement for any such changes).
(b) The conveyance by Tax Masters to BFC of a Participation Interest
in a Pool RAL shall be deemed to occur at the time when Tax Masters
receives full payment from BFC of the Initial Purchase Price in respect to
such Participation Interest corresponding to such Participated Pool RAL
and all other Participated Pool RALs of Tax Masters arising on the same
day. Upon such conveyance, BFC shall be the owner, to the extent of the
Applicable Percentage, of a Participation Interest in such Pool RAL. The
parties intend that if and to the extent that any conveyance of a
Participation Interest in a Pool RAL is not deemed a sale of a
Participation Interest, Tax Masters shall be deemed to have granted to BFC
a security interest in the Participation Interest that was purportedly
conveyed and that this Agreement shall constitute a security agreement
under applicable law. Tax Masters agrees to authorize the filing of
financing and continuation statements as BFC may from time to time
reasonably request with respect to Participation Interests hereafter
created or arising.
(c) Upon BFC's request, Tax Masters agrees to use all commercially
reasonably efforts to obtain for BFC (i) a "true sale" opinion of counsel
to Tax Masters with respect to the sale by Tax Masters and the purchase by
BFC of the Participation Interests in the Pool RALs, and (ii) a
"nonconsolidation" opinion of counsel to Tax Masters with respect to Tax
Masters and any subsidiary of Tax Masters that owns the Participation
Interests prior to such sale and purchase, in both cases in form and
substance typically employed in off-balance sheet financing or sale
transactions generally; provided, however, that in connection with such
efforts (A) Tax Masters shall not be obligated to restructure the terms of
any agreement relating to the RAL Program, or any aspect of the RAL
Program itself, in any way that adversely affects the economic interests
of Tax Masters or its Affiliates, and (B) the failure of Tax Masters to
obtain such opinions (after making commercially reasonable efforts to do
so) shall not constitute a breach of any of Tax Masters' obligations under
this Agreement and shall in no event
11
<PAGE>
give rise to any liability on the part of Tax Masters or any of its
Affiliates. With respect to such opinions and the RAL Program for a
particular Tax Year, (1) BFC shall use all commercially reasonable efforts
to request such opinions as soon as reasonably possible during the
immediately preceding calendar year, and in any event, no later than
September 1st of such preceding calendar year absent major structural
changes to the RAL Program made or proposed by Tax Masters, (2) BFC shall
use all commercially reasonable efforts to identify the entity, if any,
with whom it intends to effectuate any financing or sale transaction, and
the proposed structure of such financing or sale transaction, as soon as
reasonably possible during the immediately preceding calendar year, and in
any event, no later than September 1st of such preceding calendar year
absent major structural changes to the RAL Program made or proposed by Tax
Masters, and (3) BFC and Tax Masters shall cooperate and use all
commercially reasonable efforts to complete all changes to the RAL
Program, if any, and the legal documents and agreements reflecting such
changes, if any, as soon as reasonably possible during the immediately
preceding calendar year, and in any event no later than October 15th of
such preceding calendar year absent major structural changes to the RAL
Program made or proposed by either BFC or Tax Masters. BFC shall be solely
responsible for all legal fees of the parties associated with any opinion
undertaken pursuant to this Section 2.1(c). In connection with any request
by BFC for an opinion pursuant to this Section 2.1(c) for a particular Tax
Year, Tax Masters shall, upon reasonable request by BFC, provide to BFC
copies of all material operative agreements executed by Tax Masters or its
Affiliates relating to the origination of RALs by the RAL Originator, or
the sale and servicing of Tax Masters' retained interest in the Pool RALs,
for such Tax Year, as well as all material operative agreements executed
by Tax Masters or its Affiliates relating to the financing or sale of such
retained interest for such Tax Year, in each case only to the extent (i)
such agreements are reasonably necessary to be reviewed by BFC in
connection with the opinions contemplated by this Section 2.1(c), and (ii)
the terms of such agreements permit disclosure to third parties; provided,
however, that Tax Masters shall not add any provision to any such
agreement that unreasonably prohibits disclosure to BFC, its accountants
or counsel engaged in connection with the issuance of any opinion pursuant
to this Section 2.1(c), or the entity, if any, engaged by BFC to
effectuate any financing or sale transaction. BFC hereby agrees to hold
all such agreements in strict confidence and not provide any copies or
disclose any terms therein to any party other than its accountants, its
counsel and the entity, if any, with whom BFC proposes to effectuate any
financing or sale transaction; provided, however, that, notwithstanding
any other provision in this Agreement, if such entity or an Affiliate of
such entity is deemed by Tax Masters to be a competitor of Tax Masters in
the making or servicing of RALs, then the disclosure of such agreements to
such entity may be restricted by Tax Masters to the extent deemed
necessary by Tax Masters, in its sole discretion, to protect its business
interests and trade secrets.
Section 2.2. Procedure. Each Business Day not later than 9:00 a.m.,
New Jersey time, Tax Masters as servicer for the RAL Originator shall give
notice to BFC (which notice may be by telephone, e-mail or facsimile) of the
number and Principal Amount of Pool RALs made by the RAL Originator and in which
Tax Masters has purchased a participation interest on the preceding Business Day
(it being understood that, for such purpose, a Pool RAL shall be deemed to be
made at the time set forth in the definition of "Principal Amount" in this
12
<PAGE>
Agreement), together with the Initial Purchase Price for the Participation
Interest corresponding to such Pool RALs. Not later than 4:00 p.m., New Jersey
time, on such Business Day, BFC shall pay to Tax Masters the full amount of such
Initial Purchase Price. Such payment shall be made to Tax Masters at such
domestic account designated by Tax Masters by notice to BFC from time to time,
in United States dollars and in funds immediately available at such office at
such time, without setoff, withholding, counterclaim or other deduction of any
nature whatsoever.
Section 2.3. Initial Purchase Price. The Initial Purchase Price for
a Participation Interest shall be equal to the sum of:
(a) the sum, for each Pool RAL corresponding to such Participation
Interest, of the product of (i) the Applicable Percentage applicable to
such Pool RAL, times (ii) the Principal Amount of such Pool RAL (the
aggregate amount referred to in this clause (a) being referred to as the
"Base Purchase Price" with respect to such Participation Interest), plus
(b) the sum, for each Pool RAL corresponding to such Participation
Interest, of the product of (i) the Applicable Percentage applicable to
such Pool RAL, times (ii) the License Fees, if any, paid or payable by Tax
Masters in connection with such Pool RAL (the aggregate amount referred to
in this clause (b) being referred to as the "License Fee Adjustment" with
respect to such Participation Interest), plus
(c) the sum, for each Pool RAL corresponding to such Participation
Interest, of the product of (i) the Periodic Servicing Fee Percentage
applicable to such Pool RAL, times (ii) the Principal Amount of such Pool
RAL (the aggregate amount referred to in this clause (c) being referred to
as the "Servicing Adjustment" with respect to such Participation
Interest).
An illustrative example of the Initial Purchase Price formula is set
forth in Exhibit A attached hereto. The Initial Purchase Price for Participation
Interests shall be adjusted as provided in this Agreement, including Sections
2.4(b) through (d) of this Agreement.
Section 2.4. Determination and Adjustment of Periodic Servicing Fee
Percentage; Adjustment of the Initial Purchase Price.
(a) Determination of Initial Periodic Servicing Fee Percentage. The
Initial Periodic Servicing Fee Percentage shall be determined in the
following manner:
(i) Preparation of Annual Budget and Initial Periodic
Servicing Fee Percentage Calculation. Tax Masters shall, after
consultation with BFC, not later than September 15 before the
beginning of each Tax Period, provide BFC with written notice of (A)
its best preliminary estimate of the aggregate Principal Amount of
Pool RALs and the number of Pool RACs to be made by RAL Originator
during such forthcoming Tax Period, (B) a budget of Qualified
Expenses (which shall take into account the estimated Pool RAL
volume and Pool RAC volume) and (C) a preliminary calculation of the
Required Servicing Compensation and the Initial Periodic Servicing
Fee Percentage (each of which shall be calculated pursuant to
Sections 2.4(a) (iii) and (iv) and shall be based
13
<PAGE>
upon the estimate and budget referred to in this subclause (i)). The
budget of Qualified Expenses shall list in reasonable detail by
category Qualified Expenses it expects to incur during the Budget
Period relating to such Tax Period in connection with the RAL
Originator's origination and making of, and Tax Masters' ordinary
and routine servicing of, the Pool RALs and Pool RACs expected to be
made by the RAL Originator during such Tax Period. An illustrative
example of the allocation of Qualified Expenses to Participated Pool
RALs and Participated Pool RACs is set forth in Exhibit B attached
hereto.
