Exhibit 10.14
HSBC RETAIL SETTLEMENT PRODUCTS
DISTRIBUTION AGREEMENT
DATED AS OF SEPTEMBER 23, 2005
NOTE: CERTAIN MATERIAL HAS BEEN OMMITTED FROM THIS AGREEMENT PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2. THE LOCATIONS OF THESE
OMISSIONS ARE INDICATED THROUGHOUT THE AGREEMENT BY THE FOLLOWING MARKINGS:
[***].
Table of Contents
Page
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ARTICLE I DEFINITIONS.............................................. 2
Section 1.1. Definitions.......................................... 2
Section 1.2. Rules of Construction................................ 2
ARTICLE II IDENTITIES AND ROLES OF PARTIES; PROGRAM CONTRACTS....... 3
Section 2.1. Identities and Roles of Parties...................... 3
Section 2.2. Program Contracts.................................... 4
Section 2.3. Responsibilities of the Parties...................... 4
Section 2.4. Retail Settlement Products Procedures................ 5
Section 2.5. Block Agents' Right Not To Offer Settlement
Products............................................. 5
Section 2.6. Corporate Reorganizations............................ 5
Section 2.7. Substitution of Originator........................... 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE BLOCK COMPANIES.... 7
Section 3.1. Existence and Organizational Power; Compliance with
Organizational Documents............................. 7
Section 3.2. Governmental Approvals, Compliance with Laws and
Compliance with Agreements with Third Parties........ 8
Section 3.3. Organizational and Governmental Approvals; No
Contravention........................................ 8
Section 3.4. Binding Effect....................................... 8
Section 3.5. Full Disclosure...................................... 8
Section 3.6. Intellectual Property................................ 9
Section 3.7. Representations and Warranties Incorporated from
Other Program Contracts.............................. 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE HSBC COMPANIES..... 9
Section 4.1. Existence and Organizational Power; Compliance with
Organizational Documents............................. 9
Section 4.2. Governmental Approvals, Compliance with Laws and
Compliance with Agreements with Third Parties........ 9
Section 4.3. Organizational and Governmental Approvals; No
Contravention........................................ 10
Section 4.4. Binding Effect....................................... 10
Section 4.5. Full Disclosure...................................... 10
Section 4.6. Intellectual Property................................ 10
Section 4.7. Representations and Warranties Incorporated from
Other Program Contracts.............................. 10
Section 4.8. Organization as a National Bank...................... 11
Section 4.9. FDIC Insurance....................................... 11
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ARTICLE V GENERAL COVENANTS OF THE BLOCK COMPANIES................. 11
Section 5.1. Conduct of Settlement Products Program and
Maintenance of Existence............................. 11
Section 5.2. Maintenance of Assets and Properties................. 11
Section 5.3. Defaults and other Material Events................... 11
Section 5.4. Litigation........................................... 11
Section 5.5. Future Information................................... 11
Section 5.6. Compliance with Laws................................. 12
Section 5.7. Non-Solicitation of HSBC Companies' Employees........ 12
Section 5.8. Franchisees in Settlement Products Program........... 13
Section 5.9. File Sharing......................................... 13
Section 5.10. Block Franchisee Policies and Procedures............. 13
Section 5.11. Representatives...................................... 13
Section 5.12. Clarification........................................ 13
ARTICLE VI GENERAL COVENANTS OF THE HSBC COMPANIES.................. 14
Section 6.1. Conduct of Settlement Products Program and
Maintenance of Existence............................. 14
Section 6.2. Maintenance of Assets and Properties................. 14
Section 6.3. Defaults and other Material Events................... 14
Section 6.4. Litigation........................................... 14
Section 6.5. Future Information................................... 14
Section 6.6. Compliance with Laws................................. 15
Section 6.7. Inspection of Property, Books and Records............ 15
Section 6.8. Non-Competition; Non-Solicitation; Exclusivity....... 15
Section 6.9. Non-Solicitation of Block Companies' Employees....... 19
Section 6.10. SAS 70............................................... 19
Section 6.11. Signing Bonus........................................ 20
ARTICLE VII DISTRIBUTION COVENANTS OF THE BLOCK AGENTS............... 21
Section 7.1. Retail Settlement Products Procedures................ 21
Section 7.2. Preparation and Filing of Returns.................... 21
Section 7.3. Compliance with Laws................................. 21
Section 7.4. Other Block Agent Duties............................. 21
Section 7.5. Qualifying Procedure Compliance...................... 22
Section 7.6. Provide Application and Disclosures to Settlement
Products Clients..................................... 22
Section 7.7. Compliance with Originator Instructions.............. 22
Section 7.8. Transmit Returns and Applicant Information Files to
Block e-file Processing System....................... 22
Section 7.9. Applicant Copies..................................... 22
Section 7.10. Application Status................................... 23
Section 7.11. Rejected Returns..................................... 23
Section 7.12. Preparation of Disbursement Checks................... 23
Section 7.13. Lost Disbursement Checks............................. 23
Section 7.14. Records Retention and Destruction.................... 23
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Section 7.15. Representative Training.............................. 24
Section 7.16. Block Agents' Supervision of Representatives......... 24
Section 7.17. Compliance with Obligations of Article XI............ 24
Section 7.18. Restriction on Offering Other Retail Settlement
Products............................................. 24
Section 7.19. Access and Audit Rights.............................. 24
Section 7.20. Data Security and Recovery........................... 24
Section 7.21. Other Actions........................................ 25
ARTICLE VIII DISTRIBUTION COVENANTS OF BLOCK SERVICES................. 25
Section 8.1. Transmission of Returns to IRS....................... 25
Section 8.2. Transmission of Applicant Information File, IRS
Return Notification, Return and Debt Indicator to
HSBC TFS............................................. 25
Section 8.3. Rejected Returns..................................... 25
Section 8.4. Transmission of Disbursement Check Printing
Authorization to Block Company Offices............... 25
Section 8.5. Computer Network..................................... 25
Section 8.6. Application Status System............................ 25
Section 8.7. Maintenance of Communication Lines................... 26
Section 8.8. Electronic Filing Specifications..................... 26
Section 8.9. Handling Client Disputes............................. 26
Section 8.10. Printing............................................. 26
Section 8.11. Retail Settlement Products Procedures................ 26
Section 8.12. Savings Vehicle Fee.................................. 26
Section 8.13. Compliance with Laws................................. 27
ARTICLE IX DISTRIBUTION COVENANTS OF HSBC BANK...................... 27
Section 9.1. Form of Application.................................. 27
Section 9.2. Establishment of Electronic Filing Specifications.... 27
Section 9.3. Annual Determination of Fees......................... 27
Section 9.4. Annual Determination of Credit Criteria.............. 28
Section 9.5. Annual Determination of Qualifying Procedures........ 28
Section 9.6. Settlement Products Program Competitive Pricing...... 28
Section 9.7. Establishment of Client Deposit Accounts............. 28
Section 9.8. Payment of ERO Charges............................... 29
Section 9.9. Adverse Action Notices............................... 29
Section 9.10. Handling Client Disputes............................. 29
Section 9.11. Supervision of Agents................................ 29
Section 9.12. Agent Training Program............................... 29
Section 9.13. Compliance Program................................... 29
Section 9.14. Application and Disclosures.......................... 30
Section 9.15. No Partial RALs...................................... 30
Section 9.16. New Products......................................... 30
Section 9.17. Location of Check Processing Center.................. 30
Section 9.18. Review of Applications............................... 30
Section 9.19. Delegation........................................... 30
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ARTICLE X DISTRIBUTION COVENANTS OF HSBC TFS....................... 31
Section 10.1. Forward Applicant Information File with Debt
Indicator Information to HSBC Bank................... 31
Section 10.2. Disbursement Check Printing Authorization............ 31
Section 10.3. Direct Deposit of Settlement Product Funds........... 31
Section 10.4. Maintenance of Communication Lines................... 31
Section 10.5. Contingent Issuing of Disbursement Checks............ 31
Section 10.6. Records Retention and Destruction.................... 32
Section 10.7. Compliance with Laws................................. 32
Section 10.8. Float Adjustment..................................... 32
Section 10.9. File Sharing......................................... 32
ARTICLE XI AGENCY RELATIONSHIP...................................... 32
Section 11.1. Agency Relationship.................................. 32
Section 11.2. Supervision and Regulation........................... 33
Section 11.3. Access to Block Company Offices and Audit Rights..... 33
Section 11.4. Block Agent Training Program......................... 34
Section 11.5. Compliance Program................................... 34
Section 11.6. Safety and Soundness................................. 36
ARTICLE XII MARKETING OF SETTLEMENT PRODUCTS......................... 37
Section 12.1. Market Research...................................... 37
Section 12.2. Marketing Expenses................................... 37
Section 12.3. Development, Review and Approval of Marketing
Materials............................................ 37
Section 12.4. Marketing Resources.................................. 38
Section 12.5. Sales Support........................................ 38
Section 12.6. Quarterly Marketing Meetings......................... 38
Section 12.7. Marketing Efforts.................................... 38
ARTICLE XIII SETTLEMENT PRODUCTS PROGRAM SUPPORT...................... 39
Section 13.1. Management and Technical Support..................... 39
Section 13.2. Outsourcing.......................................... 39
Section 13.3. Technology Infrastructure and Support................ 40
Section 13.4. Service Level Thresholds............................. 40
Section 13.5. Check Cashing Arrangements........................... 41
Section 13.6. Reporting by the HSBC Companies...................... 42
Section 13.7. Operational Improvement.............................. 42
Section 13.8. Technological Innovation............................. 42
ARTICLE XIV ADDITIONAL HSBC COMPANIES' COVENANTS..................... 42
Section 14.1. Collection of Delinquent ERO Charges................. 42
Section 14.2. Incremental Bank Product Fee......................... 43
Section 14.3. [***]................................................ 43
Section 14.4. [***]................................................ 43
Section 14.5. [***]................................................ 44
Section 14.6. RAC Fee.............................................. 44
Section 14.7. Expense Reimbursement................................ 45
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Section 14.8. IRAL Origination System Servicing Level Threshold.... 45
Section 14.9. RAL Origination System Payment....................... 46
Section 14.10. Put Option for Delinquent ERO Charges................ 46
Section 14.11. Changes in HSBC Cross Collection Activities.......... 46
Section 14.12. Paper Stock Reimbursement............................ 47
Section 14.13. Cross-Sales.......................................... 47
Section 14.14. Collection of Late Fees and Refund Account Fees...... 47
Section 14.15. Government Relations................................. 48
Section 14.16. Disbursement Check Losses............................ 48
Section 14.17. Retail Settlement Products Procedures................ 48
Section 14.18. Data Security and Recovery........................... 48
Section 14.19. Prior Debt Indicator File............................ 49
Section 14.20. Block Companies' Additional Costs.................... 49
ARTICLE XV INTELLECTUAL PROPERTY LICENSING AND DEVELOPMENT.......... 49
Section 15.1. Licensing of Block Licensed Marks.................... 49
Section 15.2. Licensing of HSBC Licensed Patents................... 50
Section 15.3. Licensing of HSBC Licensed Marks..................... 51
Section 15.4. Previously Developed Intellectual Property........... 51
Section 15.5. Jointly Developed Intellectual Property.............. 52
Section 15.6. Notice of Intellectual Property Filings.............. 54
ARTICLE XVI CONFIDENTIALITY; FINANCIAL PRIVACY....................... 55
Section 16.1. Confidential Information............................. 55
Section 16.2. Privacy of Client and Consumer Information........... 55
Section 16.3. Conduct Prohibited................................... 56
Section 16.4. Sharing of Return and Application Data............... 56
Section 16.5. HSBC Information Screen.............................. 57
Section 16.6. Confidentiality of Program Contracts................. 57
ARTICLE XVII TERM AND TERMINATION..................................... 58
Section 17.1. Term; Renewal........................................ 58
Section 17.2. Termination.......................................... 59
Section 17.3. Effect of Termination................................ 59
Section 17.4. Return of Confidential Information................... 60
ARTICLE XVIII DEFAULT OF HSBC COMPANIES AND REMEDIES OF BLOCK
COMPANIES................................................ 60
Section 18.1. HSBC Events of Default............................... 60
Section 18.2. Remedies............................................. 61
Section 18.3. Default Rate......................................... 61
Section 18.4. Waiver............................................... 61
ARTICLE XIX DEFAULT OF BLOCK COMPANIES AND REMEDIES OF HSBC
COMPANIES................................................ 62
Section 19.1. Block Events of Default.............................. 62
Section 19.2. Remedies............................................. 63
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Section 19.3. Default Rate......................................... 63
Section 19.4. Waiver............................................... 63
ARTICLE XX GUARANTY................................................. 64
Section 20.1. Representations and Warranties of HSBC Finance....... 64
Section 20.2. HSBC Guaranty........................................ 64
Section 20.3. Representations and Warranties of H&R Block.......... 65
Section 20.4. Block Guaranty....................................... 65
ARTICLE XXI ALTERNATIVE DISPUTE RESOLUTION........................... 66
Section 21.1. Negotiations by Senior Executives.................... 66
Section 21.2. Mediation............................................ 66
Section 21.3. Arbitration.......................................... 67
Section 21.4. Qualified Mediator and Arbitrators................... 68
Section 21.5. Appointment of Mediator and Arbitrators.............. 68
Section 21.6. Governing Rules; Discovery........................... 68
Section 21.7. Fees and Expenses.................................... 68
Section 21.8. Remedies............................................. 69
Section 21.9. Preliminary Dispositive Issues....................... 69
Section 21.10. Limitation of Damages................................ 69
Section 21.11. Statute of Limitations............................... 69
Section 21.12. Exception for Specific Performance or Injunctive
Relief............................................... 69
ARTICLE XXII MISCELLANEOUS............................................ 70
Section 22.1. Survival............................................. 70
Section 22.2. No Waivers; Remedies Cumulative...................... 70
Section 22.3. Notices.............................................. 70
Section 22.4. Severability......................................... 75
Section 22.5. Amendments and Waivers............................... 75
Section 22.6. Successors and Assigns............................... 75
Section 22.7. Headings............................................. 75
Section 22.8. Governing Law; Submission To Jurisdiction............ 75
Section 22.9. Waiver of Jury Trial................................. 76
Section 22.10. Counterparts......................................... 76
Section 22.11. Entire Agreement..................................... 76
Section 22.12. Reinstatement........................................ 76
Section 22.13. Advice of Counsel.................................... 76
Section 22.14. No Strict Construction............................... 77
Section 22.15. Conflict of Terms.................................... 77
Section 22.16. Further Execution.................................... 77
Section 22.17. Expenses............................................. 77
Section 22.18. No Implied Relationship.............................. 77
Section 22.19. No Third Party Beneficiaries......................... 77
Section 22.20. Force Majeure........................................ 77
Section 22.21. Limitation of Scope of Representations and Warranties
and Other Disclosures................................ 77
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APPENDICES
Appendix A HSBC Appendix of Defined Terms and Rules of Construction
SCHEDULES
Schedule 2.4(a)(1) RAC Product Procedures
Schedule 2.4(a)(2) Classic RAL Product Procedures
Schedule 2.4(a)(3) IRAL Product Procedures
Schedule 2.4(a)(4) Denied Classic RAL Product Procedures
Schedule 2.4(a)(5) Denied IRAL Product Procedures
Schedule 3.6 Intellectual Property - The Block Companies
Schedule 4.6 Intellectual Property - The HSBC Companies
Schedule 7.1 Block Agents' Roles and Responsibilities
Schedule 9.3 Final Fees
Schedule 9.4 Final Credit Criteria
Schedule 9.5 Qualifying Procedures
Schedule 12.3 Marketing Guidelines
Schedule 13.4 Service Level Thresholds
Schedule 13.6 Reporting by the HSBC Companies
Schedule 14.6(a) Block Company Offices RAC Fee
Schedule 14.6(b) Block Franchisee Offices RAC Fee
Schedule 14.17 HSBC Bank's Roles and Responsibilities
Schedule 15.1 Block Licensed Marks
Schedule 15.2 HSBC Licensed Patents
Schedule 15.3 HSBC Licensed Marks
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HSBC RETAIL SETTLEMENT PRODUCTS DISTRIBUTION AGREEMENT
This HSBC Retail Settlement Products Distribution Agreement (this "Retail
Distribution Agreement"), dated as of September 23, 2005, is made by and among
the following parties:
HSBC Bank USA, National Association, a national banking association ("HSBC
Bank");
HSBC Taxpayer Financial Services Inc., a Delaware corporation ("HSBC TFS");
Beneficial Franchise Company Inc., a Delaware corporation ("Beneficial
Franchise");
Household Tax Masters Acquisition Corporation, a Delaware corporation ("HTMAC");
H&R Block Services, Inc., a Missouri corporation ("Block Services");
H&R Block Tax Services, Inc., a Missouri corporation ("Block Tax Services");
H&R Block Enterprises, Inc., a Missouri corporation ("Block Enterprises");
H&R Block Eastern Enterprises, Inc., a Missouri corporation ("Block Eastern
Enterprises");
H&R Block Digital Tax Solutions, LLC, a Delaware limited liability company
("Block Digital");
H&R Block and Associates, L.P., a Delaware limited partnership ("Block
Associates");
HRB Royalty, Inc., a Delaware corporation ("Royalty");
HSBC Finance Corporation, a Delaware corporation ("HSBC Finance"); and
H&R Block, Inc., a Missouri corporation ("H&R Block").
RECITALS
A. Block Enterprises, Block Eastern Enterprises, and Block Associates
provide income tax return preparation, electronic filing and related services to
Clients through Block Company Offices throughout the United States.
B. Block Tax Services is the franchisor of Block Franchisee Offices
throughout the United States, and Block Associates and Royalty are the
franchisors of Block Franchisee Offices in Texas.
C. The Franchisees provide income tax return preparation, electronic filing
and related services to Clients through Block Franchisee Offices throughout the
United States.
D. Block Digital provides income tax return preparation, electronic filing
and related services to Clients through its TaxCut software and its website.
E. HSBC Bank is engaged in the business of providing financial products and
services.
F. HSBC Bank desires to provide its Retail Settlement Products to Clients
of Block Offices and Digital Settlement Products to Clients of the Block Digital
Channel.
G. HSBC Bank desires to engage each of Block Enterprises, Block Eastern
Enterprises, Block Associates, and each Franchisee as its agent to distribute
Retail Settlement Products through Block Offices, and to engage Block Digital as
its agent to distribute Digital Settlement Products to Clients of the Block
Digital Channel.
H. HSBC Bank desires to engage HSBC TFS to act as the servicer of the
Settlement Products.
I. The HSBC Companies and the Block Companies are entering into the
Settlement Products Program to expand both of their respective businesses.
J. The HSBC Companies and the Block Companies are entering into this Retail
Distribution Agreement and the other Program Contracts to set forth the terms
and conditions of the Settlement Products Program.
K. H&R Block is entering into this Retail Distribution Agreement solely to
guarantee the financial Obligations of the Block Companies under the Program
Contracts, and HSBC Finance is entering into this Retail Distribution Agreement
solely to guarantee the financial Obligations of the HSBC Companies under the
Program Contracts.
AGREEMENT
ACCORDINGLY, the parties to this Retail Distribution Agreement agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Retail Distribution
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Appendix of Defined Terms and Rules
of Construction attached to this Retail Distribution Agreement as APPENDIX A,
which is hereby incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein. In the event that any
definition specified in this Retail Distribution Agreement for any capitalized
term is inconsistent with the definition specified for such term in the Appendix
of Defined Terms and Rules of Construction attached to this Retail Distribution
Agreement as APPENDIX A, the definition in the Appendix of Defined Terms and
Rules of Construction attached to this Retail Distribution Agreement as APPENDIX
A shall govern.
Section 1.2. Rules of Construction. For all purposes of this Retail
Distribution Agreement, unless the context otherwise requires, the rules of
construction set forth in the Appendix of Defined Terms and Rules of
Construction attached to this Retail Distribution Agreement as APPENDIX A shall
apply to this Retail Distribution Agreement.
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ARTICLE II
IDENTITIES AND ROLES OF PARTIES; PROGRAM CONTRACTS
Section 2.1. Identities and Roles of Parties. During the Term of this
Retail Distribution Agreement and the other Program Contracts, the parties
hereto will participate in and contribute to the Settlement Products Program as
follows (subject to the terms and conditions of this Retail Distribution
Agreement and the other Program Contracts):
(a) The Block Companies hereby appoint HSBC Bank to act as the
exclusive originator (except as provided in Section 7.18) of, and HSBC Bank
hereby accepts such appointment and agrees to offer, (i) Retail Settlement
Products to Clients of Block Offices, and (ii) Digital Settlement Products to
Clients of the Block Digital Channel.
(b) HSBC TFS shall be the servicer for the Settlement Products
Program, and shall service the Settlement Products originated by the Originator.
(c) HSBC Bank hereby appoints Block Enterprises, Block Eastern
Enterprises and Block Associates, and each such entity hereby accepts such
appointment, effective July 1, 2006, to act as the agent of HSBC Bank for
purposes of offering and distributing Retail Settlement Products to Clients of
Block Company Offices during the Term of this Retail Distribution Agreement.
(d) Pursuant to the terms of the Digital Distribution Agreement, HSBC
Bank shall appoint Block Digital to act as the agent of HSBC Bank for purposes
of offering and distributing Digital Settlement Products to Clients of the Block
Digital Channel.
(e) The Block Agents (in their individual capacity, not in their
capacity as agents for HSBC Bank) shall be the tax return preparers for, and/or
the EROs of, Clients of Block Company Offices.
(f) Royalty shall license the Block Licensed Marks to the Originator
and the Servicer for use in connection with the Settlement Products Program.
(g) Beneficial Franchise shall license the HSBC Licensed Patents and
the HSBC Licensed Marks to the Block Companies and the Franchisees for use in
connection with the Settlement Products Program.
(h) Block Services shall support the Settlement Products Program
through the Block e-file Processing System.
(i) Block Tax Services, Block Associates and Royalty shall use
commercially reasonable efforts to cause their respective Franchisees to offer
Retail Settlement Products through the Block Franchisee Offices.
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Section 2.2. Program Contracts. Simultaneous with the execution and
delivery of this Retail Distribution Agreement, the following parties shall
execute and deliver the following Program Contracts:
(a) HSBC Bank and HSBC TFS, and Block Services and Block Digital,
shall enter into the Digital Distribution Agreement;
(b) HSBC Bank and HSBC TFS, and Block Services, Block Tax Services,
Block Associates and Royalty, as applicable, shall enter into one or more
Franchisee Distribution Agreements with each applicable Franchisee;
(c) HSBC Bank, HSBC TFS, HTMAC and BFC shall enter into the
Participation Agreement;
(d) HSBC Bank, HSBC TFS, HTMAC and BFC shall enter into the Servicing
Agreement;
(e) HSBC Bank, HSBC TFS, HTMAC, and Beneficial Franchise, and Block
Services, Block Tax Services, Block Enterprises, Block Eastern Enterprises,
Block Digital, Block Associates, Royalty and BFC, shall enter into the
Indemnification Agreement; and
(f) The parties may enter into other Program Contracts related to the
Settlement Products Program.
Section 2.3. Responsibilities of the Parties.
(a) Each party to this Retail Distribution Agreement shall use
commercially reasonable efforts to cooperate with and assist the other parties
in the development, marketing and operation of the Settlement Products Program.
(b) HSBC Bank shall be responsible for originating the Settlement
Products.
(c) HSBC TFS shall be responsible for servicing the Settlement
Products.
(d) Each Block Agent shall be responsible for offering and
distributing the Retail Settlement Products in accordance with the Instructions
of HSBC Bank and in accordance with the terms and conditions of this Retail
Distribution Agreement.
(e) Block Services shall be responsible for establishing and
maintaining the Block e-file Processing System to support the Settlement
Products Program as described in this Retail Distribution Agreement.
(f) Each of the Block Agents, in its individual capacity, and not as
agent for HSBC Bank, shall be responsible for its Tax Preparation Related
Activities.
(g) The parties to this Retail Distribution Agreement acknowledge that
certain provisions of this Retail Distribution Agreement apply to Settlement
Products being distributed under the Digital Distribution Agreement and the
Franchisee Distribution Agreement.
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Section 2.4. Retail Settlement Products Procedures.
(a) Except as otherwise provided in this Retail Distribution
Agreement, the Originator shall offer the following Retail Settlement Products
through the Block Agents at the Block Company Offices, and the Originator and
the Block Agents shall comply with the following policies and procedures with
respect to such products:
(i) RACs, in accordance with the policies and procedures set
forth on the RAC Product Procedures Schedule attached hereto as Schedule
2.4(a)(1);
(ii) Classic RALs, in accordance with the policies and procedures
set forth in the Classic RAL Product Procedures Schedule attached hereto as
Schedule 2.4(a)(2);
(iii) IRALs, in accordance with the policies and procedures set
forth in the IRAL Product Procedures Schedule attached hereto as Schedule
2.4(a)(3);
(iv) with respect to an Application for a Classic RAL that
becomes a Denied Classic RAL, the parties will follow the policies and
procedures set forth on the Denied Classic RAL Product Procedures Schedule
attached hereto as Schedule 2.4(a)(4); and
(v) with respect to an Application for an IRAL that becomes a
Denied IRAL, the parties will follow the policies and procedures set forth on
the Denied IRAL Product Procedures Schedule attached hereto as Schedule
2.4(a)(5).
(b) From time to time, HSBC Bank, HSBC TFS and the Block Agents may
amend or modify any or all of the Retail Settlement Products Procedures
Schedules. All such amendments or modifications shall be in writing and shall
specify the date on which the amended schedule becomes effective. Each amended
schedule shall be deemed to be a part of this Retail Distribution Agreement and
shall be deemed incorporated herein, but shall apply only prospectively from the
effective date thereof.
Section 2.5. Block Agents' Right Not To Offer Settlement Products.
Notwithstanding any other provision of this Retail Distribution Agreement or the
other Program Contracts, the Block Agents may, in their sole discretion at any
time and from time to time during the Term of this Retail Distribution
Agreement, elect not to offer one or more Settlement Products in one or more
states.
Section 2.6. Corporate Reorganizations.
(a) The Block Companies may assign their rights and obligations under
this Retail Distribution Agreement to one or more Subsidiaries of H&R Block
without the consent of the HSBC Companies if (i) such assignment is desirable in
connection with a reorganization of the business operations of H&R Block's
Subsidiaries, (ii) such contemplated assignment will not materially adversely
affect any right or obligation of any HSBC Company under this Retail
Distribution Agreement, and (iii) the contemplated assignee (A) is a wholly
owned (direct or indirect) Subsidiary of H&R Block and (B) has the operational
and financial capacity to meet all obligations of the assigning Block Company
under this Retail Distribution Agreement contemplated to be assigned to it (a
"Permitted Block Assignment"). The assigning Block
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Companies shall provide each of the HSBC Companies at least sixty (60) days
prior written notice of any contemplated Permitted Block Assignment. The parties
hereto agree to amend this Retail Distribution Agreement to the extent necessary
to reflect such Permitted Block Assignment.
