EXHIBIT 10.33
LEASING OPERATIONS SUPPLIER AGREEMENT
(PRODUCTS AND/OR SERVICES)
This Agreement is entered into this 11th day of
September____________________, 2003, between Wal*Mart Stores, Inc. of
Bentonville, Arkansas ("Wal*Mart") and H&R Block Services, Inc. and its
subsidiaries ("Supplier"). WHEREFORE, Wal*Mart agrees to make space available in
certain Wal*Mart stores for Supplier's tax return preparation services (the
"Promotion") and Supplier agrees to pay fees and rent to Wal*Mart upon the
following terms and conditions:
1. SERVICE. Supplier agrees to market the Promotion to its independently owned
and operated franchisees as well as to its company-owned stores. Supplier has
been designated as an approved Wal*Mart Other Income Supplier and will be
allowed to offer its Promotion to store managers of stores designated by the
Wal*Mart Other Income Department, in its sole discretion, and identified in the
attached Exhibit A. The list of stores on Exhibit A shall be revised by
September 15 of each year in the year preceding the Tax Season (as defined
below). Each store in which the Promotion was actually operated, to the
satisfaction of Wal*Mart Operations, shall remain on the list of stores in
Exhibit A in subsequent years.
Supplier, will secure approvals for each location from the store manager
and Wal*Mart Stores Operations between July 1 and September 15th of the year
preceding the Tax Season. Supplier shall use reasonable business efforts to
conduct the Promotion at each of the store locations listed on Exhibit A.
Supplier will provide Wal*Mart with a final list of all secured locations not
later than September 18th prior to the Tax Season, which shall comprise Exhibit
B hereto. In the event Wal*Mart elects to close an assigned store(s), Wal*Mart
will give the Supplier thirty (30) days prior written notice of such closing.
Wal*Mart shall use reasonable business efforts to provide a substitute location,
but shall not be held responsible for any lost income to Supplier, its
affiliates, subsidiaries, employees, franchisees, agents, or assigns. If a
closing occurs during Tax Season, then Supplier shall not be obligated to make
future rental payments with respect to the location and Wal*Mart shall return to
the Supplier the pro-rata portion of all Base Rent received for periods in which
Supplier did not occupy the location and no substitute location is taken by
Supplier. Supplier shall operate its promotion during Tax Season only. The term
"Tax Season" means the period beginning not earlier than January 2 nor later
than January 15th and ending on April 15th (or such later date as the Internal
Revenue Service permits the filing of federal income tax returns without
extension). Each year during the Term, Wal*Mart shall grant Supplier access to
the store on or after December 28th for the purpose of constructing and
equipping the Sites. Thereafter, Supplier shall have access to each Site during
all hours when the store is open to Wal*Mart associates. Supplier will remove
all of its furnishings and equipment used at a Site within 5 days after the end
of each Tax Season of each year during the Term.
2. TERM. The term of this Agreement shall commence on the date the Agreement is
signed and shall end on May 30, 2005 unless terminated earlier in accordance
with provisions of Section 19. It is also agreed and understood that Wal*Mart
shall have the right to propose a new commission schedule in advance of the 2005
Tax Season (but no later than July 1, 2004) and that Supplier shall have thirty
(30) days to accept said new commission schedule or terminate the Agreement,
provided however that no such new commission scheduled shall contain rents in
excess of 130% of the current rents. In the event that Supplier or Supplier's
franchisee does not generate at least thirty-five thousand dollars
[SEAL]
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($35,000) of gross revenue at any Site during the Tax Season, then Supplier may
de-list that Site from the list of stores on Exhibit A.
