Exhibit 10.5
AMENDED
AND RESTATED
CONCESSION
AGREEMENT
This
AMENDED AND RESTATED CONCESSION AGREEMENT (this
“Agreement”) is entered into and effective as of
March 26, 2002, by and among WALT DISNEY WORLD
CO., with a mailing address of P.O. Box 10000, Lake
Buena Vista, Florida 32830, and WALT DISNEY WORLD
HOSPITALITY & RECREATION CORPORATION, with a
mailing address of P.O. Box 10000, Lake Buena Vista, Florida
32830 (collectively, “Disney”), and CRYSTAL MAGIC,
INC., with a mailing address of 2120 Hidden Pine Lane,
Apopka, Florida, 32712 (“Vendor”), and hereby
amends and restates the Concession Agreement between Vendor
and Walt Disney World Co. dated as of December 7, 1999 (the
“Prior Agreement”). Pursuant to this Agreement,
Vendor shall provide certain services and/or merchandise for
sale to guests of EPCOT® and the MAGIC KINGDOM® Park
(collectively, the “Premises”), located at the
WALT DISNEY WORLD® Resort.
IN
CONSIDERATION of the mutual covenants contained herein, the
parties agree as follows:
1.
Grant
of License; Status of Prior Agreement . Disney hereby
grants to Vendor a non-exclusive, non-transferable license to
enter upon the Premises to perform the services described on
Exhibit
A , attached hereto and made a part hereof (the
“Services”), and for no other purpose. Vendor
shall provide the Services at the Premises at the Imagination
Institute in EPCOT® commencing on December 7, 1999
and at the Tomorrowland
Arcade in the
MAGIC KINGDOM® Park commencing on March 26, 2002
(collectively, the “Concession”). The provisions
of this paragraph shall be deemed to create a mere license
only, and shall not be construed to be a lease, sublease,
assignment, easement or any other conveyance of any interest
in or to the Premises or in or to anything contained therein
or thereon. Vendor shall not make any alterations or
modifications to the Premises or the Concession without the
prior written approval of Disney, which approval may be
withheld by Disney in its sole discretion. Disney may enter
the Concession at any time for any purpose including, without
limitation, ensuring that Vendor is complying with the terms
of this Agreement. Upon the effective date of this Agreement
set forth above, the Prior Agreement will no longer be in
force or effect and this Amended and Restated Concession
Agreement will, without any lapse of time between the grant of
license previously granted under the Prior Agreement and the
license granted hereunder, supersede the Prior Agreement in
all respects.
2.
Name
of the Concession . The name and any changes to the
name of the Concession must be pre-approved in writing by
Disney in its sole discretion. The parties hereto acknowledge
and agree that Disney owns the name of the Concession. Disney
hereby grants to Vendor a revocable non-transferable,
royalty-free, non-exclusive license to use such name during
the Term (as hereinafter defined) only at the Concession.
Vendor shall not use such name at any other location or for
any other purpose, unless approved by Disney in its sole
discretion. Unless otherwise agreed in writing by Disney, in
its sole discretion, in providing the Services, Vendor shall
not identify the name of Vendor or the brand name of the
merchandise, products or services being offered by Vendor at
the Concession.
3.
Days
and Times of the Services . Vendor shall provide the
Services at the Concession on the days and times as set forth
on Exhibit
A , or such other days and times as Disney shall
designate in its sole discretion.
4.
Term
. The term of this Agreement shall commence on December 7,
1999, and continue through and including XXXX the
“Term”), unless any party terminates this
Agreement, with or without cause (i.e., in the terminating
party’s sole discretion), by providing the other parties
with sixty (60) days’ prior written notice. In addition,
Disney may terminate this Agreement for cause (e.g., if Vendor
fails to perform any of its obligations under this Agreement)
immediately by giving notice to Vendor. The parties mutually
agree that there may be a period during the Term during which
the Concession will be closed by Disney for, among other
reasons, inclement weather, maintenance and rehabilitation of
the Premises or special events (the “Closed
Period”). The existence of the Closed Period shall not
extend the Term or release the parties from their obligations
hereunder.
5.
Merchandise/Other
Products/Services . Vendor shall provide the
merchandise, other products and/or services in connection with
the Services, as identified in Exhibit
B , attached hereto and made a part hereof. All changes
in the merchandise, other products and/or services shall be
approved by Disney in writing in its sole discretion. Disney
shall have the right, in its sole discretion, to require
Vendor to remove any merchandise, other products and/or
services from the Concession and/or to add any merchandise,
other products and/or services to the Concession; provided,
however, that Disney shall not have the right to require
Vendor to remove crystal glass cubes completely from the
Concession without the prior written approval of
Vendor.
6.