(b) The HSBC Companies may assign their rights and obligations under
this Retail Distribution Agreement to one or more Subsidiaries of HSBC North
American Holdings, Inc. without the consent of the Block Companies if (i) such
assignment is desirable in connection with a reorganization of the business
operations of HSBC North American Holdings, Inc.'s Subsidiaries, (ii) such
contemplated assignment will not materially adversely affect any right or
obligation of any Block Company under this Retail Distribution Agreement, and
(iii) the contemplated assignee (A) is a wholly owned (direct or indirect)
Subsidiary of HSBC North American Holdings, Inc., (B) only with respect to any
assignment by HSBC Bank under this Section 2.6(b), is a national bank or federal
savings association and (C) has the operational and financial capacity to meet
all obligations of the assigning HSBC Company under this Retail Distribution
Agreement contemplated to be assigned to it (a "Permitted HSBC Assignment"). The
assigning HSBC Companies shall provide each of the Block Companies at least
sixty (60) days prior written notice of any contemplated Permitted HSBC
Assignment. The parties hereto agree to amend this Retail Distribution Agreement
to the extent necessary to reflect such Permitted HSBC Assignment.
Section 2.7. Substitution of Originator.
(a) In addition to the rights specified in Section 2.6(b), and not in
limitation thereof, HSBC NA may assign its rights and Obligations under this
Retail Distribution Agreement and the other Program Contracts:
(i) to an Affiliate of HSBC NA that is a national bank or federal
savings association, without the consent of the Block Companies;
(ii) to an operating subsidiary of HSBC NA or of an Affiliate of
HSBC NA that is a national bank or federal savings association, subject to the
consent of the Block Companies, which consent shall not be unreasonably
withheld; or
(iii) to any other Affiliate of HSBC NA pursuant to a modified
transactional structure, subject to the consent of the Block Companies in their
sole discretion;
provided that the assignee has the financial capacity, and in the reasonable
judgment of HSBC NA has the operational capacity, to meet all obligations of the
Originator under this Retail Distribution Agreement and the other Program
Contracts (hereinafter referred to as the "Successor Originator").
(b) In the event that HSBC NA assigns its rights and obligations under
this Retail Distribution Agreement and the other Program Contracts to a
Successor Originator pursuant to the foregoing Section 2.7(a):
(i) HSBC NA shall consult in good faith with the Block Companies
with respect to the proposed assignment;
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(ii) the Successor Originator shall execute a counterpart of this
Retail Distribution Agreement and any other Program Contract to which HSBC NA is
a party, appoint the Agents as its agents for the Settlement Products Program,
agree in writing to be bound by the terms and conditions of this Retail
Distribution Agreement and such other Program Contracts, and execute such other
agreements and documents as the Block Companies may reasonably request to
evidence its acceptance of such assignment;
(iii) upon execution by the Successor Originator of the
agreements and documents contemplated by Section 2.7(b)(ii), the Successor
Originator shall be substituted for HSBC NA as the Originator under this Retail
Distribution Agreement and the other Program Contracts, and all references in
this Retail Distribution Agreement and the other Program Contracts to HSBC Bank
shall be deemed to refer to such Successor Originator, the appointment by HSBC
NA of any Block Companies and Franchises as agents under any of the Program
Contracts shall terminate, the parties shall amend the Program Contracts as
necessary or appropriate to evidence such assignment, and, with respect to each
Program Contract to which amendments are made, shall enter into a restated
agreement;
(iv) HSBC Finance Corporation, HSBC NA, or a direct or indirect
parent company of HSBC NA reasonably acceptable to the Block Companies shall
guaranty the Successor Originator's performance of its Obligations under this
Retail Distribution Agreement and the other Program Contracts; and
(v) HSBC NA shall pay all the cost and expenses (including
attorneys fees) reasonably incurred by the Block Companies in regard to such
assignment.
(c) In the event of any permitted assignment under Section 2.7(a) and
(b) above, effective as of the effective date of such permitted assignment, HSBC
NA shall no longer be a party to this Retail Distribution Agreement or the other
Program Contracts and shall have no further obligations hereunder or thereunder,
except for Obligations arising out of acts, omissions or conduct occurring prior
to the effective date of such assignment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BLOCK COMPANIES
To induce each HSBC Company to enter into this Retail Distribution
Agreement and the other Program Contracts, as applicable, each Block Company,
severally and not jointly, makes to each HSBC Company the following
representations and warranties with respect to itself only, each and all of
which are made as of the date hereof, and (except the representations and
warranties in Section 3.6) as of each day during the Term of this Retail
Distribution Agreement:
Section 3.1. Existence and Organizational Power; Compliance with
Organizational Documents. Such Block Company (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) is duly qualified as a foreign corporation, limited liability
company or limited partnership, as the case may be, and is in good standing in
each other jurisdiction where its ownership or lease of property or the conduct
of the Settlement Products Program requires such qualification, except where the
failure to be so qualified could not result in a Material Adverse Effect, (c)
has the requisite organizational power
7
and authority to encumber and operate its properties, (d) has all organizational
powers necessary for the conduct of the Settlement Products Program as now
conducted or as contemplated herein, and (e) is in full compliance with all
provisions of its charter and organizational documents.
Section 3.2. Governmental Approvals, Compliance with Laws and Compliance
with Agreements with Third Parties. Such Block Company possesses in full force
and effect all Governmental Approvals necessary for the conduct of the
Settlement Products Program and is in compliance with all provisions of Law
applicable to the Settlement Products Program, except where the failure to
possess any such Governmental Approval or the failure of any such Governmental
Approval to be in full force and effect or the failure to comply with such Law
could not reasonably be expected to have a Material Adverse Effect. Such Block
Company is not in breach of or in default under, or with respect to, any
contract, agreement, lease or other instrument to which it is a party, or by
which any of its property is bound or affected, which breach or default could
reasonably be expected to have a Material Adverse Effect.
Section 3.3. Organizational and Governmental Approvals; No Contravention.
The execution, delivery and performance by such Block Company of this Retail
Distribution Agreement and the other Program Contracts to which it is a party,
and the consummation of the transactions contemplated to occur hereunder and
thereunder, (a) are within its organizational powers and have been duly
authorized by all necessary organizational action, (b) require no Governmental
Approval other than (i) such filings as have been made and are in full force and
effect or (ii) approvals which if not obtained could not reasonably be expected
to have a Material Adverse Effect; (c) do not contravene, or constitute a
default under (i) the organizational documents of such Block Company, (ii) any
provision of Law, the violation of which could reasonably be expected to have a
Material Adverse Effect, or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon such Block Company, the violation of
which could reasonably be expected to have a Material Adverse Effect, and (d) do
not result in the creation or imposition of any Lien on any asset of such Block
Company, the creation or imposition of which could reasonably be expected to
have a Material Adverse Effect. Such Block Company is not, and has not been in
the past five (5) years subject to any agreement, understanding, consent or
order with any Governmental Authority, court or self-regulatory trade or
professional organization that would prevent its consummation of this Retail
Distribution Agreement.
Section 3.4. Binding Effect. This Retail Distribution Agreement and each of
the Program Contracts to which such Block Company is a party constitutes a valid
and binding agreement of such Block Company, in each case enforceable in
accordance with its terms, subject to (a) the effect of any applicable
bankruptcy, fraudulent transfer, moratorium, insolvency, reorganization or other
similar laws affecting the rights of creditors generally and (b) the effect of
general principles of equity, whether applied by a court of equity or law.
Section 3.5. Full Disclosure. All factual information (taken as a whole)
furnished by or on behalf of such Block Company in writing to any HSBC Company
in connection with this Retail Distribution Agreement, or any other Program
Contract or any of the transactions contemplated hereby or thereby, including
all information and materials delivered to any HSBC Company or its respective
counsel, is true and accurate in all respects on the date as of which such
information is dated or certified and does not omit any fact necessary to make
such
8
information (taken as a whole) not misleading in any respect at such time in
light of the circumstances under which such information was provided.
Section 3.6. Intellectual Property. Schedule 3.6 contains a true and
complete list of all Intellectual Property and applications therefor related to
the Settlement Products Program as now conducted by such Block Company or
proposed to be conducted by such Block Company. Such Block Company owns,
licenses or otherwise has acquired the right to use all Intellectual Property
listed on Schedule 3.6, and, to its knowledge, is not infringing,
misappropriating, diluting or violating any third party's rights as a result of
the use of such Intellectual Property.
Section 3.7. Representations and Warranties Incorporated from Other Program
Contracts. Each of the representations and warranties made in the other Program
Contracts by such Block Company with respect to only itself is true and correct
in all respects, and such representations and warranties are hereby incorporated
herein by reference with the same effect as though set forth in their entirety
herein, as qualified therein.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE HSBC COMPANIES
To induce each Block Company to enter into this Retail Distribution
Agreement and the other Program Contracts, as applicable, each HSBC Company,
severally and not jointly, makes to each Block Company the following
representations and warranties (except the representations and warranties in
Sections 4.8 and 4.9, which are only made by HSBC Bank) with respect to itself
only, each and all of which are made as of the date hereof, and (except the
representations and warranties in Section 4.6) as of each day during the Term of
this Retail Distribution Agreement:
Section 4.1. Existence and Organizational Power; Compliance with
Organizational Documents. Such HSBC Company (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) is duly qualified as a foreign corporation, and is in good
standing in each other jurisdiction where its ownership or lease of property or
the conduct of the Settlement Products Program requires such qualification,
except where the failure to be so qualified could not result in a Material
Adverse Effect, (c) has the requisite organizational power and authority to
encumber and operate its properties, (d) has all organizational powers necessary
for the conduct of the Settlement Products Program as now conducted or as
contemplated herein, and (e) is in full compliance with all provisions of its
charter and organizational documents.
Section 4.2. Governmental Approvals, Compliance with Laws and Compliance
with Agreements with Third Parties. Such HSBC Company possesses in full force
and effect all Governmental Approvals necessary for the conduct of the
Settlement Products Program and is in compliance with all provisions of Law
applicable to the Settlement Products Program, except where the failure to
possess any such Governmental Approval or the failure of any such Governmental
Approval to be in full force and effect or the failure to comply with such Law
could not reasonably be expected to have a Material Adverse Effect. Such HSBC
Company is not in breach of or in default under, or with respect to, any
contract, agreement, lease or other
9
instrument to which it is a party or by which any of its property is bound or
affected, which breach or default could reasonably be expected to have a
Material Adverse Effect.
Section 4.3. Organizational and Governmental Approvals; No Contravention.
The execution, delivery and performance by such HSBC Company of this Retail
Distribution Agreement and the other Program Contracts to which it is a party,
and the consummation of the transactions contemplated to occur hereunder and
thereunder, (a) are within its organizational powers and have been duly
authorized by all necessary organizational action, (b) require no Governmental
Approval other than (i) such filings as have been made and are in full force and
effect or (ii) approvals which if not obtained could not reasonably be expected
to have a Material Adverse Effect, (c) do not contravene, or constitute a
default under (i) the organizational documents of such HSBC Company, (ii) any
provision of Law, the violation of which could reasonably be expected to have a
Material Adverse Effect or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon such HSBC Company, the violation of
which could reasonably be expected to have a Material Adverse Effect, and (d) do
not result in the creation or imposition of any Lien on any asset of such HSBC
Company, the creation or imposition of which could reasonably be expected to
have a Material Adverse Effect. Such HSBC Company is not, and has not been in
the past five (5) years subject to any agreement, understanding, consent or
order with any Governmental Authority, court or self-regulatory trade or
professional organization that would prevent its consummation of this Retail
Distribution Agreement.
Section 4.4. Binding Effect. This Retail Distribution Agreement and each of
the Program Contracts to which such HSBC Company is a party constitutes a valid
and binding agreement of such HSBC Company, in each case enforceable in
accordance with its terms, subject to (a) the effect of any applicable
bankruptcy, fraudulent transfer, moratorium, insolvency, reorganization or other
similar laws affecting the rights of creditors generally and (b) the effect of
general principles of equity, whether applied by a court of equity or law.
Section 4.5. Full Disclosure. All factual information (taken as a whole)
furnished by or on behalf of such HSBC Company in writing to any Block Company
in connection with this Retail Distribution Agreement, any other Program
Contract or any of the transactions contemplated hereby or thereby, including
all information and materials delivered to any Block Company or its respective
counsel, is true and accurate in all respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in any
respect at such time in light of the circumstances under which such information
was provided.
Section 4.6. Intellectual Property. Schedule 4.6 contains a true and
complete list of all Intellectual Property and applications therefor related to
the Settlement Products Program as now conducted by such HSBC Company or
proposed to be conducted by such HSBC Company. Such HSBC Company owns, licenses
or otherwise has acquired the right to use all Intellectual Property listed on
Schedule 4.6, and, to its knowledge, is not infringing, misappropriating,
diluting or violating any third party's rights as a result of the use of such
Intellectual Property.
Section 4.7. Representations and Warranties Incorporated from Other Program
Contracts. Each of the representations and warranties made in the other Program
Contracts by
10
such HSBC Company with respect to only itself is true and correct in all
respects, and such representations and warranties are hereby incorporated herein
by reference with the same effect as though set forth in their entirety herein,
as qualified therein.
Section 4.8. Organization as a National Bank. HSBC Bank is a national bank
duly organized and validly existing under the laws of the United States of
America and has its principal banking office located in the State of Delaware.
Section 4.9. FDIC Insurance. HSBC Bank's deposits are insured by the FDIC
to the maximum extent permitted by Law.
ARTICLE V
GENERAL COVENANTS OF THE BLOCK COMPANIES
Each Block Company covenants and agrees, severally and not jointly, with
each HSBC Company as follows during the Term of this Retail Distribution
Agreement, with respect to itself only:
Section 5.1. Conduct of Settlement Products Program and Maintenance of
Existence. Such Block Company shall conduct its activities with respect to the
Settlement Products Program as contemplated herein, and will preserve, renew and
keep in full force and effect its corporate, limited liability company or
limited partnership existence, as the case may be, and its rights, privileges
and franchises necessary or desirable in the normal conduct of the Settlement
Products Program.
Section 5.2. Maintenance of Assets and Properties. Such Block Company shall
keep all of its assets and properties useful and necessary in the Settlement
Products Program in good working order and condition, ordinary wear and tear
excepted, and will cause to be made all appropriate repairs, renewals and
replacements thereof.
Section 5.3. Defaults and other Material Events. As soon as practicable,
and in any event within ten (10) Business Days after any senior officer of such
Block Company obtains knowledge of the existence of any event that could
reasonably be expected to have a Material Adverse Effect on the Settlement
Products Program or of any Block Event of Default, such Block Company shall
provide telephonic or telecopied notice specifying the nature of such event or
Block Event of Default, including the anticipated effect thereof, which notice
if given telephonically shall be promptly confirmed in writing the next day.
Section 5.4. Litigation. Such Block Company shall provide written notice,
as soon as practicable, and in any event within five (5) Business Days after any
senior officer of such Block Company obtains knowledge of any significant
Litigation filed by any third party or threatened in writing by any Governmental
Authority against such Block Company relating to the Settlement Products
Program, to be extent permitted by applicable Law.
Section 5.5. Future Information. All information furnished by or on behalf
of any such Block Company to any HSBC Company on and after the date hereof in
connection with or pursuant to any Program Contract ("Block Program
Information") shall, at the time the same is so furnished, but in the case of
Block Program Information dated as of a prior date, as of such
11
date, (a) in the case of any such Block Program Information prepared in the
ordinary course of business, be complete and correct in all respects in the
light of the purpose prepared, and, in the case of any such Block Program
Information required by the terms any Program Contract or the preparation of
which was requested by any HSBC Company, be complete and correct in all respects
to the extent necessary to give true and accurate knowledge of the subject
matter thereof, and (b) not contain any untrue statement of a fact or omit to
state any fact necessary to make the statements contained therein, in light of
the circumstances in which they are made, not misleading, and the furnishing of
the same to any HSBC Company shall constitute a representation and warranty by
such Block Company with respect to the matters specified in clauses (a) and (b).
Following the date hereof, if any Block Program Information previously delivered
hereunder is deemed by such disclosing Block Company to be erroneous and such
error was not due to any intentional or willful conduct of such Block Company
and could reasonably result in a Material Adverse Effect, such disclosing Block
Company may deliver to the appropriate HSBC Company corrected Block Program
Information within ten (10) Business Days following the date on which such Block
Company first became aware of such erroneous Block Program Information. Such
corrected Block Program Information shall be deemed to be an amendment of the
erroneous Block Program Information and the initial failure to deliver the
correct Block Program Information shall be waived by such HSBC Company
concurrent with delivery thereof.
Section 5.6. Compliance with Laws. Such Block Company shall (a) comply with
all Laws applicable to the Settlement Products Program, if noncompliance with
such Laws could reasonably be expected to have a Material Adverse Effect, (b)
conform with and duly observe in all respects all Laws and all other valid
requirements of any regulatory authority with respect to the conduct of the
Settlement Products Program, if nonconformity with such Laws or other valid
requirements could reasonably be expected to have a Material Adverse Effect, and
(c) obtain and maintain all professional and other licenses, permits,
certifications and approvals of all applicable Governmental Authorities for such
Block Company to carry out its obligations hereunder as are required for the
conduct of the Settlement Products Program as herein contemplated, if failure to
do so could reasonably be expected to have a Material Adverse Effect.
Section 5.7. Non-Solicitation of HSBC Companies' Employees. During the Term
of this Retail Distribution Agreement and for a period of twelve (12) months
after the termination or expiration of this Retail Distribution Agreement, the
Block Companies and their Affiliates shall not (a) induce or attempt to induce
any employee of the HSBC Companies with a rank of manager or higher who has
direct knowledge of or responsibility for the Settlement Products Program or any
portion thereof to leave the employ of the HSBC Companies, or in any way
interfere with the relationship between the HSBC Companies and such employee
thereof or (b) hire any previous employee of the HSBC Companies who held a rank
of manager or higher and who has direct knowledge of or had responsibility for
the Settlement Products Program or any portion thereof, at any time during the
Term of this Retail Distribution Agreement or during the twelve (12) month
period immediately preceding the Term of this Retail Distribution Agreement,
either directly or indirectly, individually or as an employee, contractor,
consultant, partner, member, officer, director or stockholder (other than as a
stockholder of less than 5% of the equities of a publicly traded corporation) or
in any other capacity for any Person. Notwithstanding anything to the contrary
herein, it shall not be a violation of this Section 5.7, if such an employee of
the HSBC Companies, without being contacted by the Block Companies or
12
their Affiliates or any Person at the direction or on behalf of the Block
Companies or their Affiliates, answers a general public advertisement for
employment offered to the general public by the Block Companies or their
Affiliates.
Section 5.8. Franchisees in Settlement Products Program. Block Tax
Services, Royalty and Block Associates shall use commercially reasonable efforts
to cause their respective Franchisees to offer Retail Settlement Products
through the Block Franchisee Offices and Block Tax Services and Block Associates
shall provide the means for each of their respective Franchisees to agree to be
bound by the terms of its Franchisee Distribution Agreement.
Section 5.9. File Sharing. Except as otherwise agreed to, the Block
Companies may not access or decode the Processing Files provided to any of them
by HSBC TFS, except in response to, and to fulfill, a Client's request for a
Settlement Product and to provide appropriate disclosures with respect to such
Settlement Product, and in such case by only utilizing software provided by HSBC
TFS to access or decode such Processing Files.
Section 5.10. Block Franchisee Policies and Procedures. The Franchisors
shall incorporate within the Block Franchisee Policies and Procedures applicable
to the Franchisees, Settlement Products Program policies and procedures
substantially similar to those applicable to the Block Agents under this Retail
Distribution Agreement with respect to the offering of Settlement Products
(including the Instructions and those provisions under Article VII, except
Section 7.18, of this Retail Distribution Agreement, to the extent applicable to
a Franchisee), and as HSBC Bank may reasonably request.
Section 5.11. Representatives. Each Block Agent shall ensure that its
Representatives comply with the Instructions and the terms and conditions of
this Retail Distribution Agreement. The Block Agents shall not be responsible,
however, for determining whether the Retail Settlement Products and the
offering, originating or servicing of the Retail Settlement Products, comply
with all applicable Laws.
Section 5.12. Clarification. For the avoidance of doubt, the obligation of
the Block Agents to assure that their activities and the activities of their
Representatives are in compliance with Law and the Instructions as provided in
the Program Contracts shall not be affected by any failure or alleged failure of
the HSBC Companies to monitor, audit or supervise the activities of the Block
Agents or their Representatives as provided in the Program Contracts, it being
the intention of the parties that HSBC Bank shall not be responsible for any
failure of the Block Agents to assure that their activities and the activities
of their Representatives are in compliance with Law and the Instructions as
provided in the Program Contracts.
13
ARTICLE VI
GENERAL COVENANTS OF THE HSBC COMPANIES
Each HSBC Company covenants and agrees, severally and not jointly, with
each Block Company as follows during the Term of this Retail Distribution
Agreement (except with respect to the Obligations of the HSBC Companies under
Section 6.11, which shall become effective on the Business Day immediately
following the date of this Retail Distribution Agreement), with respect to
itself only:
Section 6.1. Conduct of Settlement Products Program and Maintenance of
Existence. Such HSBC Company shall conduct its activities with respect to the
Settlement Products Program as contemplated herein, and will preserve, renew and
keep in full force and effect its corporate existence and its rights, privileges
and franchises necessary or desirable in the normal conduct of the Settlement
Products Program.
Section 6.2. Maintenance of Assets and Properties. Such HSBC Company will
keep all of its assets and properties useful and necessary in the Settlement
Products Program in good working order and condition, ordinary wear and tear
excepted, and will cause to be made all appropriate repairs, renewals and
replacements thereof.
Section 6.3. Defaults and other Material Events. As soon as practicable,
and in any event within ten (10) Business Days after any senior officer of such
HSBC Company obtains knowledge of the existence of any event that could
reasonably be expected to have a Material Adverse Effect on the Settlement
Products Program or of any HSBC Event of Default, such HSBC Company shall
provide telephonic or telegraphic notice specifying the nature of such event or
HSBC Event of Default, including the anticipated effect thereof, which notice,
if given telephonically shall be promptly confirmed in writing the next day.
Section 6.4. Litigation. Such HSBC Company shall provide written notice, as
soon as practicable, and in any event within five (5) Business Days after any
senior officer of such HSBC Company obtains knowledge of any significant
Litigation filed by any third party or threatened in writing by any Governmental
Authority against such HSBC Company relating to the Settlement Products Program,
to the extent permitted by applicable Law.
Section 6.5. Future Information. All information furnished by or on behalf
of such HSBC Company to any Block Company on and after the date hereof in
connection with any Program Contract ("HSBC Program Information") shall, at the
time the same is so furnished, but in the case of HSBC Program Information dated
as of a prior date, as of such date, (a) in the case of any such HSBC Program
Information prepared in the ordinary course of business, be complete and correct
in all respects in the light of the purpose prepared, and, in the case of any
such HSBC Program Information required by the terms of any Program Contract or
the preparation of which was requested by any Block Company, be complete and
correct in all respects to the extent necessary to give true and accurate
knowledge of the subject matter thereof, and (b) not contain any untrue
statement of a fact or omit to state any fact necessary to make the statements
contained therein, in light of the circumstances in which they are made, not
misleading, and the furnishing of the same to any Block Company shall constitute
a representation and warranty by such HSBC Company with respect to the matters
specified in
14
clauses (a) and (b). Following the date hereof, if any HSBC Program Information
previously delivered hereunder is deemed by such disclosing HSBC Company to be
erroneous and such error was not due to any intentional or willful conduct of
such HSBC Company and could not reasonably result in a Material Adverse Effect,
such disclosing HSBC Company may deliver to the appropriate Block Company
corrected HSBC Program Information within ten (10) Business Days following the
date on which such HSBC Company first became aware of such erroneous HSBC
Program Information. Such corrected HSBC Program Information shall be deemed to
be an amendment of the erroneous HSBC Program Information and the initial
failure to deliver the correct HSBC Program Information shall be waived by such
Block Company concurrent with delivery thereof.
Section 6.6. Compliance with Laws. Such HSBC Company shall (a) comply with
all Laws applicable to the Settlement Products Program, if noncompliance with
such Laws could reasonably be expected to have a Material Adverse Effect, (b)
conform with and duly observe in all respects all Laws and all other valid
requirements of any regulatory authority with respect to the conduct of the
Settlement Products Program, if nonconformity with such Laws or other valid
requirements could reasonably be expected to have a Material Adverse Effect, and
(c) obtain and maintain all professional and other licenses, permits,
certifications and approvals of all applicable Governmental Authorities for such
HSBC Company to carry out its obligations hereunder as are required for the
conduct of the Settlement Products Program herein contemplated, if failure to do
so could reasonably be expected to have a Material Adverse Effect.
Section 6.7. Inspection of Property, Books and Records. Such HSBC Company
shall keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions and activities in
relation to the Settlement Products Program and the obligations and duties of
such HSBC Company pursuant to this Retail Distribution Agreement or the other
Program Contracts and shall permit each Block Company and its Representatives,
upon such Block Company's own initiative and expense, to visit any HSBC Company
location, to examine and make abstracts or copies from any of its books and
records, to conduct an audit and analysis of its accounts and to discuss such
records and accounts with its Representatives, all only with respect to and as
such shall relate to the Settlement Products Program or the obligations and
duties of such HSBC Company pursuant to this Retail Distribution Agreement or
the other Program Contracts, all at such reasonable times and as often as may
reasonably desire; provided, however, so long as no HSBC Event of Default shall
have occurred and be continuing, such Block Company shall have provided such
HSBC Company with reasonable prior notice.
Section 6.8. Non-Competition; Non-Solicitation; Exclusivity.
(a) During the Term of this Retail Distribution Agreement and for a
period of ten (10) years after the termination or expiration of this Retail
Distribution Agreement:
(i) The HSBC Companies and their Affiliates shall not, directly
or indirectly, in any manner whatsoever, use for any purpose any Settlement
Product Client information, except in accordance with this Retail Distribution
Agreement and the other Program Contracts or with the consent of the Block
Companies in their discretion.
15
(ii) Subject to Section 14.13, the HSBC Companies and their
Affiliates shall have the right to use mailing lists and customer lists derived
from sources other than the Block Companies for purposes of soliciting customers
with respect to any service or product other than the sale or offering of any
refund anticipation loan, refund anticipation check or Preseason Loan, and shall
have no obligation to de-dupe Settlement Products Clients from such
solicitations.
(iii) The HSBC Companies and their Affiliates shall have the
right to use mailing lists and customer lists derived from sources other than
the Block Companies for purposes of soliciting customers with respect to the
sale or offering of any refund anticipation loan, refund anticipation check or
Preseason Loan; provided, however, that the HSBC Companies and their Affiliates
shall de-dupe Settlement Products Clients from any such solicitation in
accordance with the following:
(A) During the Term of this Retail Distribution Agreement,
the HSBC Companies and their Affiliates shall de-dupe Settlement Products
Clients who were recorded in the HSBC Datahouse as Settlement Products Clients
during the most recent completed year of the Term of this Retail Distribution
Agreement; and
(B) During the ten (10) years after the termination or
expiration of this Retail Distribution Agreement, the HSBC Companies and their
Affiliates shall de-dupe Settlement Products Clients who were recorded in the
HSBC Datahouse as Settlement Products Clients during the last year of the Term
of this Retail Distribution Agreement.
