EXHIBIT 10.27
SECOND AMENDED AND RESTATED
REFUND ANTICIPATION LOAN
OPERATIONS AGREEMENT
THIS SECOND AMENDED AND RESTATED REFUND ANTICIPATION LOAN OPERATIONS
AGREEMENT dated as of June 9, 2003 (this "Agreement"), is made by and among H &
R Block Services, Inc., a Missouri corporation ("Block Services"), on behalf of
itself and in regard to its subsidiaries, H & R Block Tax Services, Inc., a
Missouri corporation ("Block Tax Services"), HRB Royalty, Inc., a Delaware
corporation ("Royalty," and together with Block Services and Block Tax Services,
the "Block Companies"); Household Tax Masters Inc., a Delaware corporation ("Tax
Masters"), for itself or in its capacity as servicer for the RAL Originator (as
such term is defined herein) where appropriate under the circumstances, and
Beneficial Franchise Company Inc., a Delaware corporation ("Beneficial
Franchise," and together with Tax Masters, the "Household Companies").
RECITALS
A. Block Services is in the income tax preparation business
through various offices owned by Block Services or its Affiliates and
participating franchisees throughout the United States.
B. Royalty is the owner of certain service marks and trademarks
involving Block Companies.
C. In connection with the electronic processing of tax returns,
Tax Masters facilitates Refund Anticipation Loans ("RALs") that to date have
been made by Imperial Capital Bank ("ICB"), Household Bank, f.s.b ("HB") or its
predecessor and Refund Anticipation Checks ("RACs") that to date have been
issued by ICB, HB, or its predecessor.
D. Beneficial Franchise is the owner of the entire right, title
and interest in and to United States Letters Patent No. 4,890,228 issued on
December 26, 1989 and entitled: ELECTRONIC INCOME TAX REFUND EARLY PAYMENT
SYSTEM, together with all claims for damage by reason of past infringement by
anyone of said Letters Patent, by virtue of an assignment recorded in the U.S.
Patent and Trademark office on April 3, 1991 on Reel 5630, Frame 34.
E. Beneficial Franchise is the owner of the entire right, title
and interest in and to United States Letters Patent No. 5,193,057 issued on
March 9, 1993 and entitled: ELECTRONIC INCOME TAX REFUND EARLY PAYMENT SYSTEM,
together with all claims for damage by reason of past infringement by anyone of
said Letters Patent, by virtue of an assignment recorded in the U.S. Patent and
Trademark Office on April 3, 1991 on Reel 5630, Frame 34.
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F. The Block Companies and the Household Companies are parties to
that certain Amended and Restated Refund Anticipation Loan Operations Agreement,
dated January 6, 2003 (the "First Amended and Restated RAL Operations
Agreement").
G. Tax Masters and ICB are parties to 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 loans originated by ICB under the RAL Program. A redacted copy of the
Sale and Servicing Agreement and all amendments thereto will be delivered by Tax
Masters to Block Services.
H. 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
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 Masters,
Beneficial Franchise and ICB that ICB is not acceptable as the RAL Originator
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 originator of RALs and RACs for Tax Periods subsequent to
the 2003 Tax Period (the "Block ICB Termination Right").
I. 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 subsequent
year, to provide written notice to Tax Masters, Beneficial Franchise and ICB
that ICB is not acceptable as the RAL Originator for future Tax Periods, in
which event Household Companies agree to substitute a Federally Chartered
Financial Institution having sufficient capital to fulfill its anticipated
obligations with respect to the RAL Program as the replacement 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.
J. The parties desire to amend and restate the First Amended and
Restated RAL Operations 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 the First ICB Consent Letter, the Second ICB Consent Letter and this
Agreement, and to implement certain changes to the First Amended and Restated
RAL Operations Agreement 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
sufficiency and receipt of which
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are hereby acknowledged, Block Companies and Household Companies hereby covenant
and agree that the First Amended and Restated RAL Operations Agreement is hereby
amended and restated in its entirety with respect to RALs made and RACs issued
and other acts and events that occur from and after the effective date hereof by
deleting the provisions of Sections 1.1 through 8.21 as the same now appear and
by substituting therefor the following Sections 1.1 through 8.21:
1. RIGHTS, DUTIES AND OBLIGATIONS OF BLOCK SERVICES.
1.1 Preparation and Filing of Returns. Block Services shall
prepare and file Federal, state and local income tax returns (collectively, the
"Returns") for RAL Customers and shall be solely responsible for any liability
to the Taxpayer, the Internal Revenue Service ("IRS") and other taxing
authorities arising out of its preparation and filing of such Returns. For
purposes of this Agreement, in connection with any RACs based on income tax
refunds from state taxing authorities, Block Services shall complete any
processing and necessary forms to enable the Electronic Filing of such state
Returns, where available.
1.2 Marketing of RALs and RACs. Block Services agrees in
connection with the operation of the RAL Program: (a) to market RALs and RACs to
potential RAL Customers, including conducting marketing research and product
development, coordinating the RAL and RAC products with the needs of RAL
Customers, and preparing and disseminating marketing and promotional materials;
(b) to conduct such advertising; (c) to prepare such forms and other written
materials; (d) to equip its company-owned offices with such computer equipment;
(e) to develop or acquire such software; (f) to hire and train such personnel;
and (g) to incur such expenses in connection with such marketing efforts; in
each case as is reasonably necessary in order to market, advertise and
disseminate information with respect to the making of RALs and issuance of RACs
to RAL Customers.
1.3 RAL Customers. With respect to RAL Customers, Block Services
shall obtain certifications from each RAL Customer pursuant to Section 1.4
below. With respect to RAL Customers, Block Services shall also follow all
qualifying procedures for RALs as set forth in Schedule 1.3 attached hereto
("Qualifying Procedures") that are being delivered by Tax Masters to Block
Services in Tax Masters' capacity as servicer for the RAL Originator after
consultation with the RAL Originator. The Initial Credit Criteria and Final
Credit Criteria for any year during the term hereof will be delivered to Block
Services by Tax Masters in Tax Masters' capacity as servicer for the RAL
Originator after consultation with the RAL Originator pursuant to the procedures
set forth in Section 6.2 below.
1.4 RAL and RAC Application and Certification Process. Block
Services shall obtain information from each Applicant to complete an application
for a RAL or an application for a RAC (each such application being hereinafter
referred to, interchangeably, as "RAL Application") in a form developed by the
RAL Originator and printed by Block Services, which RAL Application shall
request from the Applicant certain information specified by Tax Masters as
servicer for the RAL Originator after consultation with the RAL Originator. In
addition, the RAL Application shall contain an authorization signed by the
Applicant to use the Applicant's Return information for the loan application
process in accordance with Section 301.7216-3(b) of the U.S. Treasury Department
Regulations and shall also include such additional lawful
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consents, if any, as shall allow Tax Masters, or any Affiliate thereof, to make
collections on any delinquent RAL as servicer for the RAL Originator and for Tax
Masters and its Affiliates to solicit any RAL Customers for present and future
loans and related products including, without limitation, deposit, insurance and
mortgage loan products, subject to the limitations set forth in Section 7.2
herein. Consents for, and materials used in, the solicitation activities
described in the immediately preceding sentence shall not mention the RAL
Program, any names, logotypes or marketing slogans related to the RAL Program or
any names, logotypes or marketing slogans of Block Services, its subsidiaries or
affiliates, without the prior written consent of Block Services. If an Applicant
is in the military, a photo identification containing a service identification
number may also be supplied and shall satisfy all requirements for acceptable
forms of identification for such individual. The RAL Application shall also
contain, among other certifications as Tax Masters, as servicer for the RAL
Originator after consultation with the RAL Originator, shall reasonably require,
a certification signed by the Applicant that he or she: (a) has not previously
filed any Return for the applicable Tax Year, does not have any previous tax
liabilities, delinquent student loans, or any other delinquent federally
guaranteed or sponsored loans, or delinquent child support payments; (b) has not
filed a petition (whether voluntary or involuntary) under any federal or state
bankruptcy or insolvency laws; and (c) has not filed any power of attorney with
the IRS or any state taxing authority and has no power of attorney presently in
effect to direct any tax refund to any third party.
1.5 Completion of IRS Form No. 8453. Block Services shall be
responsible for the completion of IRS Form 8453, which shall indicate the
applicable check routing number designated by the RAL Originator and applicable
RAL Originator's client account number consisting of an eight digit prefix
followed by the primary social security number of the RAL Customer and the name
of the RAL Originator as the financial institution. This form shall be signed by
Block Services as Electronic Return Originator (as defined by the IRS) and by
the RAL Customer and shall indicate that the account is a "checking" account and
that the source is "other". Block Services shall cause the same aforesaid
information to be contained in the appropriate data fields as part of the
electronically filed Return.
1.6 Customer Copies. Block Services shall ensure that the RAL
Customer receives a copy of the signed RAL Application, IRS Form 8453, together
with any agreements and other disclosures or documents which Tax Masters as
servicer for the RAL Originator may reasonably require. If the IRS Form 8453
needs to be revised, Block Services need not obtain another RAL Application from
the Applicant.
1.7 Handling Documents. A copy of the signed RAL Application, the
loan agreement completed by the RAL Customer and the loan disclosure statement
provided to the RAL Customer shall be stored in each Applicant's client file
maintained by Block Services. Further, Block Services shall retain the ability
to regenerate a copy of the document notifying an Applicant of the reason the
RAL Application was not approved, if applicable, containing also the specific
reason marked on the document. Upon Tax Masters' written request, Block Services
shall exercise its best efforts to forward such documents to Tax Masters. Those
documents shall be sent to Tax Masters in accordance with the notice provisions
contained in this Agreement unless Tax Masters notifies Block Services otherwise
in writing. Block Services may dispose of such documents following the
expiration of forty-eight (48) months after the preparation or receipt of same.
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1.8 Completion of RAL and RAC Disbursement Checks. Block Services
shall have the care and custody of consecutively numbered RAL Originator
disbursement checks upon which Block Services, at the direction of Tax Masters
as servicer for the RAL Originator, may affix a RAL Originator facsimile
signature by way of an imprint of the authorized RAL Originator signatory and
which Block Services shall keep secure and safeguard from any loss or misuse.
Block Services shall deliver such checks to RAL Customers only in accordance
with this Agreement. Such RAL and RAC checks shall be payable only at the RAL
Originator. Block Services shall be responsible for loss, alteration or misuse
of such checks to the extent set forth in Section 1.12 below.
1.9 Additional Communication Equipment and Lines. An entity
appointed by Block Services shall order such communication lines between
Columbus, Ohio (or other applicable location), and the Chicago, Illinois
metropolitan area, as are determined by such entity to be necessary to support
Block Services' projection of its maximum daily RAL and RAC volume, as well as
full RAL Application follow-up information, within any one sixteen (16) hour
day, using such protocol and process as is mutually agreed upon by Tax Masters
as servicer for the RAL Originator and such entity. Such communication lines
shall continue in place until such time as the parties hereto shall mutually
agree to discontinue the same. If the parties mutually agree to discontinue the
aforementioned communication lines at the conclusion of any Tax Period, then the
parties agree for each subsequent Tax Period to order and install substantially
similar communication lines during the same time periods heretofore mentioned.
The cost of such communication lines shall not be borne by Block Services and
Tax Masters shall ensure that such costs are paid by the appropriate party.
Block Services shall be responsible for, and shall bear the cost of, modems
required for such communication lines in Columbus, Ohio (or other applicable
location). Tax Masters shall be responsible for, and shall bear the cost of,
modems required for such communication lines in the Chicago, Illinois
metropolitan area.