3. LOCATION. Supplier will be allotted space for a 6 ft. X 15 ft kiosk (the
"Site") approximately ninety (90) square feet in the approved area in each
Wal*Mart Store and Supercenter identified on Exhibit B attached hereto. For each
store designated on Exhibit A, Wal*Mart will assign up to three potential Site
locations as set forth on Exhibit C, and which shall be subject to the Store
Manager's approval. In the event a Site(s) is not available or unacceptable to
Supplier, Wal*Mart shall be under no obligation to provide a substitute location
nor shall Wal*Mart be held responsible for any lost income to Supplier its
affiliates, subsidiaries, employees, franchisees, agents, or assigns. After the
kiosk is located in a store with the Store Manager's approval, if the Store
Manager requests that Supplier relocate its kiosk to another part of the store
during the Tax Season, then Wal*Mart shall reimburse Supplier for the direct
cost of relocating the kiosk, including the cost of moving and reestablishing
telecom, power or any other utility to the kiosk.
4. INDEMNIFICATION.
(a) Supplier agrees to indemnify, defend and hold harmless Wal*Mart, its
affiliates, subsidiaries, successors and assigns and their officers,
directors, agents and employees, from and against any and all
losses, damages, injuries, claims, suits, demands, judgments,
decrees, costs, expenses, and liabilities, including but not limited
to attorneys' fees and court costs, for property damage, economic
injury, and personal injury, including death, which may be suffered,
incurred or asserted by any person in connection with or arising out
of any act or omission of Supplier its affiliates, subsidiaries,
employees, franchisees, agents, or assigns from the breach of this
Agreement, and/or from the operation of the Promotion.
(b) Wal*Mart agrees to indemnify, defend and hold harmless Supplier, its
affiliates, franchisees, subsidiaries, successors and assigns and
the officers, directors, agents and employees of each from and
against any and all losses, damages, injuries, claims, suits,
demands, judgments, decrees, costs, expenses and liabilities,
including, but not limited to, reasonable attorneys' fees and court
costs, for property damage and personal injury, including death,
which may be suffered, incurred or asserted by any person arising
solely out of any act or omission of Wal*Mart, and/or the operation
of the store in which the Site is located. It being expressly
understood that under no circumstances will Wal*Mart be liable to
Supplier, its affiliates, subsidiaries, employees, franchisees,
agents, or assigns for lost profits.
5. INSURANCE. Supplier agrees to provide comprehensive general liability
insurance, including insurance against assumed or contractual liability,
insuring the activities of Supplier, its affiliates, subsidiaries, employees,
franchisees, agents, or assigns agents, in the following amounts: Product
Liability-Two Million Dollars ($2,000,000.00) per occurrence, Malpractice/Errors
and Omissions - Two Million Dollars ($2,000,000.00) per occurrence, and General
Liability (Bodily Injury and Property Damage) - Two Million Dollars
($2,000,000.00) per occurrence. Such insurance shall be primary,
non-contributory, and not excess coverage and shall name Wal*Mart Stores, Inc.,
its subsidiaries and its affiliates, as additional insureds. Supplier agrees to
keep this insurance in full force and effect during the term of this Agreement
and shall provide Wal*Mart with ten (10) days prior written notice of any
cancellation or material change. Supplier shall provide Wal*Mart with a
Certificate of Insurance evidencing such coverage at least seven (7) days prior
to the commencement of its activities on the Wal*Mart premises pursuant to this
Agreement. Supplier shall maintain Workers' Compensation or a signed waiver for
Workers' Compensation for all employees who work at the Sites. Supplier
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warrants that insurance coverage in accordance with this paragraph shall be
maintained in force and effect for each store location at which the Promotion is
conducted.
6. SUPPLIER AND/OR EMPLOYEES. Supplier and its employees are not Wal*Mart
associates. They will not receive any of the benefits available to Wal*Mart
associates including but not limited to the associate discount on merchandise
purchased at any Wal*Mart store. Supplier may offer discounts to Wal*Mart
associates on such terms as Supplier, in its discretion, might determine.