Inventory/Equipment/Supplies
. Vendor will provide all inventory, equipment and supplies
necessary to provide the Services including, but not limited
to, the equipment described on Exhibit
C , attached hereto and made a part hereof (the
“Equipment”). All of the inventory, Equipment and
supplies shall be subject to the prior approval of Disney in
its sole discretion Vendor shall keep the Concession fully
supplied at all times. Vendor shall regularly inspect and
service the Equipment, keeping each piece of Equipment in good
working order. Vendor will be responsible for cleaning below,
above and behind the Equipment and for complying with all
other applicable rules and regulations relating to the
Equipment. During the Term, Vendor shall retain ownership of
all of the inventory, Equipment and supplies necessary to
provide the Services and all risk of loss thereto shall be
borne solely by Vendor, except to the extent such loss is
caused solely by Disney’s gross negligence or willful
misconduct. Maintenance of the Equipment during the Term shall
be Vendor’s sole responsibility. Upon the expiration or
sooner termination of this Agreement, Vendor shall promptly
remove all of its inventory, Equipment and supplies from the
Premises. If Vendor shall fail to remove any of its inventory,
Equipment or supplies from the Premises, Disney may, at its
option, either remove and dispose of any or all of the same at
Vendor’s expense or retain the same, in which latter
event all right, title and interest therein shall pass to and
vest in Disney.
7.
License
To Use Disney Characters .
a. Disney
hereby grants to Vendor a revocable, non-transferable,
royalty-free, non-exclusive license to use the characters
identified on Exhibit
B only on the merchandise identified on Exhibit
B (the “Disney Merchandise”), Vendor
acknowledges that Disney has adopted the Code of Conduct for
Manufacturers (the “Code”) set forth on
Exhibit
D , attached hereto and made a part hereof. If Vendor,
at any time, desires to utilize a third party to manufacture
or produce any of the Disney Merchandise, Vendor will notify
Disney of the names and physical street addresses of such
third parties (individually, a “Third Party” and
collectively, the “Third Parties”), Disney shall
have the right, in its sole discretion, to approve in writing
all of the Third Parties. If Disney does not approve in
writing any Third Party, Vendor shall not use such Third Parry
to manufacture or produce the Disney Merchandise. If Disney
approves a Third Party in writing, Vendor may use such Third
Party to manufacture or produce the Disney
Merchandise.
b. To
the extent Vendor wishes to manufacture or produce any of the
Disney Merchandise itself, Vendor shall adopt the Code and
shall evidence such adoption by executing a copy of the Code
and delivering the originally executed copy of the Code to
Disney prior to Vendor’s commencement of the manufacture
or production of the Disney Merchandise.
c. Disney
shall have the right, in its sole discretion, to withdraw its
approval of any Third Party at any time. If Disney withdraws
its approval of any Third Party, Vendor shall immediately stop
using such Third Party to manufacture or produce the Disney
Merchandise, provided, however, that Vendor shall be permitted
to sell all of such Disney Merchandise in its inventory,
unless Disney provides otherwise in writing to
Vendor.
d. Disney
shall have the right to evaluate and monitor Vendor to ensure
that Vendor is only using Third Parties approved by Disney
hereunder to manufacture and produce the Disney Merchandise,
including, but not limited to, on-site inspections and reviews
of books and records.
e. Vendor
shall not sell or use the Disney Merchandise at any other
location or for any purpose other than in connection with the
Services, unless approved by Disney in its sole discretion.
Upon the expiration or sooner termination of this Agreement,
Vendor shall return to Disney any remaining inventory of such
Disney Merchandise.
8.
Signage
.
a. Disney
shall provide, at its sole cost and expense, such signage and
promotional materials for the Concession at Imagination
Institute in EPCOT® as Disney deems necessary, in
its sole discretion. Vendor shall not display or distribute
any other signage or promotional materials at such
Concession.
b. Vendor
shall provide, display in location(s) designated by Disney and
distribute, at its sole cost and expense, such signage and/or
promotional materials for the Concession at the Tomorrowland
Arcade in the MAGIC KINGDOM® Park as Disney may
approve in its sole discretion. Vendor shall not display or
distribute any other signage or promotional materials at such
Concession without the prior written approval of Disney, which
approval may be withheld by Disney in its sole
discretion.
9.
Uniforms
. Disney will provide all uniforms for Vendor and its
employees (as hereinafter defined). Vendor acknowledges and
agrees that Vendor has no ownership rights in the uniforms.