1.10 Processing RAL and RAC Requests. Block Services and Tax
Masters shall in good faith cooperate regarding the contents of Block Services'
Electronic Filing Software and Tax Masters' software in an effort to assure
prompt and efficient transmission of data between Block Services, Tax Masters
and RAL Originator. Block Services shall extract all RAL and RAC data from its
IRS transmission file each time a Return is sent to the IRS in accordance with
the Electronic Data Processing Guidelines established by the parties. The
Electronic Data Processing Guidelines may be revised upon mutual agreement of
the parties from time to time to accommodate any changes to Electronic Data
Processing Systems or software no later than July 15th of each year during the
term of this Agreement. With respect to a RAL Application which has been
designated on behalf of the RAL Originator by Tax Masters' software program as
an Instant RAL Application, Block Services shall first forward such RAL
Application to Tax Masters, after which Block Services shall electronically
transmit the Return, or cause it to be transmitted, to the IRS and then receive
positive or negative acknowledgment of the Return's acceptance from the IRS for
Electronic Filing, which acknowledgment shall also include, if available, the
IRS explanation of the reason the Return was rejected, as described in Chapter 3
of the IRS e-file Handbook for Authorized IRS e-file Providers of Individual
Income Tax Returns (Publication 1345, including Rev. Proc. 2000-31), as the same
may be amended from time to time ("Notification"). With respect to a RAL
Application which has not been designated on behalf of the RAL Originator by Tax
Masters' software program as an Instant RAL Application, Block Services shall
not forward such RAL Application to Tax Masters without having
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electronically transmitted the Return, or causing it to be transmitted, to the
IRS and without having received positive acknowledgement of the Return's
acceptance from the IRS for Electronic Filing, which acknowledgment shall also
include, if available to the RAL Originator, the Notification. In the event it
becomes infeasible to process RAL Applications in the manner specified above in
this Section 1.10 due to circumstances or events beyond the control of the
parties hereto, then the parties shall endeavor in good faith to take all
reasonable actions necessary to promptly modify the RAL Program in a manner
resolving the problems caused by such unfeasibility to process RAL Applications.
These modifications may include without limitation, the Final RAL and RAC Fees,
the Final Credit Criteria and a reasonable fee to compensate Tax Masters as
servicer for the RAL Originator for any additional increase in the cost of funds
resulting from a modification of the aforesaid procedures; provided, however,
that in all events the parties shall retain their rights to terminate the
Agreement in accordance with the procedures hereinafter set forth. Block
Services shall be responsible for accurately transmitting to Tax Masters on
behalf of Block Offices which use Block Services to transmit such RAL
Applications to Tax Masters as servicer for the RAL Originator all material
information contained in the RAL Application including without limitation social
security numbers ("Information"), as received from the RAL Customer or the
Corporate Franchise. Block Services shall notify all Block Offices of the
importance of accurate transmission of such Information and shall consult with
Tax Masters as servicer for the RAL Originator to develop a system for
eliminating, to the extent practicable, errors in such transmission by such
Block Offices. Tax Masters shall be responsible for forwarding to the RAL
Originator such Information received from Block Services by Tax Masters pursuant
to this Section 1.10 as requested by the RAL Originator. Block Services shall
pay Tax Masters as servicer for the RAL Originator the amount of any RAL which
is not collected by Tax Masters as servicer for the RAL Originator to the
extent, and only to the extent, that the failure of Tax Masters as servicer for
the RAL Originator to collect such RAL (whether through Direct Deposit or
collection from the RAL Customer) is the result of the failure of Block Services
to transmit accurately Information as received from the RAL Customer or a
Corporate Franchise; provided, however, that Tax Masters as servicer for the RAL
Originator must first show that diligent and timely efforts were made to make
such collections, such efforts to include an initial contact with the RAL
Customer within forty-five (45) days after the clearance of the RAL check by RAL
Originator. Such initial contact may consist of the sending of a first
collection notice to the RAL Customer and reasonable efforts thereafter to
effect collection. All amounts, if any, owed by Block Services under this
Section 1.10 shall be paid to Tax Masters as servicer for the RAL Originator in
one lump sum within sixty (60) days after Tax Masters verifies that the failure
of collection was caused by failure of Block Services to transmit accurately the
Information. Block Services shall have no obligation to Tax Masters as servicer
for the RAL Originator if the failure of collection is due to either a RAL
Customer or a Corporate Franchise giving Block Services inaccurate Information.
1.11 Providing RAL Customer Returns. For collection purposes, Block
Services shall provide Tax Masters with a copy of each RAL Customer's
electronically filed Returns in the format prescribed by the IRS promptly after
the RAL Application is transmitted to Tax Masters, but in no event later than
May 30th following such Tax Period. Should interactive processing not be
available, such transmission shall only be made after interactive processing is
available, or in one batch delivery or transmission not later than May 30
following each Tax Period. In the event Tax Masters needs any RAL Customer's
Returns for collection purposes prior to May 30
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following each year's Tax Period, then upon Tax Masters' request, and to the
extent practicable, Block Services shall promptly forward such RAL Customer's
Returns to Tax Masters.
1.12 Lost RAL or RAC Checks. If a RAL or RAC check disbursed by a
Block Office has become lost, or in the case where the RAL Customer has not
received the check within fourteen (14) days after such RAL Customer's check is
mailed when Tax Masters as servicer for the RAL Originator is mailing the check
to a RAL Customer in accordance with Section 8.8, Block Services shall notify
Tax Masters as servicer for the RAL Originator to stop payment upon notification
from the RAL Customer that the RAL Customer has lost or not received such Check.
In either case, Block Services shall directly contact Tax Masters as servicer
for the RAL Originator to have a new check issued and obtain from such RAL
Customer an indemnifying bond, in a form satisfactory to Tax Masters as servicer
for the RAL Originator, holding the RAL Originator free from all costs and
expenses or other losses in the event both checks are subsequently presented for
payment.
1.13 Compliance with Laws, Rules and Regulations. In connection
with Block Services' preparation of Returns, it shall comply with all applicable
laws, rules and regulations, and shall follow all instructions reasonably
prescribed by Tax Masters as servicer for the RAL Originator with respect to the
preparation and processing of RAL Applications.
1.14 Indemnification. Except as otherwise limited by this
Agreement, Royalty, Block Services and Block Tax Services (collectively, the
"Block Indemnifying Parties") shall indemnify, hold harmless and reimburse
Beneficial Franchise and/or Tax Masters and their respective Affiliates
(whichever has incurred the loss) (collectively the "Block Indemnified
Parties"), its officers and directors and employees, for all expenses and costs,
including without limitation, attorneys' fees, judgments, penalties, payments of
other direct expenses and payments in settlement or other disposition of, or in
connection with, any claims, disputes, controversies or litigation arising out
of Block Services' performance of its duties and responsibilities under this
Agreement, including without limitation, liability in connection with the loss,
alteration or misuse of disbursement checks or improper completion of
disbursement checks, regardless of by whom caused, after delivery of same to
Block Services and prior to delivery thereof to the RAL Customer.
Notwithstanding any other provision herein, if the Block Indemnifying Parties
breach any of their obligations hereunder and any such breach results in a claim
for indemnification by the RAL Originator against any Block Indemnified Party,
such Block Indemnified Party shall have the right to indemnification from the
Block Indemnifying Parties pursuant to the preceding sentence. Block Services
may retain attorneys of its own selection to represent it at Block Services'
expense. Block Services shall direct the defense of the claim; provided,
however, Block Services shall not compromise or settle any such claim or action
without prior approval of Tax Masters and Beneficial Franchise, as applicable.
If Beneficial Franchise or Tax Masters is named a party to any action or
proceeding for which Block Services has a duty of indemnification pursuant to
this Section 1.14 Beneficial Franchise and Tax Masters, as applicable, shall
have the right to directly defend any such action or proceeding by retaining
attorneys of its own selection to represent it at Block Services' expense.
Neither Beneficial Franchise nor Tax Masters shall compromise or settle any such
claim or action without prior consultation with Block Services.
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2. RIGHTS, DUTIES AND OBLIGATIONS OF TAX MASTERS.
2.1 Facilitating RAL Processing. Tax Masters shall act as a
facilitator in the processing of RALs between Block Services, Tax Masters and
the RAL Originator in accordance with the Electronic Data Processing Guidelines
established by the parties.
2.2 Partial Reimbursement of Expenses. On January 2nd or the first
business day thereafter of each year, Tax Masters as servicer for the RAL
Originator shall reimburse Block Services via a wire transfer for a portion of
its out-of-pocket costs and expenses incurred in providing the services
described in Section 1.2 hereof in the following agreed upon amounts (the
"Expense Reimbursement"):
Expense
Tax Period Reimbursement Amount
---------- --------------------
2004 $3,500,000
2005 $4,250,000
2006 $5,000,000
2.3 Compliance with Laws, Rules and Regulations. In connection
with Tax Masters facilitating the processing of RALs, Tax Masters shall comply
with all applicable laws, rules, and regulations.
2.4 Indemnification. Except as otherwise limited by this Agreement
and as specifically set forth in Section 1.12 with respect to the care and
custody of disbursement checks by Block Services, Tax Masters will indemnify,
hold harmless and reimburse Royalty, Block Services, Block Tax Services and/or
Beneficial Franchise or their respective Affiliates (whichever has incurred the
loss) (the "Tax Masters Indemnified Parties"), its officers, directors and
employees for all expenses and costs, including but not limited to, attorneys'
fees, judgments, penalties, payments of other direct expenses and payments in
settlement or other disposition of, or in connection with, any claims, disputes,
controversies or litigation arising out of any violation of the Federal Truth in
Lending Act or Regulation Z of the Federal Reserve Board and other applicable
federal and state banking and consumer finance laws and regulations, caused by
either Tax Masters or the RAL Originator involving any of the preprinted terms
and disclosures set forth on the check to RAL Customers from the RAL Originator,
relating to the procedures for applying for or obtaining RALs, relating to
cross-collections involving RAL Customers or customers of other financial
institutions, relating to the RAL Applications, or the failure of Tax Masters to
perform its duties and responsibilities under this Agreement. Tax Masters may
retain attorneys of its own selection to represent it at Tax Masters' own
expense. Tax Masters shall direct the defense of the claim; provided, however,
Tax Masters shall not compromise or settle any claim or action without the prior
approval of Block Services, Block Tax Services or Beneficial Franchise as
applicable. If Block Services, Block Tax Services or Beneficial Franchise is
named a party to any action or proceeding for which Tax Masters has a duty of
indemnification pursuant to this Section 2.4, Block Services, Block Tax Services
or Beneficial Franchise, as applicable, shall have the right to directly defend
any such action or proceeding by retaining attorneys of its own selection to
represent it at Tax Masters' expense.
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Provided, however, neither Block Services, Block Tax Services nor Beneficial
Franchise shall compromise or settle any such claim or action without prior
consultation with Tax Masters. Notwithstanding any other provision herein, in
connection with the defense of any such claim, Tax Masters shall have the right
to consult with the RAL Originator, including providing any documentation to the
RAL Originator that Tax Masters deems reasonably appropriate. All documentation
so provided to the RAL Originator shall be subject to the provisions set forth
in the agreement between Tax Masters and the RAL Originator with respect to the
RAL Originator's right to retain such documentation.
2.5 Cashiers' Checks. Pursuant to the terms of the agreement
between Tax Masters and the RAL Originator, all RAL checks, RAC checks, denied
RAL and excess checks issued by the RAL Originator will be cashier's checks.
2.6 Review of Marketing and Collection Materials. At Block
Services' request, and in all cases where Tax Masters', the RAL Originator's or
Beneficial Franchise's name or trade names are used in such materials, Tax
Masters as servicer for the RAL Originator shall review, and shall have the
right to provide for the RAL Originator to review, the marketing materials in
question and shall make reasonable efforts to comment upon such materials within
two (2) weeks of receipt thereof. At Tax Masters' request, and in all cases if
Block Services' name or trade names are used in the materials, Block Services
shall review the marketing materials in question and shall make reasonable
efforts to comment upon the same within two (2) weeks of the receipt thereof. If
any such marketing materials describe performance of obligations in connection
with the RAL Program required by a party other than the party preparing same,
such other party's approval of the materials shall be obtained prior to use
thereof. Any collection letters developed by Tax Masters shall be in a format
reasonably acceptable to Block Services.