7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that the
relationship created between Supplier and Wal*Mart by this Agreement is that of
independent contractor, and except as set forth in this Agreement, neither party
shall have the right to direct and control the day-to-day activities of the
other or to create or assume any obligation on behalf of the other party for any
purpose whatsoever. Nothing in this Agreement shall be deemed to constitute the
parties as partners, joint venturers, co-owners or otherwise as participants in
a joint or common undertaking, and neither party shall be determined hereby to
be the owner of the assets, customers or business of the other. Except as set
forth in this Agreement, all financial obligations associated with each party's
business are the sole responsibility of that party.
8. TAX NUMBERS AND OPERATOR'S LICENSES. Supplier agrees to secure all sales tax
numbers, operator's licenses, and any other licensing in accordance with
applicable law as may be required by local, state, and/or federal authorities.
Wal*Mart is not responsible for determining which tax numbers and licenses are
required and shall not be liable for any fees, fines, or penalties imposed on
Supplier for failure to obtain the necessary licenses and/or tax numbers.
Supplier shall not use Wal*Mart's tax numbers and licenses. Supplier agrees it
will pay all appropriate tax liabilities levied upon its operation of its
Promotion.
9. MAINTENANCE. Supplier shall be responsible for maintenance of the Sites.
Supplier agrees to keep its area clean, free of hazards and safe for customers
and associates. Supplier shall not be responsible for maintenance of any areas
outside the Sites, including, without limitation any condition pertaining to the
buildings or the areas in or about the buildings at which the Promotion is
located.
10. HOURS OF OPERATION. Supplier agrees that its Promotion will be operative and
available to the public, at minimum, during following hours: During the periods
from the first date of operating the Promotion until February 15 and from April
1 until the end of the Tax Season. Monday through Friday 9:00 a.m. to 9:00 p.m.;
Saturday 9:00 a.m. to 5:00 p.m.; and for at least five hours on Sunday; and
during the remainder of the Tax Season, Monday through Friday 9:00 a.m. to 6:00
p.m.; Saturday 9:00 a.m, to 5:00 p.m.; and for at least five hours on Sunday
(unless prohibited by local law). Any variance in working hours must have the
prior approval of the Wal*Mart store manager.
11. CONSTRUCTION. Supplier shall be responsible for any and all expenses,
related to the construction of the kiosks on the Sites, including but not
limited to demolition, electrical, carpentry, utilities, and plumbing. However,
no changes to the premises will be allowed without the prior written consent of
Wal*Mart. Supplier shall obtained all necessary permits required for
construction and comply with all applicable building codes.
12. UTILITIES. Supplier shall be allowed to use existing electrical utility
service at the store for basic operation of the Promotion at no additional
charge over the amount set forth in section 16 below. Supplier shall, however,
be responsible for its telephone equipment, installation, and charges.
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13. SIGNAGE. At all locations where Supplier the Promotion is conducted there
shall exist conspicuous and clearly visible signage informing prospective
customers: 1) that a free estimate for providing tax return preparation
assistance to meet customers needs will be provided prior to the customer being
committed to use Promotion services; 2) a toll free Telephone number where
customers may address any problems and receive prompt response or resolution to
the problem identified, and 3) the hours of operation. Wal*Mart hereby grants
Supplier, its affiliates, its franchisees, and agents reasonable rights of
access necessary to install and maintain mutually agreed upon signage promoting
the Promotion within or on the assigned kiosk space at the assigned store.
14. LIABILITY AND RESPONSIBILITY FOR EQUIPMENT. Wal*Mart will not be responsible
nor be held liable for any injury or damage to any person or property resulting
from use, misuse, or failure of any equipment used by Supplier or any of its
affiliates, subsidiaries, employees, franchisees, agents, or assigns even if
such equipment is furnished, rented, or loaned to Supplier by Wal*Mart. The
acceptance of use of any such equipment by Supplier or any of its employees or
agents shall be construed to mean that Supplier accepts full responsibility for
and agrees to indemnify Wal*Mart against any and all loss, liability, and claims
for injury or damage whatsoever resulting from the use, misuse, or failure of
such equipment.
