Exhibit 10.23
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
REFUND ANTICIPATION LOAN OPERATIONS AGREEMENT
NOTE: CERTAIN MATERIAL HAS BEEN OMITTED 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:
[***].
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED REFUND
ANTICIPATION LOAN OPERATIONS AGREEMENT dated as of August 31, 2005, (this
"Second Amendment"), is made by and among H&R Block Services, Inc., a Missouri
corporation ("Block Services"), on behalf of itself and in regard to its
subsidiaries, H & R Block Tax Services, Inc., a Missouri corporation ("Block Tax
Services"), HRB Royalty, Inc., a Delaware corporation ("Royalty," and together
with Block Services and Block Tax Services, the "Block Companies"); HSBC
Taxpayer Financial Services Inc. (f/k/a Household Tax Masters Inc.), a Delaware
corporation ("HSBC TFS"), for itself or in its capacity as servicer for the RAL
Originator (as such term is defined herein) where appropriate under the
circumstances, HSBC Bank USA, National Association, a national banking
association ("HSBC Bank") and Beneficial Franchise Company Inc., a Delaware
corporation ("Beneficial Franchise," and together with HSBC TFS and HSBC Bank,
the "HSBC Companies").
RECITALS
WHEREAS, certain of the parties hereto entered into a Second Amended
and Restated Refund Anticipation Loan Operations Agreement dated June 9, 2003,
which was subsequently amended pursuant to that certain 2004 Amendment to Second
Amended and Restated Refund Anticipation Loan Operations Agreement dated August
20, 2004 (as amended, and including all exhibits and appendices thereto, the
"Existing Agreement"); and
WHEREAS, the parties hereto desire to amend certain terms of the
Existing Agreement (the Existing Agreement, as amended by this Second Amendment,
is referenced herein as the "Agreement").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth below and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do hereby
agree as follows:
1. Amendments. The Existing Agreement is hereby amended as follows:
(a) Substitution of HSBC TFS. Each reference in Sections 1 through 8 of
the Existing Agreement to "Tax Masters" is hereby deleted and "HSBC TFS" is
substituted in lieu thereof.
(b) Designation of RAL Originator. Section 3.1(a) is hereby deleted in
its entirety and the following is substituted in lieu thereof:
"HSBC TFS has designated HSBC Bank USA, National Association,
a national banking association ("HSBC Bank"), as the RAL
Originator for the 2006 Tax Period."
(c) Making of Refund Anticipation Loans. Section 3.1(c) is hereby
deleted in its entirety and the following is substituted in lieu thereof:
(c) Notwithstanding the foregoing, the RAL Originator
is not obligated to make a loan to a RAL Customer until such
RAL Customer's RAL Application is approved by HSBC TFS as
servicer for the RAL Originator in accordance with the RAL
Originator's Final Credit Criteria. Subject to the Final
Credit Criteria and approval of the loans as aforesaid, the
RAL Originator has committed to (and HSBC TFS shall ensure
that the RAL Originator commits to) make RALs to all customers
who make RAL Applications for same at, or whose Returns or RAL
Application is processed through, any Block Office. [***]
(d) Non-Competition. A new Section 8 is added as follows, with the
existing Section 8 "Miscellaneous" being renumbered as "Section 9" and the
corresponding references and cross references to all subsections therein being
amended mutatis mutandi:
"8. NON-COMPETITION.
8.1 During the Term of this Agreement and for a period of ten (10)
years after the termination or expiration of this Agreement:
(i) The HSBC Companies and their Affiliates shall not,
directly or indirectly, in any manner whatsoever, use for any purpose
any RAL Customer information, except in accordance with this
Agreement and the other Program Contracts or with the consent of the
Block Companies, Block Enterprises, Block Eastern Enterprises, Block
Associates, H&R Block Digital Tax Solutions, LLC, a Delaware limited
liability company, and Block Financial Corporation, a Delaware
corporation (the "Designated Block Companies") in their discretion.