2.7 Review of RAL or RAC Checks and Disclosure Statement. Tax
Masters shall review the RAL or RAC checks of the RAL Originator and the
disclosure statement developed by RAL Originator and shall propose instructions
to RAL Originator, concerning the modifications it deems necessary to such
checks and disclosure statement in order to comply with the Federal Truth in
Lending Act and Regulation Z requirements, as Tax Masters deems necessary after
consultation and agreement with the RAL Originator. Tax Masters agrees to
provide, at its cost, such instruments (including the RAL and RAC checks of the
RAL Originator and envelopes containing Block Services' name on the outside) in
accordance with Block Services' specifications and Section 5.2 below, in order
that such instruments are compatible with Block Services' processing equipment
and standards of trademark usage.
3. RIGHTS, DUTIES AND OBLIGATIONS OF TAX MASTERS AS SERVICER FOR RAL
ORIGINATOR.
3.1 Establishment of RAL and RAC Accounts and Making of Loans.
(a) Designation of RAL Originator. Tax Masters has
designated ICB as the RAL Originator for the 2004 Tax Period.
(b) Establishment of Accounts. Except as otherwise
limited by this Agreement, Tax Masters shall process RAL and RAC Applications
for the 2004 Tax Period and
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subsequent Tax Periods during the term of this Agreement as servicer for the
RALs and RACs with respect to such Applications received electronically from
Block Services by the RAL Originator according to the RAL Originator's Final
Credit Criteria, within the same day of the RAL Originator's receipt; provided,
however, in either case, such Applications must be received by Tax Masters as
servicer for the RAL Originator by 9:00 a.m. Eastern Standard or Daylight
Savings Time (as the case may be). On behalf of the RAL Originator, Tax Masters
as servicer shall establish an account ("RAL Account") for the RAL Customer and
the RAL Originator (and any successor participant in all or any portion of a
RAL) shall have the right to offset against the RAL and RAC all sums received
from the IRS or state taxing authorities which are deposited in the RAL Account
in connection with such RAL Customer's refund up to the amount of the RAL or RAC
inclusive of any Final RAL and RAC Fee or other fees or charges. In the event
that a RAL Customer is mailed a refund check rather than receiving the refund
electronically in the RAL Account, or receives a refund less than the amount
anticipated, the RAL Originator shall have the right under the RAL Check Loan
Agreement with the RAL Customer to be paid directly by such RAL Customer. Such
check may be modified from time to time to comply with regulatory requirements.
(c) Making of Refund Anticipation Loans. Notwithstanding
the foregoing, the RAL Originator is not obligated to make a loan to a RAL
Customer until such RAL Customer's RAL Application is approved by Tax Masters as
servicer for the RAL Originator in accordance with the RAL Originator's Final
Credit Criteria. Subject to the Final Credit Criteria and approval of the loans
as aforesaid, the RAL Originator has committed to (and Tax Masters shall ensure
that all future RAL Originators commit to) make RALs to all customers who make
RAL Applications for same at, or whose Returns or RAL Application is processed
through, any Block Office. Notwithstanding any other provision of this Agreement
to the contrary, Tax Masters as servicer for the RAL Originator shall process
such RALs or RACs on terms, and provide a level of services to RAL Customers,
which are reasonably competitive with the terms and level of services offered by
at least one or more Other RAL Originators (as defined below) to their
customers. In establishing such reasonably competitive terms, Tax Masters as
servicer for the RAL Originator shall in its good faith judgment design and
recommend for approval by the RAL Originator a RAL Program that balances the
need for high volumes with adequate fee pricing to generate optimum RAL Program
revenues. If Block Services notifies Tax Masters on or after January 1, but on
or before October 1 of any Tax Period during the term hereof that the terms
pursuant to which the RAL Originator makes loans to RAL Customers, or the level
of services provided to RAL Customers, are not reasonably competitive with the
terms or level of services being offered or to be offered by at least one or
more other RAL originators which make RALs or RACs similar to those contemplated
by this Agreement ("Other RAL Originators"), Tax Masters as servicer for the RAL
Originator shall recommend to the RAL Originator modifications to the RAL
Program, or to the level of services provided to such customers, in a manner
which makes such terms and level of services reasonably competitive with the
terms and level of services offered by at least one or more Other RAL
Originators. Any such modification shall be made effective for the first full
Tax Period following such notification. If such notification is given to Tax
Masters as servicer for the RAL Originator after October 1 of any Tax Period
during the term hereof, then the RAL Originator shall not be required to modify
its program as described above, if such modification cannot reasonably be made
more promptly, until the commencement of the second full Tax Period which begins
after such notification.
10
3.2 Deduction of Additional Charges. Tax Masters as servicer for
the RAL Originator shall upon receipt of a RAL Customer's check reconciliation
record remit on the same banking business day directly by way of an ACH credit
to the appropriate Block Offices' company account the additional fees or charges
authorized by the RAL Customer for payment to the Block Office, including
without limitation, tax preparation fees. In the event it becomes necessary to
process a significant number of RAL Applications resulting in a significant
backlog in Tax Masters as servicer for the RAL Originator remitting to the Block
Offices the aforesaid fees and charges, then Tax Masters, as servicer for the
RAL Originator, shall notify Block Services of the delay and at such time the
parties will negotiate in good faith a reasonable fee to compensate Block
Services for any additional increase in Block Services' cost of funds resulting
from such delay in remitting such fees and charges.
3.3 Replacement RAL and RAC Checks. In connection with Section
1.12 relating to lost checks, Block Services shall issue a RAL Originator
replacement check to the RAL or RAC Customer upon receipt from Tax Masters as
servicer for the RAL Originator of an electronic approval to issue such check
within twenty-four (24) hours after receiving an electronic indication from
Block Services that Block Services has in its possession an indemnifying bond
executed by the RAL Customer. Such electronic indication shall constitute a
conclusive presumption of receipt by Block Services of such indemnifying bond
and Block Services shall indemnify and hold Tax Masters and the RAL Originator
harmless from any loss in the event such indemnifying bond is lost or has in
fact not been obtained.
3.4 Compliance with Laws, Rules and Regulations. In connection
with RAL Applications and the procuring, processing and extension of RALs, Tax
Masters as servicer for the RAL Originator shall comply with all applicable
laws, rules and regulations. In addition, Tax Masters shall enforce the
provisions of the agreement between Tax Masters and the RAL Originator requiring
the RAL Originator to comply with all applicable laws, rules and regulations.
3.5 RAL Originator Sale and Servicing Agreement. Block Services
acknowledges that it has received a redacted copy of the Sale and Servicing
Agreement entered into by Tax Masters with ICB. Without the prior written
consent of Block Services, such consent not to be unreasonably withheld,
conditioned or delayed, Tax Masters hereby agrees not to amend such agreement in
any way that (a) modifies or alters the rights of ICB to use (i) Block Services'
or any of its Affiliates' tradenames, trademarks and the like or (ii) RAL
Customer information other than in its capacity as a RAL Originator, or (b)
would materially adversely affect any of the rights of Block Services associated
with the RAL Program. Tax Masters shall strictly enforce the provisions of the
Sale and Servicing Agreement prohibiting ICB and its Affiliates from soliciting
RAL Customers for any other product or service.
3.6 Indemnification. Except as otherwise limited by this Agreement
and except as specifically set forth in Section 1.12 with respect to the care
and custody of disbursement checks by Block Services, Tax Masters will
indemnify, hold harmless and reimburse Beneficial Franchise, and any of the
Block Companies or their respective Affiliates (whichever has incurred the
loss), its officers, directors and employees for all direct out-of-pocket
expenses and costs, including but not limited to, attorneys' fees, judgments,
penalties, payments of other direct expenses and payments in settlement or other
disposition of, or in connection with, any claims,
11
disputes, controversies or litigation arising out of (i) the failure of Tax
Masters to perform its duties and responsibilities under this Agreement, or (ii)
the failure of the RAL Originator to perform its duties and responsibilities
under any agreement between Tax Masters and the RAL Originator relating to the
RAL Program. Notwithstanding any other provision herein, if Tax Masters breaches
any of its obligations hereunder and any such breach results in a claim for
damages by the RAL Originator against any of the Block Companies or their
Affiliates, then such Block Company and such Affiliate shall have the right to
indemnification from Tax Masters pursuant to the preceding sentence. Tax Masters
may retain attorneys of its own selection to represent it at Tax Masters'
expense. Tax Masters shall direct the defense of the claim; provided, however,
Tax Masters shall not compromise or settle any claim or action without the prior
approval of Block Services and Tax Masters. If Block Services, Block Tax
Services or Beneficial Franchise is named a party to any action or proceeding
for which Tax Masters has a duty of indemnification pursuant to this Section
3.6, Block Services, Block Tax Services or Beneficial Franchise, as applicable,
shall have the right to directly defend any such action or proceeding by
retaining attorneys of its own selection to represent it at Tax Masters'
expense. Provided, however, neither Block Services nor Block Tax Services nor
Beneficial Franchise shall compromise or settle any such claim or action without
prior consultation with Tax Masters.
4. RIGHTS, DUTIES AND OBLIGATIONS OF BENEFICIAL FRANCHISE.
4.1 Licenses. Beneficial Franchise hereby grants to Block Services
a nonassignable, nonexclusive right and license under U.S. Patent No. 4,890,228
and U.S. Patent No. 5,193,057 ("Patent Rights") to use any data processing
system or any method falling within the scope of any claim of the Patent Rights.
Beneficial Franchise also grants to Block Services the exclusive right to grant
sublicenses to use any data processing system or method falling within the scope
of any claim of the Patent Rights to any Person or entity which is involved in
the processing of RALs or RACs (whether through Electronic Filing, or the
taking, presenting or handling of applications for RALs or RACs) but only to the
extent that the RAL or RAC is processed in any manner through an Electronic
Filing system majority owned or operated by Block Services or used by any Block
Office for a substantial portion of such office's Electronic Filings. Such
Person or entity shall hereinafter be referred to as a "Block RAL Processor".
Block Services agrees to grant such a sublicense to any Major Franchisee or
affiliate of Block Services which uses the RAL Originator to make RALs or RACs
to its customers. Any sublicense granted by Block Services shall contain
provisions corresponding to those of this Agreement regarding termination of
Block Services' Patent Rights and shall not include the right to sublicense to
other parties. Beneficial Franchise hereby waives and fully releases Block
Services and any Block RAL Processor from any claims for infringement of Patent
No. 4,890,228 and Patent No. 5,193,057 arising from RALs or RACs made prior to
or during the terms of Block Services' rights under the license granted in this
Section.
4.2 Warranties. Beneficial Franchise represents and warrants that
it is the owner of Patent Rights and has the right to grant the rights and
licenses described herein. BENEFICIAL FRANCHISE MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE SUBJECT MATTER OF THESE LICENSES.
4.3 Indemnification. Except as otherwise limited by this Agreement
and as specifically set forth in Section 1.12 with respect to the care and
custody of disbursement checks
12
by Block Services, Beneficial Franchise will indemnify, hold harmless and
reimburse Tax Masters, Royalty and Block Services or their respective Affiliates
(whichever has incurred the loss) (the "Beneficial Franchise Indemnified
Parties"), its officers, directors and employees for all direct out-of-pocket
expenses and costs, including but not limited to, attorneys' fees, judgments,
penalties, payments of other direct expenses and payments in settlement or other
disposition of, or in connection with, any claims, disputes, controversies or
litigation arising out of the failure of Beneficial Franchise to perform its
duties and responsibilities under this Agreement or for any claims, disputes,
controversies or litigation arising out of or involving Patent Nos. 4,890,228
and 5,193,057. Beneficial Franchise may retain attorneys of its own selection to
represent it at Beneficial Franchise's expense. Beneficial Franchise shall
direct the defense of the claim; provided, however, Beneficial Franchise shall
not compromise or settle any claim or action without the prior approval of Block
Services and Tax Masters, as applicable. If Block Services or Tax Masters is
named a party to any action or proceeding for which Beneficial Franchise has a
duty of indemnification pursuant to this Section 4.3, Block Services or Tax
Masters, as applicable, shall have the right to directly defend any such action
or proceeding by retaining attorneys of its own selection to represent it at
Beneficial Franchise's expense. Neither Block Services nor Tax Masters shall
compromise or settle any such claim or action without prior consultation with
Beneficial Franchise.
