Refund Anticipation Loan Participation Agreement - Block Financial Corp. and Household Tax Master Inc.
SECOND AMENDED AND RESTATED
REFUND ANTICIPATION LOAN
PARTICIPATION AGREEMENT
THIS SECOND AMENDED AND RESTATED REFUND ANTICIPATION LOAN
PARTICIPATION AGREEMENT (this "Agreement"), dated as of June 9, 2003, is made by
and among BLOCK FINANCIAL CORPORATION, a Delaware corporation ("BFC"), and
HOUSEHOLD TAX MASTERS INC., a Delaware corporation ("Tax Masters").
RECITALS
A. BFC, Tax Masters and Household Bank, f.s.b., a federal savings
bank ("HB"), are parties to the Amended and Restated Refund Anticipation Loan
Participation Agreement, dated as of January 6, 2003 (the "First Amended and
Restated RAL Participation Agreement"), where BFC agreed to purchase from Tax
Masters and Tax Masters agreed to sell to BFC a participation interest in refund
anticipation loans made 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. HB ceased its operations and in connection therewith, Tax
Masters engaged Imperial Capital Bank, a California state-chartered commercial
bank ("ICB"), to perform the origination function for Refund Anticipation Loans
("RALs") and issuing function for Refund Anticipation Checks ("RACs") for 2003
and 2004.
C. Tax Masters and ICB entered into an Amended and Restated Sale
and Servicing Agreement for RALs and RACs, dated as of January 3, 2003 (the
"Sale and Servicing Agreement"), which represents the basic agreement between
Tax Masters and ICB regarding the RAL program pursuant to which Tax Masters
services the loans originated by ICB under the RAL program. Redacted copies of
the Sale and Servicing Agreement and all amendments thereto will be delivered by
Tax Masters to BFC.
D. 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 and 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 (the "First Amended and Restated RAL Operations Agreement").
E. Block Companies and Household Companies are parties to a
letter agreement, dated November 11, 2002 (the "First ICB Consent Letter"),
pursuant to which Block Companies consented to ICB as the RAL originator under
the First Amended and Restated RAL Operations Agreement, subject to the right of
Block Companies in their sole discretion, during the ten (10) day period from
June 1 through June 10, 2003, to provide written notice to Tax
<PAGE>
Masters, Beneficial Franchise and ICB that ICB is not acceptable as the RAL
originator and RAC issuer for future Tax Periods, in which event Household
Companies agree to substitute a financial institution chartered by the Office of
Thrift Supervision or the Office of the Comptroller of the Currency (a
"Federally Chartered Financial Institution") as the RAL originator and RAC
issuer for future Tax Periods (the "Block ICB Termination Right").
F. Block Companies and Household Companies have entered into a
Second ICB Consent Letter, dated June 9, 2003 (the "Second ICB Consent Letter"),
pursuant to which Block Companies have agreed to refrain from exercising the
Block ICB Termination Right for the 2004 Tax Period, on certain terms and
conditions, subject to Block Companies' absolute right in their sole discretion
during the ten (10) day period from June 1 through June 10 of any year, to
provide written notice to Tax Masters, Beneficial Franchise and ICB, that ICB is
not acceptable as the RAL originator and RAC issuer for future Tax Periods, in
which event Household Companies agree to substitute a Federally Chartered
Financial Institution as the RAL Originator and RAC issuer for future Tax
Periods, provided that any entity selected by Household Companies (other than an
Affiliate of Household Companies that is a Federally Chartered Financial
Institution having sufficient capital to fulfill its anticipated obligations
with respect to the RAL Program) shall be subject to the consent of Block
Companies, which consent shall not be unreasonably withheld.
G. The Block Companies and the Household Companies have entered
into a Second Amended and Restated RAL Operations Agreement, dated as of June 9,
2003 (the "Second Amended and Restated RAL Operations Agreement").
H. The parties desire to amend and restate the First Amended and
Restated RAL Participation Agreement to reflect the continuation of ICB as the
RAL originator and RAC issuer for the 2004 Tax Period, subject to the terms and
conditions of the Second ICB Consent Letter and this Agreement, and to implement
certain other changes to the First Amended and Restated RAL Participation
Agreement as hereinafter set forth.
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 and Tax Masters
hereby covenant and agree that the First Amended and Restated RAL Participation
Agreement is hereby amended 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 7.17 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:
2
<PAGE>
"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.
"BFC" shall mean Block Financial Corporation, a Delaware
corporation.
"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 ICB Termination Right" shall have the meaning set forth
in Recital E.
"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.
"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.
"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).
3
<PAGE>
"Corporate Pool RAL" shall have the meaning given such term in
the definition of "Pool RAL."
"Corporate Franchise" or "Corporate Franchisee" 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 or Corporate Franchisee 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 Second Amended and
Restated RAL Operations Agreement (or a Major Franchisee RAL 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, 2002.
"Excluded RAL" shall have the meaning set forth in Section
5.2.
"Federally Chartered Financial Institution" shall have the
meaning set forth in Recital E.
"First Amended and Restated RAL Participation Agreement" shall
have the meaning set forth in Recital A.
4
<PAGE>
"First ICB Consent Letter " shall have the meaning set forth
in Recital E.
"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).