(ii) The HSBC Companies and their Affiliates shall have the
right to use mailing lists and customer lists derived from sources
other than the Designated 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 RAL
Customers 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
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Designated 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 RAL Customers
from any such solicitation in accordance with the following:
(A) During the Term of this Agreement, the HSBC
Companies and their Affiliates shall de-dupe RAL Customers who were
recorded in the HSBC Datahouse as RAL Customers during the most
recent completed year of the Term of this Agreement; and
(B) During the ten (10) years after the termination
or expiration of this Agreement, the HSBC Companies and their
Affiliates shall de-dupe RAL Customers who were recorded in the HSBC
Datahouse as RAL Customers during the last year of the Term of this
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 RAL
Customers, 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 RAL Customers to a tax return preparer other
than the Designated Block Companies, other than at a RAL Customer's
explicit request without any solicitation by any such HSBC Company,
Affiliate or any HSBC Company director, officer, employee, agent, or
consultant (which shall not include any director, officer, employee,
agent, or consultant of any Block Company or any Affiliate thereof)
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 8.1. The Designated Block
Companies shall have the audit and inspection rights set forth in
Section 9.2 to the extent necessary to verify the records and
documentary described in the immediately preceding sentence.
8.2 During the Term of this 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 preparation business of the
Designated Block Companies; provided, however, that if any HSBC
Company or any of its Affiliates acquires a Person engaged in a
business that would
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violate the provisions of this Section 8.2 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 8.2, such Divesting Party shall
deliver to the Designated 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 Designated Block Companies such information as
the Designated Block Companies may reasonably request with respect to
the Competitive Business, subject to the entry by the Designated
Block Companies into a confidentiality agreement in form and
substance reasonably acceptable to the Divesting Party. The
Designated 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 Designated Block Companies. If the
Designated 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 Designated 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 Designated Block Companies
shall deliver written notice to the Divesting Party that the
Designated 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 Designated 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 Designated
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
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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.
(iv) The Designated Block Companies shall have an
option for a period of fifteen (15) days from receipt of a Transfer
Notice (the "Designated 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 Designated Block Companies may exercise such purchase
option by providing written notice to the Divesting Party of such
election prior to the expiration of the Designated Block Companies
Notice Period. If the Designated Block Companies give the Divesting
Party notice that they desire to purchase the Competitive Business,
then the Designated 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 Designated Block
Companies' receipt of the Transfer Notice, and to close the
transaction pursuant to such definitive agreement. If the Designated
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 Designated 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.
8.3 During the Term of this 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
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Designated 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 Designated Block
Companies to conduct such international tax return preparation
business with the Designated Block Companies and (iii) the Designated
Block Companies and such HSBC Company are unable to arrive at an
agreement to enter into such partnership or joint venture.
8.4 In the event that at any time during the two (2) full Tax
Periods immediately following the termination or expiration of this
Agreement (each, a "Subsequent Tax Period"), any HSBC Company or any
of its Affiliates prepares (including preparation through any digital
means) federal or state personal income tax returns for a client
(excluding HSBC Tax Clients) that was a RAL Customer during the Tax
Period included within the year in which this 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 Block Enterprises and Block Eastern Enterprises an
amount, in the aggregate, equal to the product of (i) Fifty Dollars
($50) multiplied by (ii) the number of Final 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
Block Enterprises and Block Eastern Enterprises. No later than
fifteen (15) days following the end of each Subsequent Tax Period,
the HSBC Companies shall provide the Designated Block Companies a
true and correct report setting forth the number of Final Tax Period
Clients for such Subsequent Tax Period. The Designated Block
Companies shall have the audit and inspection rights set forth in
Section 9.2, to the extent necessary to verify the accuracy and
completeness of the report described in the immediately preceding
sentence.
(e) Amendment to Appendix of Defined Terms. The Appendix of Defined
Terms is hereby amended to include the following additional defined terms:
"BEST IN MARKET PRICE" means [***].
"BLOCK AGENTS" shall mean H&R Block Enterprises, Inc., a Missouri
corporation ("Block Enterprises"), H&R Block Eastern Enterprises,
Inc., a Missouri corporation ("Block Eastern Enterprises") and H&R
Block Associates, L.P., a Delaware limited partnership ("Block
Associates") and their permitted successors and assigns.