(ii) Review of Annual Budget by BFC. BFC shall have the right,
for a period of 45 days from and after the date it has received from
Tax Masters the items referred to in Section 2.4(a)(i), to review
such items and suggest subcontracting specified servicing functions
contemplated by the budget that, in the belief of BFC, may be
performed more economically than is contemplated by such budget. In
such event, BFC and Tax Masters shall solicit three bids from
qualified subcontractors of nationally recognized standing selected
by Tax Masters and BFC to perform such functions. Tax Masters shall
either engage the subcontractor that submits the lowest bid or
perform such function at the cost of the average of the three bids
submitted by such subcontractors. Tax Masters shall revise such
budget accordingly.
(iii) Calculation of Initial Periodic Servicing Fee
Percentage. The Initial Periodic Servicing Fee Percentage for a Tax
Period shall be equal to (A) Tax Masters' estimate of the aggregate
Required Servicing Compensation for the Budget Period relating to
such Tax Period, as based upon the budget for such Budget Period
pursuant to Section 2.4(a)(i), divided by (B) Tax Masters' estimate
or the Principal Amount of Participated Pool RALs to be made in such
Tax Period, as provided pursuant to Section 2.4(a)(i). An
illustrative example of the Initial Periodic Servicing Fee
Percentage formula is set forth in Exhibit C attached hereto.
(iv) Calculation of Required Servicing Compensation. The
Required Servicing Compensation for a Budget Period shall be equal
to the sum of:
(A) the sum, for each of the categories of Pool RALs (a
category consisting of all Pool RALs to which the same
Applicable Percentage applies pursuant to this Agreement), of
the product of (I) the Applicable Percentage for such category
for the relevant Tax Period, times (II) $2.00 (for the Tax
Period beginning on January 1, 1997, and for Tax Periods
thereafter $2.00 adjusted as set forth below by the CPI for
the Applicable Tax Period), times (III) the number of
Participated Pool RALs of such category made by RAL Originator
during the relevant Tax Period, plus
(B) the sum, for each of the categories of Pool RALs, of
the product of (I) the Applicable Percentage for such category
for the relevant Tax Period, times (II) Qualified Expenses
allocable to Participated Pool
14
<PAGE>
RALs and Pool RACs during the Budget Period, times (III) a
fraction, the numerator of which is the aggregate Principal
Amount of such category of Pool RALs made during such Budget
Period and the denominator of which is the aggregate Principal
Amount of all Pool RALs made during such Budget Period.
The adjustment referred to in subclause (A) of the preceding sentence for
each Tax Period beginning on or after January 1, 1998 shall be made as
follows: for such Tax Period, in lieu of $2.00, the amount referred to in
clause (A) of the preceding sentence shall be $2.00 times a fraction, the
numerator of which shall be the average CPI for the June, July and August
preceding the beginning of such Tax Period, and the denominator of which
shall be the average CPI for the months of June, July and August 1996.
For all purposes of calculating the Required Servicing Compensation, only
RALs of the type described in paragraph (a) of the definition of
"Principal Amount" shall be counted as Participated Pool RALs and each
Pool RAL in which a Participation Interest was purchased and sold pursuant
to this Agreement during a Tax Period shall be counted as a Participated
Pool RAL made during such Tax Period.
An illustrative example of the Required Servicing Compensation formula is
set forth in Exhibit D attached hereto.
(b) Periodic Adjustment of the Periodic Servicing Fee Percentage. At
any time and from time to time during a Budget Period, Tax Masters may in
its discretion, and shall at the reasonable request of BFC, review its
then-current estimate of its Qualified Expenses for such Budget Period and
of the volume of Participated Pool RALs during the related Tax Period.
Following such review, Tax Masters shall, by notice to BFC, increase or
reduce the Periodic Servicing Fee Percentage, effective two Business Days
after the giving of such notice, by such amount as Tax Masters in good
faith estimates is appropriate to reduce the next forthcoming settlement
referred to in Sections 2.4(c)(i) or 2.4(c)(ii), as the case may be, to as
small an amount as possible. If such adjustment results in a refund
payable to BFC pursuant to Sections 2.4(c)(i) or 2.4(c)(ii) in an amount
in excess of $100,000, Tax Masters shall pay BFC interest on the Average
Refund Balance at a rate of interest equal to RAL Originator's prime rate
of interest, fluctuating daily, in effect during the period commencing on
the later of January 15 of the related Tax Period or the date of the most
recent adjustment of the Periodic Servicing Fee Percentage pursuant to
this Section 2.4(b) and ending on the date such refund is paid to BFC (the
"Accrual Period"). Such interest shall accrue during the term of the
Accrual Period. As used herein, "Average Refund Balance" shall mean an
average weighted daily balance of the amount by which such refund exceeds
$100,000, assuming such excess accrues ratably during the term of the
Accrual Period. An illustrative example of the periodic adjustment of the
Periodic Servicing Fee Percentage is set forth in Exhibit E attached
hereto.
15
<PAGE>
(c) Adjustment of Servicing Compensation to Required Servicing
Compensation.
(i) Interim Servicing Compensation Adjustment. On a date (the
"Adjustment Date") selected by Tax Masters, such Adjustment Date
being not later than 30 days after the end of each Tax Period, Tax
Masters shall calculate and provide to BFC, in reasonable detail
and, to the extent possible, in a format consistent with that used
to prepare the annual budget, a calculation of Tax Masters'
Qualified Expenses accrued through the end of such Tax Period. Tax
Masters shall also calculate and provide to BFC notice of the
Required Servicing Compensation accrued through the end of such Tax
Period (calculated as if such Budget Period had ended on such date)
and the Periodic Servicing Compensation paid through the end of such
Tax Period. If such Required Servicing Compensation is greater than
such Periodic Servicing Compensation, BFC shall pay the excess to
Tax Masters. If such Required Servicing Compensation is less than
such Periodic Servicing Compensation, Tax Masters shall pay the
excess to BFC. An illustrative example of the foregoing adjustment
is set forth in Exhibit F attached hereto.
(ii) Final Servicing Compensation Adjustment. Not later than
January 8 following any Budget Period, Tax Masters shall calculate
and provide to BFC, in reasonable detail and, to the extent
possible, in a format consistent with that used to prepare the
annual budget, a calculation of Tax Masters' Qualified Expenses for
the preceding Budget Period. Tax Masters shall also calculate and
provide to BFC notice of the Required Servicing Compensation for
such Budget Period and the Periodic Servicing Compensation for such
Budget Period. If such Required Servicing Compensation is greater
than such Periodic Servicing Compensation, BFC shall pay the excess
to Tax Masters. If such Required Servicing Compensation is less than
such Periodic Servicing Compensation, Tax Masters shall pay the
excess to BFC. An illustrative example of the foregoing adjustment
is set forth in Exhibit G attached hereto.
(d) Float Adjustment. Concurrently with the payment of the
settlement referred to in Section 2.4(c)(i), Tax Masters shall pay to BFC
an amount equal to the product of $.50 times the number of Pool RACs
(other than Pool RACs issued through a Major Franchisee or a subfranchisee
of a Major Franchisee) issued during the Tax Period with respect to which
such settlement relates. Such amount shall be offset against the amount,
if any, owed by BFC to Tax Masters under Section 2.4(c)(i) so that only a
net amount shall be owed under such Section 2.4(c)(i) and this Section
2.4(d).