15. ADOPTION OF WAL*MART POLICY. Supplier's employees will at all times, while
on Wal*Mart's premises maintain a pleasant and courteous attitude toward
customers. While on Wal*Mart property, Supplier's employees shall be subject to
Wal*Mart Rules and Regulations. In addition, no smoking, food, or drink will be
allowed on the sales floor, and personal appearance must be neat, clean and
consistent with attire worn by the store's sales floor associates. Supplier will
instruct each employee to refer to Wal*Mart management for details on these
Rules and Regulations, Compliance with this provision will be in the sole
discretion of Wal*Mart. Any employee of Supplier not in compliance with this
provision will be immediately removed from Wal*Mart property upon notice to
Supplier. Supplier shall conduct the Promotion consistent with Wal*Mart's policy
of guaranteeing customer satisfaction.
16. RENT AND REPORT.
(a) The base annual rent payable to Wal*Mart shall be as follows:
(1) Supercenters: The base annual rent shall be $6100 per Site.
(2) Division 1 Stores: The base annual rent shall be $4500 per Site.
(b) The annual incentive rent, if any, payable to Wal*Mart per Site shall
be as follows:
(1) Supercenters: The incentive rent shall be $500 if more than 450
federal tax returns are prepared at the Site; $1100 if more than 700
federal tax returns are prepared at the Site; $1700 if more than 950
federal tax returns are prepared at the Site; and $2300 if more than
1,450 federal tax returns are prepared at the Site.
(2) Division 1 Stores: The incentive rent shall be $250 if more than
350 federal tax returns are prepared at the Site, $600 if more than
600 federal tax returns are prepared at the Site; and $950 if more
than 850 federal tax returns are prepared at the site.
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(c) Base annual rent is due and payable by Supplier in three equal
installments: on or before January 31; February 28; and March 31 of each
year during the Term. Incentive rent, if any is due and payable by
Supplier on or before the May 30 of each year during the Term. Reports
showing the number of tax returns prepared for the month(s) shall be
submitted on or before the date each incentive rent payment is due. All
reports shall be submitted to Wal*Mart leasing operations and all payments
made via wire transfer to the following account Wachovia National Bank,
Charlotte, NC, ABA No. 053000219, Account Name Wal-Mart Stores, Inc.,
Account No.: 2079900144516, OBI: Denise West (479) 273-8562. H&R Block,
Inc. guarantees all payments due to Wal*Mart hereunder. The failure to
make timely payment of an amount due to Wal*Mart hereunder shall
constitute a material breach of this Agreement.
17. AUDIT. At Wal*Mart's expense, Wal*Mart may audit such books and records of
Supplier its affiliates, subsidiaries, employees, franchisees, or assigns
necessary to determine the number of federal tax returns prepared or gross
revenue generated at each Site. Notwithstanding the foregoing, Wal*Mart shall
not be entitled to review any taxpayer information, and all Customer files and
Customer information shall remain the property of Supplier. Wal*Mart shall give
Supplier at least seven days notice of any such audit, and all such audits shall
be conducted during regular business hours unless the parties otherwise agree.
Wal*Mart shall not attempt to schedule any audit to take place during the Tax
Season. The audit shall be conducted at the place where the records relating to
tax returns prepared at the Site(s) are maintained.
18. ASSIGNMENT/TRANSFER. No assignment or transfer of the rights granted
Supplier under this Agreement shall be made without the prior written consent of
Wal*Mart. Any transfer of 51% or more of the ownership of Supplier's rights in
the Promotion shall be deemed an assignment. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. Notwithstanding the foregoing,
Supplier may assign and delegate to its franchisee(s) and to affiliates which
operate the Promotion in certain territories those rights and obligations of
Supplier hereunder necessary for the operation of the Promotion for specific
Sites. Such assignment and delegation shall not require any consent of Wal*Mart;
as long as each franchise assignee executes a document in form substantially
similar to that attached as Exhibit D, by which such assignee agrees to be bound
by all the terms and provisions hereof. No such assignment shall relieve
Supplier, as between Supplier and Wal*Mart, from liability for breach of this
Agreement, or for any payment due to Wal*Mart hereunder whether breach is by
Supplier or any such assignee or franchisee.
