Crystal Magic, Inc. Apopka, Florida 32712 Attn.: Steven M. Rhodes Re: Crystal Magic Carts
Exhibit 10.7
August
17, 2000
Crystal
Magic, Inc.
0000
Xxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxxxx 00000
Attn.:
Xxxxxx X. Xxxxxx
Re: Crystal
Magic Carts
Universal
Orlando
Dear Xx.
Xxxxxx:
Thank you
for your proposal regarding the operation of a cart/kiosk in Universal Studios
Florida and Universal Studios Islands of Adventure (the “Attractions”). This letter
will confirm and contain the terms and conditions of the agreement (“Agreement”) between Crystal
Magic, Inc., a Florida corporation (“Licensee”) and Universal City
Development Partners. LP a Delaware limited partnership, (“UCDP”) pursuant to which
Licensee is granted the license to operate multiple carts/kiosks within the
Attractions for the purposes stated below. In consideration of the mutual
benefits derived from this Agreement, Licensee arid UCDP agree to the following
terms and conditions:
1. Definitions.
(a) Attractions: The theme parks
known as Universal Studios Islands of Adventure (“IOA”) and Universal Studios
Florida (“USF”) both of
the foregoing being located in the “Resort” known as Universal
Orlando, Orlando, Florida.
(b) Business: Defined in Section
3(a).
(c) Concession Fee: The
consideration and compensation due from Licensee and payable to UCDP for the
license granted hereunder and for the use of the Locations and privilege of
operating the Business in the Attractions. The Concession Fee, and any other
sums or consideration due under this Agreement will be due UCDP without demand
and without deduction, set-off, claim or counterclaim of any nature whatsoever
which Licensee may have or allege to have against UCDP, and all such payments
will, upon receipt or retention by UCDP, be and remain the sole and absolute
property of UCDP, Further, such Concession Fees will be calculated on the Gross
Revenues, regardless of whether such Gross Revenues were generated by cash
sales, Universal Scrip, Resort Hotel charges under Section 4(d) below or
credit/charge sales. See Section 4(a).
(d) Effective Date: The Effective
Date of this Agreement and the parties obligations hereunder (excepting only
Licensee’s obligations to pay the Concession Fee and Minimum Monthly Fee) will
commence on the date of full execution of this Agreement as indicated below by
the date on which this Agreement is executed by the last party signing
same.
(e) Gross Receipts: All proceeds,
including, but not limited to, all moneys and all other things of value
(including charge receipts, Universal Scrip and Resort Hotel charges) received
by or paid to Licensee or any other person on Licensee’s account by reason of
Licensee’s operation of the Business, less only (i) the amount of any returns or
refunds with respect to sales from the Business by customers of the Business
provided that the original sales price thereof was included in Gross Receipts
and (ii) any “Permitted
Discounts” (defined in Section 3(e) below) on “Merchandise” (defined in
Section 1(m) below). For example, with regards to the Permitted Discounts, a ten
percent (10%) discount is permitted on a two dollars ($2.00) piece of
Merchandise, then included in Gross Receipts would be the sum of one and 80/100
($1.80) dollars for such item. The Permitted Discounts will be the only discount
permitted to be exclude from Gross Receipts. No other discounts not specifically
permitted under this Agreement, regardless of the amount thereof, will be
permitted.
(f) Gross Revenues: Gross Receipts
less only any retail sales tax or excise tax imposed by law on the sale of goods
and services which are payable to the taxing authority and which are actually
stated separately and collected by the Licensee.
(g) Initial Term: Defined in
Section 2(a).
(h) Kiosk or Kiosks: The carts,
kiosks or other retail locations from which Licensee will operate the
Business.
(i) Licensee: Crystal Magic,
Inc.
(j) Licensee’s Plans: Those plans, if any,
prepared by Licensee for UCDP’s approval which set forth the design, layout,
materials, theme and overall appearance of the Kiosks and the production
area.