(e) General Adjustment Payment Provisions. Payments under Sections
2.4(c) and 2.4(d) shall be due and payable by wire transfer not later than
2:00 p.m., New Jersey time, five Business Days after notice from Tax
Masters setting forth such calculations, and such payment shall be deemed
an adjustment to the Initial Purchase Price of the Participation Interests
relating to Pool RALs made during the foregoing Tax Period.
16
<PAGE>
(f) Accountants' Report. At the request of BFC (but no more often
than annually), on or before June 30 of each year, Tax Masters shall
obtain from its independent certified public accountants a special report
(in such form and subject to such assumptions, limitations and
qualifications as such accountants generally require for special reports
of such type) that shall in effect state that the amounts calculated for
the previous Tax Period under clause (c)(ii) above are in compliance with
this Agreement or stating the nature of any variance from this Agreement.
(g) Information About Servicing Costs. Tax Masters shall provide BFC
with all information reasonably requested by BFC from time to time about
Tax Masters' cost accounting methods pertaining to the making of RACs and
the servicing and collection of Pool RALs and other RALs, and about the
costs and expenses incurred by Tax Masters from time to time pertaining to
the servicing and collection of Pool RALs and other RALs. BFC shall have
the right from time to time, at its expense, upon reasonable advance
notice, to cause a firm of nationally recognized independent accountants
selected by it to examine and verify such information.
(h) Arbitration. Any dispute or controversy between BFC and Tax
Masters involving the determination and/or the calculation of the
Servicing Adjustment, the Initial Periodic Servicing Fee Percentage, the
Required Servicing Compensation, the Periodic Servicing Fee Percentage,
Periodic Servicing Compensation and/or Qualified Expenses, or any other
dispute or controversy or relating to the calculations or determinations
made pursuant to this Section 2.4, shall be submitted to, and settled by,
arbitration in accordance with the provisions of this paragraph (h) and
the rules of the American Arbitration Association (except as herein
specifically otherwise stated or amplified). The arbitrator in the
arbitration provided for in this paragraph (h) shall be an independent
public accounting firm of nationally recognized standing that (A) is
qualified under the rules of the American Arbitration Association, (B) has
not provided audit or consulting services to either BFC, Tax Masters, the
RAL Originator or any of their Affiliates during the immediately preceding
two calendar years and (C) has not been engaged by either BFC, Tax Masters
or the RAL Originator or any of their Affiliates to provide audit or
consulting services for the current fiscal year of either party. BFC shall
select two independent public accounting firms that qualify under the
preceding sentence and shall submit the name of such firms to Tax Masters,
which in turn shall designate one of such firms as the arbitrator. The
decision of the arbitrator shall be final, binding, conclusive and
nonappealable. Each party shall make such records available to the
arbitrator as shall be necessary for such arbitrator to render a decision.
Other than attorneys' fees and expenses (which shall be borne by the party
incurring the same), the costs of the arbitration shall be borne equally
by BFC and Tax Masters.
Section 2.5. Applicable Percentages. The Applicable Percentage for
Corporate Pool RALs shall be 40%; provided, however, the Applicable Percentage
for Corporate Pool RALs shall be 49.999999% for each Tax Period during which Tax
Masters (or any of its Affiliates) is the exclusive facilitator of a Refund
Anticipation Check Service to customers of Block Offices owned by Block
Services, Corporate Franchises and any of Block Services' Affiliates. The
Applicable Percentage for a Major Franchisee Pool RAL shall be 25%.
Notwithstanding the foregoing provisions of this Section 2.5, any Applicable
Percentage (a) for a
17
<PAGE>
particular Tax Period may be such lesser percentage as specified by BFC by
giving written notice to Tax Masters on or before September 1 immediately prior
to such Tax Period (it being understood that (i) such lesser percentage shall
pertain only to the particular Tax Period for which such notice is given and
(ii) if no such notice is given for a particular Tax Period, the Applicable
Percentages shall be the percentages as set forth in this Section 2.5), or (b)
for any portion of a particular Tax Period shall be reduced to zero if BFC has
exceeded its internal funding limit (it being understood that (i) the reduction
of the percentage to zero shall only be in effect during the periods of time BFC
has exceeded its internal funding limit and (ii) for the periods of time BFC has
not exceeded its internal funding limit, the Applicable Percentages shall be the
percentages as set forth in this Section 2.5).
ARTICLE III
SERVICING, ADMINISTRATION AND COLLECTION OF POOL RALS
Section 3.1. Servicing and Administration of Participated Pool RALs.
Tax Masters as servicer for the RAL Originator shall underwrite, service and
administer the Participated Pool RALs and shall collect payments due under the
Participated Pool RALs in accordance with its customary and usual servicing
procedures for servicing RALs made by the RAL Originator through Block Offices
or Major Franchisees or subfranchisees of Major Franchisees and in accordance
with the RAL Guidelines, and in which Tax Masters has purchased a participation
interest. Tax Masters as servicer for the RAL Originator shall, subject to the
terms of this Section 3.1, have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all things
in connection with such servicing and administration that it may deem necessary
or desirable. Without limiting the generality of the foregoing, Tax Masters as
servicer for the RAL Originator is hereby authorized and empowered to execute
and deliver, on behalf of BFC, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Participated Pool RALs and, after
the delinquency of any Participated Pool RAL and to the extent permitted under
and in compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Participated Pool RALs. In addition, without
limiting the generality of the foregoing, Tax Masters as servicer for the RAL
Originator is hereby authorized and empowered, in the ordinary course of
collecting any Defaulted Pool RAL, to sell or transfer such Defaulted Pool RAL
free and clear of any interest of BFC (proceeds of such sale or transfer being
treated as Collections for purposes of Section 3.2). BFC shall furnish Tax
Masters with any documents necessary or appropriate to enable Tax Masters to
carry out its servicing and administrative duties hereunder. Tax Masters shall
not be obligated to use servicing procedures, offices, employees or accounts for
servicing the Participated Pool RALs that are separate from the procedures,
offices, employees and accounts used by Tax Masters in connection with servicing
other refund anticipation loans.
Section 3.2. Collections. On each Business Day not later than 4:00
p.m., New Jersey time, Tax Masters as servicer for the RAL Originator shall
distribute the Applicable Percentage in all Collections (except those payments
received from the Internal Revenue Service ("IRS") in the normal processing of
refunds designated for direct deposit) with respect to each Participated Pool
RAL received by Tax Masters as servicer for the RAL Originator (or any of its
Affiliates) on the preceding Business Day (less collection fees payable by BFC
to Tax Masters or
18
<PAGE>
Tax Masters' Affiliates pursuant to Section 3.4). Such distribution shall be
made to BFC at such domestic account designated by BFC by notice to Tax Masters
from time to time, in United States dollars and in funds immediately available
at such office at such time, without setoff, withholding, counterclaim or other
deduction of any nature whatsoever and regardless of the form of Collection
received by Tax Masters as servicer for the RAL Originator (or any of its
Affiliates). Funds received from the IRS as part of the normal processing of
refunds designated for direct deposit will be distributed to BFC in the manner
provided herein on the day that RAL Originator receives such funds in its
designated account(s) at the applicable United States Federal Reserve Bank;
provided, that one day's interest shall be deducted by Tax Masters as servicer
for the RAL Originator from each such payment in order to reflect the fact that
the fundings of Participated Pool RALs are on a one-day delayed basis. For the
purpose of the above-referenced interest deduction, interest shall be calculated
on the basis of a 365 day year (or a 366 day year in a leap year) at the 30 day
dealer placed commercial paper rate as published in the Money Rates section of
the Wall Street Journal for the previous Business Day.
Section 3.3. Reports; Records for BFC.
(a) Daily Reports. On each Business Day during an Applicable Tax
Period, Tax Masters as servicer for the RAL Originator shall prepare and
forward to BFC a report setting forth (i) the aggregate amount of
Collections processed by Tax Masters as servicer for the RAL Originator
(or any of its Affiliates) with respect to Participated Pool RALs on the
preceding Business Day and BFC's share thereof, (ii) the number of, and
aggregate outstanding amount of, Participated Pool RALs as of the close of
business on the preceding Business Day and BFC's share thereof, and (iii)
the number of Pool RACs made by the RAL Originator on the preceding
Business Day and BFC's share of RAC fees pertaining thereto. Tax Masters
as servicer for the RAL Originator shall at all times maintain its
computer files with respect to Pool RACs and Participated Pool RALs in
such a manner so that Pool RACs and Participated Pool RALs may be
specifically identified.