4.4 Expiration of Licenses. Block Services' licenses under Section
4.1 above shall run until the termination of this Agreement in accordance with
Sections 6.1 or 6.3, as applicable, except under those circumstances set forth
in Section 6.3, pursuant to which the licenses shall survive the termination of
this Agreement ("Survival Provisions"). Unless Block Services' licenses survive
termination pursuant to the Survival Provisions, termination of Block Services'
licenses under the Patent Rights shall terminate any sublicenses granted by
Block Services.
5. LICENSE AND SUBLICENSE TO TAX MASTERS OF CERTAIN RIGHTS.
5.1 Sublicense of Rights Under Patent. Block Services hereby
grants to Tax Masters (including in its capacity as servicer for the RAL
Originator) a nonexclusive and nonassignable right and license under the Patent
Rights to use, and the right to sublicense to the RAL Originator to use, any
data processing system or any method falling within the scope of any claim of
the Patent Rights in connection with the making of RALs and issuing of RACs to
any RAL Customer which uses a Block Office for Electronic Filing of a Return.
5.2 License of Trademarks. Royalty hereby grants to Tax Masters
(including in its capacity as servicer for the RAL Originator) a nonexclusive
and nonassignable right and license to use, and to sublicense to the RAL
Originator to use, the name and trade or service xxxx "H & R Block" and such
other trade or service marks that Block Services may from time to time designate
for use in connection with its RAL Program (collectively, the "Block Licensed
Marks") in connection with the making and processing of RALs and RACs for RAL
Customers. Neither Tax Masters nor its Affiliates shall use, nor shall any
sublicense by Tax Masters to the RAL Originator permit the RAL Originator to
use, the Block Licensed Marks for any purpose except the purposes specifically
set forth herein. Any use of the Block Licensed Marks and all goodwill generated
thereby shall inure to the benefit of Royalty. All uses of the Block Licensed
Marks shall be approved in advance by Royalty and shall be at all times in
compliance with any standards which Royalty may impose in writing from time to
time regarding such use. All rights
13
in and to the Block Licensed Marks which are not specifically granted to Tax
Masters shall remain with Royalty. Tax Masters shall cooperate, and shall cause
the RAL Originator pursuant to the terms of any sublicense to cooperate, with
Royalty in the protection and defense of the Block Licensed Marks and in the
prosecution, at Royalty's sole option, of infringers of the Block Licensed
Marks. Tax Masters shall not register nor seek to register, and any sublicense
by Tax Masters to the RAL Originator shall prohibit the RAL Originator from
registering or seeking to register, any trade or service xxxx, logotype or
commercial symbol used by either of them in the exercise of the rights licensed
under this Section 5.2 or sublicensed by Block Services to Tax Masters pursuant
to the immediately preceding Section 5.1 of this Agreement. Royalty waives and
releases Tax Masters, from and against, any and all claims of liability arising
in any manner from the use by Tax Masters of the Block Licensed Marks prior to
July 19, 1996. The Block Licensed Marks and access granted by Block Services to
Tax Masters (including in its capacity as servicer for the RAL Originator) shall
terminate upon termination of this Agreement.
5.3 Access to Block Offices. Tax Masters shall, with Block
Services' prior written consent, have access to the Block Offices (to the extent
it is able to do so with respect to Corporate Franchises) for the purpose of
assisting and facilitating the operation of the RAL Program at such Block
Offices. Any consent of Block Services shall be in accordance with a procedure
mutually agreed upon by Block Services and Tax Masters on or before August 1 of
each Tax Year during the term hereof.
5.4 RAC License Fee. Tax Masters as servicer for the RAL
Originator shall cause to be paid to Block Services a license fee of $6.88 for
each RAC issued by the RAL Originator pursuant to this Agreement during the 2004
Tax Period and future Tax Periods, except that there shall be no license fee for
a RAC for which a RAL Customer has chosen to receive his or her funds by Direct
Deposit into his or her XXX or Auto Investor account at an Affiliate of Block
Companies. The license fee described in this Section 5.4 (the "RAC License Fee")
shall be paid by credit to Block Services' account by ACH credit to the
appropriate Block Office's company account.
6. TERM; ANNUAL DETERMINATION OF RAL AND RAC FEES; TERMINATION; EFFECT OF
TERMINATION.
6.1 Term of Agreement; Renewal. The term of this Agreement shall
commence as of July 19, 1996 and shall expire on June 30, 2006 ("Term"). In the
event this Agreement has not been sooner terminated as set forth in Section 6.3
below, the parties agree to review this Agreement prior to each Tax Period with
a view toward entering into reasonable, good faith discussions concerning
revisions to the relationship represented by the terms hereof, among Block
Companies and Household Companies regarding the making of RALs and issuing of
RACs. Such revisions, if any, shall be upon such terms as are mutually agreeable
to the parties thereto. If such revisions are not agreed to, this Agreement
shall continue on the terms and conditions set forth herein.
6.2 Annual Determination of RAL and RAC Fees and Credit Criteria.
(a) Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator, annually shall make an initial
determination of the RAL and RAC fees to be
14
paid by each RAL Customer (the "Initial RAL and RAC Fees"). Tax Masters shall
provide Block Services with such Initial RAL and RAC Fees no later than August
15 of each year, with the actual final RAL and RAC fees to be established by Tax
Masters as servicer for the RAL Originator, after consultation with the RAL
Originator, no later than September 15 of each year ("Final RAL and RAC Fees").
(b) Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator, shall make an initial determination of the
RAL credit criteria no later than August 15 of any year during the Term
("Initial Credit Criteria") and, after consultation with the RAL Originator,
shall establish final credit criteria ("Final Credit Criteria") together with
the Qualifying Procedures on Schedule 1.3 no later than September 15 of such
year for the ensuing Tax Period.
(c) Tax Masters as servicer for the RAL Originator, after
consultation with the RAL Originator, shall provide to Block Services as
Schedule I to this Agreement, the Initial Credit Criteria and the Initial RAL
and RAC Fees. Such Schedule may be updated by Tax Masters as servicer for the
RAL Originator, after consultation with the RAL Originator, on or before
September 15 of each year.
(d) On or before September 15 of each year, Tax Masters
as servicer for the RAL Originator, after consultation with the RAL Originator,
agrees to provide to Block Services as Schedule 1.3 to this Agreement the
Qualifying Procedures, and as Schedule II to this Agreement the Final Credit
Criteria and the Final RAL and RAC Fees for the ensuing Tax Period provided,
however, that in the event that significant external events or occurrences
beyond Tax Masters' control become known to Tax Masters at any time after Tax
Masters' determination of the Final Credit Criteria and Final RAL and RAC Fees
each year that are likely to affect materially net RAL and RAC revenues of Tax
Masters and the RAL Originator for that year, Tax Masters as servicer for the
RAL Originator, after consultation with the RAL Originator may, after discussion
with Block Services, and upon not less than ten (10) days (or two (2) days
during any Tax Period) notice to Block Services promptly modify the RAL Program
Final Credit Criteria or Final RAL and RAC Fees but only to an extent which is
reasonable under the circumstances, and only until the effect of such event or
occurrence ends or until the end of the first Tax Period in which such event or
occurrence has or is likely to have the above-described effect.
(e) Notwithstanding any other provision in this
Agreement, the RAL Originator, in its exclusive discretion, shall, on advice and
recommendation of Tax Masters as servicer for the RAL Originator, establish the
Initial RAL and RAC Fees, the Final RAL and RAC Fees, the Initial Credit
Criteria and the Final Credit Criteria used by Tax Masters as servicer for the
RAL Originator in the RAL Program.
6.3 Termination and Cure.
(a) Termination. Any party may at its option terminate
this Agreement upon ten (10) days prior written notice to all other parties if
(i) any other party is in material default in the performance of any of its
obligations or duties under this Agreement and the party in default shall fail
to commence cure within such 10-day period or shall fail thereafter diligently
to
15
prosecute a cure to completion within a reasonable time thereafter, which
reasonable time shall be based on the nature of the default and the steps
required to cure, but which in all events shall not exceed forty-five (45) days
from the notice of default (or ten (10) days from the notice of default during a
Tax Period), provided, however, that in all events any such cure must be
accomplished without substantial unreimbursed expense or damage to any other
party by reason of the cure; (ii) the IRS and/or state taxing authority
withdraws or materially changes the implementing revenue procedures sanctioning
RALs or RACs to the substantial detriment of that party; (iii) the operation of
the RAL Program or the Electronic Filing program is made infeasible or
impractical by (x) legal or regulatory determinations, enactments or
interpretations or (y) significant external events or occurrences beyond that
party's control provided that the parties shall first mutually endeavor in good
faith to employ reasonable efforts to modify the program in a manner resolving
the problems caused by such legal, regulatory, or significant external events or
occurrences.
In the event that this Agreement is terminated by any party on
the basis of clause (i) if the party in default is Block Services, clause (ii)
or clause (iii), the non-exclusive license provided to Block Services by
Beneficial Franchise shall terminate effective upon the date of termination of
this Agreement. If this Agreement is terminated on the basis of clause (i) if
Block Services is not the party in default, the license provided by Beneficial
Franchise to Block Services under Section 4.1 and the right to sublicense under
Section 4.1 shall survive such termination.
(b) Certain Cure. For purposes of Section 6.3(a), if the
default with respect to which Block Services gives notice of termination is the
failure or inability of RAL Originator to make RALs or RACs as required by this
Agreement, then cure shall be accomplished, and no termination of this Agreement
shall result to the extent that Tax Masters arranges, subject to Block
Companies' rights under the Second ICB Consent Letter, for a substitute
performance by another RAL originator or RAC issuer, and such other RAL
originator or RAC issuer commences, within the appropriate cure period set forth
in Section 6.3(a) (45 days, or 10 days during the Tax Period), to make the RALs
and issue RACs which RAL Originator was unable to do. Block Services and Tax
Masters as servicer for the RAL Originator shall use their respective best
efforts in attempting to arrange for such substitute performance. The provisions
of this Section 6.3(b) shall not relieve Tax Masters as servicer for the RAL
Originator of its obligations to (i) diligently complete cure under Section
6.3(a) so that RAL Originator can again make RALs and issue RACs notwithstanding
substitute performance under this Section 6.3(b) in the interim by an other RAL
Originator; and (ii) compensate Block Services for expenses and damages as
described in Section 6.3(a). Also, the provisions of this Section 6.3(b) shall
not be used by Tax Masters to avoid the provisions of Section 8.5 dealing with
assignment of rights and obligations under this Agreement.
6.4 Effect of Termination. After any termination, the RAL and RAC
accounts established by the RAL Originator will continue to be the property and
responsibility of the RAL Originator which established such RAL and RAC
accounts. Termination shall not affect existing obligations.
6.5 Return of Confidential Information. Upon termination of this
Agreement, the parties will return to any furnishing party all confidential
information received in connection
16
with this Agreement and certify in writing to such furnishing party that such
receiving party has not retained any copies of such confidential information;
provided, notwithstanding any other provision herein, that any information that
Tax Masters provides to the RAL Originator in carrying out its obligations under
this Agreement that the RAL Originator is required as a regulated institution to
retain shall not be subject to the return provisions herein during the period of
such legally required retention.
7. CONFIDENTIALITY AND PRIVACY OF INFORMATION.
7.1 Proprietary Information. Each of the parties is informed and
acknowledges that implementation and operation of the service of offering of
RALs and RACs (the "RAL Program") described in this Agreement will involve the
use of certain systems, computer programs and/or other data including business
information or trade secrets ("Proprietary Information") that are proprietary to
the respective parties. Such Proprietary Information shall be identified as
"confidential" or "proprietary" by the respective parties. Each party will
retain in confidence all Proprietary Information received in connection with
this Agreement and limit access to or disclosure of such Proprietary Information
received in connection with this Agreement solely for the purpose of operation
of the RAL Program under this Agreement. To this end, the recipient will employ
the same degree of care to avoid disclosure of such information that it employs
with respect to its own information deemed confidential. Subject to Section 7.4,
such obligation of confidentiality shall not extend to any information which is
shown to have been known by the receiving party prior to disclosure to it by the
other party or parties hereto or generally known to others engaged in the same
trade or business as the furnishing party, or that is or shall become part of
public knowledge through no act or omission by the receiving party or its
directors, officers, employees, professional advisors or other representatives,
or that shall have been lawfully received by the receiving party from a third
party which the receiving party does not know and has no reason to believe is
under any obligation of confidentiality with respect to such information.