(iv) The HSBC Companies and their Affiliates conducting business
in the United States shall not, directly or indirectly, sell, transfer,
hypothecate, rent or permit any other Person to possess any list comprised or
substantially comprised of Settlement Products Clients, or any information
contained therein.
(v) The HSBC Companies and their Affiliates conducting business
in the United States shall not, directly or indirectly, in any manner
whatsoever, engage in any activity that has the purpose or effect of
transitioning Settlement Products Clients to a tax return preparer other than
the Block Companies, other than at a Client's explicit request without any
solicitation by any such HSBC Company, Affiliate or any HSBC Company
Representative with respect thereto.
(vi) The HSBC Companies and their Affiliates shall maintain
records of its sources of mailing lists and customer lists, and documentary
evidence of the performance of their de-duping obligations pursuant to this
Section 6.8(a). The Block Companies shall have the audit and inspection rights
set forth in Section 6.7 to the extent necessary to verify the records and
documentary described in the immediately preceding sentence.
(b) During the Term of this Retail Distribution Agreement, each HSBC
Company and its Affiliates conducting business in the United States shall not,
directly or indirectly, in any manner whatsoever, engage in the business of
preparing (including preparation through any digital means) federal or state
income tax returns for clients (except HSBC Tax Clients) filing income tax
returns in the United States, in competition with the tax return
16
preparation business of the Block Companies; provided, however, that if any HSBC
Company or any of its Affiliates acquires a Person engaged in a business that
would violate the provisions of this Section 6.8(b) if the HSBC Companies or its
Affiliates engaged in such business (the "Competitive Business"), such HSBC
Company or Affiliate shall divest or discontinue such Competitive Business in
its entirety in accordance with the following procedures:
(i) In the event that any HSBC Company or any of its Affiliates
("Divesting Party") is required to divest a Competitive Business pursuant to
this Section 6.8(b), such Divesting Party shall deliver to the Block Companies
no later than fifteen (15) days following the consummation of the acquisition by
the Divesting Party of the Competitive Business a written notice setting forth a
description in reasonable detail of the Competitive Business and shall provide
to the Block Companies such information as the Block Companies may reasonably
request with respect to the Competitive Business, subject to the entry by the
Block Companies into a confidentiality agreement in form and substance
reasonably acceptable to the Divesting Party. The Block Companies and the
Divesting Party shall negotiate in good faith to determine whether they are able
to agree on the terms and conditions (including purchase price) of a divestiture
of the Competitive Business to the Block Companies. If the Block Companies and
the Divesting Party enter into a memorandum of understanding or a non-binding
letter of intent with respect to such divestiture within fifteen (15) days from
the commencement of negotiations, and enter into a binding definitive agreement
within forty-five (45) days from the commencement of negotiations, the parties
shall consummate the divestiture in accordance with such agreement.
(ii) In the event that the Block Companies and the Divesting
Party are unable to enter into a memorandum of understanding or a non-binding
letter of intent with respect to such divestiture within fifteen (15) days from
the commencement of negotiations, or are unable to enter into a binding
definitive agreement within forty-five (45) days of the commencement of
negotiations, or in the event that the Block Companies shall deliver written
notice to the Divesting Party that the Block Companies do not have an interest
in pursuing the acquisition of the Competitive Business, the Divesting Party may
obtain an offer in writing from a third party for the sale of such Competitive
Business no later than thirty (30) days from the expiration of the applicable
period or the delivery of such notice from the Block Companies, as the case may
be.
(iii) Upon receipt of a written offer from a third party that the
Divesting Party reasonably believes is a bona-fide proposal that is reasonably
likely to result in the sale of the Competitive Business, the Divesting Party
shall give the Block Companies written notice of the terms of such proposal (the
"Transfer Notice") within five (5) Business Days after receipt thereof, which
Transfer Notice shall include (i) a description of the assets to be transferred,
(ii) the identity of the prospective transferee(s) and (iii) the consideration
and the material terms and conditions upon which the proposed sale is to be
made. The Transfer Notice shall include a statement that the Divesting Party has
received a written proposal that the Divesting Party believes is a bona fide
proposal that is reasonably likely to result in the sale of the Competitive
Business. The Transfer Notice shall also include a copy of any written proposal,
term sheet or letter of intent or other agreement containing the material terms
and conditions of the proposal.
17
(iv) The Block Companies shall have an option for a period of
fifteen (15) days from receipt of a Transfer Notice (the "Block Companies Notice
Period") to elect to purchase the Competitive Business at the same price and
subject to the same material terms and conditions as described in the Transfer
Notice. The Block Companies may exercise such purchase option by providing
written notice to the Divesting Party of such election prior to the expiration
of the Block Companies Notice Period. If the Block Companies give the Divesting
Party notice that they desire to purchase the Competitive Business, then the
Block Companies shall use commercially reasonable efforts to enter into a
definitive written agreement with the Divesting Party to purchase the
Competitive Business at the same price and subject to the same material terms as
described in the Transfer Notice, within thirty (30) days after the Block
Companies' receipt of the Transfer Notice, and to close the transaction pursuant
to such definitive agreement. If the Block Companies are unable to do so, the
Divesting Party may sell the Competitive Business to the prospective purchaser
at the same price and subject to the same material terms as described in the
Transfer Notice no later than one hundred eighty (180) days from the expiration
of the applicable period or the delivery of such notice from the Block
Companies, as the case may be, subject to extension to the extent reasonably
necessary to accommodate regulatory requirements. If the Divesting Party does
not consummate such sale of the Competitive Business to the prospective
purchaser, the Block Parties' purchase rights shall continue to be applicable to
any subsequent proposal to acquire the Competitive Business.
(v) Until the Divesting Party shall consummate the sale of the
Competitive Business, the HSBC Companies and its Affiliates shall maintain the
Competitive Business as a separate business from the other businesses of the
HSBC Companies and its Affiliates without any integration, in whole or in part,
of the Competitive Business into any other business of the HSBC Companies and
its Affiliates.
(c) During the Term of this Retail Distribution Agreement, each HSBC
Company and its Affiliates conducting business in the United States shall not,
directly or indirectly, in any manner whatsoever, engage in the business of
preparing (including preparation through any digital means) personal income tax
returns for clients filing United States or foreign income tax returns outside
of the United States (excluding HSBC Tax Clients), unless (i) it has given the
Block Companies six (6) months' prior written notice of its intention to engage
in such tax return business internationally, (ii) it has used commercially
reasonable efforts to negotiate and enter into a partnership or joint venture
with the Block Companies to conduct such international tax return preparation
business with the Block Companies and (iii) the Block Companies and such HSBC
Company are unable to arrive at an agreement to enter into such partnership or
joint venture.
(d) In the event that at any time during the two (2) full Tax Periods
immediately following the termination or expiration of this Retail Distribution
Agreement (each, a "Subsequent Tax Period"), any HSBC Company or any of its
Affiliate prepares (including preparation through any digital means) federal or
state personal income tax returns for a client (excluding HSBC Tax Clients) that
was a Settlement Products Client during the Tax Period included within the year
in which this Retail Distribution Agreement is terminated or expires (each, a
"Final Tax Period Client"), then, no later than thirty (30) days following the
end of each Subsequent Tax Period, HSBC TFS shall pay the Block Enterprise
Entities an amount, in the aggregate, equal to the product of (i) Fifty Dollars
($50) multiplied by (ii) the number of Final
18
Tax Period Clients for whom any HSBC Company or any of its Affiliates prepared
(including preparation through any digital means) federal or state personal
income tax returns during such Subsequent Tax Period. Such amounts shall be paid
via ACH credit to an account designated in writing by the Block Enterprise
Entities. No later than fifteen (15) days following the end of each Subsequent
Tax Period, the HSBC Companies shall provide the Block Companies a true and
correct report setting forth the number of Final Tax Period Clients for such
Subsequent Tax Period. The Block Companies shall have the audit and inspection
rights set forth in Section 6.7, to the extent necessary to verify the accuracy
and completeness of the report described in the immediately preceding sentence.
Section 6.9. Non-Solicitation of Block Companies' Employees. During the
Term of this Retail Distribution Agreement and for a period of twelve (12)
months after the termination or expiration of this Retail Distribution
Agreement, the HSBC Companies and their Affiliates shall not (a) induce or
attempt to induce any non-field employee of the Block Companies with a rank of
manager or higher who has direct knowledge of or responsibility for the
Settlement Products Program or any portion thereof to leave the employ of the
Block Companies, or in any way interfere with the relationship between the Block
Companies and such employee thereof or (b) hire any previous non-field employee
of the Block Companies who held a rank of manager or higher and who has direct
knowledge of or had responsibility for the Settlement Products Program or any
portion thereof, at any time during the Term of this Retail Distribution
Agreement or during the twelve (12) month period immediately preceding the Term
of this Retail Distribution Agreement, either directly or indirectly,
individually or as an employee, contractor, consultant, partner, member,
officer, director or stockholder (other than as a stockholder of less than 5% of
the equities of a publicly traded corporation) or in any other capacity for any
Person. Notwithstanding anything to the contrary herein, it shall not be a
violation of this Section 6.9, if such an employee of the Block Companies,
without being contacted by the HSBC Companies or their Affiliates or any Person
at the direction or on behalf of the HSBC Companies or their Affiliates, answers
a general public advertisement for employment offered to the general public by
the HSBC Companies or their Affiliates.
Section 6.10. SAS 70.
(a) The HSBC Companies shall provide the Block Companies with a Type
II SAS 70 report (or any equivalent thereof or successor thereto) within sixty
(60) days after the end of each calendar year during the Term of this Retail
Distribution Agreement. This SAS 70 Type II Report (or any equivalent thereof or
successor thereto) is necessary in order to permit the Block Companies'
management to perform an adequate assessment of internal control over financial
reporting (and to permit the Block Companies' auditors to audit the Block
Companies' internal control over financial reporting and management's assessment
thereof). The HSBC Companies and the Block Companies shall split equally
expenses incurred by the HSBC Companies in connection with the preparation of
the Type II SAS 70 Report; provided the Block Companies' portion of such
expenses shall not exceed Fifty Thousand Dollars ($50,000) in any year of the
Term of the Retail Distribution Agreement.
(b) Such SAS 70 Type II Report (or any equivalent thereof or successor
thereto) must be prepared by the HSBC Companies' independent auditors in
accordance with Statement on Auditing Standards No. 70, Service Organizations
("SAS 70") (or any equivalent
19
thereof or successor thereto), and must include an opinion with respect to the
controls that are in effect at the HSBC Companies over the practices and
procedures relating to the HSBC Companies' performance of such services under
the Program Contracts.
(c) The HSBC Companies will, and will use commercially reasonable
efforts to cause its external auditors to, provide information to the Block
Companies' officers and its external auditors, as the case may be, in order to
allow each of them to perform the procedures that are required by generally
accepted auditing standards, including, without limitation, PCAOB Auditing
Standard No. 2, by Section 404 of the Sarbanes-Oxley Act and by the rules
promulgated thereunder with respect to (i) the SAS 70 Type II Report (or any
equivalent thereof or successor thereto) delivered in accordance with this
Section 6.10 and (ii) the controls to which such report relates.
(d) The costs of any corrective actions taken as a result of Type II
SAS 70 Reports will be paid by the HSBC Companies, except to the extent the
corrective actions relate to a program or procedure of the Block Companies that
the HSBC Companies are following based on written direction from the Block
Companies.
Section 6.11. Signing Bonus.
(a) Contemporaneous with the execution of the Program Contracts, HSBC
TFS shall immediately pay the Block Enterprise Entities [***] (the "Signing
Bonus"). The Signing Bonus shall be payable via wire transfer of immediately
available funds to an account designated in writing by the Block Enterprise
Entities.
(b) Portions of the Signing Bonus shall be refunded to HSBC TFS by
Block Services only as follows:
(i) in the event of [***] to HSBC TFS within thirty (30) days
after the occurrence of such event;
(ii) in the event of [***] to HSBC TFS within thirty (30) days
after the occurrence of such event;
(iii) in the event of [***] to HSBC TFS within thirty (30) days
after the occurrence of such event;
(iv) in the event of [***] to HSBC TFS within thirty (30) days
after the occurrence of such event; and
(v) in the event of [***] to HSBC TFS within thirty (30) days
after the occurrence of such event.
Any refund of any portion of the Signing Bonus or any portion thereof hereunder
shall be made via ACH credit to an account designated in writing by HSBC TFS.
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ARTICLE VII
DISTRIBUTION COVENANTS OF THE BLOCK AGENTS
Each Block Agent hereby covenants and agrees during the Term of this Retail
Distribution Agreement, severally and not jointly, as follows, with respect to
itself only:
Section 7.1. Retail Settlement Products Procedures. Subject to the terms of
Article VII, each Block Agent shall perform, in a commercially reasonable
manner, all of the tasks and duties set forth in (a) the Retail Settlement
Products Procedures Schedules that are to be performed by such Block Agent with
respect to each Retail Settlement Product, and (b) the Block Agents' Roles and
Responsibilities Schedule attached hereto as Schedule 7.1.
Section 7.2. Preparation and Filing of Returns. Each Block Agent,
individually and not in its capacity as agent, shall prepare and file Returns
for Clients in accordance with its normal business practices. In connection with
each Return with respect to which the Applicant is applying for a Retail
Settlement Product, each Block Agent shall insert in the applicable location on
such Return the account number of the Applicant's Deposit Account, which account
number shall consist of an eight digit prefix provided by HSBC Bank to the Block
Agent, followed by the primary social security number of the Applicant. Each
Block Agent shall indicate on such Return that the Deposit Account is a checking
account.
Section 7.3. Compliance with Laws. Subject to the last sentence of Section
12.3, each Block Agent shall comply with all Laws applicable to it in connection
with its Tax Preparation Related Activities and advertising and marketing
activities, and as may be provided in the Instructions.
Section 7.4. Other Block Agent Duties. Each of the Block Agents shall act
as an agent of HSBC Bank for the purpose of, among other things:
(a) providing Applications to Clients and assisting Clients with
completing Applications;
(b) providing Settlement Products Clients with copies of the signed
Applications and other disclosures, forms and documents, as reasonably required
by HSBC Bank and in the form provided by HSBC Bank to the Block Agents;
(c) printing Disbursement Checks (or issuing an Electronic
Disbursement) and notifying Settlement Products Clients of their availability;
(d) providing HSBC TFS, as servicer for the Originator, with
electronic copies of Applicant Information Files; and
(e) subject to applicable Law, providing HSBC Bank with such reports
as HSBC Bank may reasonably request with respect to the Block Agents'
performance of its duties under the Program Contracts; provided, however, that
during the period commencing on January 1 and ending on April 15 of each year of
the Term of this Retail Distribution Agreement, HSBC Bank shall use commercially
reasonable efforts to limit the exercise of such reporting
21
requirements so as not to disrupt the business operations of the Block Agents
during their peak season.
Section 7.5. Qualifying Procedure Compliance. Each Block Agent shall follow
the Qualifying Procedures in connection with the Settlement Products Program.
Section 7.6. Provide Application and Disclosures to Settlement Products
Clients. Each Block Agent shall:
(a) provide an Application to each Client who has expressed an
interest in obtaining a Retail Settlement Product and who has satisfied the
eligibility requirements set forth in the Qualifying Procedures;
(b) assist Clients in completing the Application;
(c) provide and require Settlement Product Clients to complete and
sign an authorization permitting the Block Agent to use the Client's Return
information for the application process in accordance with Section 301.7216-3(b)
of the United States Treasury Department Regulations;
(d) provide and require each Settlement Product Client to complete and
sign IRS Form 8453;
(e) sign each Form 8453 as ERO;
(f) deliver to each Applicant any disclosures required by applicable
Law or pursuant to the Instructions, as directed by HSBC Bank and in the form
provided by HSBC Bank; and
(g) follow all Instructions prescribed by HSBC Bank with respect to
the preparation and processing of Applications consistent with the Program
Contracts and in accordance with applicable Laws.
Section 7.7. Compliance with Originator Instructions. The Block Agents
shall use commercially reasonable efforts to act in accordance with all
Instructions of HSBC Bank.
Section 7.8. Transmit Returns and Applicant Information Files to Block
e-file Processing System. After completion of such Returns and Application, each
Block Agent shall, in accordance with the Electronic Filing Specifications,
transmit an electronic form of each Applicant's Return and Applicant Information
File to the Block e-file Processing System.
Section 7.9. Applicant Copies. Each Block Agent shall provide each of its
Applicants with a copy of such Applicant's signed Application and IRS Form 8453,
together with any other commercially reasonable disclosures or documents
required to be provided to the Applicant by HSBC Bank.
22
Section 7.10. Application Status. Each Block Agent shall use the
communication system maintained by Block Services to notify Applicants of the
status of their respective Applications.
Section 7.11. Rejected Returns. Upon receipt of notice from Block Services
that a Return has been rejected by the IRS, the Block Agent shall review the
Return and attempt to resolve any problems with the Return in accordance with
the Block Agent's customary business practices.
Section 7.12. Preparation of Disbursement Checks.
(a) Upon receipt of a Disbursement Check printing authorization from
HSBC TFS, as servicer for the Originator, each Block Agent shall print a
Disbursement Check in the amount authorized, payable to the order of the
Settlement Products Client designated by HSBC TFS, as servicer for the
Originator. After printing and before delivery to the Settlement Products
Client, each Block Agent shall keep any such Disbursement Checks secure.
(b) If an Electronic Disbursement is to be issued to the Settlement
Products Client in lieu of a Disbursement Check, then upon receipt of
authorization from HSBC TFS (as servicer for the Originator) to issue such
Electronic Disbursement, HSBC Bank or the Block Agent shall issue such
Electronic Disbursement in the amount authorized by HSBC TFS.
Section 7.13. Lost Disbursement Checks.
(a) If a Settlement Products Client reports a Disbursement Check as
lost to the applicable Block Agent, or the applicable Block Agent otherwise
becomes aware that a Disbursement Check has been lost or stolen, the applicable
Block Agent shall timely notify HSBC TFS of such loss and request HSBC TFS to
request an indemnifying bond with respect to such Disbursement Check, and in
season, reissue such Disbursement Check, and out of season, mail such
Disbursement Check directly to the Client.
(b) If a Disbursement Check is mailed to a Settlement Products Client
by HSBC TFS pursuant to Section 10.5, such Settlement Products Client notifies
the applicable Block Agent that it has not received such Disbursement Check and
fourteen (14) days have passed since such Settlement Products Client's
Disbursement Check was mailed, the applicable Block Agent shall request HSBC TFS
to stop payment upon such Disbursement Check. If such Disbursement Check was
mailed by HSBC TFS, such Block Agent shall request that HSBC TFS issue a new
check.
Section 7.14. Records Retention and Destruction.
(a) In connection with the Settlement Products Program, each Block
Agent shall maintain, in either physical or electronic form, complete files of
each of its Applicants' signed Application and all other Settlement Products
Program documents executed by such Applicant and any disclosures provided to
such Applicant. Upon receipt of the reasonable written request of HSBC Bank or
HSBC TFS, each Block Agent shall exercise commercially reasonable efforts to
make such documents available to HSBC Bank or HSBC TFS. Incremental
23
costs incurred by the Block Agents in complying with HSBC Bank's requests shall
be handled in the manner set forth in Section 14.20.
(b) Each Block Agent may dispose of such documents following the
expiration of the longer of (i) forty-eight (48) months after the preparation or
receipt of same or (ii) such retention period as required by applicable Law or
regulatory or court order, provided that such disposition is in a manner
sufficient to protect Client privacy.
Section 7.15. Representative Training. Each Block Agent shall require its
Representatives who engage in Settlement Products Program activities to
participate in the Settlement Products Training Program as described in Section
11.4. Each Block Agent shall provide a training manual to its tax professionals,
which shall include the Originator Training Materials and HSBC Bank's Settlement
Products Program policies. The Block Companies shall be solely liable for any
failure by a Block Agent's Representatives to comply with the Instructions.
Section 7.16. Block Agents' Supervision of Representatives. Each Block
Agent shall train, supervise, monitor and review the Settlement Products Program
activities performed by its Representatives to ensure that the activities of
such Persons comply with HSBC Bank's Instructions and the Laws applicable to the
Settlement Products Program.
Section 7.17. Compliance with Obligations of Article XI. Each Block Agent
shall comply with its obligations as agent of HSBC Bank, as set forth in Article
XI of this Retail Distribution Agreement.
Section 7.18. Restriction on Offering Other Retail Settlement Products. No
Block Agent shall offer any Retail Settlement Products to its Clients, directly
or indirectly, except in connection with the Settlement Products Program offered
by or through HSBC Bank; [***].
Section 7.19. Access and Audit Rights. Each Block Agent will grant to HSBC
Bank and its Applicable Federal Regulator access and audit rights as set forth
in Section 11.3.
Section 7.20. Data Security and Recovery. Each Block Agent shall maintain
the security of its data and recovery of systems, applications and data related
to the Settlement Products Program in accordance with 16 C.F.R. Part 314 and OCC
regulations and policies relating to data security (to the extent required by
Law) and shall report any breaches in its data security to HSBC Bank within five
(5) Business Days of such Block Agent's discovery of any such breach. The Block
Agents have developed, implemented and will maintain effective information
security policies and procedures that include administrative, technical and
physical safeguards designed to (a) ensure the security and confidentiality of
Confidential Information provided to the Block Agents hereunder, (b) protect
against anticipated threats or hazards to the security or integrity of such
Confidential Information, (c) protect against unauthorized access or use of such
Confidential Information, and (d) ensure the proper disposal of Confidential
Information. All personnel of the Block Agents handling such Confidential
Information have been appropriately trained in the implementation of the Block
Agents' information security policies and procedures. The Block Agents shall
regularly audit and review their information security policies and procedures to
ensure their continued effectiveness and to determine whether
24
adjustments are necessary in light of circumstances, including changes in
technology, customer information systems or threats or hazards to Confidential
Information. In the event of unauthorized access to Confidential Information or
non-public personal information of individual consumers, the Block Agents shall
promptly take appropriate action to prevent further unauthorized access and
shall take any other action required by Law.
Section 7.21. Other Actions. The Block Agents shall take and cause the
Representatives to take, any such action, or refrain from taking any such
action, that HSBC Bank reasonably determines is necessary to comply with
applicable Law in connection with the activities of the Settlement Products
Program, provided such actions are commercially reasonable. Incremental costs
incurred by the Block Agents in complying with HSBC Bank's requests shall be
handled in the manner set forth in Section 14.20.
ARTICLE VIII
DISTRIBUTION COVENANTS OF BLOCK SERVICES
Block Services hereby covenants and agrees during the Term of this Retail
Distribution Agreement as follows:
Section 8.1. Transmission of Returns to IRS. With respect to those Returns
for which a Client has submitted an Application, upon such Client's consent
Block Services shall transmit all federal Returns received from the Agents to
the IRS or, in the case of state Returns, the appropriate state taxing
authority, in accordance with its normal operating procedures.
Section 8.2. Transmission of Applicant Information File, IRS Return
Notification, Return and Debt Indicator to HSBC TFS. Upon receipt of a positive
IRS Return Notification for those Returns for which a Client has submitted an
Application for a Settlement Product other than an IRAL, Block Services shall
electronically transmit to HSBC TFS (a) the Applicant Information File, (b) a
copy of the Applicant's IRS Return Notification and (c) a copy of the
Applicant's Debt Indicator. For those Applicants who have filed an Application
for an IRAL, Block Services shall electronically transmit (x) the Applicant
Information File and (y) a copy of the Applicant's Return, at such time as each
such item is received from the Agent.
Section 8.3. Rejected Returns. Upon receipt of a negative IRS Return
Notification with respect to a Return for which a Client has submitted an
Application for a Settlement Product, Block Services shall notify the applicable
ERO that such Return has been rejected.
Section 8.4. Transmission of Disbursement Check Printing Authorization to
Block Company Offices. Upon receipt of the Disbursement Check printing
authorization (or Electronic Disbursement authorization) from HSBC TFS, Block
Services shall electronically transmit such authorization to the applicable ERO.
Section 8.5. Computer Network. Block Services shall establish and maintain
a technology and communication center, at a location designated by the Block
Companies, for use in electronically transmitting Returns, Applications and
other related materials to HSBC TFS.
Section 8.6. Application Status System. Block Services shall establish and
maintain a communication system for notifying Applicants of the status of their
Applications.
25
Section 8.7. Maintenance of Communication Lines. Block Services shall
maintain communication lines for the Block e-file Processing System to support
the maximum daily Settlement Products volume projected by Block Services, as
well as full Application follow-up information using such protocol and process
as is mutually agreed upon by Block Services and HSBC TFS.
Section 8.8. Electronic Filing Specifications. Block Services agrees to
cooperate and work with HSBC TFS in establishing Electronic Filing
Specifications by no later than sixty (60) days prior to the first day of the
first Tax Period covered by this Retail Distribution Agreement, which Electronic
Filing Specifications may be amended from time to time by mutual agreement of
Block Services and HSBC TFS, it being understood that such Electronic Filing
Specifications may be further modified within the sixty (60) day period prior to
the first day of the Tax Period, and that Block Services shall use commercially
reasonable efforts to comply with any such modifications. Block Services shall
comply with the Electronic Filing Specifications in performing its duties under
the Distribution Agreements.
Section 8.9. Handling Client Disputes. Upon HSBC Bank's reasonable request,
Block Services shall cooperate with HSBC Bank in the resolution of any
Settlement Product Client disputes. Block Services shall (a) respond within
twenty (20) days to any dispute HSBC Bank forwards to Block Services, and (b)
use reasonable efforts to forward to HSBC Bank within five (5) Business Days
after receipt by Block Services, copies of any communication relating to a
Settlement Products Client's account received from such Client. If a Settlement
Products Client disputes the existence of a Deposit Account, the amount owed by
such Client or the validity of the indebtedness and refuses to pay such
indebtedness, and such dispute is a result of the Agents' failure to comply with
the Retail Settlement Products Procedures or Digital Settlement Products
Procedures, HSBC Bank shall have the right to charge back such amounts to Block
Services within thirty (30) days of HSBC Bank's initial report of such dispute
to Block Services, unless Block Services is able to provide contrary evidence
that shows that the Agent is not responsible for such dispute.
Section 8.10. Printing. Block Services shall, at its expense, print a
sufficient number of the applications, forms, disclosures and other documents
(except those items described in Section 14.12) required by HSBC Bank for the
Settlement Products Program, in the form provided by HSBC. If, after printing,
HSBC Bank requests changes to such applications, forms, disclosures and other
documents, HSBC Bank shall be responsible for reimbursing Block Services for the
expenses related thereto; provided, however, if such changes are required due to
a change in Law or through no fault of HSBC Bank, HSBC Bank and Block Services
shall split the cost of reprinting such applications, forms, disclosures or
other documents.