(b) Monthly Reports. On the 8th day of each calendar month, or if
such day is not a Business Day, the immediately preceding Business Day,
Tax Masters as servicer for the RAL Originator shall forward to BFC a
report setting forth (i) the aggregate amount of Collections processed
with respect to Participated Pool RALs during the preceding calendar month
and BFC's share thereof, (ii) the aggregate amount of Participated Pool
RALs outstanding as of the end of the last day of the preceding calendar
month and BFC's share thereof, (iii) an aging of Participated Pool RALs
outstanding as of the end of the last day of the preceding calendar month,
(iv) the aggregate Defaulted Pool RALs as of the end of the last day of
the preceding calendar month and BFC's share thereof, (v) the number of
Pool RACs made during the preceding calendar month and BFC's share of
Collections pertaining thereto, and (vi) the aggregate Participated Pool
RALs that are not Defaulted Pool RALs but with respect to which payment
has not been received within 30 days after such Participated Pool RALs
were made by the RAL Originator and a participation interest therein was
purchased by BFC, and BFC's share thereof. Such report shall be
accompanied by an officer's certificate, stating that to the best of such
officer's knowledge such report is complete and accurate.
19
<PAGE>
(c) Independent Accountants' Reports. BFC may cause a firm of
nationally recognized independent accountants (who may also render
services to Tax Masters) to furnish, at the expense of BFC, a report to
BFC and Tax Masters to the effect that such firm has made a study and
evaluation of the RAL Originator's and Tax Masters' internal accounting
controls relative to the making of Pool RACs and servicing of Participated
Pool RALs under this Agreement, and that, on the basis of such study and
evaluation, such firm is of the opinion (assuming the accuracy of any
reports generated by the RAL Originator's and Tax Masters' third party
agents) that the systems of internal accounting controls in effect on the
date set forth in such report relating to making of Pool RALs by the RAL
Originator and servicing procedures performed by Tax Masters as servicer
for the RAL Originator pursuant to the terms of this Agreement, taken as a
whole, were sufficient for the prevention and detection of errors for such
exceptions, errors or irregularities as such firm shall believe to be
immaterial to the financial statements of the RAL Originator and Tax
Masters and such other exceptions, errors or irregularities as shall be
set forth in such report.
Section 3.4. Collection Fee for Defaulted Pool RALs. BFC shall pay
to Tax Masters as servicer for the RAL Originator a collection fee in an amount
equal to the Applicable Percentage with respect to a Defaulted Pool RAL, times
25% of the Principal Amount of each Defaulted Pool RAL collected by collection
offices of Tax Masters as servicer for the RAL Originator or any of its
Affiliates. Such fee shall be paid in the form of a deduction from Collections
remitted to Tax Masters (or an Affiliate of Tax Masters) pursuant to Section 3.2
pertaining to such Participated Pool RAL.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. General Representations and Warranties of Tax Masters.
Tax Masters hereby represents and warrants to BFC as of the date hereof (which
representations and warranties shall survive any purchase and sale of
Participation Interests pursuant to this Agreement):
(a) Organization and Good Standing. ICB is a commercial bank duly
organized and validly existing under the laws of the State of California,
has its principal banking office located in the State of California and
has a bank branch located and authorized to conduct banking operations in
the State of Nevada. ICB has full corporate power and authority to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement. Tax Masters is a corporation
duly organized and validly existing under the laws of the State of
Delaware and has full corporate power and authority to own its properties
and conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Authorization. The execution and delivery of this Agreement
and the consummation of the transactions provided for in this Agreement
have been duly
20
<PAGE>
authorized by Tax Masters by all necessary corporate action on its part
and this Agreement will remain, from the time of its execution, an
official record of Tax Masters.
(c) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with, result in any
breach of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under, any
indenture, contract, agreement mortgage, deed of trust, or other
instrument to which Tax Masters is a party or by which it or any of its
properties are bound.
(d) ICB's Deposit Accounts. Deposits in ICB's deposit accounts are
insured to the limits provided by law by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation.
Section 4.2. Representations and Warranties of Tax Masters Relating
to the Participated Pool RALs. Tax Masters hereby represents and warrants to BFC
as of each Closing Date (which representations and warranties shall survive any
purchase and sale of Participation Interests pursuant to this Agreement):
(a) Eligible RAL. Each Participated Pool RAL is an Eligible RAL as
of the Closing Date relating to the Participation Interest sold to BFC
with respect to such Participated Pool RAL.
(b) Sale and Ownership; Title. Each sale of a Participation Interest
by Tax Masters to BFC on such Closing Date constitutes either (i) a valid
sale, transfer, assignment, set over and conveyance to BFC of all right,
title and interest of Tax Masters in and to such Participation Interest
(and the Applicable Percentage in the underlying Pool RALs), free and
clear of any Lien of any Person claiming through or under Tax Masters or
any of its Affiliates, or (ii) if it is ultimately determined by a court
of competent jurisdiction that a sale from Tax Masters to BFC did not
occur, then a grant of a security interest (as defined in the UCC as in
effect in the applicable state) by Tax Masters to BFC in each
Participation Interest purportedly conveyed pursuant to such sale. On each
Closing Date, immediately prior to any such sale of (or grant of a
security interest in) a Participation Interest, Tax Masters will be the
sole legal and beneficial owner of, and will have marketable title to, the
Participation Interest in the underlying Pool RALs, free and clear of any
Lien, claim or encumbrance (other than the interests of BFC contemplated
by this Agreement). Neither Tax Masters nor any Person claiming through or
under Tax Masters shall have any claim to or interest in such
Participation Interest, except for the interest of Tax Masters therein as
a "debtor" (specifically, as seller of payment intangibles) for purposes
of Article 9 of the UCC.
Section 4.3. Remedy For Breach of Representations and Warranties. In
the event of a breach of any of the representations and warranties set forth in
Section 4.1, BFC may by notice then given in writing to Tax Masters direct Tax
Masters to accept reassignment of the Participation Interests within 30 days of
such notice (or within such longer period as may be specified in such notice but
in no event later than 120 days), and Tax Masters shall be obligated
21
<PAGE>
to accept reassignment of the Participation Interests on a date specified by BFC
(the "Reassignment Date") occurring within such applicable period on the terms
and conditions set forth below; provided, however, that no such reassignment
shall be required to be made if, at any time during such applicable period, the
representations and warranties contained in Section 4.1 shall then be true and
correct in all material respects. In connection with such reassignment, Tax
Masters shall remit to BFC on the Reassignment Date an amount equal to the
aggregate of the respective Applicable Percentages of the Repurchase Values of
each Participated Pool RAL (the "Reassignment Amount"). Such remittance shall be
made to BFC at such domestic account designated by BFC by notice to Tax Masters,
in United States dollars and in funds immediately available at such office at
such time, without setoff, withholding, counterclaim or other deduction of any
nature whatsoever. Except as provided in Section 5.1, the obligation of Tax
Masters to purchase the Participation Interests in accordance with this Section
4.3 shall constitute the sole remedy respecting any breach of the
representations and warranties set forth in Section 4.1 available to BFC.
On the date on which the Reassignment Amount has been paid to BFC,
the Participation Interests in the uncollected Participated Pool RALs, all
monies due or to become due with respect thereto and all proceeds thereof shall
be released to Tax Masters, or its designee or assignee, and BFC shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty (except only for the warranty that since
the date of sale by Tax Masters to BFC, BFC has not sold, transferred or
encumbered any such Participated Pool RALs or interest therein), as shall
reasonably be requested by Tax Masters to vest in Tax Masters, or its designee
or assignee, all right, title and interest of BFC in and to the Participation
Interests in the uncollected Participated Pool RALs, all monies due or to become
due with respect thereto and all proceeds thereof. BFC's right to resell and Tax
Masters' obligation to repurchase a Participation Interest pursuant to this
Section 4.3 shall apply only to a Participation Interest that is adversely
affected by or impaired as a result of a breach of a representation or warranty.