19. TERMINATION. Wal*Mart may, without liability, terminate this Agreement for
cause by providing written notice thereof to Supplier. Where notice is provided
in accordance with this Section, all equipment belonging to Supplier shall be
removed from Wal*Mart property within 15 days of receiving notice. All costs of
such removal shall be the responsibility of Supplier. In the event Supplier
fails to remove its equipment, Wal*Mart may, at its option, consider said
equipment to be abandoned and dispose of the equipment by any reasonable means
necessary to free the space and charge Supplier with all related costs. Within
60 days following the end of the Tax Season, Supplier, at its expense, will
prepare and conduct a survey of store managers of the stores at which the
Promotion was conducted to measure the store managers' satisfaction with the
conduct of the Promotion. Wal*Mart shall have the right to approve the survey
design and substance. Notwithstanding anything to the contrary contained herein,
Wal*Mart shall have the right to de-list from Exhibit A any store location for
which Supplier receives an unsatisfactory survey score, and if unsatisfactory
scores are received for 15% or more of all stores, then Wal*Mart shall have the
right to terminate this Agreement.
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20. FINANCIAL SERVICES. Supplier covenants and warrants that neither it nor its
affiliates, subsidiaries, employees, franchisees, agents, or assigns shall
directly offer any financial services in any Wal*Mart store to Wal*Mart
customers or shoppers other than the tax return preparation services that are
provided as a part of the Promotion. Notwithstanding the foregoing, Wal*Mart
acknowledges that Supplier may contact any of its clients outside of any
Wal*Mart store about the client's interest in financial services and may offer
in the course of the Promotion its refund settlement products including, without
limitation, refund anticipation loans, refund anticipation checks and IRA's. Any
breach of this section shall be deemed a material breach of this Agreement
entitling Wal*Mart to terminate this Agreement as to the Site(s) where the
breach(es) occurred, In addition, in the event that Wal*Mart properly issues ten
or more such notices to Supplier pursuant to this Section 20 during a Tax Season
Wal*Mart shall be entitled to terminate this Agreement pursuant to Section 19.
21. GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Arkansas, without regard
to the internal law of Arkansas regarding conflicts of laws. The parties
mutually consent and submit to the exclusive jurisdiction of the federal and
state courts for Benton or Washington County, Arkansas, and agree that any
action, suit or proceeding concerning this Agreement or any of the related
agreements which may be entered into between Wal*Mart and Supplier shall be
brought only in the federal or state courts for Benton or Washington County,
Arkansas. The parties mutually acknowledge and agree that they will not raise,
in connection with any such suit, action or proceeding brought in any federal or
state court for Benton or Washington County, Arkansas, any defense or objection
based upon lack of personal jurisdiction, improper venue, or inconvenience of
forum. The parties acknowledge that they have read and understand this clause
and agree willingly to its terms, and Supplier acknowledges that it has received
consideration for agreeing to its terms.
22. NOTICES. Any notice of breach or termination of this Agreement by either
party shall be in writing and addressed as follows and shall be deemed given
when delivered in person or by courier or on the third business day after being
mailed, postage prepaid, by certified mail, return receipt requested. Any other
notice given in connection with this Agreement shall be in writing and addressed
as follows and shall be deemed given when first class mail is received:
If to Wal*Mart: Wal*Mart Stores, Inc.