Section 8.11. Retail Settlement Products Procedures. Block Services shall
perform all of the tasks and duties set forth on the Retail Settlement Products
Procedures Schedules that are to be performed by Block Services with respect to
each Retail Settlement Product in a commercially reasonable manner.
Section 8.12. Savings Vehicle Fee. For each refund processed through the
Refund Anticipation Check Service pursuant to the Distribution Agreements for
which the Settlement Products Client has chosen to receive some or all of the
funds by Direct Deposit credit into the
26
Settlement Products Client's XIRA, Auto Investor account or other savings
vehicle at H&R Block, any of its Subsidiaries or any bank, Block Services shall
pay to HSBC Bank $[***] (the "Savings Vehicle Fee"). Not later than the last
Business Day during the month of October in which a Tax Period ends, the Savings
Vehicle Fee shall be paid by Direct Deposit credit to the deposit account
specified in writing by HSBC Bank.
Section 8.13. Compliance with Laws. Block Services shall comply with all
applicable Laws in connection with its Tax Preparation Related Activities.
ARTICLE IX
DISTRIBUTION COVENANTS OF HSBC BANK
HSBC Bank hereby covenants during the Term of this Retail Distribution
Agreement as follows:
Section 9.1. Form of Application. HSBC Bank shall prepare the form of
Application to be used by the Agents and shall supply such Application to the
Agents no later than September 1 prior to each Tax Period. The form of
Application shall include:
(a) such consents to allow HSBC Bank to remit funds out of the Deposit
Account in the same order and for the same purposes as provided in Article III
of the Servicing Agreement; and
(b) such additional lawful consents, if any, to allow HSBC Bank, or
any of its Affiliates, to make collections on (i) any delinquent Retail
Settlement Products, (ii) any Delinquent ERO Charges, and (iii) other lenders'
products substantially similar to the Settlement Products, excluding any tax
preparation fees associated with such other lenders' products to the extent not
included in prior indebtedness.
Section 9.2. Establishment of Electronic Filing Specifications. HSBC Bank
shall cooperate and work with Block Services in establishing preliminary
Electronic Filing Specifications by July 31 prior to the Tax Period and final
Electronic Filing Specifications by no later than sixty (60) days prior to the
first day of the first Tax Period covered by this Retail Distribution Agreement,
which Electronic Filing Specifications may be amended from time to time by
mutual agreement of HSBC Bank and Block Services. HSBC Bank shall comply with
the Electronic Filing Specifications in performing its duties under the
Distribution Agreements.
Section 9.3. Annual Determination of Fees. HSBC Bank shall annually make a
determination of the Initial Fees, which shall include, but not be limited to,
the Refund Account Fee and the RAL Fee. HSBC Bank shall provide a Schedule of
Initial Fees to Block Services, or an Affiliate designated by it, for review and
comment, no later than August 15 of each year during the Term of this Retail
Distribution Agreement. After reviewing any comments submitted by Block
Services, or an Affiliate designated by it, with respect to the Initial Fees,
HSBC Bank shall establish the Final Fees, no later than September 15 of each
year during the Term of this Retail Distribution Agreement and shall provide
copies of the Schedule of Final Fees to Block Services or an Affiliate
designated by it, to be attached as Schedule 9.3 to this Retail Distribution
Agreement. [***]
27
Section 9.4. Annual Determination of Credit Criteria. HSBC Bank shall
annually make a determination of the Initial Credit Criteria. HSBC Bank shall
provide such Initial Credit Criteria to Block Services, or an Affiliate
designated by it, for review and comment, no later than August 15 of each year
during the Term of this Retail Distribution Agreement. After reviewing any
comments submitted by Block Services, or an Affiliate designated by it, with
respect to the Initial Credit Criteria, taking into consideration HSBC Bank's
obligation and responsibility to undertake the services in accordance with safe
and sound banking principles, HSBC Bank shall establish Final Credit Criteria,
and provide copies of the Schedule of Final Credit Criteria to Block Services,
or an Affiliate designated by it, no later than September 15 of each year during
the Term of this Retail Distribution Agreement, to be attached as Schedule 9.4
to this Retail Distribution Agreement. HSBC Bank shall not establish credit
criteria for any other tax preparer for whom it makes refund anticipation loans
that are less restrictive than the Final Credit Criteria.
Section 9.5. Annual Determination of Qualifying Procedures. HSBC Bank shall
annually establish the Qualifying Procedures, and provide copies of the Schedule
of Qualifying Procedures to Block Services, or an Affiliate designated by it, no
later than August 15 of each year during the Term of this Retail Distribution
Agreement, to be attached as Schedule 9.5 to this Retail Distribution Agreement.
HSBC Bank shall not establish qualifying procedures for any other tax preparer
for whom it makes refund anticipation loans that are less restrictive than the
Qualifying Procedures.
Section 9.6. Settlement Products Program Competitive Pricing.
(a) During the Term of this Retail Distribution Agreement, [***].
(b) The parties share a mutual desire to endeavor to offer the most
compelling customer value proposition which includes factors of price, loan size
and approval rate. With this goal in mind, HSBC Bank will set price with input
from the Block Companies on a mutually agreeable client value proposition when
considering an appropriate balance of price in combination with approval rate
and loan size. During the Term of this Retail Distribution Agreement, [***].
(c) Upon the written request of Block Services delivered to HSBC Bank
prior to the September 15th immediately preceding any Tax Period, [***].
(d) The HSBC Companies and the Block Companies agree [***].
Section 9.7. Establishment of Client Deposit Accounts. Upon receipt of each
Application, HSBC Bank shall establish a Deposit Account in the name of the
Settlement Products Client listed on such Application. Upon receipt of the
Refund Paid for each Settlement Products Client, HSBC Bank shall credit the
amount of such Refund Paid to such Settlement Products Client's Deposit Account.
Immediately thereafter, HSBC Bank shall debit the Authorized Deductions from
each Deposit Account in the manner set forth in the Servicing Agreement.
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Section 9.8. Payment of ERO Charges.
(a) For each RAL disbursed via check for which a notification is
received by HSBC TFS prior to 8:00 p.m. ET on a Business Day that a check was
printed, HSBC Bank shall pay to the Block Enterprise Entities, from the proceeds
of such RAL, the ERO Charges set forth in the Settlement Products Client's
Applicant Information File via ACH credit to the deposit account specified by
the Block Enterprise Entities no later than the next Business Day. All
notifications that are sent and/or processed after 8:00 p.m. ET on any given
Business Day shall be deemed to have been received and processed on the next
Business Day.
(b) For each RAL disbursed via Electronic Disbursement for which HSBC
TFS has sent a 1 Record prior to 8:00 p.m. ET on a Business Day, HSBC Bank shall
pay to the Block Enterprise Entities, from the proceeds of such RAL, the ERO
Charges set forth in the Settlement Products Client's Applicant Information File
via ACH credit to the deposit account specified by the Block Enterprise Entities
no later than the next Business Day. All 1 Records that are sent and/or
processed after 8:00 p.m. ET on any given Business Day shall be deemed to have
been received and processed on the next Business Day.
Section 9.9. Adverse Action Notices. HSBC Bank shall (a) transmit a notice
of adverse action to Applicants as required by Regulation B as promulgated by
the Board of Governors of the Federal Reserve System (12 C.F.R. Part 202), or
any successor regulation, or (b) direct the Agents to transmit such notice to
Settlement Products Clients.
Section 9.10. Handling Client Disputes. HSBC Bank shall address Settlement
Products Clients' disputes based upon a dispute resolution process
collaboratively created by HSBC Bank and Block Services. HSBC Bank shall route
any Settlement Products Client disputes that are not immediately resolved by
HSBC Bank's customer service representative to an internal dispute resolution
help desk or an appropriate research queue based upon the type of dispute. In
addition, HSBC Bank shall report, on a weekly basis all such disputes to Block
Services and shall cooperate with Block Services to resolve any outstanding
disputes in a timely manner.
Section 9.11. Supervision of Agents. HSBC Bank shall supervise, monitor and
review the Settlement Products Program activities that the Agents perform for
HSBC Bank. HSBC Bank and its Applicable Federal Regulator shall have the right
to access Block Company Offices to supervise, monitor, review and audit the
Settlement Products Program activities of the Agents to ensure that such
activities comply with HSBC Bank's policies and procedures for the Settlement
Products Program and the Laws applicable to the Settlement Products Program.
HSBC Bank shall use commercially reasonable efforts to conduct such supervision,
monitoring and review at times and in a manner that minimizes the disruption of
the each Agent's business operations.
Section 9.12. Agent Training Program. HSBC Bank will design, establish and
maintain the Settlement Products Program Training Program as set forth in
Section 11.4.
Section 9.13. Compliance Program. HSBC Bank will design, establish and
maintain the Settlement Products Program compliance program as set forth in
Section 11.5.
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Section 9.14. Application and Disclosures. HSBC Bank shall create and
provide to the Block Companies initial drafts of pre-approved templates for
applications, forms, disclosures and other documents required for the Settlement
Products Program by August 1 of each year during the Term of this Retail
Distribution Agreement. After providing the Block Companies with an opportunity
to review and provide comments on the initial drafts such pre-approved
templates, HSBC Bank shall, provide final pre-approved templates for
applications, forms, disclosures and other documents required for the Settlement
Products Program by September 1 of each year during the Term of this Retail
Distribution Agreement.
Section 9.15. No Partial RALs. Unless mutually agreed to by the parties,
HSBC Bank shall not originate any Classic RALs or Classic eRALs in an amount
less than the amount of the Refund Due after taking into account any possible
deductions from such Refund Due for (a) Delinquent ERO Charges, (b) First
Priority Prior Indebtedness, (c) Second Priority Prior Indebtedness, (d) any
Other Required Deductions, (e) Authorized Deductions and (f) such amount or
amounts as the Settlement Products Client shall have authorized in writing.
Section 9.16. New Products. During the Term of this Retail Distribution
Agreement, the Block Companies shall have:
(a) a right [***].
(b) the right [***];
(c) the right [***]; and
(d) the right [***].
Section 9.17. Location of Check Processing Center. HSBC Bank shall provide
sixty (60) days prior notice to the Block Companies prior to changing the
location of HSBC Bank's check processing center through which Disbursement
Checks are cleared.
Section 9.18. Review of Applications. HSBC Bank shall review and process
Applicant Information Files for Retail Settlement Products during each Tax
Period during the Term of this Retail Distribution Agreement according to the
Final Credit Criteria. Applicant Information Files for Classic RALs received by
2:00 p.m. Eastern Standard or Daylight Savings Time (as the case may be) shall
be reviewed and processed by the close of business on the Block Business Day of
HSBC Bank's receipt of such Applicant Information Files. HSBC Bank shall review
and process Applicant Information Files for Classic RALs received by HSBC Bank
after 2:00 p.m. Eastern Standard or Daylight Savings Time (as the case may be),
by 10:00 a.m. on the Block Business Day following HSBC Bank's receipt of such
Applicant Information File. Notwithstanding the above, HSBC Bank shall review
and process Applicant Information Files for IRALs during each Tax Period
pursuant to the Service Level Threshold set forth in Section 13.4(b).
Section 9.19. Delegation. Notwithstanding any other provision of the
Program Contracts, HSBC Bank may delegate any of its duties and obligations
under the Program Contracts to HSBC TFS, provided HSBC Bank remains liable to
the Block Companies for the performance of such duties and obligations.
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ARTICLE X
DISTRIBUTION COVENANTS OF HSBC TFS
HSBC TFS, as servicer for the Originator, hereby covenants and agrees
during the Term of this Retail Distribution Agreement as follows:
Section 10.1. Forward Applicant Information File with Debt Indicator
Information to HSBC Bank. Upon receipt of a copy of an Applicant Information
File for a RAL or RAC, IRS Return Notification and Debt Indicator from Block
Services, HSBC TFS shall electronically transmit to HSBC Bank a copy of the
Applicant Information File and a copy of the Applicant's Debt Indicator. Upon
receipt of the Applicant Information File for an IRAL, HSBC TFS shall
electronically transmit a copy of such Applicant Information File to HSBC Bank
immediately upon receipt.
Section 10.2. Disbursement Check Printing Authorization. Subject to Section
10.3, HSBC TFS shall electronically provide Block Services authorization to
print a Disbursement Check or issue an Electronic Disbursement (a) for each
Applicant who has been approved to receive a RAL, upon approval thereof, and (b)
for each Applicant who has been approved to receive a RAC, if applicable, upon
HSBC TFS's crediting of the Refund Paid to such Applicant's Deposit Account and
after debiting all Authorized Deductions from such Deposit Account in the manner
set forth in the Servicing Agreement. Within four (4) hours after receipt of
such Applicant's Refund Paid, if any funds remain in the Deposit Account after
debiting all Authorized Deductions, HSBC TFS shall authorize Block Services to
print a check or issue an Electronic Disbursement to the Settlement Products
Client in the amount remaining in the Deposit Account in accordance with such
Client's instructions.
Section 10.3. Direct Deposit of Settlement Product Funds. Notwithstanding
Section 10.2, for each Settlement Products Client who requests a Direct Deposit
of the proceeds of the Retail Settlement Product for which the Settlement
Products Client has been approved into a deposit account at the Settlement
Products Client's personal financial institution in lieu of a check, HSBC TFS
shall Direct Deposit such funds into such deposit account, at the times set
forth in Section 10.2.
Section 10.4. Maintenance of Communication Lines. HSBC TFS shall maintain
communication lines for the HSBC TFS processing center to support the Settlement
Products Program, using such protocol and process as is mutually agreed upon by
HSBC TFS and Block Services. HSBC TFS shall also maintain the ability to
electronically communicate with HSBC Bank for the purpose of fulfilling HSBC
TFS's duties under the Settlement Products Program.
Section 10.5. Contingent Issuing of Disbursement Checks. If it becomes
infeasible due to events or occurrences beyond the parties' control for the
Agents to issue and deliver Disbursement Checks or Electronic Disbursements
directly to Settlement Products Clients, then HSBC TFS shall issue and mail such
Disbursement Checks or Electronic Disbursements directly to such Settlement
Products Clients. With respect to RALs, HSBC TFS shall use commercially
reasonable efforts to mail the Disbursement Check or Electronic Disbursement to
the Settlement Products Client or to the Block Offices for distribution to the
Settlement Products Client the same day as HSBC TFS's approval of the RAL;
provided, however, such Application must be
31
received by HSBC TFS by 11:00 a.m. Eastern Standard or Daylight Savings Time (as
the case may be). With respect to RACs, HSBC TFS shall use commercially
reasonable efforts to mail the Disbursement Check or Electronic Disbursement to
the Settlement Products Client within 24 hours following receipt from the IRS of
the Refund Paid.
Section 10.6. Records Retention and Destruction.
(a) HSBC TFS shall maintain copies (either in paper format or
electronic format) of any disclosures or communications provided or sent to each
Applicant by HSBC TFS on behalf of HSBC Bank related to the Application.
(b) HSBC TFS may dispose of such documents following the expiration of
the longer of (i) forty-eight (48) months after the preparation or receipt of
same or (ii) such retention period as required by Law or regulatory or court
order, provided that such disposition is in a manner sufficient to protect
Client privacy.
Section 10.7. Compliance with Laws. In connection with fulfilling its
duties for the Settlement Products Program, HSBC TFS shall comply with all
applicable Laws.
Section 10.8. Float Adjustment. HSBC TFS shall pay to Block Services an
amount equal to [***]. Such amount shall be due and payable by HSBC TFS by ACH
credit to the account designated by the Block Enterprise Entities not later than
thirty (30) days after the last day that HSBC RACs are offered for such Tax
Period.
Section 10.9. File Sharing. HSBC TFS shall provide the Processing Files for
use during each Tax Period to the Block Companies by November 1 prior to each
Tax Period.
ARTICLE XI
AGENCY RELATIONSHIP
Section 11.1. Agency Relationship.
(a) The parties hereto hereby acknowledge that HSBC Bank is
appointing, effective July 1, 2006, the Block Enterprise Entities and Block
Associates as its agents with respect to the Settlement Products Program. This
Retail Distribution Agreement describes and establishes the nature of the
relationship that will exist as of July 1, 2006 between HSBC Bank and the Block
Agents, and sets forth the rights, duties and obligations of HSBC Bank and the
Block Agents. Each of the Block Agents shall act exclusively as the agent of
HSBC Bank with respect to the Settlement Products Program and, except as
otherwise provided herein, shall not offer Retail Settlement Products from any
other source.
(b) In performing their specified duties under Article VII of this
Retail Distribution Agreement, the Block Agents shall act as the agents of HSBC
Bank for the purposes of, among other things: (i) offering Settlement Products
to Clients; (ii) providing Applications to Clients and assisting Clients with
completing Applications; (iii) providing Settlement Products Clients with copies
of the signed Applications and other disclosures, forms and documents, as
reasonably required by HSBC Bank and in the form provided by HSBC TFS to the
Agents; (iv) printing Disbursement Checks and notifying Settlement Products
Clients of their
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availability; and (v) providing HSBC TFS, as servicer for the Originator, with
electronic copies of Applicant Information Files.
Section 11.2. Supervision and Regulation.
(a) The parties hereto acknowledge that HSBC Bank, directly or through
the Servicer, has the right and the duty to supervise, monitor and review the
Settlement Products Program activities that the Block Agents perform for HSBC
Bank. The parties acknowledge and agree that HSBC Bank, directly or through the
Servicer, shall have the right to access Block Company Offices in order to
supervise, monitor, review and audit the Settlement Products Program activities
of the Block Agents to ensure that such activities comply with HSBC Bank's
policies and procedures for the Settlement Products Program and all Laws
applicable to the Settlement Products Program, as provided in Section 11.3.
(b) The Block Agents acknowledge that the Applicable Federal Regulator
has authority to regulate and examine, and to take enforcement action against,
the Block Agents with respect to the Settlement Products Program activities that
the Block Agents perform for HSBC Bank, to the fullest extent provided by Law.
HSBC Bank and each of the Block Agents acknowledge that they are each subject to
the control and supervision of the appropriate regional office and the
Washington, D.C. headquarters of the Applicable Federal Regulator, with respect
to the Settlement Products Program activities that the Block Agents perform for
HSBC Bank. Each of the Block Agents acknowledges that it would be an
"institution-affiliated party" (as defined in 12 U.S.C. Section 1818(b)) if, in
connection with the Settlement Products Program, it knowingly or recklessly
participated in a violation of Law, or an unsafe or unsound practice, that was
likely to cause significant loss to, or have a materially adverse affect upon,
HSBC Bank, and, in such case, would be subject to administrative enforcement
action by the Applicable Federal Regulator.
Section 11.3. Access to Block Company Offices and Audit Rights.
(a) The Block Agents shall keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions and activities in relation to the Settlement Products Program, and
shall permit HSBC Bank, upon HSBC Bank's own initiative and at its sole cost, to
visit Block Company Offices, to examine and make abstracts or copies from any of
its books and records, to conduct an audit and analysis of its accounts and to
discuss such records and accounts with its Representatives, all only with
respect to and as such shall relate to the Settlement Products Program or the
obligations and duties of such Block Agent pursuant to this Retail Distribution
Agreement and the other Program Contracts, all at such reasonable times and as
often as HSBC Bank may reasonably desire; provided, however, that during the
period commencing on January 1st and ending on April 15th of each year of the
Term of this Retail Distribution Agreement, HSBC Bank shall use commercially
reasonable efforts to limit the exercise of such visitation and audit rights so
as not to disrupt the business operations of the Block Agents during their peak
season; provided further, so long as no Block Event of Default shall have
occurred and be continuing, HSBC Bank shall provide the Block Agents with
reasonable prior written notice. In the event HSBC Bank exercises its rights
hereunder during the periods commencing on January 1st and ending on April 15th
of each year of the Term of this Retail Distribution Agreement, HSBC Bank shall
only access the Block
33
Company Offices during non-peak business hours or after business hours. The
rights of inspection granted to HSBC Bank hereunder shall not pertain to any
information which is not part of the Settlement Products Program.
(b) Solely with respect to the Settlement Products Program, the Block
Agents shall permit HSBC Bank's Applicable Federal Regulator to visit the Block
Company Offices, to examine and make abstracts or copies from any of their
respective books and records, to conduct an audit and examination of their
respective records and accounts, and to discuss such records and accounts with
their respective Representatives, all to the fullest extent provided by Law.
Section 11.4. Block Agent Training Program.
(a) HSBC Bank, at its expense, shall design, establish and maintain an
ongoing training program for the Block Agents and their respective employees who
engage in Settlement Products Program activities. HSBC Bank shall design the
training program to provide the Block Agents and their respective employees with
adequate in-depth education and training about the Retail Settlement Products,
as well as the Laws applicable to the Settlement Products Program. HSBC Bank
shall also design the training program to ensure that the Block Agents and their
respective employees are adequately educated about the Retail Settlement
Products, the distinction between insured and non-insured products, and
applicable Laws (including if applicable, truth in lending, truth in savings,
real estate settlement procedures, equal credit opportunity, and fair lending
Laws) that may be applicable to the Block Agent's activities related to the
Settlement Products Program.
(b) HSBC Bank shall develop and distribute written Originator Training
Materials, and Settlement Products Program policies and procedures, for use by
the Block Agents. The training program may also include CD-ROM or internet-based
interactive Settlement Products Program training materials prepared by HSBC
Bank; provided, however, the Block Companies may make non-substantive edits to
such training materials to convert such training materials into a format
compatible with the Block Agents' systems. HSBC Bank shall review and update the
Originator Training Materials on an annual basis (but more frequently if
necessary to reflect any Law change) to ensure that the Block Agents and their
respective employees receive adequate and updated training.
(c) Any tax professional employed by a Block Agent shall receive
Settlement Products Program training before engaging in Settlement Products
Program activities, or offering Retail Settlement Products and services, on
behalf of HSBC Bank. Any tax professional that has previously received
Settlement Products Program training shall receive continuing Settlement
Products Program training focused upon changes to Retail Settlement Products or
services, and changes in Laws applicable to the Settlement Products Program.
HSBC Bank and the Block Agents shall maintain records of the Settlement Products
Program Training Materials and the training received by individual tax
professionals employed by the Block Agents, and shall make such records
available for review by examiners from the Applicable Federal Regulator.
Section 11.5. Compliance Program. HSBC Bank, at its expense, shall design,
establish and maintain a detailed compliance program to ensure adequate
monitoring, supervision and control over the Block Agents and the Settlement
Products Program activities that the Block
34
Agents perform for HSBC Bank and the Retail Settlement Products offered by HSBC
Bank. The compliance program shall include, at a minimum, the following
features:
(a) The compliance program shall be reviewed by HSBC Bank's board of
directors and senior management not less frequently than annually.
(b) HSBC Bank shall designate a compliance officer dedicated to the
development, implementation and management of HSBC Bank's compliance program.
The compliance officer shall have responsibility for the oversight of the Block
Agents that perform activities related to the Settlement Products Program and
the Retail Settlement Products offered by HSBC Bank.
(c) Not less frequently than annually, HSBC Bank shall conduct a
compliance risk assessment for the Settlement Products Program. HSBC Bank and
the Block Companies shall cooperate to develop a true and comprehensive
depiction of actual risks in the Settlement Products Program.
(d) Not less frequently than annually, the compliance officer shall
review the compliance program to determine if the Block Agents are operating in
accordance with HSBC Bank's established policies and procedures regarding the
activities relating to the Settlement Products Program and the Retail Settlement
Products offered by HSBC Bank.
(e) HSBC Bank shall conduct an annual internal or external audit
review of the compliance program, which shall include a review and update of the
training program and the Originator Training Materials.
(f) HSBC Bank shall require the compliance officer to provide annual
written compliance and audit reports to HSBC Bank's board of directors. Such
reports shall include evidence of appropriate remedial actions taken (or to be
taken) to address any identified deficiencies in the compliance program.
(g) HSBC Bank shall develop and maintain a system for tracking and
recording consumer complaints regarding the Settlement Products Program in a
timely manner. The compliance officer shall provide an annual written report of
consumer complaints regarding the Settlement Products Program, and the
resolution of such complaints, to HSBC Bank's board of directors. The Block
Agents shall use commercially reasonable efforts to track and report to HSBC
Bank all material consumer complaints related to the Settlement Products Program
received by the Block Agents.
(h) HSBC Bank shall develop and maintain a review and approval process
for all Client disclosures, advertising and other promotional materials used in
the Settlement Products Program.
(i) HSBC Bank shall comply with any other requirements or conditions
that the appropriate regional office or the Washington, D.C. headquarters of the
Applicable Federal Regulator deem appropriate for HSBC Bank with regard to the
Settlement Products Program.
35
(j) The Block Companies may, with the consent of HSBC Bank, implement
compliance standards and practices for the Settlement Products Program that
supplement, but do not conflict, with those prescribed by HSBC Bank. Such
consent may not be unreasonably withheld.
(k) The Block Companies may, with the consent of HSBC Bank, implement
compliance standards and practices for the Settlement Products Program that
implement legal stipulations, settlements and contractual agreements with third
parties. Such consent may not be unreasonably withheld.
Section 11.6. Safety and Soundness.
(a) The HSBC Parties and the Block Parties agree that the Settlement
Products Program must be conducted consistent with safe and sound banking
practices. If the OCC raises any objection or concerns with the Settlement
Products Program, the HSBC Companies and the Block Companies agree to consult
with and negotiate with each other in good faith to address the OCC's objections
or concerns, and to make mutually agreeable amendments and modifications to the
Settlement Products Program and the Program Contracts to ensure safe and sound
operation of the Settlement Products Program.
(b) Notwithstanding anything herein to the contrary, HSBC Bank shall
have the right to terminate the effectiveness of all agency appointments under
the Program Contracts, but not to terminate the Program Contracts, in the event
it makes a reasonable determination (after good faith discussions with the Block
Companies and good faith attempts to modify the Program Contracts to address any
concerns, pursuant to Section 11.6(a)), that continuation of the agency
relationships set forth in the Program Contracts would jeopardize HSBC Bank's
regulatory standing with the OCC, including any component of its composite CAMEL
rating, or the OCC's assessment of HSBC Bank's safe and sound operation, or
otherwise would cause the OCC to raise serious regulatory concerns under
applicable Law, including OCC policies and procedures relating to the conduct of
HSBC Bank's lending activities.
(c) In the event that HSBC Bank exercises its agency termination
rights under Section 11.6(b), the HSBC Companies and the Block Companies shall
consult and negotiate with each other in good faith regarding conforming
amendments and modifications that should be made to the Program Contracts as a
result of such agency termination.
(d) HSBC Bank and the Block Companies shall meet promptly to discuss
in good faith whether it is feasible and desirable to substitute a financial
institution regulated by the OTS in place of HSBC Bank as the Originator. In the
event that the parties determine that such a substitution would be desirable,
the following shall apply:
(i) If at the time, HSBC Holdings owns, directly or indirectly, a
financial institution regulated by the OTS that could serve as the Originator,
such institution shall be substituted for HSBC Bank as the Originator.