Section 4.4. Transfer of Ineligible RALs.
(a) Repurchase. In the event of a breach with respect to a
Participated Pool RAL of any representations and warranties set forth in
Section 4.2(b)(i), or in the event that a Participated Pool RAL is not an
Eligible RAL as a result of the failure to satisfy the conditions set
forth in clause (c) of the definition of Eligible RAL, and as a result of
such breach of event such Participated Pool RAL is charged off as
uncollectible or BFC's rights in, to or under the Participation Interest
therein are materially impaired, then, upon the earlier to occur of the
discovery by BFC of such breach or event, or receipt by BFC of written
notice from Tax Masters of such breach or event, BFC may by notice then
given in writing to Tax Masters direct Tax Masters to repurchase the
Participation Interest in each such Participated Pool RAL within 30 days
of such notice (or within such longer period as may be specified in such
notice but in no event later than 120 days) on a date specified by BFC
occurring within such applicable period on the terms and conditions set
forth in Section 4.4(c).
(b) Repurchase After Cure Period. In the event of a breach of any of
the representations and warranties set forth in Sections 4.2 and 2.1(a),
or in the event that a
22
<PAGE>
Participated Pool RAL is not an Eligible RAL as a result of the failure to
satisfy the conditions set forth in the definition of Eligible RAL or Pool
RAL (contingent on that failure not being caused by (i) any
misrepresentation or omission to state a material fact by a RAL Customer,
or (ii) action or inaction of any Block Office, Major Franchisee, or
subfranchisee of a Major Franchisee to perform its explicit obligations
under this Agreement, a corporate franchise agreement between Block
Services and a Corporate Franchise, a Major Franchisee RAL Agreement, or a
subfranchisee agreement relating to the RAL Program between a Major
Franchisee and a subfranchisee, as applicable (except for any action or
inaction by such entities due to changes to the RAL Program required by
the RAL Originator or Tax Masters outside of the deadlines set forth in
this Agreement for any such changes)), other than a breach or event as set
forth in Section 4.4(a), and as a result of such breach any Participated
Pool RAL becomes a Defaulted Pool RAL or BFC's rights in, to or under the
Participated Pool RAL or its proceeds are materially impaired, then, upon
the expiration of 60 days (or such longer period as may be agreed to by
BFC, but in not event later than 120 days) from the earlier to occur of
the discovery of any such event by BFC or receipt by BFC of written notice
from Tax Masters of any such event, BFC may by notice then given in
writing to Tax Masters direct Tax Masters to repurchase the Participation
Interest in each such Participated Pool RAL within 30 days of such notice
(or within such longer period as may be specified in such notice but in no
event later than 120 days) on the terms and conditions set forth in
Section 4.4(c); provided, however, that no such repurchase shall be
required to be made if, on any day prior to such repurchase, such
representations and warranties with respect to such Participated Pool RAL
shall then be true and correct in all material respects as if such
Participated Pool RAL had been created on such day.
(c) Procedures for Repurchase. When the provisions of Sections
4.4(a) or 4.4(b) require repurchase of a Participation Interest in a
Participated Pool RAL (such Participated Pool RAL being hereinafter
referred to as an "Ineligible RAL"), Tax Masters shall accept reassignment
of such Participation by remitting to BFC an amount equal to the
Applicable Percentage of the Repurchase Value of the Ineligible RAL as of
the date of such repurchase. Such remittance shall be made to BFC at such
domestic account designated by BFC by notice to Tax Masters, in United
States dollars and in funds immediately available at such office at such
time, without setoff, withholding, counterclaim or other deduction of any
nature whatsoever. Upon such remittance, BFC shall automatically and
without further action be deemed to transfer, assign, set over and
otherwise convey to Tax Masters, without recourse, representation or
warranty (except for the warranty that since the date of conveyance by Tax
Masters to BFC, BFC has not sold, transferred or encumbered any such
Participation Interest), all right, title and interest of BFC in and to
such Participation Interest. BFC shall execute such documents and
instruments of transfer or assignment and take other actions as shall
reasonably be requested by Tax Masters to evidence the conveyance of such
Participation Interest in the Ineligible RALs, all monies due or to become
due with respect thereto and all proceeds thereof pursuant to this Section
4.4(c). The obligation of Tax Masters to repurchase Participation
Interests in Ineligible RALs in accordance with this Section 4.4(c) shall
constitute the sole remedy respecting any breach of the representations
and warranties set forth in Section 4.2 available to BFC.
23
<PAGE>
(d) Impairment. For the purposes of Sections 4.4(a) and (b) above,
proceeds of a Participated Pool RAL shall not be deemed to be impaired
hereunder solely because such proceeds are held by Tax Masters for more
than the applicable period under Section 9-315(d) of the UCC as in effect
in the State of Delaware.
ARTICLE V
TERM
Section 5.1. Termination of Purchase and Sale Obligations. The
obligations of Tax Masters to sell Participation Interests in Pool RALs pursuant
to Section 2.1 that are RALs described in paragraph (a) of the definition of
"Principal Amount" in this Agreement, and the obligations of BFC to purchase
Participation Interests in such Pool RALs pursuant to Section 2.1, may be
terminated:
(a) by the mutual written agreement of BFC and Tax Masters;
(b) by either party, if the RAL Operations Agreement has been
terminated;
(c) by Tax Masters, if (i) there is a failure by BFC to perform or
observe any material term, covenant or agreement contained in this
Agreement, and any such failure shall remain unremedied for 10 days after
written notice of such failure shall have been given to BFC by Tax
Masters, (ii) there is an order or decree restraining, enjoining,
prohibiting, invalidating or otherwise preventing the transactions
contemplated by this Agreement or Tax Masters' performance of any of its
material obligations under this Agreement, (iii) there shall be pending,
or any Governmental Authority shall have notified Tax Masters of its
intention to institute, any action, suit or proceeding against Tax Masters
to restrain, enjoin, prohibit, invalidate or otherwise prevent the
transactions contemplated by this Agreement or Tax Masters' performance of
any of its material obligations under this Agreement, (iv) any
Participated Pool RAL, or any purchase or sale of a Participation Interest
in a Participated Pool RAL, or Tax Masters' performance of any of its
material obligations under this Agreement would be illegal, and there are
no reasonable steps that Tax Masters could take to prevent such
illegality; or (v) there is a dissolution, termination of existence,
insolvency, appointment of a receiver of any part of the property of, or
assignment for the benefit of creditors by, or the commencement of any
proceeding by or against BFC under any bankruptcy or insolvency law;
(d) by BFC, if (i) there is a failure by Tax Masters to perform or
observe any material term, covenant or agreement contained in this
Agreement and any such failure shall remain unremedied for 10 days after
written notice of such failure shall have been given to Tax Masters by
BFC, (ii) there is an order or decree restraining, enjoining, prohibiting,
invalidating or otherwise preventing BFC's performance of any of its
material obligations hereunder, (iii) there shall be pending, or any
Governmental Authority shall have notified BFC of its intention to
institute, any action, suit or proceeding against BFC to restrain, enjoin,
prohibit, invalidate or otherwise prevent BFC's performance of any of its
material obligations hereunder, (iv) BFC's performance of any of its
material obligations hereunder would be illegal and there are no
reasonable steps that BFC could take to prevent such illegality, or (v)
there is a dissolution,
24
<PAGE>
termination of existence, insolvency, appointment of a receiver of any
part of the property of, or assignment for the benefit of creditors by, or
the commencement of any proceeding by or against Tax Masters under any
bankruptcy or insolvency law; or
(e) by BFC, if as of any September 15, any representation or
warranty of Tax Masters set forth in Section 4.1 would not be true, if
repeated as of such date; provided that BFC gives notice of such
termination not later than the September 30 next following such September
15.