"CLIENT" means a customer of any Block Office, as applicable, that is
rendered tax preparation, transmission, filing or other similar
services at such office.
"HSBC BANK" shall mean HSBC Bank USA, National Association, a
national banking association, and its permitted successors and
assigns.
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"HSBC DATAHOUSE" means the database structure developed, maintained
and updated by the HSBC Companies for the purpose of maintaining
credit and noncredit information pertaining to customers and
prospects of the HSBC Companies.
"HSBC PREMIER CUSTOMERS" shall mean:
(i) those customers of HSBC Bank or any of its Affiliates who:
(A) are designated by HSBC Bank or any such Affiliate as a
"Private Banking Customer" or a "Premier Customer," and
(B) have (1) deposits and investments aggregating at least
$100,000 with HSBC Bank or any such Affiliate, or (2) deposits,
investments, loans and lines of credit aggregating at least $500,000
with HSBC Bank or any of its Affiliates, which loans and lines of
credit include credit cards, mortgages, home equity loans or lines of
credit, and personal and business loans and lines of credit, and
(ii) individuals who are principals, officers, directors or senior
management employees of corporations, partnerships or similar
entities, which entities are customers of HSBC Bank or any of its
Affiliates, and such customer and entity have, in the aggregate, (A)
deposits and investments aggregating at least $100,000 with HSBC Bank
or any of its Affiliates, or (B) deposits, investments, loans and
lines of credit aggregating at least $500,000 with HSBC Bank or any
of its Affiliates, which loans and lines of credit include credit
cards, mortgages, home equity loans and lines of credit, and personal
and business loans and lines of credit.
"HSBC TAX CLIENTS" shall mean (i) those customers of Wealth and Tax
Advisory Services, Inc., a Delaware corporation ("WTAS"), who are
corporations, partnerships, entities similar to a corporation or
partnership, and high net worth individuals for whom WTAS prepares
federal, state, estate, gift, or other tax returns solely in
connection with the provision of wealth management services, (ii)
HSBC Premier Customers, and (iii) those customers of HSBC Bank for
whom HSBC prepares federal, state, estate, gift, or other tax returns
solely in connection with the exercise of HSBC Bank's trust powers.
[***]
[***]
[***]
"NATIONALLY RECOGNIZED TAX PREPARER" shall mean [***]
"REFUND ACCOUNT FEE" shall mean the amount payable to the RAL
Originator by a RAL Customer for setting up and administering the
deposit account for any RAL or RAC.
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2. Reference to and Effect Upon the Existing Agreement.
(a) Except as specifically amended in this Second Amendment, the
Existing Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
(b) Except as specifically provided in this Second Amendment, the
execution, delivery and effectiveness of this Second Amendment shall not operate
as a waiver of any right, power or remedy of any party under the Existing
Agreement, nor constitute a waiver of any provision of the Existing Agreement.
(c) Upon the effectiveness of this Second Amendment, each reference in
the Existing Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Agreement as
amended hereby.
(d) GOVERNING LAW. THIS SECOND AMENDMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF DELAWARE.
(e) Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
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IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Second Amendment to Second Amended and Restated
Refund Anticipation Loan Operations Agreement as of the effective date set forth
above.
HSBC TAXPAYER FINANCIAL SERVICES, INC.
By: /s/ Paul J. Creatura
----------------------------------
Name:
Title:
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ Kathleen R. Whelehan
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Name: Kathleen R. Whelehan
Title: EVP
BENEFICIAL FRANCHISE COMPANY, INC.
By: /s/ Paul J. Creatura
----------------------------------
Name: Paul J. Creatura
Title: Vice President
H&R BLOCK SERVICES, INC.
By: /s/ Betsy Stephens
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Name: Betsy L. Stephens
Title: Sr. Vice President
H&R BLOCK TAX SERVICES, INC.
By: /s/ Betsy Stephens
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Name: Betsy L. Stephens
Title: Sr. Vice President
HRB ROYALTY, INC.
By: /s/ HRB Royalty, Inc.
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Name: Bret G. Wilson
Title Secretary