(ii) If at the time, HSBC Holdings does not own, directly or
indirectly, a financial institution regulated by the OTS that could serve as the
Originator, the HSBC Companies shall use their best efforts to identify a
financial institution regulated by the OTS
36
that could serve as the Originator and to negotiate the terms of an agreement
with such financial institution pursuant to which it would serve as the
Originator for the Settlement Products Program, subject to the HSBC Companies
and the Block Companies, in their respective discretion, reaching mutual
agreement on the allocation of the costs and expenses of such change to the
Settlement Products Program. If such financial institution is substituted for
HSBC Bank as the Originator, the Program Contracts would be appropriately
amended to reflect the change in the Originator.
(e) If, despite its best efforts, HSBC Bank is unable to negotiate
agreements with a financial institution regulated by the OTS within one (1) year
of the exercise of its termination rights under Section 11.6(b), the obligations
of HSBC Bank under Section 11.6(d) shall terminate.
ARTICLE XII
MARKETING OF SETTLEMENT PRODUCTS
During the Term of this Retail Distribution Agreement:
Section 12.1. Market Research. The HSBC Companies shall conduct up-front
market research and market sizing with respect to product design and pricing
related to the Settlement Products Program. In addition, the HSBC Companies
shall conduct market research regarding new products, product enhancements and
competitive intelligence. The HSBC Companies shall collaborate with the Block
Companies (i) to determine other uses for market research including
creative/direct mail tests, concept tests, strategy refinement, market sizing,
client segmentation and benchmarking, and (ii) on marketing research projects
conducted on tax clients and Settlement Products Clients. The HSBC Companies
shall utilize multiple channels to conduct the market research, including
on-line or phone surveys, instant messaging chats, and on-line and traditional
focus groups. All market research performed on tax clients and Settlement
Products Clients shall be shared with the Block Companies.
Section 12.2. Marketing Expenses.
(a) Marketing Budget. The HSBC Companies shall spend at least [***]
annually on marketing activities on behalf of the Settlement Products Program,
including market research and expenditures required to meet acquisition,
retention and win-back program targets.
(b) Access to HSBC Datahouse. The HSBC Companies, through HSBC TFS and
upon reasonable request, shall provide the Block Companies access to information
contained in the HSBC Datahouse for tax preparation and Settlement Products
marketing initiatives, subject to applicable Laws and contractual restrictions.
HSBC Datahouse charges shall be at an amount [***] and shall be credited toward
the annual marketing budget for the year in which such charges were incurred.
Section 12.3. Development, Review and Approval of Marketing Materials. The
HSBC Companies hereby engage the Block Companies, and the Block Companies hereby
accept such engagement, to develop marketing materials for promoting and
marketing the Settlement Products Program to Clients. The HSBC Companies shall
annually make a determination of the Marketing Guidelines. The HSBC Companies
shall provide such Marketing Guidelines to the
37
Block Companies, for review and comment, no later than August 1 of each year
during the Term of this Retail Distribution Agreement. After reviewing any
comments submitted by the Block Companies with respect to the Marketing
Guidelines, the HSBC Companies shall finalize the Marketing Guidelines and
provide copies of the Schedule of Marketing Guidelines to the Block Companies by
no later than August 31 of each year during the Term of this Retail Distribution
Agreement, to be attached as Schedule 12.3 to this Retail Distribution
Agreement; provided that, the HSBC Companies shall be authorized to update the
Marketing Guidelines after August 31 to comply with changes to applicable Laws.
The Block Companies shall comply with the then-current Marketing Guidelines;
provided, however, that incremental costs incurred by the Block Companies in
complying with the then-current Marketing Guidelines shall be handled in the
manner set forth in Section 14.20. As part of its annual establishment of the
Marketing Guidelines, the HSBC Companies shall be solely responsible for
determining whether the Marketing Guidelines comply with consumer lending Laws.
Section 12.4. Marketing Resources. The HSBC Companies and the Block
Companies shall commit reasonably sufficient marketing resources to support the
Settlement Products Program, which shall include (a) database marketing support
(develop targeting models, provide program result analysis, and general
reporting); (b) partnership building (resources to build cross-partnerships with
HSBC Bank's existing retail client base and the Block Companies); (c)
acquisitions; (d) retention and win-back; (e) competitive intelligence; (f) new
product development/value proposition; (g) market research; (h) online
marketing; (i) Hispanic marketing; and (j) other resources as reasonably
requested by the Block Companies; provided that all expenditures of any HSBC
Company in this regard shall count toward the marketing budget set forth in
Section 12.2(a).
Section 12.5. Sales Support. The HSBC Companies shall provide dedicated
resources to the Block Companies for direct marketing and acquisitions. At least
one time per year, at the request of the Block Companies, HSBC Bank shall permit
the Block Companies to include a statement stuffer in HSBC Bank's statements to
a minimum of five (5) million of their aggregate clients. In addition, HSBC Bank
shall (a) provide the Block Companies with access to non-restricted HSBC Bank
business unit declines for acquisition mailings; (b) provide outbound calling
resources [***]; and (c) actively facilitate access to the HSBC Companies'
strategic partners for potential revenue arrangements between the Block
Companies and such partners.
Section 12.6. Quarterly Marketing Meetings. The HSBC Companies and the
Block Companies shall participate in meetings on a quarterly basis to discuss
marketing strategy and initiatives.
Section 12.7. Marketing Efforts. Subject to applicable Law, the parties
shall cooperate to facilitate the effectiveness of their marketing efforts.
38
ARTICLE XIII
SETTLEMENT PRODUCTS PROGRAM SUPPORT
During the Term of this Retail Distribution Agreement:
Section 13.1. Management and Technical Support.
(a) The HSBC Companies shall support the Settlement Products Program
with at least the following dedicated human resources staffing: (i) one (1)
group director; (ii) two (2) account managers; (iii) one (1) marketing
professional; (iv) one (1) risk management professional; (v) one (1) product
development professional; (vi) one (1) technology professional; (vii) one (1)
operations manager; and (viii) one (1) compliance officer (appointed pursuant to
Section 11.5(b)). The foregoing are in addition to the human resources staffing
commitments of the HSBC Companies made elsewhere in this Retail Distribution
Agreement and the other Program Contracts.
(b) The Block Companies may provide comments to the HSBC Companies
regarding the performance of any of these officers, which the HSBC Companies may
take into consideration in filling the foregoing positions or replacing any
individual filling any of the foregoing positions. Upon request by the Block
Companies, the HSBC Companies will consider providing additional dedicated team
members to support the Settlement Products Program. At the request of the Block
Companies, the HSBC Companies shall maintain at least one (1) dedicated full
time professional at the H&R Block World Headquarters to coordinate the
Settlement Products Program. The Block Companies shall provide a sufficient
number of staff to train and supervise their employees and agents operating the
Settlement Products Program.
(c) The HSBC Companies shall provide (i) an exclusive toll free
telephone number and call center manned by a sufficient number of trained staff
to service calls from Block Offices regarding the Settlement Products; (ii) an
exclusive toll free telephone number and call center manned by a sufficient
number of trained staff to service calls from Settlement Products Clients; and
(iii) a VRU application providing Settlement Products Clients and EROs with
status information on a real time basis. The HSBC Companies shall maintain call
center client service hours during all times that any Block Office is open
anywhere in the United States.
(d) The HSBC Companies shall continue to provide ongoing training,
development and support for the Settlement Products Program as the HSBC
Companies may reasonably deem appropriate, including technology based solutions.
Section 13.2. Outsourcing.
(a) The HSBC Companies (i) shall staff telephone call centers within
the United States and off-shore [***]. All off-shore call centers shall meet the
Service Level Thresholds set forth in Section 13.4 hereof.
(b) Each HSBC Company will make available to its personnel in
off-shore call centers [***].
39
(c) The HSBC Companies shall file all reports required by applicable
Law to be filed with Governmental Authorities concerning the matters described
in Sections 13.2(a) and 13.2(b).
Section 13.3. Technology Infrastructure and Support. The HSBC Companies
shall devote sufficient investment and human resources to develop the technology
infrastructure and support necessary to address the key technology system
initiatives identified by a joint architecture task force of Representatives
from the Block Companies and the HSBC Companies (including the development of
electronic forms, EFS module, electronic signature, document sharing and other
new technologies) to expand and support the Settlement Products Program.
Section 13.4. Service Level Thresholds. The HSBC Companies shall provide
the following levels of service for Settlement Products Clients with respect to
IRAL and RAL Settlement Products ("Service Level Thresholds"):
(a) The HSBC Companies shall develop and maintain a fully operational
and functional online origination system for processing and returning decisions
on IRAL Applications ("IRAL Origination System"). The IRAL Origination System
shall be continuously available for processing IRAL Applications [***], for at
least the following percentages of time on a twenty-one (21) hour daily basis,
during the following months:
January-February at least [***]%
March-April at least [***]%
May-December at least [***]%
(b) The HSBC Companies shall develop and maintain the IRAL Origination
System to [***].
(c) The HSBC Companies shall develop and maintain a fully operational
and functional online origination system for processing and returning decisions
on RAL Applications ("RAL Origination System"), which RAL Origination System
shall be continuously available for processing RAL [***].
(d) The HSBC Companies shall develop and maintain a fully operational
and functional telephone answering system ("Answering System"), which Answering
System shall be continuously available for responding to calls on the status of
RAL Applications [***]. The HSBC Companies shall maintain such Answering System
to produce [***].
(e) The methodologies to implement, measure and monitor the foregoing
Service Level Thresholds are set forth on Schedule 13.4 attached hereto and
incorporated herein by reference. The parties hereto may amend Schedule 13.4
from time to time in writing specifying the date on which the amended Schedule
will become effective. Each amended Schedule 13.4 shall be deemed to be a part
of this Retail Distribution Agreement and shall be deemed incorporated herein,
but shall apply only prospectively from the effective date thereof.
(f) During the months of January through April of each Tax Period, the
HSBC Companies shall (i) track and monitor their compliance with the foregoing
Service Level Thresholds on a daily basis; (ii) provide a written report to the
Block Companies on a weekly
40
basis on their compliance with such Servicing Level Thresholds; and (iii)
promptly notify the Block Companies on the following Block Business Day of any
non-compliance with any Service Level Threshold.
(g) During the months of May through December of each Tax Period, the
HSBC Companies shall (i) track and monitor their compliance with the foregoing
Service Level Thresholds on a monthly basis; (ii) provide a written report to
the Block Companies on a monthly basis on their compliance with such Service
Level Thresholds; and (iii) promptly notify the Block Companies within one (1)
week of any non-compliance with any of Service Level Threshold.
(h) With respect to any notice of noncompliance, the HSBC Companies
shall (i) schedule a conference call within twenty-four (24) hours of such
notification to review the causes of the non-compliance; (ii) promptly develop a
necessary action plan to remedy such non-compliance and notify the Block
Companies of such action plan; (iii) promptly carry out such action plan; and
(iv) initiate daily calls to the Block Companies to review the results of such
action plan until its compliance with such Service Level Threshold is restored.
Section 13.5. Check Cashing Arrangements.
(a) The HSBC Companies and the Block Companies shall consult with each
other to jointly develop a standard set of terms and conditions under which
third party check cashers would agree to cash checks that are issued by HSBC
Bank to Settlement Products Clients pursuant to the Settlement Products Program.
The HSBC Companies shall (i) upon the request of the Block Companies, solicit
third party check cashers to cash such checks in accordance with such standard
terms and conditions and (ii) upon forty-five (45) days prior written notice
from the Block Companies, use best efforts to enter into written contracts with
such third party check cashers by September 15th with respect to the following
Tax Period. To the extent written contracts with such third party check cashers
are entered into after September 15th, the HSBC Companies will use their
commercially reasonable efforts to execute such written contracts prior to the
first day of the Tax Period. If any Block Company is to perform specific tasks
or duties (other than disbursement of checks or making referrals to any check
casher) with respect to check cashing by a third party, such Block Company shall
become a party to such check cashing contract, on terms and conditions
(including indemnification) reasonably acceptable to such Block Company.
(b) Nothing in this Retail Distribution Agreement shall prohibit any
Block Company, or an Affiliate thereof, from directly engaging in check cashing
or from cashing checks that are issued by HSBC Bank to Settlement Products
Clients.
(c) Notwithstanding anything to the contrary in Section 13.5(a), if
the Block Companies desire to enter into an agreement with a third party check
casher to cash checks issued by HSBC Bank to the Settlement Product Clients
pursuant to the Settlement Products Program, HSBC TFS shall negotiate in good
faith with such third party check casher and the Block Companies for a period
not in excess of forty-five (45) days from the date on which the Block Companies
first notify HSBC TFS of their negotiation with such third party check casher
41
and shall not unreasonably refuse to execute any such agreement negotiated with
such third party check casher and the Block Companies.
(d) Notwithstanding anything herein to the contrary, HSBC Bank shall,
and shall cause all of its branch offices to, cash checks that are issued by
HSBC Bank to the Settlement Products Clients pursuant to the Settlement Products
Program, subject to HSBC Bank's policies and procedures.
Section 13.6. Reporting by the HSBC Companies.
(a) The HSBC Companies shall provide, or cause to be provided, as
applicable, to the Block Companies the reports set forth on Schedule 13.6
attached hereto via an online, web-interfaced application. Such reports shall be
updated and made available to the Block Companies at such times as set forth on
Schedule 13.6.
(b) The HSBC Companies shall provide the Block Companies with [***].
(c) The HSBC Companies shall provide to the Block Companies [***], to
the extent allowable under applicable Laws for the purpose of [***]. Each of
HSBC Companies and the Block Companies shall bear its own expenses with respect
to its [***]processes.
Section 13.7. Operational Improvement. HSBC TFS shall cooperate with Block
Services to ensure that HSBC TFS maintains state-of-the-art technology and
processes with respect to the technology used by HSBC Bank for the Settlement
Products Program. HSBC TFS shall coordinate its technology improvement cycle for
the Settlement Products Program with the technology improvement cycle of Block
Services. HSBC TFS shall, to the extent such information is made publicly
available, benchmark its competitors annually to ensure that it maintains
technology for its overall systems at a level equal to or greater than such
competitors. HSBC TFS shall provide performance measurements to Block Services
at least one (1) time each week during the months of February, March and April
of each Tax Year, and at least one (1) time per month during each other month of
each Tax Year. Upon the request of any Block Company, the HSBC Companies shall
participate in quarterly meetings held by the Block Companies regarding
performance of the Settlement Products Program.
Section 13.8. Technological Innovation. HSBC TFS shall use commercially
reasonable efforts to develop additional technological capabilities (e.g.,
[***]) for the Block Companies; provided, however, each party shall bear its own
expenses with respect to such technology.
ARTICLE XIV
ADDITIONAL HSBC COMPANIES' COVENANTS
Section 14.1. Collection of Delinquent ERO Charges. HSBC TFS shall attempt
to collect all Delinquent ERO Charges. In the event [***], HSBC TFS shall pay to
the Block Enterprise Entities, not later than July 31st following the end of
such year, an amount equal to [***] via wire transfer of immediately available
funds to an account designated in writing by the Block Enterprise Entities.
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Section 14.2. Incremental Bank Product Fee. No later than thirty (30) days
following the last day of each Tax Period, HSBC TFS shall pay to the Block
Enterprise Entities, via wire transfer of immediately available funds to an
account designated in writing by the Block Enterprise Entities, an amount, in
the aggregate, equal to [***].
Section 14.3. [***].
(a) [***].
(b) No later than July 31st following the end of each year of the Term
of this Retail Distribution Agreement, HSBC TFS shall pay the Block Enterprise
Entities an amount, in the aggregate, equal to [***]. Such amounts shall be paid
via ACH credit to an account designated in writing by the Block Enterprise
Entities.
(c) No later than July 31st following the end of each year of the Term
of this Retail Distribution Agreement, the Block Companies shall pay the HSBC
Companies an amount, in the aggregate, equal to [***]. Such amounts shall be
paid via ACH credit to an account designated in writing by HSBC TFS.
Section 14.4. [***].
(a) [***].
(b) HSBC TFS shall pay the Block Companies:
(i) an amount, in the aggregate, equal to [***];
(ii) an amount, in the aggregate, equal to [***];
(iii) an amount, in the aggregate, equal to [***];
(iv) an amount, in the aggregate, equal to [***];
(v) an amount, in the aggregate, equal to [***];
(vi) an amount, in the aggregate, equal to [***]; and
(vii) an amount, in the aggregate, equal to [***].
(c) HSBC TFS shall pay the Block Enterprise Entities such amounts
required under this Section 14.4 no later than July 31st following the end of
each year of the Term of this Retail Distribution Agreement. If such amount
under this Section 14.4 is a negative number, no payment shall be due by either
HSBC TFS or the Block Enterprise Entities. All such amounts shall be paid by ACH
credit to an account designated in writing by the Block Enterprise Entities.
43
Section 14.5. [***].
(a) [***]:
(b) HSBC TFS shall pay the Block Companies:
(i) (A) an amount, in the aggregate, equal to [***];
(ii) an amount, in the aggregate, equal to [***];
(iii) an amount, in the aggregate, equal to [***];
(iv) an amount, in the aggregate, equal to [***];
(v) an amount, in the aggregate, equal to [***];
(vi) an amount, in the aggregate, equal to [***]; and
(vii) an amount, in the aggregate, equal to [***].
(c) HSBC TFS shall pay the Block Enterprise Entities such amounts
required under this Section 14.5 no later than July 31st following the end of
each year of the Term. If such amount under this Section 14.5 is a negative
number, no payment shall be due by either HSBC TFS or the Block Enterprise
Entities. All such amounts shall be paid by ACH credit to an account designated
in writing by the Block Enterprise Entities.
Section 14.6. RAC Fee.
(a) For each Client refund processed through the Refund Anticipation
Check Service pursuant to this Retail Distribution Agreement during each Tax
Period, except for those refunds processed for which a Savings Vehicle Fee is
paid by the Block Companies, the HSBC Companies shall pay to the Block Companies
a RAC Fee in the amount set forth in Schedule 14.6(a). The RAC Fee shall be paid
via ACH credit to an account designated in writing by the Block Enterprise
Entities on the Business Day following receipt of the deposit of any payment or
collection in the Deposit Account related to such refund processed if posted to
the Client's account by 8:00 p.m. Eastern time on the day of receipt. Any
payments processed after 8:00 p.m. Eastern Time on any day shall be deemed to
have been received and processed on the next Business Day, for purposes of fee
payment.
(b) For each Client refund processed through the Refund Anticipation
Check Service pursuant to a Franchisee Distribution Agreement during each Tax
Period, except for those refunds processed for which a Savings Vehicle Fee is
paid by the Block Companies, the HSBC Companies shall pay to the Block Companies
a RAC Fee in the amount set forth on Schedule 14.6(b). The RAC Fee shall be paid
via ACH credit to an account designated in writing by the Block Enterprise
Entities on the Business Day following receipt of the deposit of any payment or
collection in the Deposit Account related to such refund processed if posted to
the Client's account by 8:00 p.m. Eastern time on the day of receipt. Any
payments processed
44
after 8:00 p.m. Eastern Time on any day shall be deemed to have been received
and processed on the next Business Day, for purposes of fee payment.
(c) For each Client refund processed through the Refund Anticipation
Check Service pursuant to the Franchisee Distribution Agreement during each Tax
Period, except for those refunds processed for which a Savings Vehicle Fee is
paid by the Block Companies, the HSBC Companies shall pay directly to the
Franchisee a Franchisee RAC Fee; provided, however, the Block Companies may
require the HSBC Companies to pay such Franchisee RAC Fees directly to the Block
Companies to be forwarded to the Franchisees. If the Block Companies direct the
HSBC Companies to pay the Franchisee RAC Fee directly to the Block Companies,
the Block Companies shall be solely responsible for the payment of such fee to
the applicable Franchisee. Such fee shall be paid directly to each Franchisee
(unless otherwise provided by the Block Companies), as applicable, via ACH
credit, to an account designated in writing by such Franchisee, on the Business
Day following receipt of the deposit of any payment or collection in the Deposit
Account related to such refund processed if posted to the Client's account by
8:00 p.m. Eastern time on the day of receipt. Any payments processed after 8:00
p.m. Eastern Time on any day shall be deemed to have been received and processed
on the next Business Day, for purposes of fee payment. The Block Companies shall
designate the Franchisee RAC Fee in writing to the HSBC Companies by September 1
of each year during the Term of this Retail Distribution Agreement. The HSBC
Companies shall designate the Franchisee RAC Fee to each Franchisee pursuant to
the related Franchisee Distribution Agreement.
Section 14.7. Expense Reimbursement.
(a) On the first Business Day of January of each Tax Period during the
Term of this Retail Distribution Agreement, HSBC TFS shall pay to the Block
Enterprise Entities the Expense Reimbursement to partially reimburse the Block
Companies for their out-of-pocket expenses incurred in connection with the
Settlement Products Program for such Tax Period. The Expense Reimbursement shall
be paid ACH credit to an account designated by the Block Enterprise Entities.
(b) The Expense Reimbursement shall be in addition to any other
payments or reimbursements payable by any HSBC Company to any Block Company
pursuant to this Retail Distribution Agreement or any other Program Contract.
Section 14.8. IRAL Origination System Servicing Level Threshold. If HSBC
TFS fails to maintain the IRAL Origination System Servicing Level Threshold set
forth in Section 13.4(a) on any Block Business Day, except to the extent
non-compliance arises from a Force Majeure Event or a failure by any Block
Company to perform any material Obligation under this Retail Distribution
Agreement, HSBC TFS shall pay to the Block Enterprise Entities an amount, in the
aggregate, equal to [***]. All amounts payable under this Section 14.8 accrued
during any Tax Period, shall be payable by HSBC TFS on the last Business Day of
the month of October in which such Tax Period ends. HSBC TFS shall pay such
amounts via ACH credit to an account designated in writing by the Block
Enterprise Entities. To the extent any failure by HSBC TFS to maintain the IRAL
Origination System Servicing Level Threshold under this Section 14.8 could not
reasonably result in a Material Adverse Effect, the amount paid by HSBC TFS to
the
45
Block Companies under this Section 14.8 shall constitute the sole remedy for
failure to maintain the IRAL Origination System Servicing Level Threshold. Not
later than the last Business Day of the month of April during such Tax Period,
HSBC TFS shall provide true and correct reports to the Block Companies setting
forth (a) the number of estimated lost IRAL Clients for each Block Business Day
during the Tax Period, (b) the number of IRALs originated during each Block
Business Day in the previous calendar year and (c) the number of IRALs
originated during each Block Business Day during the Tax Period.
Section 14.9. RAL Origination System Payment. If HSBC TFS fails to [***],
HSBC TFS shall pay to the Block Enterprise Entities an amount, in the aggregate,
equal to [***]. All amounts payable under this Section 14.9 accrued during any
Tax Period, shall be payable by HSBC TFS on the last Business Day of the month
of October in which such Tax Period ends. HSBC TFS shall pay such amounts via
ACH credit to an account designated in writing by the Block Enterprise Entities.
To the extent any failure by HSBC TFS to maintain the RAL Origination System
under this Section 14.9 could not reasonably result in a Material Adverse
Effect, the amount paid by HSBC TFS to the Block Companies under this Section
14.9 shall constitute the sole remedy for failure to maintain the RAL
Origination System. Not later than the last Business Day of the month of April
during such Tax Period, HSBC TFS shall provide true and correct reports to the
Block Companies setting forth (a) the number of estimated lost RALs and eRALs
for each Block Business Day during the Tax Period, (b) the number of RALs and
eRALs originated during each Block Business Day in the previous calendar year
and (c) the number of RALs and eRALs originated during each Block Business Day
during the Tax Period.
Section 14.10. Put Option for Delinquent ERO Charges. The HSBC Companies
and the Block Companies covenant and agree to negotiate in good faith to reach
an agreement pursuant to which the Block Companies shall have the option to sell
all or any portion of their Delinquent ERO Charges to HSBC TFS at a purchase
price to be determined.
Section 14.11. Changes in HSBC Cross Collection Activities.
(a) HSBC Bank and HSBC TFS shall in good faith discuss the cessation
or modification of all or any portion of their cross collection practices during
the Term of this Retail Distribution Agreement at the request of the Block
Companies. If, after such discussions, HSBC Bank and HSBC TFS and the Block
Companies mutually agree that such practices should cease or be modified, in
whole or in part, HSBC Bank and HSBC TFS shall, to the extent not prohibited by
an agreement with another RAL lender concerning cross collection, comply with
terms of any such agreement with the Block Companies.
(b) In the event HSBC Bank and HSBC TFS are prohibited from complying
with any agreement between HSBC Bank and HSBC TFS and the Block Companies
concerning the cessation or modification of any cross collection practices, HSBC
Bank and HSBC TFS shall nonetheless engage such RAL lender in good faith
discussions concerning the cessation or modification of cross collection
practices as agreed to by HSBC Bank and HSBC TFS and the Block Companies.
(c) Unless the Block Companies otherwise consent in writing, HSBC Bank
and HSBC TFS may only enter into a new agreement or otherwise extend the term of
an
46
agreement currently in effect with another RAL lender in connection with cross
collection practices if the agreement or amendment states that HSBC Bank and
HSBC TFS may terminate the agreement immediately if it makes a reasonable
determination that it is required to do so by law, regulation, or regulatory
authority.
Section 14.12. Paper Stock Reimbursement. HSBC TFS shall reimburse the
Block Companies for all expenses, in the aggregate, incurred during each year of
the Term of this Retail Distribution Agreement by any of the Block Companies
(including, without duplication, expenses related to Franchisees) with respect
to the purchase, production, transportation and storage of paper stock, check
stock, letters of instruction and fulfillment letters. Within thirty (30) days
following the last day of any year of the Term of this Retail Distribution
Agreement, the Block Enterprise Entities shall submit an invoice to HSBC TFS
setting forth the aggregate expenses of the Block Companies with respect to
those items described in the immediately preceding sentence. HSBC TFS shall pay
the Block Enterprise Entities the aggregate amount of expenses set forth on such
invoice within thirty (30) days of receipt of such invoice from the Block
Enterprise Entities. All payments made hereunder shall be via ACH credit to an
account designated in writing by the Block Enterprise Entities.
Section 14.13. Cross-Sales. The HSBC Companies and their Affiliates shall
not, directly or indirectly, market, offer or sell any products or services,
other than Settlement Products, to any Client, without the prior written consent
of the Block Companies; provided, in the event the Block Companies consent to
the marketing, offering or selling of any products or services described in this
Section 14.13 to a Client, the HSBC Companies shall negotiate, in good faith,
with the Block Companies to determine the amount of any fee to be paid by the
HSBC Companies to the Block Companies for the right to market, offer or sell any
products or services described in this Section 14.13. The restrictions set forth
in the immediately preceding sentence shall not prohibit the HSBC Companies and
their Affiliates from marketing, offering or selling any products or services to
any Client if such Client's name and contact information was obtained through
sources independent of any Block Company. In addition, the restrictions set
forth in the first sentence of this Section 14.13 shall not prohibit the HSBC
Companies and their Affiliates from marketing, offering or selling any products
or services to any Client via general solicitations to the public-at-large or if
such Client is an unsolicited walk-in customer. The HSBC Companies shall not
direct or request, in any manner, any third party source to provide or accept
from any third party source any potential customer lists developed or predicated
on parameters similar to those of Clients.