Tax Masters or BFC shall exercise a right of termination provided above by
written notice to the other party. Upon such termination, all obligations of Tax
Masters to sell Participation Interests in Pool RALs pursuant to Section 2.1
that are RALs described in paragraph (a) of the definition of "Principal Amount"
in this Agreement, and all obligations of BFC to purchase Participation
Interests in such Pool RALs pursuant to Section 2.1, shall automatically cease
and BFC shall have no further obligation to purchase additional Participation
Interests corresponding to such Participated Pool RALs. Termination pursuant to
this Section shall not otherwise affect the rights or obligations of the parties
hereto under this Agreement. Without limitation, such termination shall not
affect the obligations of Tax Masters to sell Participation Interests pursuant
to Section 2.1 with respect to Pool RALs that are RALs described in paragraph
(b) of the definition of "Principal Amount" in this Agreement to the extent that
the Underlying RAL is itself a Participated Pool RAL with respect to which a
Participation Interest was sold to BFC prior to such termination, and shall not
affect the obligation of BFC to purchase a Participation Interest with respect
to such Pool RAL pursuant to Section 2.1.
Section 5.2. Right to Exclude Certain RALs. If, from time to time,
BFC or Tax Masters believes in good faith that any specified RALs (of the type
described in paragraph (a) of the definition of "Principal Amount" in this
Agreement) that otherwise would constitute Pool RALs may violate or conflict
with any requirement of law in any jurisdiction, such party (the "Notifying
Party") may give notice to the other parties of such fact, specifying the
applicable jurisdictions, and specifying such further actions on the part of
BFC, Block Tax Services, the RAL Originator or other Persons, if any, as would
in the opinion of the Notifying Party prevent such violation or conflict. Unless
such steps have been taken within seven days after receipt of such notice, then,
effective from and after such seventh day such RALs made after such day in such
specified jurisdiction shall not constitute Pool RALs (such RALs being
hereinafter referred to as "Excluded RALs"). If such steps subsequently are
taken, and the other party gives notice to the Notifying Party of such fact,
then the Notifying Party, shall, as promptly as practicable after such notice,
by further notice to such other party, revoke its earlier designation of such
RALs as Excluded RALs, and RALs of the specified type made after the date of
such revocation shall not constitute Excluded RALs (and hence shall constitute
Pool RALs).
ARTICLE VI
CERTAIN RIGHTS OF TAX MASTERS
Section 6.1. Certain Rights of Tax Masters.
(a) Rescission. If any payment received or application of funds made
by Tax Masters on account of any Participated Pool RAL shall be rescinded
or otherwise shall be
25
<PAGE>
required (or if Tax Masters believes in good faith that such payment or
application of funds is or may be required) to be returned or paid over by
Tax Masters at any time, BFC, promptly upon notice from Tax Masters, shall
pay to Tax Masters an amount equal to the Applicable Percentage of the
amount so rescinded or returned or paid over, together with the Applicable
Percentage of any interest or penalties payable with respect thereto.
(b) Payover. If BFC receives any payment or makes any application on
account of its Participation Interest in any Participated Pool RAL, BFC
shall promptly pay over to Tax Masters the amount in excess of the
Applicable Percentage of the amount so received or applied and until so
paid over, the same shall be held by BFC in trust for Tax Masters.
Section 6.2. Indemnification. Immediately upon Tax Masters' demand
therefor, BFC shall reimburse and indemnify Tax Masters for and against the
Applicable Percentage share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of every kind and nature whatsoever that may be imposed upon, incurred by or
asserted against Tax Masters, acting pursuant hereto, or in any way relating to
or arising out of this Agreement or any Participated Pool RAL or the origination
or servicing thereof, or any action taken or omitted by Tax Masters under this
Agreement or any Participated Pool RAL, including, without limitation, any
amounts payable by Tax Masters pursuant to the RAL Operations Agreement
(pursuant to indemnification provisions thereof or otherwise), and any amounts
that Tax Masters shall be required to pay or repay to any statutory
representative of any Obligor or Originator Party or to creditors of any such
Obligor or Originator Party acting as such statutory representative (all of the
foregoing being referred to collectively as "Claims"); provided, however, that
BFC shall not be liable under this Section 6.2 for its Applicable Percentage of
(i) any obligation of Tax Masters to repurchase Participation Interests in
accordance with Sections 4.3 and 4.4, (ii) any out-of-pocket expenses of Tax
Masters on account of origination of ordinary and routine servicing of
Participated Pool RALs, to the extent duplicative of amounts as to which BFC has
paid its Applicable Percentage share pursuant to Article II, (iii) attorneys'
fees and related litigation expenses incurred by Tax Masters with respect to
Claims (it being understood that each party shall be responsible for its own
attorneys' fees and related litigation expenses with respect to Claims) (iv) any
Claim attributable to a Participated Pool RAL failing to be an Eligible RAL, (v)
any Claim attributable to a breach by Tax Masters of an express obligation of
Tax Masters under this Agreement, or (vi) any Claim attributable to the gross
negligence or willful misconduct of Tax Masters. Notwithstanding any other
provision herein, if BFC breaches any of its obligations hereunder and any such
breach results in a claim for indemnification by the RAL Originator against Tax
Masters, Tax Masters shall have the right to indemnification from BFC to the
extent Tax Masters is required to indemnify the RAL Originator.
Nothing in this Section 6.2 shall be construed to make BFC liable
for (i) any portion of any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements imposed upon,
incurred by or asserted against Tax Masters or any of its Affiliates relating
solely to or arising solely from any RAL other than a Participated Pool RAL or a
RAC other than a Pool RAC or (ii) any Claim with respect to which Tax Masters is
indemnified by any third party (including, without limitation, Block Tax
Services, any Major Franchisee or any other Originator Party). Tax Masters shall
remit to BFC the Applicable
26
<PAGE>
Percentage of any amount received by Tax Masters as indemnification from a third
party to the extent such indemnification pertains to a Claim for which BFC
previously indemnified Tax Masters pursuant to this Section 6.2.
If different Applicable Percentages apply to Pool RALs with respect
to which a Claim arises, then (A) to the extent the Claim is identifiable to a
particular Pool RAL or to Pool RALs made in a particular Tax Period, the
Applicable Percentage applicable to BFC's indemnification obligation with
respect to such Claim shall be equal to the Applicable Percentage applicable to
such particular Pool RAL or to such Tax Period, as the case may be and (B)
otherwise, the Applicable Percentage applicable to BFC's indemnification
obligation with respect to such Claim shall be a weighted average of the
Applicable Percentages applicable to the Pool RALs or the Tax Period with
respect to which such Claim arose.
Section 6.3. Survival. The obligations of BFC under this Article VI
shall survive any termination under Section 5.1 and all other events and
conditions whatever. If and to the extent that any obligation of BFC under this
Article VI is unenforceable for any reason, BFC agrees to make the maximum
contribution to the payment and satisfaction of such obligation which is
permitted under applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Customer Lists. To the extent permitted by applicable
law, Tax Masters as servicer for the RAL Originator agrees to provide to BFC, or
any Affiliate of BFC during the term of this Agreement, within a reasonable time
after BFC's (or such Affiliate's) request but not more than twice during any
calendar year, a list of all persons (and, their full mailing addresses) to whom
the RAL Originator made and Tax Masters purchased Pool RALs or Pool RACs during
the most recently ended Tax Period. Such list shall be provided in electronic
form and, to the extent reasonably practicable, in a form typical of mailing
lists, purchased in the open market. Neither BFC nor its Affiliates shall use,
or permit the use of, such list for purposes of soliciting customers for credit
related products. BFC and such Affiliates shall take appropriate action by
agreement with third parties having access to such list to prohibit such third
parties from using such list for purposes of soliciting customers for credit
related products. Tax Masters shall be designated a third-party beneficiary in
any such agreement for purposes of enforcing such restricted use of such list.