7.2 Privacy of Information.
(a) Privacy of Customer Information. Notwithstanding
anything in this Agreement to the contrary, a party receiving nonpublic personal
information (the "Receiving Party") from any party which obtained such nonpublic
personal information from a customer or consumer (the "Disclosing Party"),
agrees that it will not disclose such nonpublic personal information of
customers and consumers of Disclosing Party to non-affiliated third parties or
use such nonpublic personal information for any purpose other than satisfying
Receiving Party's duties and obligations under this Agreement, unless the
consumer or customer has consented to such use or it is otherwise permitted by
applicable law, provided that Tax Masters shall have the right to disclose to
the RAL Originator information it deems reasonably necessary to carry out its
obligations under the RAL Program. Any such use or disclosure by Receiving Party
of nonpublic personal information of customers and consumers of the Disclosing
Party shall be in compliance with federal and state laws, rules and regulations.
(b) Obligations of Receiving Party to Safeguard Customer
Information. In addition to any other obligations of Receiving Party set forth
in this Agreement, Receiving Party agrees to implement and maintain safeguards
for the nonpublic personal information of
17
customers and consumers of Disclosing Party, which shall be consistent with the
requirements of 00 XXX 000, as directed by the Disclosing Party, but in no event
less than the standard of care Receiving Party uses to protect its own
information of similar sensitivity. Receiving Party may permit access and usage
of nonpublic personal information of customers and consumers of Disclosing Party
to Receiving Party's Affiliates in order to exercise its rights and perform its
obligations under this Agreement and any related agreements among the parties
(including but not limited to the rights under Section 1.4), provided that
Receiving Party shall require that any of its Affiliates that are permitted such
access and/or usage agree not to disclose such information to any third party
except as otherwise permitted by Section 7.2(a) herein. Receiving Party will
allow Disclosing Party to reasonably audit Receiving Party's compliance with its
obligations under this Section 7.2. All terms used in this Section shall have
the same meanings, where the context permits, as set forth in 16 CFR Parts 313
and Part 314.
7.3 Conduct Prohibited. Notwithstanding anything in this Section 7
to the contrary and notwithstanding any consent from a RAL Customer, Tax Masters
and Beneficial Franchise agree that they will not, and Tax Masters shall enforce
the obligation of the RAL Originator under the agreement between Tax Masters and
the RAL Originator that the RAL Originator and any of its Affiliates not, (a)
use Block Services' name (including the H&R Block and the Block Financial
Corporation names), or the names of any of Block Services' Return preparers, in
any communications with RAL Customers or other Persons except in carrying out
RAL Originator's, Tax Masters' and Beneficial Franchise's obligations under this
Agreement and the agreement between Tax Masters and the RAL Originator; (b)
target or solicit Block Services' RAL Customers for any individual retirement
account or similar or alternative retirement account; or (c) use or disclose the
fact that a RAL Customer was a customer of Block Services or Block Financial
Corporation, without Block Services' prior written consent except as necessary
to carry out RAL Originator's, Tax Masters' and Beneficial Franchise's
obligations under this Agreement and the agreement between Tax Masters and the
RAL Originator.
7.4 Sharing of Return and RAL Application Data. Subject to Section
7.3, Tax Masters may share any data from a RAL Customer's Return and RAL
Application with any of its Affiliates and, solely for purposes of carrying out
its obligations under this Agreement, to the RAL Originator; provided that it
shall obtain appropriate consents for such sharing that are compliant with 26
USC Sections 7216 and regulations promulgated thereunder, and further provided
that it complies with the requirements of the Gramm Xxxxx Xxxxxx Act and 16 CFR
313. Tax Masters, upon obtaining appropriate consents from RAL Customers, may
share any data from such RAL Customers' Returns and RAL Applications with any of
their Affiliates.
7.5 Survival. The obligations of the parties under this Section 7
shall survive the expiration or termination of this Agreement.
8. MISCELLANEOUS.
8.1 Offering of RALs and RACs. Block Services, through Block
Offices, shall not offer directly or indirectly any RALs or RACs to any of its
customers except in connection with a RAL Program offered by or through Tax
Masters as servicer for the RAL Originator and Block Services through Block
Offices, or Major Franchisees or subfranchisees of Major Franchisees who are
participating in the RAL Program. In the event Tax Masters offers a RAL program
18
(either directly or through a RAL originator) to subscribers other than Block
Services with a RAL or RAC fee less than those offered in Tax Masters' RAL
Program with Block Services, Tax Masters shall provide RALs or RACs in
conjunction with Tax Masters' RAL Program with Block Services at the same or
lower RAL or RAC fees offered in conjunction with such other subscribers.
Block Services agrees that for each Tax Period during this
Agreement, except as otherwise agreed by the parties in the Second ICB Consent
Letter, RAL Originator will be the RAL originator and RAC issuer for 100% of
Block Offices, other than Corporate Franchises. Block Services shall use
reasonable good faith efforts to cause Tax Masters to be the facilitator of RALs
and RACs for 100% of the Corporate Franchises, but Block Services cannot assure
or guarantee that any such Corporate Franchise will use a particular RAL and RAC
facilitator.
8.2 Audit Rights of the Parties. Each party agrees that they will
each make the applicable files, books and records available to the nationally
recognized firm of independent certified public accountants of the other parties
as such parties may reasonably request in connection with any of the
requirements to be completed or payments to be made under this Agreement. Each
party shall furnish to the other parties all such information concerning
transactions and services provided by it pursuant to those sections as the
requesting parties may reasonably request, and permit the other parties and
their authorized representatives reasonable access, during normal business
hours, to audit the books and records of such party as they relate to any aspect
of those sections. In addition, Tax Masters shall have the right to obtain
access to such information for the RAL Originator to the extent necessary to
enable the RAL Originator to comply with its obligations under applicable laws
and regulations.
8.3 Other Agreements. Each party warrants that its execution of
this Agreement does not constitute a violation of any agreement or relationship
to which it is a party.
8.4 Use of Name; Agency. Except as otherwise set forth herein, Tax
Masters, Beneficial Franchise and Block Companies agree not to use the trade
names or service marks of any other party without the other party's express
written consent and Tax Masters agrees to enforce the obligation of the RAL
Originator under the agreement between Tax Masters and the RAL Originator that
the RAL Originator not use the trade names or service marks of Block Services or
its Affiliates without Block Services' express written consent. Block Services
also agrees not to use the name of the RAL Originator without first obtaining
Tax Masters' consent as servicer for the RAL Originator. This Agreement does not
establish or create a joint venture among any of the parties to this Agreement
or the employees, agents or representatives of the respective parties are not
the partners, agents or representatives of each other. Tax Masters and
Beneficial Franchise agree to Block Services' use during the term of this
Agreement of the trademark "Because it's your money" in connection with Block
Services' tax preparation and RAL Program and other products offered by Block
Services from time to time and related advertising; except that with respect to
such other non-tax related products of Block Services, if Tax Masters or its
Affiliates are using such trademark in connection with products that are
comparable to Block Services' (and not part of a joint offering with Block
Services), Block Services shall obtain prior approval from Tax Masters or its
Affiliates as the case may be for the use of such trademark.
19
8.5 Assignment. Except at set forth in Section 6.3(b), any party's
rights under this Agreement may not be assigned without the prior written
consent of the other parties upon thirty (30) days prior written notice, which
consent shall not be unreasonably withheld.
8.6 Litigation. In the event of litigation among the parties with
respect to this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees from the losing party or parties, including such fees incurred
during any such litigation on appeal.
8.7 Excusable Delays. If the performance of the obligations
hereunder of any party to this Agreement is prevented, restricted or interfered
with by reason of fire, or other casualty or accident, strikes or labor
disputes, war or other violence; any law, order, proclamation, regulation,
ordinance, demand, or requirement of any government agency; or any act or
condition whatsoever beyond such party's reasonable control (provided, however,
that the failure of any computer hardware, software, or communication system
maintained by Tax Masters in connection with the RAL Program shall not be
"excused" under this Section, to the extent such failure is not caused by or the
result of any of the above-mentioned factors or conditions); such party, upon
giving prompt notice to the other parties, shall be excused from such
performance to the extent of such prevention, restriction or interference; and
such non-performance shall not constitute a default under this Agreement,
provided, however, that such party shall use reasonable efforts, including,
without limitation, the best efforts referred to in Section 6.3(b) to arrange
for substitute performance and to avoid or remove such causes of
non-performance, and shall continue performance hereunder whenever such causes
are removed.
8.8 Contingent Issuing of Checks by RAL Originator. In the event
it becomes infeasible due to events or occurrences beyond the parties' control
for Block Offices to issue RAL or RAC disbursement checks directly to RAL
Customers, then the parties agree that Tax Masters as servicer for the RAL
Originator shall issue such checks directly to RAL Customers. If any check is
mailed by the RAL Originator, Tax Masters as servicer for the RAL Originator
shall mail the check to the RAL Customer within the same day of RAL Originator's
receipt of the RAL Customer's RAL Application provided, however, in either case,
such RAL Application must be received by the RAL Originator by 9:00 a.m. Eastern
Standard or Daylight Savings Time (as the case may be).
8.9 DISCLAIMERS. BLOCK COMPANIES' AND HOUSEHOLD COMPANIES'
OBLIGATIONS UNDER THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR
IMPLIED, EXCEPT AS OTHERWISE PROVIDED IN SECTION 1.12 WITH RESPECT TO BLOCK
SERVICES' CARE AND CUSTODY OF THE DISBURSEMENT CHECKS, NEITHER BLOCK COMPANIES
NOR HOUSEHOLD COMPANIES WILL BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR INCOME, LOSS OF USE OR OTHER BENEFITS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED
HEREUNDER. PROVIDED, HOWEVER, WITH RESPECT TO BLOCK SERVICES' RESPONSIBILITIES
UNDER SECTION 1.12, THE PARTIES AGREE THAT BLOCK SERVICES WILL NOT BE LIABLE FOR
INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES BUT WILL BE LIABLE FOR ANY INTEREST
CHARGES. It is the responsibility of Block Services to ensure that all of its
files are adequately duplicated and documented. Tax Masters will not be
responsible for duplicating its files, or for the cost of
20
reconstructing data stored on disc files, tapes, memories, etc., lost during the
course of performance of its obligations under this Agreement.
8.10 Applicable Law. This Agreement will be governed by and
interpreted in accordance with the laws of the State of Delaware.
8.11 Notices. All notices required or permitted to be given under
this Agreement shall be in writing and shall be given by registered or certified
mail, return receipt requested, addressed to each as follows:
If to Block Companies to: H & R Block Services, Inc.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
If to any one or more of
Household Companies to: Household Tax Masters Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Any party may change the address to which it desires notices
to be sent by giving the other parties ten (10) days prior notices of any such
change.
Any notice shall be deemed given upon its receipt by the party
to whom the notice is addressed.
8.12 Other Financial Services. Block Services agrees to consult
with Tax Masters regarding financial products and services created by Block
Services or Tax Masters or their Affiliates that may be offered through Block
Services' company-owned tax offices. In the event Block Services determines to
introduce a financial product or service provided by a third party (other than a
direct or indirect subsidiary of H&R Block, Inc.) through company-owned tax
offices (a "Third-Party Product"), Block Services agrees to consult with Tax
Masters regarding such Third-Party Product and negotiate in good faith with Tax
Masters (or an Affiliate of Tax Masters) for Tax Masters (or such Affiliate or
the RAL Originator designated by Tax Masters) to offer and provide such
Third-Party Product through Block Services' company-owned tax offices.
Notwithstanding the foregoing sentence, this Section 8.12 shall not apply to any
Third-Party Product with respect to which (i) Block Services (or its Affiliates)
are conducting discussions within the six (6) month period ending on the date of
this Agreement or (ii) a third party approached Block Services or its Affiliates
and initiated discussions concerning such Third-Party Product subject to the
terms of a confidentiality agreement between Block Services (or its Affiliates)
and such third party; provided that, to the extent permitted by any applicable
confidentiality agreement (as determined by Block Services (or its Affiliates)
in its or their sole discretion), Block Services will consult with Tax Masters
(or its Affiliates) regarding such Third-Party Product.