Vendor shall return the uniforms to Disney for cleaning and
maintenance as Disney may require during the Term. Vendor
shall keep such uniforms clean and professional at all times
in accordance with Disney’s safety and appearance
standards whenever Vendor or its employees are performing the
Services. Upon the expiration or sooner termination of this
Agreement, Vendor shall immediately return the uniforms to
Disney, Vendor will be responsible for reimbursing Disney for
Disney’s uniform cleaning, maintenance and/or
replacement costs for Vendor and Vendor’s employees upon
receipt of a monthly invoice from Disney. To the extent any of
the uniforms are lost or substantially damaged, as determined
by Disney in its sole discretion, Vendor agrees to reimburse
Disney for the replacement costs of such
uniforms.
10.
Disney’s
Responsibilities . During the Term, Disney shall be
responsible for the following, at its sole cost and
expense:
a. Utilities
(other than telephone). In no event shall Disney be liable or
responsible for any interruption or disruption of utility
service and Vendor hereby waives any and all claims against
Disney for any loss, damage or expense arising out of, or
incurred in connection with, any such interruption or
disruption.
b. Trash
pick up.
11.
Vendor’s
Responsibilities . During the Term, Vendor shall be
responsible for the following, at its sole cost and
expense:
a. Telephone
service.
|
|
b.
|
Keeping
the Concession clean, sanitary and free from trash and
debris.
|
12.
Compensation
for the Services .
a. Vendor’s
compensation for the Services shall be based solely on the
Services provided, provided.
b. All
sales at the Concession are to be handled by Disney’s
personnel whether on site or by mail order or drop shipping.
Vendor shall not accept any money from guests but shall refer
all sales
transactions, including special orders and mail orders, to
Disney personnel for processing through cash registers in
accordance with Disney’s standard sales
procedures.
c. Disney
shall collect the compensation from the guests and shall pay
to Vendor sixty percent (60%) of gross revenues from retail
sales from the Services, less applicable sales, use excise or
other taxes. Disney shall retain the remaining gross revenues
from retail sales from the Services. The term “gross
revenues from retail sales from the Services” is defined
as all monies and other things of value received by, or paid
to, Disney and all credit extended by Disney, arising upon,
out of or in connection with the Services at the Concession
during the Term, plus the amount of any applicable sales, use,
excise or other taxes, less the amount of any of
Vendor’s merchandise or products which are returned to
Disney or replaced by Disney, less the amount of any refunds
made by Disney in connection with the Services, less the
amount of any cancelled orders for Vendor’s merchandise
or products. Such fee shall be payable on or before Thursday
of each week with respect to gross revenues from retail sales
from the Services made during the preceding week (Sunday
through Saturday), through and including the calendar week
immediately following the expiration or sooner termination of
this Agreement.
d. Disney
shall maintain complete and accurate records evidencing the
gross revenues from retail sales from the Services. Disney
agrees to make available to Vendor once each calendar year,
upon thirty (30) days’ prior written request by Vendor,
a full, permanent and accurate set of Disney’s
accounting books and records relating solely to gross revenues
from retail sales from the Services. Vendor will have the
right, at its sole cost and expense, to audit said books and
records. Disney agrees to keep all such books and records for
at least three (3) years following the expiration or sooner
termination of this Agreement.
13.
Taxes
.
a. Amounts
retained by Disney under this Agreement are subject to tax.
Accordingly, the applicable sales, use, excise or other taxes
on such amounts shall be deducted from Vendor’s
compensation and remitted by Disney to the State of
Florida.
b. Disney
shall be responsible for remitting directly to the State of
Florida all sales taxes applicable to the gross revenues from
retail sales from the Services, according to the provisions of
Disney’s Florida Direct Payment Authority Certificate
#TPP-0038, attached hereto as Exhibit
E .
14.
Exhibits
. The exhibits referred to in, and attached to, this Agreement
are hereby incorporated herein by reference. Unless otherwise
expressly provided in the exhibit or the body of this
Agreement, in the event of any conflict or inconsistency with
the provisions contained in the body of this Agreement and the
exhibits, the provisions contained in the body of this
Agreement shall prevail.
15.
Miscellaneous
. The GENERAL TERMS AND
CONDITIONS attached to this Agreement are hereby
incorporated herein by reference. This Agreement constitutes
the entire agreement of the parties hereto with respect to the
subject matter of this Agreement and supersedes any and all
previous agreements, negotiations and understandings among the
parties, whether written or oral, with respect to such subject
matter. Any modification of this Agreement shall be in writing
and signed by all of the parties hereto. If any provision of
this Agreement is deemed to be invalid, it shall be considered
deleted herefrom and shall not invalidate the remaining
provisions.
16.
Signature
Authority . The person who executes this Agreement on
behalf of any party hereto expressly represents and warrants
that he/she has full and complete authority to do so, knowing
that the other parties intend to rely solely
thereon.
17.
No
Offer . This instrument does not constitute an offer by
Disney. When executed by Vendor, it shall constitute an offer
by Vendor to Disney irrevocable for a period often (10) days
after receipt by Disney and, upon execution by Disney and
delivery to Vendor, shall constitute a binding agreement among
the parties.