Section 7.2. Major Franchisees. BFC and Tax Masters agree to
negotiate in good faith with each other and with Major Franchisees to enter into
an arrangement with such Major Franchisees whereby (i) such Major Franchisees
and BFC purchase Participation Interests in Major Franchisee Pool RALs made by
the RAL Originator through such Major Franchisees or their subfranchisees and
purchased by Tax Masters and (ii) BFC provides financing to such Major
Franchisees to enable such Major Franchisees to purchase such Participation
Interests. In connection with such arrangement, (i) such Major Franchisees may
purchase from Tax Masters up to a 49.999999% undivided ownership interest in the
applicable Major Franchisee Pool RALs and (ii) BFC may purchase from Tax Masters
percentage ownership interests in such Major Franchisee Pool RALs in a
percentage amount equal to 49.999999% minus the percentage ownership interest
purchased by such Major Franchisee in such Major Franchisee Pool RALs;
27
<PAGE>
provided, however, that the percentage ownership interest purchased by BFC in
such Major Franchisee Pool RALs shall not exceed 25% and the combined percentage
ownership interests purchased by such Major Franchisee and BFC in such Major
Franchisee Pool RALs shall not exceed 49.999999%.
Section 7.3. Independent Evaluation. BFC expressly acknowledges (i)
that, except as provided in Sections 2.1(a), 4.1 and 4.2, Tax Masters has made
no representation or warranty, express or implied, to BFC and no act by Tax
Masters heretofore or hereafter taken shall be deemed to constitute any
representation or warranty by Tax Masters to BFC; and (ii) that, in connection
with its entry into and its performance of its obligations under this Agreement,
BFC has made and shall continue to make its own independent investigation of the
economic and legal risks associated with the making of RALs and purchase of
Participation Interests.
Section 7.4. 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, or by nationally recognized overnight
courier, addressed as follows:
If to BFC, to:
Block Financial Corporation
4400 Main Street
Kansas City, Missouri 64111
Attention: Jeffery A. Yabuki
If to Tax Masters, to:
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 notice of any such change.
Any notices shall be deemed given upon its receipt by the party to whom the
notice is addressed.
Section 7.5. Modification; No Waiver. This Agreement shall not be
modified or amended except by an instrument in writing signed by or on behalf of
the parties hereto. No waiver of any breach of, or failure to perform or
observe, any material term, covenant or agreement contained in this Agreement
shall constitute or be construed as a waiver by BFC or Tax Masters of any
subsequent breach or failure or of any breach of or failure with respect to any
of the other provisions of this Agreement.
Section 7.6. Prior Understandings. This Agreement supersedes all
prior oral understandings between the parties hereto relating to the
transactions provided herein.
Section 7.7. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of Delaware, without regard
to choice of law rules thereof.
28
<PAGE>
Section 7.8. Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto in separate counterparts, each of which, when so executed, shall
be deemed to be an original, but all such counterparts together shall constitute
one and the same instrument.
Section 7.9. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of BFC and Tax Masters and their representative
successors and assigns and shall not be assigned by either party hereto without
the prior written consent of the other parties hereto, which consent shall not
unreasonably be withheld, conditioned or delayed, and any purported assignment
without such consent shall be void. HB has ceased its operations and will
assign, effective as of December 31, 2002, all of its rights and obligations
under the RAL Participation Agreement to Tax Masters.
Section 7.10. Securitizations. Tax Masters will use its reasonable
efforts to assist BFC with respect to the negotiation and execution of all
instruments and documents and to take all actions that are reasonably necessary,
or as BFC may reasonably request, in order to facilitate the sale by BFC of the
Participation Interests acquired by BFC pursuant to this Agreement and the
assignment by BFC of BFC's rights under this Agreement to an Affiliate of BFC,
and the resale of such Participation Interests and the reassignment of such
rights by the Affiliate to one or more liquidity providers. Notwithstanding such
assignment of its rights, BFC shall remain liable to perform all of its
covenants and obligations under this Agreement.
Section 7.11. Headings. The Article, Section and any other headings
in this Agreement are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any of the provisions
hereof.
Section 7.12. Confidentiality. Without limitation of any other
obligations of confidentiality contained in this Agreement, the RAL Operations
Agreement or otherwise arising (but subject to the provisions of Section 7.1),
all information, materials and documents heretofore or hereafter furnished to
BFC (or to its officers, directors, agents, representatives or advisors) by Tax
Masters, by Persons acting on behalf of by Tax Masters or at Tax Masters'
direction, or otherwise in connection with this Agreement, either orally, in
writing or by inspection, regarding the Obligors, any RAL, any RAC, this
Agreement or the RAL Operations Agreement shall be deemed confidential and,
except to the extent required by law, shall be kept in strict confidence under
appropriate safeguards by BFC and its officers, directors, agents,
representatives and advisors.
Section 7.13. Not a Joint Venture. Neither this Agreement nor the
transactions contemplated by this Agreement shall be deemed to give rise to a
partnership or joint venture between Tax Masters and BFC.
Section 7.14. Tax Masters Not a Tax Preparer. Nothing in this
Agreement or the RAL Operations Agreement shall be construed to imply that Tax
Masters at any time is in any way responsible for the preparation, filing or
contents of any tax return of any Obligor under a Pool RAL, and BFC shall
indemnify Tax Masters from and against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of every kind and nature whatsoever which may be imposed upon, incurred by or
asserted against Tax
29
<PAGE>
Masters arising from any claim, allegation or assertion that Tax Masters is or
may be in any way responsible for the preparation, filing or contents of any
such tax return, or that Tax Masters, by virtue of its participation in the
transactions contemplated by this Agreement, is engaged in an activity that
subjects Tax Masters to any penalty on account of the negotiation of any tax
refund check in violation of the Internal Revenue Code of 1986, as amended.
Section 7.15. 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 will assign to Tax
Masters, effective as of December 31, 2002, all of HB's agreements, duties and
obligations under the RAL Participation Agreement arising out of events
occurring prior to the effective date of this Agreement; provided, however, that
such assignment by HB to Tax Masters is subject to Block Services', BFC's and
Royalty's rights under the Letter Agreement. Subject to HB's assignment of its
rights and obligations to Tax Masters 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 Participation Agreement
arising out of events occurring prior to the effective date of this Agreement,
and the provisions of the RAL Participation Agreement shall survive and continue
to define the rights and obligations of the parties with respect to such prior
events.
Section 7.16. Financial Privacy. Tax Masters and BFC agree to comply
with the financial privacy provisions of Section 7.2 of the RAL Operations
Agreement.
Section 7.17. Effective Date. The effective date of this Agreement
is January 1, 2003.
30
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Refund Anticipation Loan Participation Agreement to be executed by
their respective officers thereunto duly authorized as of the date set forth
above.
BLOCK FINANCIAL CORPORATION
By: /s/ Becky S. Shulman
-----------------------------------
Name: Becky S. Shulman
Title: Vice President and Treasurer
HOUSEHOLD TAX MASTERS INC.
By: /s/ Patrick A. Cozza
-----------------------------------
Name: Patrick A. Cozza
Title: President
And solely for purposes of Sections 7.9 and 7.15 of this Amended and Restated
Refund Anticipation Loan Participation Agreement:
HOUSEHOLD BANK, f.s.b.
By: /s/ Patrick A. Cozza
-----------------------------------
Name: Patrick A. Cozza
Title: Senior Vice President
31
<PAGE>
Exhibit A
CALCULATION OF INITIAL PURCHASE PRICE
(SECTION 2.3)
Formula
(A) the sum, for each Pool RAL corresponding to such Participation
interest of the product of (i) the Applicable Percentage applicable to such Pool
RAL, times (ii) the Principal Amount of such Pool RAL, plus
(B) the sum, for each Pool RAL corresponding to such Participation
Interest, of the product of (i) the Applicable Percentage applicable to such
Pool RAL, times (ii) the License Fees, if any, paid or payable by the RAL
Originator in connection with such Pool RAL, plus
(C) the sum, for each Pool RAL corresponding to such Participation
Interest of the product of (i) the Periodic Servicing Fee Percentage applicable
to such Pool RAL, times (ii) the Principal Amount of such Pool RAL.
Example
Assumptions:
Pre-1999 Tax Period
Aggregate Principal Amount of Pool RALs for
Participation Interest $1,800,000,000
License Fees for Pool RALs for Participation Interest 16,800,000
Periodic Servicing Fee Percentage (calculated
pursuant to Section 2.4) .533%
Applicable Percentage for all Pool RALs 40%
Calculation:
(A) (40% x $1,800,000,000) $ 720,000,000
Plus (B) (40% x $16,800,000) 6,720,000
Plus (C) (.533% x $1,800,000,000) 9,594,000
--------------
= Initial Purchase Price $ 736,314,000
==============
<PAGE>
Exhibit B
ALLOCATION OF QUALIFIED EXPENSES
(DEFINITION OF QUALIFIED EXPENSES; SECTION 2.4(a)(i))
Formula
(x) all permitted expenses (as described in the definition of
"Qualified Expenses") of Tax Masters and its Affiliates for RALs and RACs of all
types (whether or not Pool RALs or Pool RACs) during a Budget Period shall be
aggregated.