8.13 Severability. If any provision of this Agreement, compensation
to Block Services described herein, Final Credit Criteria or Final RAL and RAC
Fees charged to customers of
21
Block Services, shall for any reason be held to be invalid, illegal or
unenforceable, such invalidity shall not otherwise affect the validity of this
Agreement or any other provision hereof, and this Agreement shall be interpreted
and construed as if such provision, to the extent invalid, had not been
contained herein. In such event, the parties shall in good faith endeavor to
redesign the RAL Program or the terms hereof in a manner consistent with the
intent of this Agreement pursuant to Section 6 hereof.
8.14 Modifications to Agreement. This Agreement supersedes the
First Amended and Restated Operations Agreement. Each party represents and
warrants that there are no oral understandings between or among them that differ
from the terms and conditions of this Agreement. This Agreement may be modified
only by a written agreement signed by all of the parties.
8.15 References to RALs. Unless otherwise specified in this
Agreement, any general reference to a RAL in this Agreement shall be meant to
also refer to an Instant RAL, which is a RAL under which a credit decision is
made prior to Block Services receiving positive acknowledgment of the underlying
Return's acceptance for Electronic Filing and the Notification from the IRS, and
a Classic RAL, which is the name sometimes used for a RAL to distinguish it from
an Instant RAL when Instant RALs are offered.
8.16 Instant RALs. Tax Masters, as servicer for the RAL Originator,
may offer Instant RALs to certain customers in the 2003 Tax Period. Tax Masters
may, however, upon forty-eight (48) hours prior written notice to Block
Services, stop offering Instant RALs at any time in its discretion during the
2003 Tax Period. Tax Masters and its Affiliates shall retain ownership of its
proprietary rights, including intellectual property rights, in the Instant RAL
product.
8.17 File Sharing. Tax Masters as servicer for the RAL Originator
shall provide the following files to Block Services for use in the 2003 Tax
Period and future Tax Periods:
(a) Guaranteed Loan Offer ("GLO") Processing File. This
file is generated from the 2003 GLO file received from Experian. It is coded and
incorporated into the TPS software. Block Services is prohibited from accessing
and decoding such software, except in response to, and to fulfill, a consumer's
request for a RAL. Block Services shall not use this file for any other purpose,
including but not limited to marketing its products.
(b) Block Services GLO Marketing File. This file is
generated from the 2003 GLO file received from Experian. Block Services may only
use this file to inform its customers that they qualify for a pre-approved RAL
for the 2003 Tax Period. Block Services shall not use this file for any other
purpose, including but not limited to marketing its products.
(c) Advance RAL Processing File. This file is generated
from the 2003 GLO file received from Experian. It is coded and incorporated into
the TPS software. Block Services is prohibited from accessing and decoding such
software, except in response to, and to fulfill, a consumer's request for a RAL.
Block Services shall not use this file for any other purpose, including but not
limited to marketing its products.
(d) History Processing File. This file is generated from
the experiences of the Household Companies. It consists of RAL payment history
for the last four (4) years and current
22
bad debt. This data is used for scoring a potential Instant RAL customer, is
coded, and resides in the Instant RAL decision module incorporated into the TPS
software. Block Services is prohibited from accessing and decoding such
software, except in response to, and to fulfill, a consumer's request for a RAL.
Block Services shall not use this file for any other purpose, including but not
limited to marketing its products.
8.18 Representations and Warranties of Block Services. Block
Services hereby represents, warrants and covenants that it and its subsidiaries
are and shall be the owners of all Block Offices, except for offices of
Corporate Franchises through the term of this Agreement. Block Services hereby
further represents, warrants and covenants that it will cause its subsidiaries
to perform all of the obligations of Block Services required to be performed
under this Agreement. Block Services agrees to enforce the terms of any existing
agreement with Corporate Franchises relating to the RAL Program.
8.19 Effective Date. The effective date of this Agreement shall be
the date first written above.
8.20 Events Prior to Amendment and Restatement. The parties affirm
that they are responsible for performing all of their agreements, duties and
obligations under the First Amended and Restated RAL Operations Agreement
arising out of events occurring prior to the effective date of this Agreement,
and the provisions of the First Amended and Restated RAL Operations Agreement
shall survive and continue to define the rights and obligations of the parties
with respect to such prior events.
8.21 Definitions. Unless otherwise defined herein, capitalized
terms shall have the meanings set forth in the Appendix of Defined Terms
attached hereto.
8.22 Amendments Effective January 1, 2004. The parties agree that
Schedule I and II to this Agreement shall be automatically amended without
further action by the parties, effective January 1, 2004, to change the $5.00
Express XXX/RAC fee and the $5.00 Tax Cut Tax Preparation Software Channel
Express XXX/RAC Fee paid by Block Services on the back-end during the 2003 Tax
Period, to a $2.00 fee to be paid by Block Services on the back-end for each
Express XXX/RAC and each Tax Cut Tax Preparation Software Channel Express
XXX/RAC established for the 2004, 2005, and 2006 Tax Periods. Notwithstanding
any provision of Section 6.2 of this Agreement to the contrary, the amended
$2.00 fee to be paid by Block Services on the back-end for each Express XXX/RAC
and each Tax Cut Tax Preparation Software Channel Express XXX/RAC established
during the 2004, 2005 and 2006 Tax Periods shall not be subject to further
redetermination by the RAL Originator for the 2004, 2005 and 2006 Tax Periods.
23
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended
and Restated Refund Anticipation Loan Operations Agreement to be executed by
their respective officers thereunto duly authorized as of the date set forth
above.
HOUSEHOLD TAX MASTERS INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
BENEFICIAL FRANCHISE COMPANY INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
H & R BLOCK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
H & R BLOCK TAX SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HRB ROYALTY, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
24
SCHEDULE I
INITIAL CREDIT CRITERIA AND
INITIAL RAL AND INITIAL RAC FEE AND INITIAL ACCOUNT
ADMINISTRATION FEE FOR TAX PERIOD
January 1, 2003 - June 30, 2003
Initial Credit Criteria
1. For a RAL Applicant applying for a RAL, which is defined as a loan in
an amount equal to the full amount of such Applicant's anticipated Federal
Income Tax Refund ("Refund"), and which RAL is secured by a Refund which may
include in part an Earned Income Credit ("EIC"), such RAL Applicant must qualify
for approval using RAL Originator credit criteria which includes an IRS debt
code indicating no debts or refund delays as well as credit criteria related to
any scorecards as applicable.
2. Have a valid Federal Income Tax Return for Tax Year 2002 acceptable by
the IRS for Electronic Filing and Direct Deposit with a Federal Tax Refund
greater than two-hundred ($200) dollars and no greater than five thousand
($5,000) dollars. The maximum RAL amount for Non-EIC applicants is five thousand
($5,000) dollars inclusive of any fees or charges. The maximum RAL amount for
EIC applicants is five thousand ($5,000) dollars inclusive of any fees or
charges. (Applicants showing a Refund greater than $5,000 shall receive a RAL up
to $5,000 and subsequently will be issued a check for the excess amount.)
3. Be 18 years of age or older or otherwise be eligible under state law to
apply for and receive a RAL.
If married filing joint, either applicant (primary or spouse) must meet the
minimum requirement.
If state of residence is:
Alabama - applicant must be 19 unless married, then 18.
Nebraska - applicant must be 19 unless married, then no age
restriction.
Puerto Rico - applicant must be 21 years old unless they have parental
or guardian consent.
4. Comply with the Identification and Qualifying Procedures for a Refund
Anticipation Loan through RAL Originator as set forth on Schedule 1.3.
5. Not previously have filed any Federal Income Tax Return for the tax
year 2002, not have any tax due and/or tax liens from prior tax years, not owe
any delinquent RALs, child support, alimony payments, student loans, V.A. loans
or other Federally sponsored loans.
25
6. Presently, not have a petition (whether voluntary or involuntary) filed
or anticipate filing, under federal bankruptcy laws.
7. Not have a RAL with RAL Originator, or any other RAL originator from a
prior year that has been discharged in bankruptcy.
8. Not have paid any estimated tax and/or did not have any amount of the
2001 return applied to the 2002 return.
9. Not be presently making regular payments to the IRS for prior year
unpaid taxes.
10. Not have power of attorney that is presently in effect or on file with
the IRS to direct the Federal Tax Refund to any third party.
11. Not be a non-resident alien.
12. Not be filing a Federal Income Tax Return for 2002 using a substitute
W-2, Form 4852, or any other form of substitute wage and tax documentation,
unless the source of the Form 4852 is a Military Leave and Earnings Statement.
13. Not be filing Form 8862, Earned Income Credit Eligibility for 2002,
with the Federal Income Tax Return.
14. Not be filing a Federal Income Tax Return for 2002 and be currently
incarcerated in a state or federal prison or have income earned while an inmate
at a penal institution and are claiming the Earned Income Credit.
15. Not be filing a return if the 2002 income reported is solely from
Schedule C or C-EZ (Profit & Loss from Business).
16. If Schedule C is present and EIC claimed, and return is not H & R Block
prepared, a RAL application is not permitted unless the taxpayer is a statutory
employee and the W-2 indicates statutory employee in Box 15.
17. Not be filing a return that contains a Schedule EIC and the modified
adjusted gross income on the Earned Credit Worksheet for Form 1040 is different
from the adjusted gross income reported on Form 1040.
26
INITIAL RAL, RAC, AND OTHER BANK PRODUCT FEES
The Initial RAL, RAC, and other bank product Fees established by the RAL
Originator for the Tax Period January 1, 2003 - June 30, 2003 shall be as listed
below:
2003 INITIAL BANK PRODUCT PRICING
(As of July 31, 2002)
H&R BLOCK OFFICE CHANNEL
RAL/IRAL TIERED PRICING -
-------------------------------------------------------------------------------------------
Instant RAL Fee
Loan Amount RAL Fee (RAL + $15.00)
-------------------------------------------------------------------------------------------
$200 to $500 $30.00 $45.00
-------------------------------------------------------------------------------------------
$501 to $1000 $40.00 $55.00
-------------------------------------------------------------------------------------------
$1001 to $1500 $60.00 $75.00
-------------------------------------------------------------------------------------------
$1501 to $2000 $70.00 $85.00
-------------------------------------------------------------------------------------------
$2001 to $5000 $90.00 $105.00
-------------------------------------------------------------------------------------------
Maximum Loan Amount $5000.00
-------------------------------------------------------------------------------------------
Earned Income Tax Credit Lending
(If qualified capped at $2,500.00)
-------------------------------------------------------------------------------------------
AAF $25.00
-------------------------------------------------------------------------------------------
RAC -
Maximum RAC Amount $5,500.00 $25.00
EXPRESS XXX/RAC -
No License Fee/No Participation $5.00 (paid by Block Services on back-end)
EXPRESS XXX - RAL/RAC COMBO - Appropriate RAL Fee based on tier level
BALANCE DUE -
No License Fee/No Participation $0 Transaction Processing Fee for 2003 Tax Season
Prime + 13.9%
90 days same as cash
120 days TBD
ARAL -
No License Fee/No Participation $60.00
27
ON-LINE TAX PREPARATION (OTP) CHANNEL
ERA/RAL TIERED PRICING -
-------------------------------------------------------------------
Loan Amount ERA Fee (RAL)
-------------------------------------------------------------------
$200 to $500 $30.00
-------------------------------------------------------------------
$501 to $1000 $40.00
-------------------------------------------------------------------
$1001 to $1500 $60.00
-------------------------------------------------------------------
$1501 to $2000 $70.00
-------------------------------------------------------------------
$2001 to $5000 $90.00
-------------------------------------------------------------------
Maximum Loan Amount $5000.00
-------------------------------------------------------------------
Earned Income Tax Credit Lending
(If qualified capped at $2,500.00)
-------------------------------------------------------------------
AAF $25.00
-------------------------------------------------------------------
EXPRESS XXX/RAC -
No license fee/No participation $5.00 (paid by Block Services on back-end)
EXPRESS XXX - RAL/RAC COMBO - Appropriate RAL Fee
ONLINE RAC -
Via direct deposit
Block participates at $2.76 $10.00
TAX CUT TAX PREPARATION SOFTWARE CHANNEL
EXPRESS XXX/RAC -
No license fee/No participation $5.00 (paid by Block Services on back-end)
No other bank products offered in 2003
PTS CHANNEL
No bank products offered in 2003
28
SCHEDULE II
FINAL CREDIT CRITERIA AND
FINAL RAL AND FINAL RAC FEE AND FINAL ACCOUNT
ADMINISTRATION FEE FOR TAX PERIOD
January 1, 2003 - June 30, 2003
Final Credit Criteria
1. For a RAL Applicant applying for a RAL, which is defined as a
loan in an amount equal to the full amount of such Applicant's anticipated
Federal Income Tax Refund ("Refund"), and which RAL is secured by a Refund which
may include in part an Earned Income Credit ("EIC"), such RAL Applicant must
qualify for approval using RAL Originator credit criteria which includes an IRS
debt code indicating no debts or refund delays as well as credit criteria
related to any scorecards as applicable.