IN
WITNESS WHEREOF, the panics have executed this Agreement as of
the date first above written.
(“DISNEY”)
(“VENDOR”)
WALT DISNEY WORLD
CO. CRYSTAL
MAGIC, INC.
By: /s/
Mark
Mrozinsko
By: Steven
M. Rhodes
Title:
Vice
President
Title: President
WALT DISNEY WORLD HOSPITALITY
& RECREATION CORPORATION
By:
/s/
Mark Mrozinski
Title:
Vice
President
GENERAL
TERMS AND CONDITIONS
A.
Control
of the premises . Nothing in this Agreement is intended
or shall be deemed or construed to grant to or confer upon
Vendor any rights whatsoever in respect of the Premises,
including, without limitation, rights in connection with the
closing, alteration, discontinuance, condemnation or casualty
loss thereof. Accordingly, without limiting the generality of
the foregoing. Disney shall have ultimate and unfettered
control over the Premises.
B.
Themed
Cart . If requested by Disney, Vendor shall provide a
cart for use in connection with the Services. Disney shall
have the right to approve every aspect of the Cart, including,
without limitation, design, theming and signage, such approval
to be in Disney’s sole and absolute discretion;
provided, however, that by giving any such approval, Disney
shall not assume responsibility for the quality, workmanship
and/or safety of such cart. Once approved, Vendor shall not
change the design, theming or any other aspect of the cart
without the express written approval of Disney, which approval
may be withheld by Disney in its sole discretion.
Vendor’s expenditure of any monies in connection with
the design, construction, installation, removal, acquisition
and/or operation of the cart shall be at Vendor’s sole
risk. Upon the expiration or sooner termination of this
Agreement, Disney shall have the right to request that Vendor
remove any theming from the cart and Vendor shall remove the
cart from the Premises at its sole cost and expense. If Vendor
shall fail to remove the cart from the Premises, Disney may,
at its option, either remove and dispose of the cart at
Vendor’s expense or retain the same, in which latter
event all right, title and interest therein shall pass to and
vest in Disney.
C.
Disney’s
Approval of Cart Manufacturer . The architects,
engineers, consultant and general contractors selected by
Vendor for the design and production of the cart shall be
licensed in the State of Florida and shall be subject to the
prior written approval of Disney, which approval may be
withheld by Disney in its sole discretion. If requested by
Disney, Vendor shall furnish to Disney copies of all contracts
for any work in connection with the design and construction of
the cart (including, without limitation, all contracts for the
purchase of materials and supplies in connection
therewith).
D.
No
Representations or Warranties by Disney . Disney makes
no representations or warranties whatsoever in connection with
this Agreement, including, without limitation, the condition
of the Premises, its suitability for the use described herein
or for any other use, the visibility, of the Concession to the
guests of the Premises, the profitability of the Services to
be provided at the Concession or the success or failure of the
Services to be provided at the Concession.
E.
Participants
. Vendor acknowledges that Disney and its parent, related,
affiliated and subsidiary companies are parties to certain
participant agreements and that Disney and its parent,
related, affiliated and subsidiary companies may enter into
additional participant agreements in the future. Vendor agrees
to comply with the provisions of such participant agreements
as they exist from time to time. Disney shall disclose the
relevant provisions of such agreements to Vendor.
F.
Licenses
. Vendor and its employees shall be licensed as required by
law. Vendor shall obtain and maintain throughout the Term, all
professional, occupational equipment, and other licenses and
permits required by law to perform the Services and shall
provide copies of such licenses to Disney upon
request.
G.
Disney
Traditions/Guest Surveys/Meetings . If requested by
Disney, Vendor and its employees shall enroll in, at
Vendor’s expense, and complete the Disney Traditions
class and any other Disney class that Disney deems necessary
prior to commencement of the Services or at any time
thereafter as Disney may determine in its sole discretion.
Vendor and its employees shall, if requested by Disney: (i)
conduct or participate in guest evaluation and experience
surveys at periodic intervals relating to the Premises and/or
the Concession and (ii) attend meetings called by
Disney.
H.
Parking
Passes/ID Cards . Disney shall provide Vendor and its
employees with parking passes and ID cards to gain admission
to the Premises and to the cast parking lot at the Premises.
Upon the expiration or sooner termination of this Agreement,
Vendor shall return to Disney all parking passes and ID cards
issued to Vendor and its employees pursuant to this
Agreement.
I.
Additional
Services/Disney Standard . Vendor shall pay Disney for
any and all services provided by Disney which are requested by
Vendor, including, without limitation, the installation of
water lines and fixtures, electricity lines and sanitary
sewer. In addition, to the extent Disney determines that
Vendor needs additional equipment to provide the Services,
including, wi