(y) the result under clause (x) above shall be divided by the total
number of RALs and RACs of all types made by the RAL Originator and its
Affiliates and purchased by Tax Masters during the Tax Period corresponding to
the Budget Period (except that RACs shall not be part of this denominator with
respect to a Tax Period that is not a RAC Service Period).
(z) the result under clause (y) above shall be multiplied by the
number of RALs and RACs made by RAL Originator and its Affiliates and purchased
by Tax Masters during such Tax Period that are Participated Pool RALs and Pool
RACs (and such result shall be deemed the Qualified Expenses allocable to
Participated Pool RALs and Pool RACs for such Budget Period).
Example
Assumptions:
Permitted expenses of all types for RALs and RACs of all types $25,000,000
Total Number of RALs of all types 2,646,000
Total Number of RACs of all types (post-1998 Tax Period) 1,460,000
Total Number of Participated Pool RALs 2,097,000
Total Number of Pool RACs (post-1998 Tax Period) 1,000,000
Calculation:
Pre-1999 Post-1998
----------- -----------
(x) Qualified Expenses $25,000,000 $25,000,000
/ (y) Total number of RALs and RACs (if
applicable) of all types 2,646,000 4,106,000
x (z) Total number of Participated Pool
RALs and Pool RACs 2,097,000 3,097,000
----------- -----------
= Qualified Expenses Allocated to
Participated Pool RALs and Pool RACs $19,812,925 $18,856,551
=========== ===========
<PAGE>
Exhibit C
CALCULATION OF INITIAL PERIODIC SERVICING FEE PERCENTAGE
(SECTION 2.4(a)(iii))
Formula
(A) Tax Masters' estimate of the aggregate Required Servicing
Compensation for the Budget Period relating to the Applicable Tax Period,
divided by
(B) Tax Masters' estimate of the Principal Amount of Participated
Pool RALs to be made in such Tax Period
Example
Assumptions:
Pre-1999 Tax Period
Estimated Aggregate Required Servicing Compensation $9,602,770
Estimated Principal Amount of Participated Pool RALs $1,800,000,000
Calculation:
(A) $ 9,602,770
/ (B) $1,800,000,000
--------------
= Initial Periodic Servicing Fee Percentage .533%
==============
<PAGE>
Exhibit D
CALCULATION OF REQUIRED SERVICING FEE COMPENSATION
(SECTION 2.4(A)(IV))
Formula
(A) the sum, for each of the categories of Pool RALs (a category
consisting of all Pool RALs to which the same Applicable Percentage applies
pursuant to this Agreement), of the product of (i) the Applicable Percentage for
such category for the relevant Tax Period, times (ii) $2.00 (for the Tax Period
beginning on January 1, 1997, and for Tax Periods thereafter $2.00 adjusted by
the Consumer Price Index for the Applicable Tax Period), times (iii) the number
of Participated Pool RALs of such category made by the RAL Originator during the
relevant Tax Period, plus
(B) the sum, for each of the categories of Pool RALs, of the product
of (i) the Applicable Percentage for such category for the relevant Tax Period,
times (ii) Qualified Expenses allocable to Participated Pool RALs and Pool RACs
during the Budget Period, times (iii) a fraction, the numerator of which is the
aggregate Principal Amount of such category of Pool RALs made during such Budget
Period and the denominator of which is the aggregate Principal Amount of all
Pool RALs made during such Budget Period.
Example for Pre-RAC Service Period
Assumptions:
Applicable Percentage for all Pool RALs* 40%
Number of Participated Pool RALs* 2,097,000
Qualified Expenses Allocable to Participated Pool RALs* $19,812,925
By definition, Pool RALs during a Tax Period that is not a RAC Service
Period includes only Corporate Pool RALs
Calculation:
(A) (40% times $2.00 times 2,097,000 RALs) = $1,677,600
plus (B) (40% times $19,812,925) = 7,925,170
----------
= Required Servicing Fee Compensation $9,602,770
==========
<PAGE>
Example for Post-RAC Service Period
Assumptions:
Applicable Percentage for Corporate Pool RALs 49.999999%
Applicable Percentage for Major Franchisee Pool RALs 25%
Number of Participated Corporate Pool RALs 2,097,000
Number of Participated Major Franchisee Pool RALs 500,000
Qualified Expenses Allocable to Participated Pool
RALs and Pool RACs $18,856,551
Calculation:
(A) (49.999999% times $2.00 times 2,097,000 Corporate
Pool RALs) = $ 2,097,000
(25% times $2.00 times 500,000 Major Franchisee
Pool RALs) = 250,000
-----------
subtotal $ 2,347,000
-----------
plus (B) (49.999999% times $18,856,551) times (2,097,000/
2,597,000) = $ 7,612,939
(25% times $18,856,551) times (500,000/2,597,000) 907,617
-----------
subtotal $ 8,520,556
-----------
= Required Servicing Fee Compensation $10,867,556
===========
<PAGE>
Exhibit E
PERIODIC ADJUSTMENT OF SERVICING FEE PERCENTAGE
(SECTION 2.4(b))
Assumptions:
Qualified Expenses Allocable to Participated Pool RALs and Pool RACs
for pre-1999 Tax Period remained the same at $19,812,925, but the number of
Estimated Pool RALs increased to 2,150,000 from 2,097,000 Pool RALs and the
aggregate principal amount of Pool RALs increased to $1,850,000,000 from
$1,800,000,000.
Calculation:
((40% Applicable Percentage x $2.00 x 2,150,000 revised number of Pool
RALs) plus (40% Applicable Percentage x $19,812,925 Qualified Expenses
allocable to Participated Pool RALs)) divided by $1,850,000,000 = .521%
Adjusted Servicing Fee Percentage
<PAGE>
Exhibit F
INTERIM SERVICING COMPENSATION ADJUSTMENT
(SECTION 2.4(c)(i))
Assumptions:
Qualified Expenses Allocable to Participated Pool RALs and Pool RACs
for pre-1999 Tax Period remained the same at $19,812,925, but the number of
Estimated Pool RALs increased to 2,150,000 from 2,097,000 Pool RALs and the
aggregate principal amount of Pool RALs increased to $1,850,000,000 from
$1,800,000,000.
Calculation:
Required Servicing Compensation ((40% Applicable Percentage x $2.00 x
2,150,000 revised number of Pool RALs) + (40% Applicable
Percentage x $19,812,925 Qualified Expenses allocable to
Participated Pool RALs)) $9,645,170
Periodic Servicing Compensation (.533% Periodic Servicing Fee
Percentage x $1,850,000,000 aggregate Principal Amount of
Participated Pool RALs) 9,860,500
----------
Adjustment (payable to BFC) $ (215,330)
==========
<PAGE>
Exhibit G
FINAL SERVICING COMPENSATION ADJUSTMENT
(SECTION 2.4(c)(ii))
Assumptions:
Qualified Expenses Allocable to Participated Pool RALs and Pool RACs
for pre-1999 Tax Period increased from $19,812,925 to $20,000,000, but the
number of Estimated Pool RALs remained unchanged from interim adjustment at
2,150,000 Pool RALs.
Calculation:
Required Servicing Compensation ((40% Applicable Percentage x $2.00 x
2,150,000 number of Pool RALs) + (40% Applicable Percentage x
$20,000,000 Qualified Expenses allocable to Participated Pool
RALs)) $9,720,000
Periodic Servicing Compensation ((.533% Periodic Servicing Fee
Percentage x $1,850,000,000 aggregate Principal Amount of
Participated Pool RALs) + $(215,300) Interim Adjustment) 9,645,170
----------
Adjustment (payable to Tax Masters) $ 74,830
==========