2. Have a valid Federal Income Tax Return for Tax Year 2002
acceptable by the IRS for Electronic Filing and Direct Deposit with a Federal
Tax Refund greater than two-hundred ($200) dollars and no greater than five
thousand ($5,000) dollars. The maximum RAL amount for Non-EIC applicants is five
thousand ($5,000) dollars inclusive of any fees or charges. The maximum RAL
amount for EIC applicants is five thousand ($5,000) dollars inclusive of any
fees or charges. (Applicants showing a Refund greater than $5,000 shall receive
a RAL up to $5,000 and subsequently will be issued a check for the excess
amount.)
3. Be 18 years of age or older or otherwise be eligible under
state law to apply for and receive a RAL.
If married filing joint, either applicant (primary or spouse)
must meet the minimum requirement.
If state of residence is:
Alabama - applicant must be 19 unless married, then
18.
Nebraska - applicant must be 19 unless married, then
no age restriction.
Puerto Rico - applicant must be 21 years old unless
they have parental or guardian consent.
4. Comply with the Identification and Qualifying Procedures for a
Refund Anticipation Loan through the RAL Originator as set forth on Schedule
1.3.
5. Not previously have filed any Federal Income Tax Return for
the tax year 2002, not have any tax due and/or tax liens from prior tax years,
not owe any delinquent RALs, child support, alimony payments, student loans,
V.A. loans or other Federally sponsored loans.
29
6. Presently, not have a petition (whether voluntary or
involuntary) filed or anticipate filing, under federal bankruptcy laws.
7. Not have a RAL with the RAL Originator, or any other RAL
originator from a prior year that has been discharged in bankruptcy.
8. Not have paid any estimated tax and/or did not have any amount
of the 2001 return applied to the 2002 return.
9. Not be presently making regular payments to the IRS for prior
year unpaid taxes.
10. Not have power of attorney that is presently in effect or on
file with the IRS to direct the Federal Tax Refund to any third party.
11. Not be a non-resident alien.
12. Not be filing a Federal Income Tax Return for 2002 using a
substitute W-2, Form 4852, or any other form of substitute wage and tax
documentation, unless the source of the Form 4852 is a Military Leave and
Earnings Statement.
13. Not be filing Form 8379 (Injured Spouse Claim and Allocation)
with the 2002 Federal Income Tax Return.
14. Not be filing Form 8862, Earned Income Credit Eligibility for
2002, with the Federal Income Tax Return.
15. Not be filing a Federal Income Tax Return for 2002 and be
currently incarcerated in a state or federal prison or have income earned while
an inmate at a penal institution and are claiming the Earned Income Credit.
16. Not be filing a return if the 2002 income reported is solely
from Schedule C or C-EZ (Profit & Loss from Business).
17. If Schedule C is present and EIC claimed and return is not H &
R Block prepared, a RAL application is not permitted unless the taxpayer is a
statutory employee and the W-2 indicates statutory employee in Box 15.
18. Not be filing Form 1310 (Statement of Person Claiming Refund
Due Deceased Taxpayer) with the 2002 Federal Income Tax Return or filing a
Federal Income Tax Return 1040 on behalf of a deceased taxpayer.
30
FINAL RAL, RAC, AND OTHER BANK PRODUCT FEES
The Final RAL, RAC, and other bank product Fees established by the RAL
Originator for the Tax Period January 1, 2003 - June 30, 2003 are listed below:
H&R BLOCK OFFICE CHANNEL
RAL/IRAL TIERED PRICING -
2003 RAL
--------------------------------------------------------------------------------------------------------------
Refund/RAL Tier RAL COST
--------------------------------------------------------------------------------------------------------------
Refund Account Fee Finance Charge RAL Total
--------------------------------------------------------------------------------------------------------------
$200 - $500 $24.95 $ 5.00 $29.95
--------------------------------------------------------------------------------------------------------------
$501 - $1,000 $24.95 $15.00 $39.95
--------------------------------------------------------------------------------------------------------------
$1,001 - $1,500 $24.95 $35.00 $59.95
--------------------------------------------------------------------------------------------------------------
$1,501 - $2,000 $24.95 $45.00 $69.95
--------------------------------------------------------------------------------------------------------------
$2,0001 - $5,000 $24.95 $65.00 $89.95
--------------------------------------------------------------------------------------------------------------
Maximum Loan Amount of $5,000
--------------------------------------------------------------------------------------------------------------
Earned Income Tax Credit Lending to $5,000 if qualified (some EIC customers will
be capped at $2,500 as in tax season 2002)
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
RAC Fee $24.95 -- --
--------------------------------------------------------------------------------------------------------------
Denied RAL (AAF) $24.95 -- --
--------------------------------------------------------------------------------------------------------------
2003 Full IRAL
------------------------------------------------------------------------------------------------------------
Refund Tier Full IRAL Cost
------------------------------------------------------------------------------------------------------------
Refund Acct. Fee IRAL Fee Finance Charge Total
------------------------------------------------------------------------------------------------------------
$200 - $500 $24.95 $15.00 $ 5.00 $ 44.95
------------------------------------------------------------------------------------------------------------
$501 - $1,000 $24.95 $15.00 $15.00 $ 54.95
------------------------------------------------------------------------------------------------------------
$1,001 - $1,500 $24.95 $15.00 $35.00 $ 74.95
------------------------------------------------------------------------------------------------------------
$1,501 - $2,000 $24.95 $15.00 $45.00 $ 84.95
------------------------------------------------------------------------------------------------------------
$2,001 - $5,000 $24.95 $15.00 $65.00 $104.95
------------------------------------------------------------------------------------------------------------
2003 Partial $750 IRAL with Subsequent RAL
---------------------------------------------------------------------------------------------------------------
Partial $750 IRAL Cost RAL Cost IRAL +
Refund Tier (Day 1) (Day 2) RAL Total
---------------------------------------------------------------------------------------------------------------
Refund Finance Partial Finance
Acct. Fee IRAL Fee Charge IRAL Total Charge
----------------------------------------------------------------------------------------------------------------
$200 - $500* $24.95 $15.00 $5.00 $44.95 -- $44.95
----------------------------------------------------------------------------------------------------------------
$501 - $1,000 $24.95 $15.00 $5.00 $44.95 $10.00 $54.95
----------------------------------------------------------------------------------------------------------------
$1,001 - $1,500 $24.95 $15.00 $5.00 $44.95 $30.00 $74.95
----------------------------------------------------------------------------------------------------------------
$1,501 - $2,000 $24.95 $15.00 $5.00 $44.95 $40.00 $84.95
----------------------------------------------------------------------------------------------------------------
$2,001 - $5,000 $24.95 $15.00 $5.00 $44.95 $60.00 $104.95
----------------------------------------------------------------------------------------------------------------
* This is a Full IRAL since partial IRALs are for $750.00
31
2003 Partial $750 IRAL with Subsequent Denied RAL
----------------------------------------------------------------------------------------------------------------
IRAL +
Partial $750 IRAL Cost Denied Denied
Refund Tier (Day 1) RAL Cost RAL Total
----------------------------------------------------------------------------------------------------------------
Refund IRAL Finance Partial Finance
Acct. Fee Fee Charge IRAL Total Charge
----------------------------------------------------------------------------------------------------------------
$200 - $500* $24.95 $15.00 $5.00 $44.95 -- $44.95
----------------------------------------------------------------------------------------------------------------
$501 - $1,000 $24.95 $15.00 $5.00 $44.95 $0 $44.95
----------------------------------------------------------------------------------------------------------------
$1,001 - $1,500 $24.95 $15.00 $5.00 $44.95 $0 $44.95
----------------------------------------------------------------------------------------------------------------
$1,501 - $2,000 $24.95 $15.00 $5.00 $44.95 $0 $44.95
----------------------------------------------------------------------------------------------------------------
$2,001 - $5,000 $24.95 $15.00 $5.00 $44.95 $0 $44.95
----------------------------------------------------------------------------------------------------------------
* This is a Full IRAL since partial IRALs are for $750.00
RAC -
Maximum RAC Amount $9,999.99 $24.95
(Maximum RAC first check amount of $5,500)
EXPRESS XXX/RAC -
No License Fee/No Participation $5.00 (paid by Block Services on back-end)
EXPRESS XXX-RAL/RAC - COMBO - Appropriate RAL Fee based on tier level
BALANCE DUE -
No License Fee/No Participation $0 Transaction Processing Fee for 2003 Tax Season
Prime + 13.9%
90 days same-as-cash
120 days same-as-cash for 2002 tax year
extension filers only
32
Discount RAL Tests for 2003 (2002 TY) - Pricing test as follows:
Test Markets and Client DRAL fees:
Minneapolis - St. Xxxx, MN - $39.95
Columbia, SC - $39.95
Xxxxxxxxxx, XX - x00.00
Xxxxxxxxxx, XX - $39.95
Youngstown, OH - fee as follows to DRAL clients:
Refund Tier Total DRAL Cost
----------- ---------------
$ 200 - $500 $29.95
$ 501 - $1,000 $39.95
$1,001 - $5,000 $49.95
IRALs in all markets will be charged an additional $15.00.
Other:
- A RAL constitutes a customer. A partial IRAL followed by a classic RAL
for the balance will not be considered two RALs.
ON-LINE TAX PREPARATION (OTP) CHANNEL
ERA/RAL PRICING
2003 RAL
--------------------------------------------------------------------------------------------------------------
Refund/RAL Tier RAL Cost
--------------------------------------------------------------------------------------------------------------
Refund Account Fee Finance Charge RAL TOTAL
--------------------------------------------------------------------------------------------------------------
$200 - $500 $10.00 $19.95 $29.95
--------------------------------------------------------------------------------------------------------------
$501 - $1,000 $10.00 $29.95 $39.95
--------------------------------------------------------------------------------------------------------------
$1,001 - $1,500 $10.00 $49.95 $59.95
--------------------------------------------------------------------------------------------------------------
$1,501 - $2,000 $10.00 $59.95 $69.95
--------------------------------------------------------------------------------------------------------------
$2,0001 - $5,000 $10.00 $79.95 $89.95
--------------------------------------------------------------------------------------------------------------
Maximum Loan Amount of $5,000
--------------------------------------------------------------------------------------------------------------
Earned Income Tax Credit Lending to $5,000 if qualified (some EIC customers will
be capped at $2,500 as in tax season 2002)
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Denied RAL (AAF) $10.00 -- --
(Block license fee of $2.76)
--------------------------------------------------------------------------------------------------------------
EXPRESS XXX/RAC -
No license fee/No participation $5.00 (paid by Block Services on back-end)
EXPRESS XXX - RAL/RAC COMBO - Appropriate RAL fee
33
ON LINE RAC -
Via direct deposit $10.00
Block license fee of $2.76
TAX CUT TAX PREPARATION SOFTWARE CHANNEL
EXPRESS XXX/RAC -
No license fee/No participation $5.00 (paid by Block Services on back-end)
No other bank products offered in 2003
PTS CHANNEL
No bank products offered in 2003
34
SCHEDULE 1.3
IDENTIFICATION AND QUALIFYING PROCEDURES FOR A
REFUND ANTICIPATION LOAN
THROUGH THE RAL ORIGINATOR
A. NEW CUSTOMER. (An applicant who has not received a RAL Originator
Pre-approved Loan Offer.)
