Exhibit 10.3
FIRST AMENDMENT
TO
REVOCABLE LICENSE AGREEMENT
THIS
FIRST AMENDMENT to Revocable License Agreement (this
“First Amendment”) is effective as of November
10 , 2005 (“Effective
Date ”), by and between DISNEYLAND RESORT, a
division of Walt Disney World Co, (“ Disney ”),
and CRYSTAL MAGIC, INC. (“ Crystal
”).
RECITALS
WHEREAS,
Disney and Crystal have previously entered into that certain
Revocable License Agreement, effective as of November
18 , 2002, relating
to the granting of a license by Disney to Crystal for Crystal
to use certain retail space within an area of Disneyland®
park known as Star Trader to operate a retail shop on the
terms and conditions provided therein (collectively the
“Agreement
”), and
WHEREAS,
Disney and Crystal desire to amend the Agreement as provided
in this First Amendment.
NOW,
THEREFORE, in consideration of the mutual agreements contained
herein and in the Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Disney and Crystal hereby agree as
follows:
1.
Definition of
Terms . All capitalized terms used in this First
Amendment without being defined herein shall have the meanings
given to them in the Agreement.
2.
Change of
Location . Crystal’s former Location at Star
Trader has been eliminated, and Crystal’s new Location
shall be at the Castle Shop ( “New
Location ”).
3.
Permitted Use:
Operation of Locations , The 5 th
sentence in subsection 3 (a) is hereby deleted: “Crystal
shall have full responsibility and obligation for the
operation of the Locations and for all direct costs
(calculated pursuant to Section 5(f) hereinbelow) incurred by
Disney for Crystal’s operation including, but not
limited to, the provision of custodial service, merchandise
bags and other guest service expense items” and replaced
with the following:
“Crystal
shall have full responsibility and obligation for the
operation of the Locations and for all direct costs
(calculated pursuant to Section 5(f) hereinbelow) incurred by
Disney for Crystal’s operation including, but not
limited to, the provision of custodial service, merchandise
bags, register supplies, credit card fees and other guest
service expense items.”
4.
Fee
for Services/Other Payments . Section 5 shall be
amended by deleting subsections (b) through (g) and replacing
them with the following:
“(b) For
the New Location, Disney shall be entitled to that sum
(“Disney’s
Share of Gross Revenues” (i) equivalent to sixty
percent (60%) of all Gross Revenues from retail sales from the
New Location less applicable sales, use, excise or other
taxes. Crystal shall be entitled to the remainder of all Gross
Revenues from retail sales from the New Location during the
Term (such remainder being “ Crystal’s Share of
Gross Revenues ”), The term “Gross
Revenues” is defined as all revenues received by, or
paid to. Crystal or to any other person, corporation or other
entity for the use, account or benefit of Crystal
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from
whatever source (including, without limitation, (x) the actual
sales price, whether wholly or partially for cash, on credit,
or otherwise, for all goods, wares, merchandise and services
of any kind, and (y) all other receipts) arising upon, out of
or in connection with all business conducted on, in and from
the New Location, whether for wholesale, retail, cash, credit,
trade-ins or otherwise (including, but not limited to, sales
made by mail or telephone although said sales may be filled
elsewhere), or other electronic service or interactive media
(e.g., the Internet); all deposits not refunded to purchasers,
all orders taken on, in and from the New Location although
said orders may be filled elsewhere. Each sale on credit
(including, without limitation, sales paid for with Disney
Dollars) shall be treated as a sale for the full price in cash
during the month in which such sale is initially made, without
reserve or deduction for inability or failure to collect, and
irrespective of the time when Crystal actually receives
payment (whether full or partial) from its customer or any
applicable credit or credit card agency. Gross Revenues of any
sublessee, concessionaire or licensee shall be treated as if
made by Crystal ( provided, however
, nothing contained herein shall be deemed Disney’s
consent to any sublessee, concessionaire or licensee). The
following are excluded from Gross Revenues: (1) the proceeds
from the sale of any items not sold to the public in the
ordinary course of business of the New Location; (2) the
amount of any retail sales or excise taxes; and (3) the amount
of any shipping charges for Inventory shipped to guests.
Unless expressly set forth in this Agreement, any policies or
practices established by Crystal from time to time with
respect to providing Inventory at discounted prices or without
charge shall require the prior approval of Disney, which
approval may be granted or withheld in Disney’s sole and
absolute discretion. If