Section 14.14. Collection of Late Fees and Refund Account Fees.
(a) With respect to HSBC RALs originated on or after January 1, 2007,
[***].
(b) Neither HSBC Bank nor the Servicer shall collect the Refund
Account Fee from the related Client, with respect to an HSBC RAC, Denied Classic
RAL or Denied IRAL that resulted in no proceeds being distributed to the
Settlement Products Client.
(c) Subject to Section 14.14(a), the HSBC Companies shall collaborate
with the Block Companies to evaluate and modify its collection practices as
needed.
47
Section 14.15. Government Relations.
(a) HSBC TFS or its appropriate Affiliate shall engage in
normal-course litigation and regulatory issue research activities within the
banking and consumer finance industry with respect to Settlement Products and
the Settlement Products Program. On at least a quarterly basis or more often if
deemed necessary or appropriate, HSBC TFS shall report to the Block Companies on
federal, state and local level developments on new and proposed Laws and
political issues and trends relating to, influencing or otherwise impacting the
Settlement Products and the Settlement Products Program. HSBC Bank and the Block
Companies shall establish a monitoring and follow-up system for significant
developments.
(b) The HSBC Companies and the Block Companies agree to undertake
necessary and appropriate lobbying efforts at federal, state and local levels to
support the Settlement Products and the Settlement Products Program. The HSBC
Companies agree to commit [***] experienced government relations professionals,
and the Block Companies agree to commit those government relations professionals
the Block Companies deem to be sufficient, that may be mobilized to respond to
issues related to Settlement Products and the Settlement Products Program, if
the need arises or if considered appropriate.
(c) Each of the HSBC Companies and the Block Companies agrees to
respond appropriately and professionally to any state attorney general and other
regulatory investigations related to the Settlement Products, taking into
account such party's respective business interests.
(d) The HSBC Companies and the Block Companies agree to respond
appropriately and professionally to all threats to the Settlement Products and
the Settlement Products Program in a coordinated fashion.
(e) All information shared by the HSBC Companies and the Block
Companies in performing their Obligations under this Section 14.15, shall be
shared in accordance with and only to the extent allowed by applicable Law.
Section 14.16. Disbursement Check Losses. The Block Companies shall not be
responsible for losses related to Disbursement Checks involving theft, fraud or
duplicate checks, except to the extent that (a) any such losses were caused by
the negligence of a Representative of a Block Company or (b) any Block Company
receives reimbursement of such losses under any insurance policy.
Section 14.17. Retail Settlement Products Procedures. The HSBC Companies
shall perform all of the tasks and duties set forth on (a) the Retail Settlement
Products Procedures Schedules that are to be performed by the HSBC Companies
with respect to each Retail Settlement Product, and (b) Schedule 14.17. HSBC
Bank shall perform such tasks and duties in a commercially reasonable manner.
Section 14.18. Data Security and Recovery. The HSBC Companies shall
maintain the security of their data and recovery of systems, applications and
data related to the Settlement Products Program in accordance with 12 C.F.R.
Part 40, 16 C.F.R. Part 314 and OCC regulations and policies relating to data
security (to the extent required by Law) and shall report any such breaches in
its data security to the Block Companies within five (5) Business Days of HSBC
48
Bank's discovery of any such breach. The HSBC Companies have developed,
implemented and will maintain effective information security policies and
procedures that include administrative, technical and physical safeguards
designed to (a) ensure the security and confidentiality of Confidential
Information provided to the HSBC Companies hereunder, (b) protect against
anticipated threats or hazards to the security or integrity of such Confidential
Information, (c) protect against unauthorized access or use of such Confidential
Information, and (d) ensure the proper disposal of Confidential Information. All
personnel of the HSBC Companies handling such Confidential Information have been
appropriately trained in the implementation of the HSBC Companies' information
security policies and procedures. The HSBC Companies shall regularly audit and
review their information security policies and procedures to ensure their
continued effectiveness and to determine whether adjustments are necessary in
light of circumstances, including changes in technology, customer information
systems or threats or hazards to Confidential Information. In the event of
unauthorized access to Confidential Information or non-public personal
information of individual consumers, the HSBC Companies shall promptly take
appropriate action to prevent further unauthorized access and shall take any
other action required by Law.
Section 14.19. Prior Debt Indicator File. The HSBC Companies shall provide
the Prior Debt Indicator File to Block Services, or an Affiliate designated by
it, by December 3 prior to each Tax Period during the Term of this Retail
Distribution Agreement, on a state-by-state and year-by-year basis, in each case
as mutually agreed by HSBC Companies and Block Services. HSBC Bank shall have a
duty to update any Prior Debt Indicator File provided to Block Services to the
extent it receives any updates after December 3.
Section 14.20. Block Companies' Additional Costs. Notwithstanding anything
to the contrary in this Agreement, additional costs incurred by the Block
Companies in following Instructions of HSBC Bank, including costs for following
Instructions shall be handled in the manner set forth in this Section. If any
Instruction of HSBC Bank is not consistent with past practices of the parties in
conducting the Settlement Products Program, and the Block Companies reasonably
determine that their compliance with such Instructions will cause the Block
Companies and the Franchisees to incur expenses more than [***], then the Block
Companies shall notify the HSBC Companies of such determination and the parties
will explore alternative ways to achieve compliance with such Instructions in a
more cost efficient manner; provided, that if the parties are unable to agree
upon an effective alternative [***].
ARTICLE XV
INTELLECTUAL PROPERTY LICENSING AND DEVELOPMENT
Section 15.1. Licensing of Block Licensed Marks.
(a) Royalty hereby grants to HSBC Bank and HSBC TFS a nonexclusive and
nonassignable right and license to use the Block Licensed Marks (listed on
Schedule 15.1) as designated by Royalty for use in connection with the
Settlement Products Program. HSBC Bank, HSBC TFS and their respective Affiliates
shall not 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.
49
(b) All uses of the Block Licensed Marks shall be approved in advance
by Royalty in writing and shall be at all times in compliance with any standards
which Royalty may impose in writing from time to time regarding such use. HSBC
Bank and HSBC TFS shall provide samples of any proposed uses of the Block
Licensed Marks to Royalty for written approval prior to any use of the same, and
shall provide samples of any marketing materials related to the Settlement
Products Program that are developed and used by HSBC Bank or HSBC TFS, upon the
request of Royalty.
(c) All rights in and to the Block Licensed Marks that are not
specifically granted to HSBC Bank and HSBC TFS shall remain with Royalty. HSBC
Bank and HSBC TFS shall 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. Neither HSBC Bank nor HSBC TFS shall
register or seek to register any trade name, trademark, service mark, trade
dress, logotype, commercial symbol, or other identifier identical or confusingly
similar to any of the Block Licensed Marks.
(d) The license granted hereunder to use the Block Licensed Marks
shall terminate upon termination or expiration of this Retail Distribution
Agreement. Thereafter, HSBC Bank and HSBC TFS shall cease any and all use of the
Block Licensed Marks and destroy or return any marketing materials containing
the Block Licensed Marks to Royalty.
Section 15.2. Licensing of HSBC Licensed Patents.
(a) Beneficial Franchise hereby grants to the Block Companies and
their Affiliates a nonexclusive and nonassignable right and license under the
HSBC Licensed Patents (listed on Schedule 15.2, which schedule shall also list
any pending application for any HSBC Licensed Patents) to use any and all
products, methods or systems described or claimed in the HSBC Licensed Patents
for use in conjunction with the Settlement Products Program. Beneficial
Franchise also grants to the Block Companies and their Affiliates the right to
grant sublicenses to use any and all products, methods or systems described or
claimed in the HSBC Licensed Patents to the Franchisees and to any Person or
entity that is involved in the processing of Settlement Products, but only to
the extent that Settlement Products are processed in any manner through TPS
Software, or other electronic filing software, acceptable to Beneficial
Franchise. Any sublicense granted the Block Companies shall contain provisions
corresponding to those of this Retail Distribution Agreement regarding
termination of the license to use HSBC Licensed Patents and shall not include
the right to sublicense to other parties.
(b) Beneficial Franchise hereby waives and fully releases the Block
Companies and their respective Affiliates from any claims for infringement of
the HSBC Licensed Patents arising from any Settlement Products originated or
issued prior to or during the term of the license granted in this Section 15.2.
The license granted hereunder to use the HSBC Licensed Patents shall terminate
ten (10) years following the termination or expiration of this Retail
Distribution Agreement; provided, however, that in the event this Retail
Distribution Agreement is terminated pursuant to Section 19.2(a) as a result of
a Block Event of Default, the license granted hereunder to use the HSBC Licensed
Patents shall terminate immediately upon the effective date of such termination
of this Retail Distribution Agreement, and the Block Companies shall immediately
cease any and all use of the HSBC Licensed Patents.
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Section 15.3. Licensing of HSBC Licensed Marks.
(a) Beneficial Franchise hereby grants to the Block Companies and
their Affiliates a nonexclusive and nonassignable right and license to use the
HSBC Licensed Marks (listed on Schedule 15.3, which schedule shall also list any
pending application for any HSBC Licensed Marks) as designated by Beneficial
Franchise for use in connection with the Settlement Products Program. Beneficial
Franchise also grants to the Block Companies and their Affiliates the right to
grant sublicenses of the HSBC Licensed Marks to the Franchisees and to any
Person or entity that is involved in the processing of Settlement Products. The
Block Companies and their Affiliates shall not use the HSBC Licensed Marks for
any purpose except the purposes specifically set forth herein. Any use of the
HSBC Licensed Marks and all goodwill generated thereby shall inure to the
benefit of Beneficial Franchise. Beneficial Franchise also grants to the Block
Companies and their Affiliates the right to grant sublicenses to use the HSBC
Licensed Marks in connection with the Settlement Products Program. Any
sublicense granted by the Block Companies shall contain provisions corresponding
to those of this Retail Distribution Agreement regarding termination of the
license to use HSBC Licensed Marks and shall not include the right to sublicense
to other parties.
(b) All uses of the HSBC Licensed Marks shall be approved in advance
by Beneficial Franchise in writing and shall be at all times in compliance with
any standards which Beneficial Franchise may impose in writing from time to time
regarding such use. The Block Companies shall provide samples of any proposed
uses of the HSBC Licensed Marks to Beneficial Franchise for written approval
prior to any use of the same, and shall provide samples of any marketing
materials related to the Settlement Products Program that are developed and used
by the Block Companies, upon the request of Beneficial Franchise.
(c) All rights in and to the HSBC Licensed Marks that are not
specifically granted to the Block Companies shall remain with Beneficial
Franchise. The Block Companies shall cooperate with Beneficial Franchise in the
protection and defense of the HSBC Licensed Marks and in the prosecution, at
Beneficial Franchise's sole option, of infringers of the HSBC Licensed Marks.
The Block Companies shall not register or seek to register any trade name,
trademark, service mark, trade dress, logotype, commercial symbol, or other
identifier identical or confusingly similar to any of the HSBC Licensed Marks.
(d) The license granted hereunder to use the HSBC Licensed Marks shall
terminate upon termination or expiration of this Retail Distribution Agreement.
Thereafter, the Block Companies shall cease any and all use of the HSBC Licensed
Marks and destroy or return any marketing materials containing the HSBC Licensed
Marks to Beneficial Franchise.
Section 15.4. Previously Developed Intellectual Property. All Intellectual
Property developed by any Block Company or any HSBC Company shall remain the
Intellectual Property of such party. If any such Intellectual Property is
necessary for the proper operation of the Settlement Products Program, the owner
of such Intellectual Property shall grant a non-exclusive license to each party
hereto as necessary for the proper operation of the Settlement Products Program.
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Section 15.5. Jointly Developed Intellectual Property.
(a) Beneficial Franchise and Royalty shall jointly own all right,
title and interest in and to any Intellectual Property jointly developed by the
parties during the Term of this Retail Distribution Agreement, including all
Proprietary Rights in the same. Each HSBC Company hereby assigns and agrees to
assign in the future a one-half ownership interest in and to the Proprietary
Rights to Royalty, and agrees to execute any further documents needed in the
future to vest a one-half ownership interest in the same in Royalty. Each Block
Company hereby assigns and agrees to assign in the future a one-half ownership
interest in and to the Proprietary Rights to Beneficial Franchise, and agrees to
execute any further documents needed in the future to vest a one-half ownership
interest in the same in Beneficial Franchise.
(b) Each HSBC Company represents and warrants that any individuals
participating or otherwise contributing to the conception of any Intellectual
Property jointly developed by the parties during the Term of this Retail
Distribution Agreement on behalf of any HSBC Company are obligated to assign any
Proprietary Rights that they may have by virtue of such conception to Beneficial
Franchise or one or more of its Affiliates.
(c) Each Block Company represents and warrants that any individuals
participating or otherwise contributing to the conception of any Intellectual
Property jointly developed by the parties during the Term of this Retail
Distribution Agreement on behalf of any Block Company are obligated to assign
any Proprietary Rights that they may have by virtue of such conception to
Royalty or one or more of its Affiliates.
(d) Any Block Company, any HSBC Company, and any of their respective
affiliates shall each be entitled to use any Intellectual Property jointly
developed by the parties during the Term of this Retail Distribution Agreement
directly on its own behalf, without the consent of the other party. Any Block
Company may also permit the Franchisees to use any Intellectual Property jointly
developed by the parties during the Term of this Retail Distribution Agreement,
without the consent of Beneficial Franchise.
(e) Neither Royalty nor Beneficial Franchise may license any
Intellectual Property jointly developed by the parties during the Term of this
Retail Distribution Agreement to any third party (other than Franchisees) that
is not an Affiliate of either the Block Companies or the HSBC Companies,
respectively, without the prior written consent of each of Royalty and
Beneficial Franchise. If the consent of both parties is given in such a
situation and the licensing party charges the unaffiliated third party (other
than Franchisees) a license fee or other charge regarding such third party's use
of the Intellectual Property jointly developed by the parties during the Term of
this Retail Distribution Agreement, the licensing party shall pay fifty percent
(50%) of the license fee to the other party.
(f) Each Block Company and each HSBC Company agrees to cooperate and
consult with one another in an effort to determine whether or not to pursue
patent protection for any Intellectual Property jointly developed by the parties
during the Term of this Retail Distribution Agreement. If the parties mutually
determine to pursue patent protection on any aspects of such jointly developed
Intellectual Property, they will jointly participate in the preparation, filing,
prosecution and maintenance of the rights in such Intellectual Property. Each
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party will have a full and fair opportunity to review and contribute to the
patent application or applications and any other filings to be made in the U.S.
Patent Office or foreign patent offices. The parties will jointly share in all
costs associated with the preparation, filing, prosecution and maintenance of
such rights in the Intellectual Property jointly developed by the parties during
the Term of this Program.
(g) With respect to filings:
(i) (A) Each Block Company and each HSBC Company agrees that if
one party (the "Non-Filing Party") desires not to file patent rights in any
Intellectual Property jointly developed by the parties during the term of this
Retail Distribution Agreement in the United States, the other party (the "Filing
Party") may do so at its own cost and expense. In such event, (1) the Filing
Party shall have no obligation to consult with the Non-Filing Party regarding
the preparation and filing of the patent rights, (2) the Non-Filing Party shall
not have an opportunity to review or contribute to the patent application and
(3) the Non-Filing Party shall assign its ownership interest in and to such
patent rights to the Filing Party.
(ii) Each Block Company and each HSBC Company agrees that if the
Non-Filing Party desires not to file, prosecute or maintain patent rights in any
given foreign country, the Filing Party may do so at its own cost and expense.
In such event, the Non-Filing Party shall assign its ownership interest in and
to such foreign country patent rights to the Filing Party.
(iii) In no event shall the Confidential Information of any Block
Company or any HSBC Company be disclosed in a patent application or other
document filed with the U.S. Patent Office or foreign patent office without the
express approval of that party.
(iv) If any Block Company or HSBC Company becomes aware of any
infringement of the Proprietary Rights of any Intellectual Property jointly
developed by the parties during the term of this Retail Distribution Agreement
by a third party, that party will notify the other parties of the infringement.
The parties will consult and cooperate in determining any action to be taken
with respect to such infringement. If the parties mutually agree to take legal
action against the infringer, the parties will share in the costs and any
recoveries from such action. If only one party desires to pursue legal action,
that party shall be entitled to take such action at its sole cost and to retain
any recoveries therefrom. In any event, the parties will cooperate and provide
reasonable assistance to one another in relation to any such actions for
infringement.
(h) Each Block Company and each HSBC Company agrees to keep all
aspects any Intellectual Property jointly developed by the parties during the
Term of this Retail Distribution Agreement confidential until such time as any
patent applications in relation to such Intellectual Property are filed, or the
parties mutually agree not to file any patent applications in relation to such
Intellectual Property.
(i) Each HSBC Company's rights to and interest in any Intellectual
Property jointly developed by the parties during the term of this Retail
Distribution Agreement through the date of termination shall survive the
termination of this Retail Distribution Agreement with
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no costs to any HSBC Company. Following the termination or expiration of this
Retail Distribution Agreement, the HSBC Companies may license or sublicense to
any third party any Intellectual Property jointly developed by the parties
during the Term of this Retail Distribution Agreement without the consent of the
Block Companies. If any HSBC Company charges the unaffiliated third party a
license fee or other charge regarding such third party's use of the Intellectual
Property jointly developed by the parties during the Term of this Retail
Distribution Agreement, such HSBC Company shall pay fifty percent (50%) of the
license fee to the Block Companies.
(j) Each Block Company's rights to and interest in any Intellectual
Property jointly developed by the parties during the Term of this Retail
Distribution Agreement through the date of termination shall survive the
termination of this Retail Distribution Agreement at no costs to any Block
Company. Following the termination or expiration of this Retail Distribution
Agreement, the Block Companies may license or sublicense to any third party any
Intellectual Property jointly developed by the parties during the Term of this
Retail Distribution Agreement without the consent of the HSBC Companies. If any
Block Company charges the unaffiliated third party (other than a Franchisee) a
license fee or other charge regarding such third party's use of the Intellectual
Property jointly developed by the parties during the Term of this Retail
Distribution Agreement, such Block Company shall pay fifty percent (50%) of the
license fee to the HSBC Companies.
Section 15.6. Notice of Intellectual Property Filings.
(a) Each HSBC Company hereby agrees to notify the Block Companies if
any such HSBC Company plans to file an application or applications with the U.S.
Patent Office or any foreign patent offices for any Settlement Product (or
product similar thereto) or related to any Settlement Product (or product
similar thereto). Any notice provided under this Section 15.6 shall be provided
sixty (60) days prior to filing any application described herein. The party
receiving such notification shall not disclose the application or the existence
of the application to any third party without the consent of the notifying
party, which consent shall not be unreasonably withheld.
(b) Each Block Company hereby agrees to notify the HSBC Companies if
any such Block Company plans to file an application or applications with the
U.S. Patent Office or any foreign patent offices for any Settlement Product (or
product similar thereto) or related to any Settlement Product (or product
similar thereto). Any notice provided under this Section 15.6 shall be provided
sixty (60) days prior to filing any application described herein. The party
receiving such notification shall not disclose the application or the existence
of the application to any third party without the consent of the notifying
party, which consent shall not be unreasonably withheld.
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ARTICLE XVI
CONFIDENTIALITY; FINANCIAL PRIVACY
During and after the Term of this Retail Distribution Agreement:
Section 16.1. Confidential Information.
(a) Each of the parties is informed and acknowledges that
implementation and operation of the Settlement Products Program will involve the
use of Confidential Information that is proprietary to the respective parties.
Each party will retain in confidence all Confidential Information received in
connection with this Retail Distribution Agreement or any other Program Contract
and limit access to or disclosure of such Confidential Information received in
connection with this Retail Distribution Agreement or any other Program Contract
solely for the purpose of operation of the Settlement Products Program. 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 Confidential
Information.
(b) Subject to Section 16.4, such obligation of confidentiality shall
not extend to any information (i) that 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; (ii) that is or shall become part of public knowledge through
no act or omission by the receiving party or its Representatives; (iii) 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.
Section 16.2. Privacy of Client and Consumer Information.
(a) Notwithstanding anything in this Retail Distribution Agreement to
the contrary, a Receiving Party hereby agrees that it will not disclose
nonpublic personal information of Clients and consumers of Disclosing Party to
Affiliates or non-affiliated third parties or use such nonpublic personal
information for any purpose other than satisfying a Receiving Party's duties and
obligations under this Retail Distribution Agreement and the other Program
Contracts, unless the Client or consumer has consented to such use or it is
otherwise permitted by applicable Law, provided that HSBC TFS shall have the
right to disclose to the Originator information it deems reasonably necessary to
carry out its obligations under the Settlement Products Program. Any such use or
disclosure by a Receiving Party of nonpublic personal information of clients and
consumers of the Disclosing Party shall be in compliance with applicable Law.
All of the parties hereto shall comply in all respects with all applicable
requirements of Title V of the Gramm-Leach-Bliley Act of 1999 and its
implementing regulations.
(b) In addition to any other obligations of Receiving Party set forth
in this Retail Distribution Agreement, a Receiving Party hereby agrees to
implement and maintain safeguards for the nonpublic personal information of
Clients and consumers of a Disclosing Party, which shall be consistent with the
requirements of 16 C.F.R. Part 314 and, with respect to HSBC Bank, 12 C.F.R.
Part 40 or other applicable Law, as directed by the Disclosing Party, but
55
in no event less than the standard of care a Receiving Party uses to protect its
own information of similar sensitivity. Without limitation, a Receiving Party
shall permit access and usage of nonpublic personal information of Clients and
consumers of a Disclosing Party to its Representatives only to the extent
necessary in order for a Receiving Party to perform its obligations under this
Retail Distribution Agreement. Subject to applicable Law, a Receiving Party may
permit access and usage of nonpublic personal information of Clients and
consumers of a Disclosing Party to a Receiving Party's Affiliates in order to
exercise its rights and perform its obligations under this Retail Distribution
Agreement and the other Program Contracts, provided that the Receiving Party
shall require that any of its Affiliates that are permitted such access or usage
agree not to disclose such information to any third party except as permitted by
applicable Law and otherwise permitted by Section 16.2(a) herein. A Receiving
Party will allow a Disclosing Party, on an annual basis (at the Disclosing
Party's sole cost and expense), to reasonably audit the Receiving Party's
compliance with its obligations under this Section 16.2, and Sections 7.20 and
14.18, and Receiving Party shall reasonably cooperate with Disclosing Party in
the conduct of such audit upon reasonable advance notice. Such audit rights do
not relieve the Receiving Party from responsibility for exercising due care in
ensuring compliance with its obligations regarding the nonpublic personal
information of Clients and customers of Disclosing Party. All terms used in this
Section 16.2 shall have the same meanings, where the context permits, as set
forth in 16 C.F.R. Part 313 and Part 314.
Section 16.3. Conduct Prohibited. Notwithstanding anything in this Article
XVI to the contrary, the HSBC Companies shall not (a) use the names of H&R
Block, any of the Block Companies or their Affiliates, or the names of any of
the Agents' Return preparers, in any communications with Clients or other
Persons except in carrying out each HSBC Company's obligations under this Retail
Distribution Agreement and the other Program Contracts; (b) target or solicit
Clients for any product or service not contemplated under the Retail
Distribution Agreement or other Program Contracts, other than as provided in
this Retail Distribution Agreement; (c) use or disclose the fact that a Client
was a client of any of the Block Companies, without such Block Company's prior
written consent, except as necessary to carry out each HSBC Company's
obligations under this Retail Distribution Agreement and the other Program
Contracts (and in accordance with applicable Law); (d) take any action which,
the Block Companies, in their reasonable opinion, deemed an act of transitioning
Clients to another tax preparer or online tax preparation service; or (e) sell
or otherwise disclose any Client list, other than as provided in this Retail
Distribution Agreement and in accordance with applicable Law.
Section 16.4. Sharing of Return and Application Data.
(a) Subject to Section 16.3, HSBC Bank and HSBC TFS may share any data
from a Client's Return and Application with any of their Affiliates; provided
that they shall obtain appropriate consents for such sharing that are compliant
with 26 U.S.C. Section 7216 and regulations promulgated thereunder, and further
provided that they comply with the requirements of the Gramm-Leach-Bliley Act,
12 C.F.R. Part 40, 16 C.F.R. Part 313 and any other applicable Laws. HSBC Bank
and HSBC TFS, upon obtaining appropriate consents from Clients, may share any
data from such Clients' Returns and Applications with any of their Affiliates.
(b) To the extent permitted by applicable Law, each HSBC Company
agrees to promptly provide to each Block Company and its Affiliates, upon
request, but not more than
56
twice during any calendar year, a list of all Persons and, their complete
mailing addresses to whom such HSBC Company made HSBC RALs or HSBC RACs during
the most recently ended Tax Period. Such list shall be provided in electronic
form and, to the extent reasonably practicable, in a form typical of mailing
lists purchased in the open market. No Block Company or Affiliate shall use, or
permit the use of, such list for purposes of soliciting Clients for credit
related products. The Block Companies and their Affiliates shall take
appropriate action by agreement with third parties having access to such list to
prohibit such third parties from using such list for purposes of soliciting
Clients for credit related products.
Section 16.5. HSBC Information Screen. Except to the extent necessary to
comply with applicable Laws, the HSBC Companies shall create and maintain an
Information Screen prohibiting members of the HSBC Team from sharing any data
concerning or related to the Settlement Products Program with any employees of
HSBC Companies or their Affiliates who are not members of the HSBC Team except
those employees (i) who work within the accounting departments, legal
departments, internal audit, operational/item processing department and internal
compliance areas (excluding any field personnel) of the HSBC Companies and its
Affiliates who are responsible for ongoing corporate governance and the
monitoring and compliance function within the HSBC Companies, and (ii) of HSBC
Technology Services USA, provided that the HSBC Companies require such employees
to execute a confidentiality agreement agreeing to keep such information
confidential. The HSBC Companies may add members to the HSBC Team upon ten (10)
days prior written notice to Block Services. The HSBC Companies, jointly and
severally, covenant that, no member of the HSBC Team shall provide any service
or perform any support work for, on behalf of or with respect to any tax return
preparer or tax preparation software company other than the Block Companies.
Section 16.6. Confidentiality of Program Contracts.
(a) If any of the HSBC Companies, or any of their respective
Affiliates, determine that it is necessary under applicable Law to file this
Retail Distribution Agreement or any of the Program Contracts with the
Securities and Exchange Commission, such HSBC Company shall seek to obtain
confidential treatment of the same provisions in this Retail Distribution
Agreement or the other Program Contracts as redacted by H&R Block in its filing
of this Retail Distribution Agreement or the other Program Contracts with the
Securities and Exchange Commission. If any of the HSBC Companies determine that
they are required to file any of the other Program Contracts with the Securities
and Exchange Commission, such HSBC Company shall provide the Block Companies
with notice prior to such filing and to the extent permissible by Law, shall,
after consultation from the Block Companies, redact such provisions designated
as confidential by the Block Companies.