Applicant must have two forms of valid identification, one must be a picture and
at least one must be from Group A.
B. PRE-APPROVED CUSTOMERS
One acceptable form of identification must be obtained. If Resident Alien ID is
presented, proof of qualifying child's residence for EIC is not required.
GROUP A GROUP B
------- -------
IRS Mailing label Copy of Form 8453 or E-File Authentication
(within last 10 years) (within last 10 years) Authorization
signed by Electronic Return Originator
IRS Telefile Tax Record
Copy of Prior Year Return
*Military ID (within last 10 years) including 1040 PC.
*City/State/County Issued ID
Prior Client on File
Driver's License
Check Cashing ID
*Employee ID
Current Pay Stub
*Food Stamp ID
Department Store/Gas Credit Card
*Indian Tribal Card
Motor Vehicle Registration
Major Credit Card (Visa, MC, Amex,
Discover, Optima) *School ID
Social Security Card
**Resident Alien ID
Union Membership ID
*State Welfare ID
Voter Registration Card
*U.S. Passport
IRS ITIN or ATIN Letter
Consular Card
*Must be a picture ID.
35
Only one ID issued in the current year is acceptable and IDs marked as duplicate
are not allowed.
**Resident alien taxpayers claiming EIC must provide proof of qualifying child's
minimum six month residence in the USA. Such proof, in order of preference, must
be a school registration or ID card for the child, a report card, a school
health or attendance record, doctor bills for the child, a utility xxxx in the
parent's name, the birth certificate of the child showing birth in the USA or
other document establishing residence of the child in the USA.
PHONE CONTACT
If the telephone number for the primary taxpayer's residence is not available, a
telephone number where the primary taxpayer can be reached is required.
A work telephone number is required for each taxpayer that is employed.
EARNED INCOME CREDIT
Schedule EIC must meet all IRS specifications and pass all IRS reject criteria.
36
APPENDIX OF
DEFINED TERMS
"ACH" means the Automated Clearing House System commonly used
for electronic payment transactions.
"AFFILIATE" of any Person means any other Person controlling,
controlled by or under common control with such Person. RAL Originator shall not
be deemed an Affiliate of Tax Masters.
"AGREEMENT" means this Second Amended and Restated Refund
Anticipation Loan Operations Agreement and all amendments hereof and supplements
hereto.
"APPLICANT" means a Person who has filed a RAL Application
during the current Tax Period.
"BENEFICIAL FRANCHISE" means Beneficial Franchise Company
Inc., a Delaware corporation.
"BENEFICIAL FRANCHISE INDEMNIFIED PARTIES" shall have the
meaning set forth in Section 4.3 of this Agreement.
"BLOCK COMPANIES" means, collectively, Block Services, Block
Tax Services and Royalty.
"BLOCK FRANCHISE" means an office owned by a franchisee of
Block Services or its subsidiaries that operates under the "H&R Block" name that
is open to the public for the preparation of Returns.
"BLOCK ICB TERMINATION RIGHT" shall have the meaning set forth
in Recital H of this Agreement.
"BLOCK INDEMNIFIED PARTIES" shall have the meaning set forth
in Section 1.14 of this Agreement.
"BLOCK INDEMNIFYING PARTIES" shall have the meaning set forth
in Section 1.14 of this Agreement.
"BLOCK LICENSED MARKS" shall have the meaning set forth in
Section 5.2 of this Agreement.
"BLOCK OFFICE" means (i) an office owned by Block Services or
its subsidiaries that operates under the "H&R Block" name and is open to the
public for the preparation of Returns and (ii) a Corporate Franchise.
"BLOCK RAL PROCESSOR" shall have the meaning set forth in
Section 4.1 of this Agreement.
Appendix-1
"BLOCK SERVICES" means H & R Block Services, Inc., a Missouri
corporation, and its subsidiaries.
"BLOCK TAX SERVICES" means H & R Block Tax Services, Inc., a
Missouri corporation.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
a day on which banking institutions are authorized or obligated by law or
executive order to be closed.
"CLASSIC RAL" shall have the meaning set forth in Section 8.15
of this Agreement.
"CORPORATE FRANCHISE" means a Person authorized by Block
Services (or an Affiliate of Block Services) pursuant to a corporate franchise
agreement to operate a Block Franchise. "Corporate Franchise" does not include a
Person authorized by a Major Franchise Agreement with Block Services (or an
Affiliate of Block Services) to operate a Block Franchise and subfranchise
others to operate a Block Franchise within a specified territory, or a
subfranchisee of a Major Franchisee.
"DIRECT DEPOSIT" means the deposit of a Taxpayer's refund by
the IRS directly into a bank account designated by a Taxpayer on his or her
Return.
"DISCLOSING PARTY" shall have the meaning set forth in Section
7.2(a) of this Agreement.
"ELECTRONIC FILING" means the filing of a Return with the IRS,
or the applicable state taxing authority, by Block Services via its Electronic
Filing Software.
"ELECTRONIC FILING SOFTWARE" means the proprietary software
owned by Block Services, which is used to electronically file Returns with the
IRS.
"ELECTRONIC DATA PROCESSING GUIDELINES" means the guidelines
established by the parties hereto related to the process of filing Returns.
"ELECTRONIC DATA PROCESSING SYSTEMS" means those electronic
systems used to either electronically file Returns with the IRS or to facilitate
the origination of RALs or the issuance of RACs.
"EXPENSE REIMBURSEMENT" shall have the meaning set forth in
Section 2.2 of this Agreement.
"FEDERALLY CHARTERED FINANCIAL INSTITUTION" shall have the
meaning set forth in Recital H of this Agreement.
"FINAL CREDIT CRITERIA" shall have the meaning set forth in
Section 6.2(b) of this Agreement.
Appendix-2
"FINAL RAL AND RAC FEES" shall have the meaning set forth in
Section 6.2(a) of this Agreement.
"FIRST AMENDED AND RESTATED RAL OPERATIONS AGREEMENT" shall
have the meaning set forth in Recital F of this Agreement.
"FIRST ICB CONSENT LETTER" means the letter agreement, dated
November 11, 2002, by and among Block Companies and Household Companies.
"GOVERNMENT AGENCY" means any federal, state, municipal,
foreign or other governmental department, authority, commission, board, court,
administrative agency bureau, body or instrumentality.
"GLO" shall have the meaning set forth in the heading of
Section 8.17(a) of this Agreement
"HB" has the meaning set forth in Recital C.
"HOUSEHOLD COMPANIES" means, collectively, Tax Masters and
Beneficial Franchise.
"ICB" has the meaning set forth in Recital C.
"INFORMATION" shall have the meaning set forth in Section 1.10
of this Agreement.
"INITIAL CREDIT CRITERIA" shall have the meaning set forth in
Section 6.2(b) of this Agreement.
"INITIAL RAL AND RAC FEES" shall have the meaning set forth in
Section 6.2(a) of this Agreement.
"INSTANT RAL APPLICATION" means the application completed by a
RAL Applicant to obtain an Instant RAL from the RAL Originator that must
contain, among those other things as the RAL Originator shall reasonably
require, a certification signed by the RAL Applicant that he or she: (a) has not
previously filed any Return for the applicable Tax Year, does not have any
previous tax liabilities, delinquent student loans, or any other delinquent
federally guaranteed or sponsored loans, or delinquent child support payments;
(b) has not filed a petition (whether voluntary or involuntary) under any
federal or state bankruptcy or insolvency laws; and (c) has not filed any powers
of attorney with the IRS or any state taxing authority and has no power of
attorney presently in effect to direct any tax return to any third party.
"INSTANT RAL" means a RAL of which a credit decision is made
prior to Block Services receiving both (i) positive acknowledgement of the
underlying Tax Return's acceptance for Electronic Filing and (ii) the
Notification from the IRS.
"IRS" shall have the meaning set forth in Section 1.1 of this
Agreement.
Appendix-3
"MAJOR FRANCHISEE" means a Person authorized by a Major
Franchise Agreement with Block Services (or an Affiliate of Block Services) to
operate a Block Franchise and to subfranchise others to operate a Block
Franchise within a specified territory.
"NOTIFICATION" shall have the meaning set forth in Section
1.10 of this Agreement.
"OTHER RAL ORIGINATORS" shall have the meaning set forth in
Section 3.1(c) of this Agreement.
"PATENT RIGHTS" shall have the meaning set forth in Section
4.1 of this Agreement.
"PERSON" means any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organizations, Governmental Entity or other entity of
similar nature.
"PROPRIETARY INFORMATION" shall have the meaning set forth in
Section 7.1 of this Agreement.
"QUALIFYING PROCEDURES" shall have the meaning set forth in
Section 1.3 of this Agreement.
"RAC" means a refund anticipation check issued by the RAL
Originator and delivered to a Taxpayer pursuant to the Refund Anticipation Check
Service.
"RAC LICENSE FEE" shall have the meaning set forth in Section
5.4 of this Agreement.
"RAL" or "REFUND ANTICIPATION LOAN" means a loan to a Taxpayer
secured by such Taxpayer's federal income tax refund.
"RAL ACCOUNT" shall mean an account established by the RAL
Originator for each RAL Customer.
"RAL APPLICATION" shall have the meaning set forth in Section
1.4 of this Agreement.
"RAL CUSTOMERS" shall means individuals or entities that apply
for RALs or RACs under the program through Block Services (or its subsidiaries),
Corporate Franchises, and Major Franchisees and subfranchisees of Major
Franchisees that have elected to participate in the RAL Program.
"RAL OPERATIONS AGREEMENT" shall mean this Second Amended and
Restated Refund Anticipation Loan Agreement, dated June 9, 2003.
"RAL ORIGINATOR" means the insured depository institution
engaged by Tax Masters to serve as originator under the RAL Program.
Appendix-4
"RAL PROGRAM" has the meaning set forth in Section 7.1 of this
Agreement.
"RECEIVING PARTY" shall have the meaning set forth in Section
7.2(a) of this Agreement.
"REFUND ANTICIPATION CHECK SERVICE" shall mean a service
pursuant to which a check in the amount of a Taxpayer's federal income tax
refund, less the sum of (a) fees charged for the making of the check, (b) tax
preparation fees and (c) other properly withheld amounts, is delivered to a
taxpayer on account of a direct deposit refund (other than in connection with a
RAL made in advance of receipt of the related refund). "Refund Anticipation
Check Service" includes the delivery of a direct deposit refund check to a
Taxpayer in connection with such Taxpayer's denied RAL Application.
"RETURNS" shall have the meaning set forth in Section 1.1 of
this Agreement.
"ROYALTY" means HRB Royalty, Inc., a Delaware corporation.
"SALE AND SERVICING AGREEMENT" has the meaning set forth in
Recital H of this Agreement.
"SECOND ICB CONSENT LETTER " shall have the meaning set forth
in Recital I of this Agreement.
"SURVIVAL PROVISIONS" shall have the meaning set forth in
Section 4.4 of this Agreement.
"TAX MASTERS" means Household Tax Masters Inc., a Delaware
corporation.
"TAX MASTERS INDEMNIFIED PARTIES" shall have the meaning set
forth in Section 2.4 of this Agreement.
"TAX PERIOD" means January 1 through June 30 of a year in
which individuals typically pay income taxes for income earned in the Tax Year.
"TAX YEAR" means the period beginning on January 1 of the year
immediately prior to the current Tax Period and ending on December 31 of the
year immediately prior to the current Tax Period.
"TAXPAYER" means a Block Services customer for any of its
services. It refers to both to individual taxpayers filing individual Tax
Returns and to joint taxpayers filing joint Tax Returns.
"TERM" shall have the meaning set forth in Section 6.1 of this
Agreement.
"THIRD-PARTY PRODUCT" shall have the meaning set forth in
Section 8.12 of this Agreement.
Appendix-5