"Lien" shall mean any pledge, hypothecation, assignment,
encumbrance, security interest, lien (statutory or other) or other security
agreement of any kind or nature whatsoever, 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, subject to the terms of Section
7.17 hereof, 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 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.
"No Fee RAL" shall mean any RAL for which no RAL fee is
charged to a customer.
"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
5
<PAGE>
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.
"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 Second Amended and
Restated 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 and (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").
"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
6
<PAGE>
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"), 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.
"Purchase Price" shall mean the purchase price for a
Participation Interest to be paid by BFC to Tax Masters as calculated pursuant
to Section 2.3.
"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 and the Second ICB Consent Letter) to serve as the originator under
the RAL Program.
"RAL Participation Agreement" shall have the meaning set forth
in Recital D.
"RAL Program" shall have the meaning assigned to it in the
Second Amended and Restated RAL Operations Agreement.
"Reassignment Amount" shall have the meaning set forth in
Section 4.3.
"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 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"
7
<PAGE>
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.
"Sale and Servicing Agreement " shall have the meaning set
forth in Recital C.
"Second Amended and Restated RAL Operations Agreement" shall
have the meaning set forth in Recital G.
"Second ICB Consent Letter" shall have the meaning set forth
in Recital F.
"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 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,
8
<PAGE>
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 Second
Amended and Restated 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, or 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) Conveyance of Participation Interest. 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 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) True Sale and Nonconsolidation Opinions. 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 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
9
<PAGE>
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. To the extent that
the terms and conditions of this Section 2.1(c) are inconsistent with
the terms and conditions of the Second ICB Consent Letter, the terms
and conditions of the Second ICB Consent Letter shall control.
Section 2.2. Payment. 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
Agreement), together with the Purchase Price for the Participation Interest
corresponding to such Pool RALs.
10
<PAGE>
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 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. Purchase Price. The Purchase Price for a
Participation Interest shall be equal to 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 Section being
referred to as the " Purchase Price" with respect to such Participation
Interest).
Section 2.4. Float Adjustment. 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. Such amount shall be due and payable
by Tax Masters by wire transfer not later than thirty (30) days after the last
day that RACs are offered for such Tax Period.
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 Franchisees 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 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
11
<PAGE>
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 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
12
<PAGE>
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.
(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.
13
<PAGE>
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 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,
14
<PAGE>
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 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
15
<PAGE>
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 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, or 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.
16
<PAGE>
(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.
(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 Second Amended and Restated
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
17
<PAGE>
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, 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.
18
<PAGE>
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 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 Second Amended and Restated 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
19
<PAGE>
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 or any other Originator Party). Tax Masters shall remit to BFC the
Applicable 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
20
<PAGE>
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. 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 7.3. 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:
Household Tax Masters Inc.
200 Somerset Corporate Blvd.
Bridgewater, New Jersey 08807
Attention: Patrick A. Cozza
Any party may change the address to which it desires notices
to be sent by giving the other parties ten (10) days prior notice of any such
change. Any notices shall be deemed given upon its receipt by the party to whom
the notice is addressed.
Section 7.4. 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
21
<PAGE>
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 7.5. Prior Understandings. This Agreement supersedes
all prior oral understandings between the parties hereto relating to the
transactions provided herein.
Section 7.6. 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.
Section 7.7. 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 7.8. 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.
Section 7.9. 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. To the extent the terms and
conditions of this Section 7.9 are inconsistent with the terms and conditions of
the Second ICB Consent Letter, the terms and conditions of the Second ICB
Consent Letter shall control.
Section 7.10. 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 7.11. Confidentiality. Without limitation of any other
obligations of confidentiality contained in this Agreement, the Second Amended
and Restated 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 Second Amended and Restated 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.
22
<PAGE>
Section 7.12. 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 7.13. Tax Masters Not a Tax Preparer. Nothing in this
Agreement or the Second Amended and Restated 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 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 7.14. Events Prior to Amendment. The parties affirm
that they are responsible for performing all of their agreements, duties and
obligations under the First Amended and Restated RAL Participation Agreement
arising out of events occurring prior to the effective date of this Agreement,
and the provisions of the First Amended and Restated RAL Participation Agreement
shall survive and continue to define the rights and obligations of the parties
with respect to such prior events.
Section 7.15. Financial Privacy. Tax Masters and BFC agree to
comply with the financial privacy provisions of Section 7.2 of the Second
Amended and Restated RAL Operations Agreement.
Section 7.16. Effective Date. The effective date of this
Agreement shall be the date first written above.
Section 7.17. Acquisition of Major Franchisees. Tax Masters
acknowledges that Block Services and its Affiliates are in the process of
repurchasing the major franchise agreements from certain of the Major
Franchisees. The parties hereto expressly agree that, for purposes of this
Agreement, (a) any Major Franchisee that is acquired by Block Services or an
Affiliate of Block Services shall thereafter be considered a Block Office and
shall cease to be considered a Major Franchisee, and (b) any Major Franchisee
whose major franchise agreement is terminated and who enters into a corporate
franchise agreement shall thereafter be treated as a Corporate Franchisee and
shall cease to be treated as a Major Franchisee.
23
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
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 & Treasurer
HOUSEHOLD TAX MASTERS INC.
By: /s/ Patrick A. Cozza
----------------------
Name: Patrick A. Cozza
Title: President
24