(b) If any of the Block Companies or any of the HSBC Companies, or any
of their respective Affiliates, is requested by any Governmental Authority to
disclose this Retail Distribution Agreement or any of the other Program
Contracts to such Governmental Authority, or if any such party voluntarily
discloses this Retail Distribution Agreement or any other Program Contract to
any Governmental Authority, such party shall (i) give the other parties hereto
prompt written notice of such request for disclosure (unless otherwise
prohibited by applicable Law) or such decision to voluntarily make such
disclosure and (ii) not disclose this Retail Distribution Agreement or any other
Program Contract to such Governmental Authority
57
without reasonable assurances from such Governmental Authority that the terms
and conditions of this Retail Distribution Agreement and the other Program
Contracts will be afforded reasonable confidentiality protections by such
Governmental Authority.
(c) If any party hereto becomes legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil investigative demand or
similar process) to disclose any of the terms and conditions of this Retail
Distribution Agreement or any of the other Program Contracts, such party shall
give the other parties hereto prompt written notice of such requirement so that
the other parties may attempt to seek a protective order or other assurance that
confidential treatment will be accorded to any such disclosure (and the party
receiving the disclosure request shall cooperate reasonably with any such
efforts by any of the other parties) or waive compliance with the terms of this
Section 16.6(c). If such protective order or other remedy is not timely
obtained, the party receiving the disclosure request agrees to give the other
parties notice of the terms and conditions of this Retail Distribution Agreement
or any of the other Program Contracts to be disclosed as far in advance of such
disclosure as is reasonably practicable, and shall furnish only those terms and
conditions of this Retail Distribution Agreement or the other Program Contracts
for which the other parties have waived compliance with the relevant provisions
of this Section 16.6(c), or that is, in the opinion of legal counsel to the
party receiving such disclosure request, required to be disclosed in order to
avoid a contempt order or other civil or criminal sanction or penalty.
(d) Notwithstanding the above, the confidentiality obligations set
forth in this Section 16.6 shall not apply to any disclosure of any of the terms
and conditions of this Retail Distribution Agreement or any of the other Program
Contracts required by applicable Law or stock exchange rules; provided that the
applicable parties shall use, and shall cause their applicable Affiliates to
use, commercially reasonable efforts to give the other parties hereto prior
notice of such disclosure in sufficient time to enable such other parties to
protect any such provisions of this Retail Distribution Agreement or any of the
other Program Contracts from disclosure.
ARTICLE XVII
TERM AND TERMINATION
Section 17.1. Term; Renewal. The "Initial Term" of this Retail Distribution
Agreement shall commence as of July 1, 2006 and shall expire on June 30, 2011,
unless earlier terminated as provided in Section 17.2. The Block Companies shall
have the exclusive right to renew this Retail Distribution Agreement for not
more than two (2) successive one year periods (each such one year period is
referred to as a "Renewal Term"). In the event the Block Companies elect to
renew this Retail Distribution Agreement for a Renewal Term, such Block
Companies shall provide written notice to HSBC TFS, as agent for the HSBC
Companies, not later than ninety (90) days prior to the expiration of the
Initial Term or, if the Retail Distribution Agreement were renewed, the Renewal
Term. The Initial Term and any Renewal Term(s) are collectively referred to as
the "Term". Notwithstanding the provisions of this Section 17.1, this Retail
Distribution Agreement may be terminated prior to the expiration of the Initial
Term or any Renewal Term in accordance with the provisions of Section 17.2. Any
other Program Contract may also be terminated in accordance with the provisions
of Section 17.2.
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Section 17.2. Termination.
(a) This Retail Distribution Agreement and any other Program Contract
may be terminated immediately, upon the mutual written agreement of each HSBC
Company and the Block Company party thereto.
(b) The Block Companies may terminate this Retail Distribution
Agreement and/or any Program Contract (other than the Servicing Agreement) in
accordance with Section 18.2.
(c) The HSBC Companies may terminate this Retail Distribution
Agreement and/or any Program Contract (other than the Servicing Agreement) in
accordance with Section 19.2.
(d) All of the Block Companies or all of the HSBC Companies may
terminate this Retail Distribution Agreement and any other Program Contract
(other than the Servicing Agreement) in the event the IRS withdraws or changes
the implementing revenue procedures sanctioning RALs or RACs (other than the
removal of the Debt Indicator), to the extent such withdrawal could reasonably
be expected to have a Material Adverse Effect on the anticipated benefits that
the terminating parties would achieve from the Settlement Products Program.
(e) All of the Block Companies or all of the HSBC Companies may
terminate this Retail Distribution Agreement and any other Program Contract
(other than the Servicing Agreement) in the event that the offering of HSBC RALs
pursuant to the Settlement Products Program becomes commercially infeasible due
to a change in Law (other than the removal of the Debt Indicator) that creates a
Material Adverse Effect.
(f) The HSBC Companies may terminate any Franchisee Distribution
Agreement in accordance with its terms.
(g) Notwithstanding anything to the contrary in this Retail
Distribution Agreement, the termination of this Retail Distribution Agreement
shall not result in, or give any party any right to terminate, the Servicing
Agreement. Termination of the Servicing Agreement shall be governed by the
relevant provisions contained in the Servicing Agreement.
Section 17.3. Effect of Termination.
(a) Termination pursuant to Section 17.2 shall not affect the rights
or obligations (including any payment obligations for which payment is due after
the effective date of the termination of this Retail Distribution Agreement) of
the parties to this Retail Distribution Agreement or any other Program Contract
arising prior to the termination of this Retail Distribution Agreement or any
other Program Contract, including the obligations of the Servicer under the
Servicing Agreement.
(b) After any termination, the Loan Files for the Retail Settlement
Products and Digital Settlement Products will continue to be the property and
responsibility of HSBC Bank.
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Section 17.4. Return of Confidential Information. Subject to Section
17.3(b), upon termination of this Retail Distribution Agreement, the parties
shall return to any furnishing party all Confidential Information received in
connection with this Retail Distribution Agreement or any other Program Contract
and certify in writing to such furnishing party that such receiving party has
not retained any copies of such Confidential Information; provided, however,
notwithstanding any other provision herein, any information that any HSBC
Company or Block Company provides to HSBC Bank in carrying out its obligations
under this Retail Distribution Agreement or any other Program Contract that the
Originator is required as a federally-insured financial institution to retain
shall not be subject to the return provisions herein during the period of such
legally required retention.
ARTICLE XVIII
DEFAULT OF HSBC COMPANIES AND REMEDIES OF BLOCK COMPANIES
Section 18.1. HSBC Events of Default. The occurrence of any one or more of
the following events for any reason whatsoever (whether voluntary or
involuntary, by operation of law or otherwise) shall constitute an event of
default with respect to any HSBC Company hereunder (each, an "HSBC Event of
Default"):
(a) such HSBC Company (i) fails to make any payment of the payment
Obligations, individually or in the aggregate of an amount more than Five
Hundred Thousand Dollars ($500,000), when due and payable and such failure to
pay shall continue for five (5) days or more, or (ii) fails to pay or reimburse
any Block Company for any expense reimbursable under any Program Contract within
five (5) days following such Block Company's demand for such reimbursement or
payment of expenses, which demand shall contain sufficiently detailed
information and supporting documentation, to the extent applicable, of the
expenditures for which reimbursement is sought;
(b) such HSBC Company fails to observe or perform any covenant
applicable to it contained in any Program Contract (or, in the event such
covenant (except any covenant in Section 6.8) does not contain a Material
Adverse Effect qualification, so long as such failure could reasonably be
expected to have a Material Adverse Effect), and the same shall remain
unremedied for five (5) days or more following receipt of written notice of such
failure;
(c) any representation, warranty, certification or statement made by
such HSBC Company in any Program Contract is incorrect in any respect (or, in
the event such representation, warranty, certificate or statement made under any
Program Contract does not contain a Material Adverse Effect qualification, so
long as such incorrect representation, warranty, certification or statement
could reasonably be expected to have a Material Adverse Effect);
(d) any event or condition shall occur which results in a violation of
any provision of the organizational documents of such HSBC Company, to the
extent such violation could reasonably be expected to have a Material Adverse
Effect;
(e) such HSBC Company shall (i) commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts
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under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its properties or
assets, (ii) consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, (iii) cease to be solvent or make a general assignment for
the benefit of creditors or (iv) fail generally, not be able or admit in writing
its inability to pay its debts as they become due, or take any action in
furtherance of, or indicating its consent to, or approval of or acquiescence in
any of the foregoing; or
(f) an involuntary case or other proceeding shall be commenced against
such HSBC Company seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of five (5) days, or an order for relief
shall be entered against such HSBC Company under any bankruptcy law as now or
hereafter in effect, or such HSBC Company shall take any action in furtherance
of, or indicating its consent to, or approval of or acquiescence in any of the
foregoing.
Section 18.2. Remedies. If any HSBC Event of Default has occurred and is
continuing and adversely affects any Block Company, the following actions may be
taken:
(a) Termination. The Block Companies may terminate this Retail
Distribution Agreement or any of the Program Contracts. The Block Companies
shall promptly provide written notice to each HSBC Company of any such
termination. Such notice of termination shall identify each Program Contract
which the Block Companies are terminating. The effective date of any termination
hereunder shall be the earliest date the corresponding notice was received by
any HSBC Company party thereto.
(b) Other Rights and Remedies. Such Block Company may exercise any
rights and remedies provided to such Block Company under any other Program
Contract or at Law or equity.
Section 18.3. Default Rate. If any HSBC Event of Default has occurred and
is continuing, and all or any portion of the Obligations of the HSBC Companies
are outstanding, such Obligations or any portion thereof shall bear interest at
the Default Rate until such Obligations or such portion thereof plus all
interest thereon are paid in full.
Section 18.4. Waiver. The Block Companies may waive, in writing, any HSBC
Event of Default. Upon any such waiver of a past HSBC Event of Default, such
HSBC Event of Default shall cease to exist; provided, however, such waiver shall
not excuse or discharge any Obligations relating to or liabilities arising from
such HSBC Event of Default. No such waiver shall extend to any subsequent or
other HSBC Event of default or impair any right consequent thereon except to the
extent expressly so waived.
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ARTICLE XIX
DEFAULT OF BLOCK COMPANIES AND REMEDIES OF HSBC COMPANIES
Section 19.1. Block Events of Default. The occurrence of any one or more of
the following events for any reason whatsoever (whether voluntary or
involuntary, by operation of law or otherwise) shall constitute an event of
default with respect to any Block Company hereunder (each, a "Block Event of
Default"):
(a) such Block Company (i) fails to make any payment of the payment
Obligations, individually or in the aggregate of an amount more than Five
Hundred Thousand Dollars ($500,000), when due and payable and such failure to
pay shall continue for five (5) days or more, or (ii) fails to pay or reimburse
any HSBC Company for any expense reimbursable under any Program Contract within
five (5) days following such HSBC Company's demand for such reimbursement or
payment of expenses, which demand shall contain sufficiently detailed
information and supporting documentation, to the extent applicable, of the
expenditures for which reimbursement is sought;
(b) such Block Company fails to observe or perform any covenant
applicable to it contained in any Program Contract (or, in the event such
covenant does not contain a Material Adverse Effect qualification, so long as
such failure could reasonably be expected to have a Material Adverse Effect),
and the same shall remain unremedied for five (5) days or more following receipt
of written notice of such failure, provided, however, that, with respect to
covenants regarding compliance with Laws, in the event such Block Company is not
complying with a Law because it has reasonably determined that such Law is not
applicable to it in its capacity as Agent based upon federal preemption, such
failure to comply will not give rise to an event of default under this Section
19.1(b) unless and until sixty (60) days after such Law is determined through a
final non appealable order of a court of competent jurisdiction to be applicable
to such Block Company and the Block Company has continued its failure to comply
with such Law;
(c) any representation, warranty, certification or statement made by
such Block Company in or pursuant to any Program Contract shall prove to have
been incorrect in any respect(or, in the event such representation, warranty,
certificate or statement made under any Program Contract does not contain a
Material Adverse Effect qualification, so long as such incorrect representation,
warranty, certification or statement could reasonably be expected to have a
Material Adverse Effect), provided, however, that with respect to any
representation, warranty, certification or statement with respect to compliance
with Laws, if such Block Company is not complying with a Law because it has
reasonably determined that such Law is not applicable to it in its capacity as
Agent based upon federal preemption, such failure to comply will not give rise
to an event of default under this Section 19.1(c) unless and until sixty (60)
days after such Law is determined through a final non appealable order of a
court of competent jurisdiction to be applicable to such Block Company and such
Block Company has continued its failure to comply with such Law;
(d) any event or condition shall occur which results in a violation of
any provision of the organizational documents of such Block Company, to the
extent such violation could reasonably be expected to have a Material Adverse
Effect;
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(e) such Block Company shall (i) commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its properties or assets, (ii) consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or other
proceeding commenced against it, (iii) cease to be solvent or make a general
assignment for the benefit of creditors or (iv) fail generally, not be able or
admit in writing its inability to pay its debts as they become due, or take any
action in furtherance of, or indicating its consent to, or approval of or
acquiescence in any of the foregoing; or
(f) an involuntary case or other proceeding shall be commenced against
such Block Company seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of five (5) days, or an order for relief
shall be entered against such Block Company under any bankruptcy law as now or
hereafter in effect, or such Block Company shall take any action in furtherance
of, or indicating its consent to, or approval of or acquiescence in any of the
foregoing.
Section 19.2. Remedies. If any Block Event of Default has occurred and is
continuing and adversely affects any HSBC Company, the following actions may be
taken:
(a) Termination. The HSBC Companies may terminate this Retail
Distribution Agreement or any of the other Program Contracts (other than the
Servicing Agreement). The HSBC Companies shall promptly provide written notice
to each Block Company of such termination. Such notice of termination shall
identify each Program Contract which the HSBC Companies are terminating. The
effective date of any termination hereunder shall be the earliest date the
corresponding notice was received by any Block Company party thereto.
(b) Other Rights and Remedies. Such HSBC Company may exercise any
rights and remedies provided to such HSBC Company under the Program Contracts or
at Law or equity.
Section 19.3. Default Rate. If any Block Event of Default has occurred and
is continuing, and all or any portion of the Obligations of the Block Companies
are outstanding, such Obligations or any portion thereof shall bear interest at
the Default Rate until such Obligations or such portion thereof plus all
interest thereon are paid in full.
Section 19.4. Waiver. The HSBC Companies may waive, in writing, any Block
Event of Default. Upon any such waiver of a past Block Event of Default, such
Block Event of Default shall cease to exist; provided, however, such waiver
shall not excuse or discharge any Obligations relating to or liabilities arising
from such Block Event of Default. No such waiver shall extend to any subsequent
or other Block Event of default or impair any right consequent thereon except to
the extent expressly so waived.
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ARTICLE XX
GUARANTY
Section 20.1. Representations and Warranties of HSBC Finance.
(a) HSBC Finance (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
requisite organizational power and authority to encumber and operate its
properties, (c) has all organizational powers necessary for guaranteeing the
Obligations of the HSBC Companies with respect to the Settlement Products
Program, and (d) is in full compliance with all provisions of its charter and
organizational documents.
(b) The execution, delivery and performance by HSBC Finance of its
guaranty under this Retail Distribution Agreement, (a) are within its
organizational powers and have been duly authorized by all necessary
organizational action, (b) require no Governmental Approval other than (i) such
filings as have been made and are in full force and effect or (ii) approvals
which if not obtained could not reasonably be expected to have a Material
Adverse Effect, (c) do not contravene, or constitute a default under (i) the
organizational documents of HSBC Finance, (ii) any provision of Law, the
violation of which could reasonably be expected to have a Material Adverse
Effect or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon HSBC Finance, the violation of which could reasonably be
expected to have a Material Adverse Effect, and (d) do not result in the
creation or imposition of any Lien on any asset of HSBC Finance, the creation or
imposition of which could reasonably be expected to have a Material Adverse
Effect.
(c) This Article XX, and Articles XXI and XXII of this Retail
Distribution Agreement constitute the valid and binding agreement of HSBC
Finance, enforceable in accordance with its terms, subject to (a) the effect of
any applicable bankruptcy, fraudulent transfer, moratorium, insolvency,
reorganization or other similar laws affecting the rights of creditors generally
and (b) the effect of general principles of equity, whether applied by a court
of equity or law.
Section 20.2. HSBC Guaranty.
(a) HSBC Finance Corporation hereby unconditionally guarantees to the
Block Companies and the HSBC Indemnified Parties the prompt payment of the
financial Obligations of each HSBC Company under this Retail Distribution
Agreement and the other Program Contracts (the "HSBC Guaranty"). This HSBC
Guaranty is a guaranty of payment and not of collection. HSBC Finance
Corporation's obligations under this HSBC Guaranty shall be primary, absolute
and unconditional. In no event shall any Block Company or HSBC Indemnified Party
have any obligation to proceed against any HSBC Company before seeking payment
from HSBC Finance Corporation.
(b) HSBC Finance Corporation hereby acknowledges and agrees that the
HSBC Companies and the Block Companies may amend or modify the Program Contracts
without notice to or the consent of HSBC Finance Corporation, and no such
amendment or modification shall impair or release the HSBC Guaranty.
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Section 20.3. Representations and Warranties of H&R Block.
(a) H&R Block (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
requisite organizational power and authority to encumber and operate its
properties, (c) has all organizational powers necessary for guaranteeing the
Obligations of the Block Companies with respect to the Settlement Products
Program, and (d) is in full compliance with all provisions of its charter and
organizational documents.
(b) The execution, delivery and performance by H&R Block of its
guaranty under this Retail Distribution Agreement, (a) are within its
organizational powers and have been duly authorized by all necessary
organizational action, (b) require no Governmental Approval other than (i) such
filings as have been made and are in full force and effect or (ii) approvals
which if not obtained could not reasonably be expected to have a Material
Adverse Effect, (c) do not contravene, or constitute a default under (i) the
organizational documents of H&R Block, (ii) any provision of Law, the violation
of which could reasonably be expected to have a Material Adverse Effect or (iii)
any agreement, judgment, injunction, order, decree or other instrument binding
upon H&R Block, the violation of which could reasonably be expected to have a
Material Adverse Effect, and (d) do not result in the creation or imposition of
any Lien on any asset of H&R Block, the creation or imposition of which could
reasonably be expected to have a Material Adverse Effect.
(c) This Article XX and Articles XXI and XXII of this Retail
Distribution Agreement constitute the valid and binding agreement of H&R Block,
enforceable in accordance with its terms, subject to (a) the effect of any
applicable bankruptcy, fraudulent transfer, moratorium, insolvency,
reorganization or other similar laws affecting the rights of creditors generally
and (b) the effect of general principles of equity, whether applied by a court
of equity or law.
Section 20.4. Block Guaranty.
(a) H&R Block hereby unconditionally guarantees to the HSBC Companies
and the Block Indemnified Parties the prompt payment of the financial
Obligations of each Block Company under this Retail Distribution Agreement and
the other Program Contracts (the "Block Guaranty"). This Block Guaranty is a
guaranty of payment and not of collection. H&R Block's obligations under this
Block Guaranty shall be primary, absolute and unconditional. In no event shall
any HSBC Company or Block Indemnified Party have any obligation to proceed
against any Block Company before seeking payment from H&R Block.
(b) H&R Block hereby acknowledges and agrees that the HSBC Companies
and the Block Companies may amend or modify the Program Contracts without notice
to or the consent of H&R Block, and no such amendment or modification shall
impair or release the Block Guaranty.
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ARTICLE XXI
ALTERNATIVE DISPUTE RESOLUTION
Section 21.1. Negotiations by Senior Executives.
(a) If any controversy, claim or dispute of any nature should arise
out of or relating to this Retail Distribution Agreement, any of the other
Program Contracts, or the transactions contemplated herein or therein (a
"Dispute"), any party to this Retail Distribution Agreement may give written
notice of the Dispute to the parties with whom the Dispute has arisen. The
parties shall attempt in good faith to resolve the Dispute promptly by
negotiations, with each party represented by one (1) senior executive of such
party who has authority to settle the Dispute. The senior executives shall meet
at a mutually acceptable time and place within three (3) Business Days after
delivery of the written notice of Dispute and thereafter as often as they deem
reasonably necessary to attempt to resolve the Dispute. All reasonable requests
for information by any party to the others shall be honored.
(b) All negotiations pursuant to this Section 21.1 shall be treated as
compromise and settlement negotiations. Nothing said or disclosed and no
document produced in the course of such negotiations which is not otherwise
independently discoverable shall be offered or received as evidence or used for
impeachment or for any other purpose in any current or future arbitration or
litigation.
Section 21.2. Mediation.
(a) If any of the parties hereto are unable to resolve the Dispute in
good faith through negotiations pursuant to Section 21.1 within ten (10) days
from the date on which any party first received the written notice of such
Dispute, then such parties shall endeavor in good faith to settle the Dispute by
mediation in St. Louis, Missouri, in accordance with the Commercial Mediation
Procedures of the AAA then currently in effect, by one mediator who (a) has the
qualifications set forth in Section 21.4 hereof and (b) is appointed as provided
in Section 21.5 hereof. Within five (5) days after the mediator has been
appointed as provided in Section 21.5 hereof, the parties to the Dispute and
their respective attorneys shall meet with the mediator for mediation sessions
with each party represented by an individual who has authority to settle the
Dispute. If the Dispute cannot be settled at such mediation sessions or at any
mutually agreed continuation thereof, any party may give the other parties and
the mediator a written notice declaring the mediation process at an end, in
which event the Dispute shall be resolved by arbitration as hereinafter
provided.
(b) All conferences and discussions which occur in connection with the
mediation conducted pursuant to this Section 21.2 shall be treated as compromise
and settlement discussions, and nothing said or disclosed and no document
produced in the course of such mediation which is not otherwise independently
discoverable shall be offered or received as evidence or used for impeachment or
for any other purpose in any current or future arbitration or litigation.
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Section 21.3. Arbitration.
(a) If any of the parties hereto are unable to resolve the Dispute
through negotiations pursuant to Section 21.1 or mediation pursuant to Section
21.2 within thirty (30) days from the date on which any party first received the
written notice of such Dispute, then the Dispute shall be resolved by binding
arbitration in St. Louis, Missouri, in accordance with the Commercial
Arbitration Rules of the AAA then currently in effect by three (3) arbitrators
who (i) have the qualifications set forth in Section 21.4 hereof and (ii) are
appointed as provided in Section 21.5 hereof. Any issue as to whether or the
extent to which the Dispute is subject to the arbitration and other dispute
resolution provisions contained in this Retail Distribution Agreement or any
other Program Contract, including issues relating to the validity or
enforceability of these arbitration provisions, the applicability of any statute
of limitations or other defense relating to the timeliness of the assertion of
any claim or any other matter relating to the arbitrability of such claim, shall
be decided by the arbitrators.
(b) The arbitrators shall base their award on the terms of this Retail
Distribution Agreement and the other Program Contracts, as applicable, and shall
endeavor to follow the law and judicial precedents which a United States
District Judge sitting in the United States District Court for the Eastern
District of Missouri would apply in the event the Dispute were litigated in such
court. The arbitrators shall render their award in writing and, unless both
parties agree otherwise, shall include an explanation of the reasons for the
award, which explanation may be limited to the extent necessary to support the
award and need not attempt to cover all issues raised by the parties. This
agreement for arbitration is made, governed by, and may be enforced pursuant to
the Federal Arbitration Act. The arbitration proceedings shall be governed by
the substantive laws of the State of Missouri applicable to contracts made and
to be performed therein, and by the arbitration law of the Federal Arbitration
Act, and judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof.
(c) The arbitration proceedings conducted pursuant hereto shall be
confidential. No party shall disclose or permit the disclosure of any
information about the evidence presented or the documents produced by the other
parties in the arbitration proceedings or about the existence, contents or
results of the arbitration award without the prior written consent of such other
parties, except to the extent required by judicial or Governmental Authority or
by Law. Before making any disclosure permitted by the preceding sentence, the
party intending to make such disclosure shall give the other parties such prompt
written notice of the intended disclosure as is practicable in order to afford
the other parties the opportunity to protect their interests.
(d) IN CONNECTION WITH THIS AGREEMENT FOR ARBITRATION, THE PARTIES
HERETO WAIVE ANY RIGHT TO HAVE DISPUTES RESOLVED IN A COURT OF LAW (EXCEPT AS
SET FORTH IN SECTION 21.12 HEREOF), AND WAIVE ANY RIGHT TO TRIAL BY JURY.
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Section 21.4. Qualified Mediator and Arbitrators.
(a) Unless the parties agree otherwise, the mediator shall be an
impartial and independent lawyer who is then a qualified mediator under Section
M-5 of the Commercial Mediation Procedures of the AAA.
(b) Every person named on any list of potential arbitrators provided
to the parties by the AAA shall be a impartial and independent lawyer under
Section R-17 of the Commercial Arbitration Rules of the AAA who is then
currently listed on the National Roster of Commercial Arbitrators maintained by
the AAA.
Section 21.5. Appointment of Mediator and Arbitrators.
(a) The mediator shall be appointed by the AAA in accordance with
Section M-4 of the Commercial Mediation Procedures of the AAA.
(b) The arbitrators shall be appointed as provided in this Section
21.5(b) and otherwise in accordance with the Commercial Arbitration Rules of the
AAA. In the event the parties cannot agree on the mutually acceptable
arbitrators from the list of ten (10) arbitrators transmitted to the parties by
the AAA under Section R-11 of the Commercial Arbitration Rules within ten (10)
days after the transmittal date of such submission to the parties, the Block
Companies shall promptly appoint one (1) arbitrator from such list, the HSBC
Companies shall promptly appoint one (1) arbitrator from such list, and the two
(2) arbitrators so appointed shall then appoint a third arbitrator from such
list. If the two (2) appointed arbitrators cannot agree upon the appointment of
the third arbitrator, then upon written notice to the AAA by either party, the
AAA shall make the appointment of the third arbitrator from such list. The three
(3) arbitrators so appointed shall then arbitrate the Dispute in accordance with
the terms of this Article XXI.
Section 21.6. Governing Rules; Discovery. With respect to arbitration under
Section 21.3, the parties agree that although the AAA Commercial Arbitration
Rules do not specifically provide for discovery or depositions, the arbitration
proceedings shall be governed by the Federal Rules of Civil Procedure then in
effect in the State of Missouri. The parties agree they will be entitled to
conduct discovery and depositions in the same manner as they would be able to do
if they were in the United States District Court for the Eastern District of the
State of Missouri. The parties agree that the arbitrators who are impaneled in
the case shall be empowered to issue subpoenas to parties and witnesses
(including subpoenas duces tecum) and to compel the attendance of witnesses and
the production of documents for depositions, and for the arbitration hearing
itself, to the same and like degree as the parties would be able to do if the
case tried to a jury or to a judge in the United States District Court for the
Eastern District of the State of Missouri.