Attention: Leasing Operations
1300 SE 8th Street
Bentonville, AR 72716-0850
With a copy to: Wal*Mart Stores, Inc. Legal Department
Attention: General Counsel - Division
1 702 S.W. 8th Street
Bentonville, AR 72712-0185
If to Supplier: H&R Block Tax Services, Inc.
Attention: Director- Field Real Estate
4400 Main St.
Kansas City, MO 64111
With a copy to: H&R Block Tax Services, Inc.
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Attn: Legal Department
4400 Main St.
Kansas City, MO 64111
23. USE OF WAL*MART'S NAME. Supplier understands that listing Wal*Mart as a
customer has value and therefore agrees that except as provided below, Supplier,
its affiliates, subsidiaries, employees, franchisees, agents, or assigns will
not use Wal*Mart's trade names, trademarks, service names, service marks, or
logos without Wal*Mart's prior written consent. In addition, neither Supplier
nor its affiliates, subsidiaries, employees, franchisees, agents, or assigns,
will list Wal*Mart as a customer in any press releases, advertisements, trade
shows, posters, reference lists, or similar public announcements without
Wal*Mart's prior written permission. However, permission will not be required
for Supplier to communicate to its potential customers that Supplier is engaged
in the Promotion at participating locations. Supplier may also verbally
reference Wal*Mart as a customer in private conversations with or private
letters to prospective Supplier customers. Wal*Mart agrees that it will not use
the Supplier's name without Supplier's permission, other than to advertise the
fact that Supplier is engaged in the Promotion at participating Wal*Mart stores.
Wal*Mart shall not permit advertising at any store where a Site is located by
any person or entity, other than Supplier, relating to the operation of a tax
preparation or related business at any other Wal*Mart store.
24. EXCLUSIVITY. Wal*Mart has or may have relationships with other Wal*Mart
Other Income Suppliers, or other persons or entities, who or which are engaged
in providing services and products similar to or competitive with the Promotion
at certain Wal*Mart Stores; and Supplier has or may have relationships with
other retailers to provide tax return preparation services at or from locations
operated by such other retailers. Supplier and Wal*Mart agree that neither
Wal*Mart's relationship with such other tax return preparation businesses, nor
Supplier's relationship with such other retailers, gives rights of any kind to
the other party to this Agreement. Notwithstanding the foregoing provisions of
this Section, Wal*Mart agrees that it will not allow any person or entity other
than Supplier to offer tax return preparation services (at any store from time
to time designated on Exhibit A) provided, however, Wal*Mart shall not be
prohibited from entering into relationships with other tax return preparation
providers as to any stores listed on Exhibit A that Supplier has elected not to
operate the Promotion at, or that Supplier has de-listed pursuant to paragraph 2
above, by September 18 of the year preceding the Tax Season
25. ENTIRE AGREEMENT. This Agreement, together with any exhibits, schedules or
other writing attached hereto or incorporated by reference herein, constitute
the entire agreement between the parties with respect to the subject matter of
this Agreement, and all prior and contemporaneous negotiations, agreements and
understandings are hereby superseded, merged and integrated into this Agreement.
26. NO CLAIM FOR LOST PROFITS. Supplier its affiliates, subsidiaries, employees,
franchisees, agents, or assigns expressly waive any claim against Wal*Mart for
lost profits and incidental and consequential damages in connection with this
Agreement. Supplier its affiliates, subsidiaries, employees, franchisees,
agents, or assigns agree that any damages as against Wal*Mart shall be limited
to the amount paid to Wal*Mart hereunder, except that claims for indemnification
under paragraph 4(b) shall not be subject to this limitation.
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Wal*Mart Stores, Inc. H&R Block Services, Inc.
By: /s/ Glenn Habern By: /s/ David Byers
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Glenn Habern David Byers
Title: Senior Vice President, Title: Senior Vice President
New Business Development
Date: 9-11-2003 Date: 9.9.03
[SEAL]
WITNESS: [ILLEGIBLE] WITNESS: /s/ Thomas Moorehead
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Thomas Moorehead
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