Section 21.7. Fees and Expenses. All expenses and fees of the mediators or
arbitrators, as the case may be, and expenses for hearing facilities and other
expenses of the mediation or arbitration, as the case may be, shall be borne
equally by the parties unless they agree otherwise or, in the event of
arbitration, unless the arbitrators in the award assess such expenses against
one of the parties or allocate such expenses other than equally between the
parties. Each party shall
68
bear its own counsel fees and, with respect to arbitration, the expenses of its
witnesses; provided, however, in the case of arbitration, that if the
arbitrators find that the claim or defense of any party was frivolous or lacked
a reasonable basis in fact or law, the arbitrators may assess against such party
all or any part of the counsel and witness fees and expenses of the other party.
Section 21.8. Remedies. With respect to arbitration hereunder, the
arbitrators shall have the authority to order or award any provisional remedy or
other remedy or relief which would be available from a court of law pending
arbitration of the Dispute, including interim orders or awards. The arbitrators
shall have the power and authority to impose sanctions and to take other actions
with regard to the parties to the same extent that a judge could pursuant to the
Federal Rules of Civil Procedure. Either party may make an application to the
arbitrators seeking injunctive or other interim relief, and the arbitrators may
take whatever injunctive or other interim measures they deem necessary in
respect of the subject matter of the dispute, until such time as the arbitration
award is rendered or the controversy is otherwise resolved. Such interim
measures may be taken in the form of an interim award, and the arbitrators may
require security for the costs of any such measures. The arbitrators shall have
the authority to order equitable relief.
Section 21.9. Preliminary Dispositive Issues. With respect to arbitration
hereunder, the arbitrators may, pursuant to such terms and procedures as the
arbitrators deem appropriate, hear and determine any preliminary issue of law
asserted by a party to be dispositive, in whole or in part, of a claim or
defense to the same extent that a court could do so pursuant to a motion for
summary judgment.
Section 21.10. Limitation of Damages. With respect to arbitration
hereunder, no party shall be liable for lost profits, incidental, consequential,
exemplary, special or punitive damages arising under or in connection with this
Retail Distribution Agreement or the other Program Contracts.
Section 21.11. Statute of Limitations. With respect to arbitration
hereunder, any claim by either party shall be time-barred unless the asserting
party makes a demand for arbitration with respect to such claim within the
applicable statute of limitations. Any dispute as to the timeliness of such
demand or other timeliness or statute of limitations issues shall be decided by
the arbitrators. Nothing contained in this Article XXI shall preclude a party
from filing a complaint in a court of competent jurisdiction to ensure any claim
contained therein is not barred due to the relevant statute of limitations;
provided, however, such claim shall not be further litigated or pursued by any
party hereto until completion of the alternative dispute resolution procedures
contained in this Article XXI.
Section 21.12. Exception for Specific Performance or Injunctive Relief. If
any party hereto seeks specific performance or injunctive relief with respect to
any Dispute covered hereby, such party may, without waiving any other remedy
under the Program Contracts, seek specific performance or injunctive relief in a
court of competent jurisdiction and shall not be required to comply with the
other provisions of this Article XXI for so long as the only remedy sought by
such party in such court of competent jurisdiction with respect to such dispute
is either specific performance or injunctive relief; provided, however, if any
party seeks specific performance or injunctive relief in a court of competent
jurisdiction (whether or not such relief is
69
obtained), such party shall not be prevented from subsequently seeking
arbitration and any other remedy under this Article XXI.
ARTICLE XXII
MISCELLANEOUS
Section 22.1. Survival.
(a) The rights and obligations of the parties hereto under Sections
5.7, 6.8, 6.9, 7.14, 10.6, 14.20 (only with respect to obligations under Section
7.14(a)), 15.2 (except in the event this Retail Distribution Agreement is
terminated as a result of a Block Event of Default), 17.4, 18.3 and 19.3 and
Article XX of this Retail Distribution Agreement shall survive the termination
or expiration of this Retail Distribution Agreement until such time as no
obligations are due and owing thereunder.
(b) The (i) representations and warranties of the parties hereto and
(ii) the rights and obligations of the parties hereto under Sections 15.5, 17.3,
18.2(b) and 19.2(b) and Articles XVI, XXI and XXII of this Retail Distribution
Agreement shall survive the termination or expiration of this Retail
Distribution Agreement indefinitely.
Section 22.2. No Waivers; Remedies Cumulative. No failure or delay by any
party hereto in exercising any right, power or privilege under this Retail
Distribution Agreement shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law, by other agreement or otherwise.
Section 22.3. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including prepaid overnight courier,
facsimile transmission or similar writing) and shall be given to such party at
its address or facsimile number set forth in this Section 22.3 or on the
signature pages hereof or at such other address or facsimile number as such
party may hereafter specify in writing. Each such notice, request or other
communication shall be effective (a) if given by facsimile, when transmitted to
the facsimile number specified in this Section 22.3 and confirmation of receipt
is received by the sender, (b) if given by mail, upon the earlier of actual
receipt or five (5) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, properly addressed and
with proper postage prepaid, (c) one (1) Business Day after deposit with an
internationally reputable overnight courier properly addressed and with all
charges prepaid or (d) when received, if by any other means.
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Notices shall be addressed as follows:
If to HSBC Bank: HSBC Bank USA, National Association
One HSBC Center, 10th Floor
Buffalo, NY 14203
Telephone: 716-841-6197
Facsimile: 716-841-6591
Attention: Executive V.P., Consumer Finance
With a copy to (which shall not HSBC Bank USA, National Association
constitute notice hereunder): 452 Fifth Ave., 7th Floor
New York, NY 10018
Telephone: 212-525-6533
Facsimile: 212-525-8447
Attention: General Counsel
If to HSBC TFS: HSBC Taxpayer Financial Services Inc.
200 Somerset Corporate Blvd.
Bridgewater, NJ 08807
Telephone: 908-203-4441
Facsimile: 908-203-4211
Attention: CEO and Managing Director
With a copy to (which shall not HSBC Taxpayer Financial Services, Inc.
constitute notice hereunder): 90 Christiana Road
New Castle, DE 19707
Telephone: 302-327-2507
Facsimile: 302-327-2533
Attention: General Counsel
If to Beneficial Franchise: Beneficial Franchise Company Inc.
200 Somerset Corporate Blvd.
Bridgewater, NJ 08807
Telephone: 908-203-4441
Facsimile: 908-203-4211
Attention: CEO and Managing Director
With a copy to (which shall not HSBC Taxpayer Financial Services, Inc.
constitute notice hereunder): 90 Christiana Road
New Castle, DE 19707
Telephone: 302-327-2507
Facsimile: 302-327-2533
Attention: General Counsel
71
If to HSBC Finance: HSBC Finance Corporation
200 Somerset Corporate Blvd.
Bridgewater, NJ 08807
Telephone: 908-203-2222
Facsimile: 908-203-4221
Attention: Patrick Cozza, Group Executive
With a copy to (which shall not HSBC Finance Corporation
constitute notice hereunder): 2700 Sanders Road
Prospect Heights, IL 60070
Telephone: 847-564-6268
Facsimile: 847-564-6001
Attention: Deputy General Counsel - Operations
If to Block Services: H&R Block Services, Inc.
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
If to Block Tax Services: H&R Block Tax Services, Inc.
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
72
If to Block Enterprises: H&R Block Enterprises, Inc.
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
If to Block Eastern H&R Block Eastern Enterprises, Inc.
Enterprises: 4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
If to Block Digital: H&R Block Digital Tax Solutions, LLC
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
73
If to Block Associates: H&R Block and Associates, L.P.
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
If to Royalty: HRB Royalty, Inc.
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
If to BFC: Block Financial Corporation
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
74
If to H& R Block: H&R Block, Inc.
4400 Main Street
Kansas City, Missouri 64111
Telephone: 816-753-6900
Facsimile: 816-753-8628
Attention: President and General Counsel
With a copy to (which shall not Stinson Morrison Hecker LLP
constitute notice hereunder): 1201 Walnut Street
Kansas City, Missouri 64106
Telephone: 816-691-3208
Facsimile: 816-691-3495
Attention: Mike W. Lochmann
Section 22.4. Severability. In case any provision of or obligation under
this Retail Distribution Agreement shall be invalid, illegal or unenforceable in
any applicable jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
Section 22.5. Amendments and Waivers. Any provision of this Retail
Distribution Agreement may be amended or waived only if such amendment or waiver
is in writing and is signed by all of the parties hereto.
Section 22.6. Successors and Assigns. The provisions of this Retail
Distribution Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
no such party may assign or otherwise transfer any of its rights under this
Retail Distribution Agreement without the prior written consent of all parties
signatory hereto except as otherwise provided herein.
Section 22.7. Headings. Headings and captions used in this Retail
Distribution Agreement (including all exhibits and schedules thereto) are
included herein for convenience of reference only and shall not constitute a
part of this Retail Distribution Agreement for any other purpose or be given any
substantive effect.
Section 22.8. Governing Law; Submission To Jurisdiction. THIS RETAIL
DISTRIBUTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF MISSOURI. WITHOUT LIMITING THE EFFECT OF ARTICLE
XXI HEREOF, EACH OF THE PARTIES HERETO (A) SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE FEDERAL AND/OR STATE COURTS SITTING IN ST. LOUIS, MISSOURI FOR PURPOSES
OF ALL LEGAL PROCEEDINGS FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF PERMITTED
BY SECTION 21.12 HEREOF, (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND
75
ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, (C) IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN SUCH
PROCEEDING IN THE MANNER PROVIDED FOR NOTICES IN SECTION 22.3, AND (D) AGREES
THAT NOTHING IN THIS RETAIL DISTRIBUTION AGREEMENT WILL AFFECT THE RIGHT OF ANY
PARTY TO THIS RETAIL DISTRIBUTION AGREEMENT TO SERVE PROCESS IN ANY SUCH
PROCEEDING IN ANY OTHER MANNER PERMITTED BY LAW.
Section 22.9. Waiver of Jury Trial. WITHOUT LIMITING THE EFFECT OF ARTICLE
XXI HEREOF, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS RETAIL
DISTRIBUTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 22.10. Counterparts. This Retail Distribution Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Retail Distribution Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto.
Section 22.11. Entire Agreement. This Retail Distribution Agreement and the
other Program Contracts constitute the entire agreement and understanding among
the parties hereto, and supersede and extinguish any and all prior agreements
and understandings, oral or written relating to the operation of the Settlement
Products Program on and after July 1, 2006. For the avoidance of doubt, (i) this
Retail Distribution Agreement and the other Program Contracts shall govern the
operation of the Settlement Products Program on and after July 1, 2006, (ii) the
Prior Program Agreements shall continue to govern the operation of the current
program until their expiration on June 30, 2006 in accordance with their terms,
and (iii) nothing in this Retail Distribution Agreement or the other Program
Contracts shall affect the rights and obligations of the parties to the Prior
Program Agreements, whenever arising, under such Prior Program Agreements, which
remain valid and enforceable in accordance with their terms.
Section 22.12. Reinstatement. This Retail Distribution Agreement shall
remain in full force and effect and continue to be effective should any petition
be filed by or against any party hereto for liquidation or reorganization,
should any party hereto become insolvent or make an assignment for the benefit
of any creditor or creditors or should a receiver or trustee be appointed for
all or any significant part of any party's assets or properties, and shall
continue to be effective or to be reinstated, as the case may be, if at any time
payment and performance of the obligations hereunder, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of such obligations, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the obligations hereunder
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
Section 22.13. Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Retail Distribution Agreement with
its counsel.
76
Section 22.14. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Retail Distribution Agreement.
In the event any ambiguity or question of intent or interpretation arises, this
Retail Distribution Agreement shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Retail Distribution Agreement.
Section 22.15. Conflict of Terms. Except as otherwise provided in this
Retail Distribution Agreement or any of the other Program Contracts by specific
reference to the applicable provisions of this Retail Distribution Agreement, if
any provision contained in this Retail Distribution Agreement conflicts with any
provision in any of the other Program Contracts, the provision contained in this
Retail Distribution Agreement shall govern and control.
Section 22.16. Further Execution. Each party hereto shall execute any and
all documents as are necessary or desirable to consummate the transactions
contemplated hereby.
Section 22.17. Expenses. Except as otherwise provided herein, each party
hereto shall pay its own expenses, including the expenses of its own counsel and
its own accountants, in connection with the consummation of the transactions
contemplated by this Retail Distribution Agreement.
Section 22.18. No Implied Relationship. Notwithstanding any provision
herein to the contrary:
(a) This Retail Distribution Agreement shall not be construed to
establish a partnership or joint venture between the parties hereto.
(b) All personnel employed or otherwise engaged by any party hereto to
perform the obligations and duties of such party hereunder shall not be deemed
to be employees of any other party hereto. In addition, the party employing or
otherwise engaging such employees, shall at all times be responsible for the
compensation of, and payment of applicable state and federal income taxes with
respect to, any personnel employed by such party to perform any services
hereunder.
Section 22.19. No Third Party Beneficiaries. This Retail Distribution
Agreement is for the sole benefit of the parties hereto and their permitted
successors and assigns and nothing in this Retail Distribution Agreement,
express or implied, is intended to or shall confer upon any other person any
legal or equitable right, benefit or remedy, of any nature whatsoever under or
by reason of this Retail Distribution Agreement.
Section 22.20. Force Majeure. No party hereto shall be liable for failure
to satisfy or delays in the satisfaction of its Obligations, except failure or
delay with respect to its payment Obligations, as a result of a Force Majeure
Event.
Section 22.21. Limitation of Scope of Representations and Warranties and
Other Disclosures. The representations, warranties and other disclosures set
forth by each party hereto are only made for the benefit of the parties hereto
and the purpose of the transactions
77
contemplated hereby and are not intended for use by any person with respect to
any acquisition or disposition of any security of any party hereto.
78
THIS RETAIL DISTRIBUTION AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this HSBC Retail
Settlement Products Distribution Agreement to be executed by their respective
duly authorized officers as of the date set forth above.
HSBC BANK USA, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Kathleen R. Whelehan
------------------------------------
Name: Kathleen R. Whelehan
Title: Executive Vice President
HSBC TAXPAYER FINANCIAL SERVICES INC.,
a Delaware corporation
By: /s/ Paul J. Creatura
------------------------------------
Name: Paul J. Creatura
Title: CEO
BENEFICIAL FRANCHISE COMPANY INC.,
a Delaware corporation
By: /s/ Paul J. Creatura
------------------------------------
Name: Paul J. Creatura
Title: Vice President
HOUSEHOLD TAX MASTERS ACQUISITION
CORPORATION,
a Delaware corporation
By: /s/ Paul J. Creatura
------------------------------------
Name: Paul J. Creatura
Title: President
THIS RETAIL DISTRIBUTION AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
H&R BLOCK SERVICES, INC.,
a Missouri corporation
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
H&R BLOCK TAX SERVICES, INC.,
a Missouri corporation
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
H&R BLOCK ENTERPRISES, INC.,
a Missouri corporation
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
H&R BLOCK EASTERN ENTERPRISES, INC.,
a Missouri corporation
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
THIS RETAIL DISTRIBUTION AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
H&R BLOCK DIGITAL TAX SOLUTIONS, LLC,
a Delaware limited liability company
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
H&R BLOCK AND ASSOCIATES, L.P.,
a Delaware limited partnership
By: HRB Texas Enterprises, Inc.,
its General Partner
By: /s/ Betsy Stephens
------------------------------------
Name: Betsy Stephens
Title: Sr. Vice President
HRB ROYALTY, INC.,
a Delaware corporation
By: /s/ Bret G. Wilson
------------------------------------
Name: Bret G. Wilson
Title: Secretary
THIS RETAIL DISTRIBUTION AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the following parties hereto have caused this HSBC
Retail Settlement Products Distribution Agreement to be executed by their
respective duly authorized officers as of the date set forth above, solely for
the limited purpose of providing the respective guaranties set forth in Article
XX and also for purposes of Articles XXI and XXII hereof.
HSBC FINANCE CORPORATION,
a Delaware corporation
By: /s/ Patrick A. Cozza
------------------------------------
Name: Patrick A. Cozza
Title: Group Executive
H&R BLOCK, INC.,
a Missouri corporation
By: /s/ Bret G. Wilson
------------------------------------
Name: Bret G. Wilson
Title: Vice President & Secretary
SCHEDULE 2.4(A)(1)
RAC PRODUCT PROCEDURES
[***]
SCHEDULE 2.4(A)(2)
CLASSIC RAL PRODUCT PROCEDURES
[***]
SCHEDULE 2.4(A)(3)
IRAL PRODUCT PROCEDURES
[***]
SCHEDULE 2.4(A)(4)
DENIED CLASSIC RAL PRODUCT PROCEDURES
[***]
SCHEDULE 2.4(A)(5)
DENIED IRAL PRODUCT PROCEDURES
[***]
SCHEDULE 3.6
INTELLECTUAL PROPERTY - THE BLOCK COMPANIES
PATENT SERIAL NUMBER
- ------ -------------
Pre Year End Tax Refund System (pending) 09/483,666
H&R Block Tax Services, Inc.
SCHEDULE 4.6
INTELLECTUAL PROPERTY - THE HSBC COMPANIES
HSBC LICENSED PATENTS
PATENT NAME PATENT NUMBER
- ----------- -------------
Electronic income tax refund early payment system 4,890,228
Electronic income tax refund early payment system with means for creating of a 5,193,057
new deposit account for receipt of an electronically transferred refund from the
IRS
Electronic income tax refund early payment system with means for creating of a 5,963,921
new deposit account for receipt of an electronically transferred refund from the
IRS
HSBC LICENSED MARKS
MARK REGISTRATION NUMBER
- ---- -------------------
TaxLine 1,802,289
Instant RAL 2,702,210
RAC 1,795,241
SCHEDULE 7.1
BLOCK AGENTS' ROLES AND RESPONSIBILITIES
ROLES AND RESPONSIBILITIES OF BLOCK AGENTS:
- Preparation of tax return for RAL Clients, in their individual
capacity and not as agent
- Obtaining information from each applicant
- Completion of IRS Form No. 8453
- Coordination of RAL/RAC products origination
- Providing copy of signed application, loan agreement and disclosures
to Client
- Completion of RAL and RAC disbursement checks
- Delivery of necessary product disclosures
- Maintenance of necessary equipment
- Hiring and training of personnel
- Notify HSBC of lost RAL and RAC checks
- Following operating procedures for issuing RALs
- Offering of RALs and RACs to tax Clients in Block Company Offices
- Dissemination of marketing and promotional materials in Block Company
Offices
- Maintain ERO communication equipment and lines in Block Company
Offices
- Provide copy of RAL Client return to Block e-file Processing System
SCHEDULE 13.4
SERVICE LEVEL THRESHOLDS
OBJECTIVE
To define the processes regarding management, measurements, monitoring and
reporting to meet the service level thresholds defined in the program agreement
section 9.4 Service Level Thresholds.
REVISIONS AND REVIEW
1. Reviewed and updated: Not less than 1 time per year prior to tax season
2. Participants: Product management teams and technology teams will jointly
draft/revise the SLAs which will be reviewed and approved by the executive
management teams
3. Deadlines:
(a) The preliminary drafts of each SLA must be complete by October 1 and
final drafts must be complete by December 15th.
(b) The preliminary draft of milestone dates for the upcoming development
cycle must be set by the end of March and the final schedule must be
complete by the end of August.
4. Escalation of disagreements: In any given year, if the participants are
unable to reach agreement on the SLAs, the dispute shall be resolved by
negotiation among the parties to such dispute with each such party
represented by one executive of such party possessing the authority to
represent and bind such party.
PROJECT MANAGEMENT SLA
- - ON-GOING DEVELOPMENT LIFECYCLE
[***]
- - DEFINE KEY PERFORMANCE INDICATORS (KPIS)
- - TESTING PLANS
[***]
- - TEST ENVIRONMENT
[***]
- - KEY RESOURCES
- Provide org chart with key contacts for each phase of delivery,
including production support
- Escalation procedures
- - PROJECT CONTROL PROCESSES
- Change control
- Schedule Management
- Budget management
- Quality management
- Issue management
- Risk Management
INFRASTRUCTURE & ARCHITECTURE SLA
DEFINE KEY PERFORMANCE INDICATORS (KPIS)
- - DISASTER RECOVERY / BACKUP / MONITORING
[***]
- - BUSINESS RESUMPTION
- In case of disaster, business resumption capability shall meet Block's
requirements.
- Reviewed and updated annually.
- - SECURITY ARCHITECTURE
- Ensure maintenance of data integrity during input, storage,
transmission and output.
- Ensure physical protection of hardware supporting H&R Block products
and services.
- Comply with best IT security practices as recommended by international
standards.
- - COMMUNICATIONS ARCHITECTURE
- Provide support for H&R Block's current communications infrastructure.
- Evaluate industry best practices and provide recommendation and three
year plan if change appears to be in H&R Block's best interest.
- - APPLICATIONS ARCHITECTURE
- Work with the H&R Block IT organization in creating a plan for
migrating application architecture to a more robust format
- Business Architecture
PRODUCTION SYSTEMS OPERATIONS SLA
- - DEFINE KEY PERFORMANCE INDICATORS (KPIS)
- - PRODUCTION SUPPORT
[***]
- - PROCESSING TIME
[***]
PRODUCTION SUPPORT ISSUE MANAGEMENT AND ESCALATION PROCEDURES
[***]
BANK PRODUCT PROCESSING
CHECK PRINTING
CUSTOMER SERVICE CENTER OPERATIONS SLA
DEFINE KEY PERFORMANCE INDICATORS (KPIS)
ANSWERING SYSTEMS
[***]
SCHEDULE 13.6
REPORTING BY THE HSBC COMPANIES
The list below is not an exhaustive list, and H&R Block may choose at its
discretion to modify the current list or change the number and type of required
reports based upon business and/or accounting needs. Also, HSBC shall continue
to provide any additional reports (beyond those detailed below) that are
currently provided to H&R Block.
All reports detailed below shall be accessible to H&R Block via an online,
web-interfaced application. In addition, an electronic file shall be provided to
H&R Block for each report based upon the frequency specified for that report.
ACCOUNTING REPORTS FOR LOANS
LOAN REPORT
The Loan Report shall be provided daily, which includes the information below
for the previous day and year-to-date:
[***]
The daily Loan Report can be queried by:
[***]
PAYMENT REPORT
The Payment Report shall be provided daily, which includes the information below
for the previous day and year-to-date:
[***]
The Payment Report can be queried by
[***]
DELINQUENCY REPORT
The Delinquency Report shall be provided weekly, which includes the following
information:
- Client delinquency amount for RALs by tax cycle
The Delinquency Report can be queried by:
[***]
PRIOR YEARS PAYMENT REPORT
The Prior Years Payment Report shall be provided daily, which includes the
information below for the previous day and year-to-date:
- IRS payment amount
- HSBC collections amount
- HSBC collections amount (partner ERO bank product)
- Cross collection amount
- Client collection amount
The Prior Years Payment Report can be queried by:
[***]
ACCOUNTING REPORTS FOR FEES
DAILY ACCOUNTING FEE REPORT
The Accounting Fee Report shall be provided daily, which contains the following
information:
- Cash received per product
- Prior year fees collected
The Accounting Fee Report can be queried by:
- Product
- Office
- Office type
BUSINESS / OPERATIONAL REPORTS
OPERATIONS REPORT
The Operations Report shall be provided daily, which includes the information
below for the previous day and year-to-date:
- Number of applications
- Number of rejects with reason code
- Number of clients approved for a loan
- Number of loan approvals accepted by clients (i.e., products sold)
- Number of clients denied a loan with reason code
- Number of pending lending decisions
The Operations Report can be queried by:
[***]
REPORTS SPECIFIC TO NEW CONTRACT
RETAIL DISTRIBUTION AGREEMENT
- Saving Vehicle Fee - Monthly reporting from HSBC - fifth business day
of each month
[***]
- RAC Fee - Monthly reporting from HSBC - fifth business day of each
month
- Float Adjustment - Monthly reporting from HSBC for RACs and Denied
RALs - fifth business day of each month
[***]
- IRAL System SLA (Penalty) - HSBC to provide a weekly report on their
compliance with SLA during tax season. Also at 4/30 will provide the #
of estimated lost clients. Off Season will provide reporting monthly.
- RAL System SLA (Penalty) - HSBC to provide a weekly report on their
compliance with SLA during tax season. Also at 4/30 will provide the #
of estimated lost clients. Off Season will provide reporting monthly.
- Paper Stock Reimbursement - HRB needs to provide listing of expenses
- Lost, Stolen, Duplicate Checks - Monthly reporting from HSBC - fifth
business day of each month
PARTICIPATION AGREEMENT
Source of Funding - If occurs, HSBC would need to provide reporting
- Purchase of Participations (esp. sections 4.1, 4.2, 4.3) - L reports,
electronic delivery
SERVICING AGREEMENT
- RAL Servicing Fee - Monthly reporting from HSBC - fifth business day
of each month
- Defaulted RAL Collection Fee - Monthly reporting from HSBC - fifth
business day of each month
- ERO Debt Collection Fee - Monthly reporting from HSBC - fifth business
day of each month
SCHEDULE 14.6(A)
BLOCK COMPANY OFFICES RAC FEE
[***]
SCHEDULE 14.6(B)
BLOCK FRANCHISEE OFFICES RAC FEE
[***]
SCHEDULE 14.17
HSBC BANK'S ROLES AND RESPONSIBILITIES
- - Credit criteria for loans
- - Pre-season application screening
- - Client account management
- - Risk management and underwriting
- - Data management/mining
- - Compliance monitoring
- - Reporting
- - Fulfillment
- - Reconciliation
- - Eligibility criteria
- - Exception processing
- - Disbursement processing
- - customer service
- - Adverse action letter processing
- - HRB fee payment processing and reconciliation
- - IRS and Client payment processing
- - Strategic partner interfaces
- - Application processing
- - Funding process and reconciliation
- - Fee structure
- - Application of payments
- - Credit bureau processing
- - Debt processing
- - Fraud prevention and procedures
- - Collections
- - Check clearing and processing
- - Prior check/ACH fulfillment program support
- - Delinquency reporting / management
- - Issue replacement checks as necessary
- - Online RAL, TaxCut RAC and related support
- - ERO loading of system
- - Prepare Client application and agreements
SCHEDULE 15.1
BLOCK LICENSED MARKS
MARK OWNER REGISTRATION NUMBER
- ---- ------- -------------------
H&R Block Premium Royalty 2,024,035
H&R Block & Design Royalty 2,533,014
SCHEDULE 15.2
HSBC LICENSED PATENTS
PATENT NAME PATENT NUMBER
- ----------- -------------
Electronic income tax refund early payment system 4,890,228
Electronic income tax refund early payment system with means for creating of a 5,193,057
new deposit account for receipt of an electronically transferred refund from the
IRS
Electronic income tax refund early payment system with means for creating of a 5,963,921
new deposit account for receipt of an electronically transferred refund from the
IRS
SCHEDULE 15.3
HSBC LICENSED MARKS
MARK OWNER REGISTRATION NUMBER
- ---- -------------------- -------------------
TaxLine Beneficial Franchise 1,802,289
Instant RAL Beneficial Franchise 2,702,210
RAC Beneficial Franchise 1,795,241