(k) Licensee’s Share: The amount
of Gross Revenues remaining after deducting therefrom (i) the Concession Fee,
(ii) the applicable sales tax on the Concession Fee, and (iii) any other sums
which may be due UCDP under this Agreement, including, but not limited to any
Minimum Monthly Fee, Deferral Repayments, Orientation Fee(s), Wardrobe Charge,
Resort Hotel charges, credit card fees and any Royalty Fees. See Section 4
below.
(l) Location or Locations; The
designated sites within the Attractions where the Kiosks will be located, as the
same may be changed, from time to time, at UCDP’s sole discretion, taking into
account the volume of business experienced by the Attractions, traffic flow in
the Attractions, any special events taking place in the Attractions and
Licensee’s performance at each Location and/or Attractions. UCDP will have the
right to request that Licensee locate more than one (1) Kiosk in any of the
Attractions or UCDP may, at its option, elect not to locate more than one (1)
Kiosk in any one or more of the Locations. Licensee acknowledges that UCDP shall
have the ultimate decision, in its sole judgment, as to where and how many
Kiosks will be located in the various Attractions. Notwithstanding the
foregoing, to the extent the same is financially feasible, it is agreed that
UCDP will make a good faith effort to offer Licensee multiple Locations in each
of the Attractions to afford Licensee significant exposure of its Merchandise to
guests visiting the Attractions; provided, however, the final determination of
how many Locations and where such Locations shall be placed will be at UCDP’s
sole determination.
(m) Merchandise: The products,
wares, and/or services which Licensee is permitted to produce, display and/or
offer for sale to Guests visiting the Attractions under Section 3(a) of this
Agreement.
(n) Minimum Annual Fee and Minimum Weekly
Fee; The Minimum Annual Fee is the least amount of consideration on an
annual basis Licensee is required to pay to UCDP for each applicable Operating
Year for the use and privilege of operating its Business in the Attractions. The
Minimum Weekly Fee is one-fifty-second (1/52nd) of the
Minimum Annual Fee. The Minimum Weekly Fee will be calculated and paid on a
weekly basis. The Minimum Annual Fee and the Minimum Weekly Fee are in addition
to, not in lieu of, the annual or weekly Concession Fee and are due the
applicable Concession Fee does not exceed the Minimum Annual Fee or Minimum
Weekly Fee, as applicable. The Minimum Weekly Fee due for any partial week
occurring during the Term will be equal to that sum derived by multiplying the
Minimum Annual Fee by a fraction, the denominator of which is three hundred
sixty-five (365) and the numerator of which is the number of days in the partial
week. See Section 5.
(o) Annual Adjustment or Weekly
Adjustment: The sum, if such sum is a positive amount, derived by
subtracting the total annual Concession Fee or the weekly Concession Fee,
respectively, from the Minimum Annual Fee or the Minimum Weekly Fee,
respectively.
(p) Operating Year: The first
Operating Year is that twelve (12) full consecutive month period immediately
following the commencement date of this Agreement as determined in Section 2(a)
below, if such date occurs on the first day of a month. The second and
succeeding Operating Years will be the next ensuing twelve (12) consecutive
month periods following the end of the first Operating Year. If the commencement
date does not occur on the first day of a month, then the first Operating Year
will consist of the partial month immediately following the commencement date
plus the next twelve (12) full consecutive months following such partial
month.
(q) Orientation Fee: The sum due
UCDP from Licensee in payment of the orientation program described in Section
17(c) below, which sum will be equal to Forty Dollars ($40.00) for each
employee, representative, officer, or individual for each orientation session
attended by such employee, representative, officer, or individual.
(r) Renewal Term: Any period of
time beyond the Initial Term for which this Agreement is extended as permitted
herein. See Section 2(b).
(s) Site Manager: Licensee’s
on-site full-time manager that is to act as the primary interface with UCDP’s
designated representatives.
(t) Term: The Initial Term and/or
any Renewal Term, as applicable.
(u) Deleted.
(v) Universal: Universal Studios,
Inc. and any of its affiliates, subsidiaries or parent companies, as
applicable.
(w) UCDP: Universal City
Development Partners, LP.
(x) Universal Orlando: The
property known and designated as “Universal Orlando” which consists of Universal
Studios Florida, Islands of Adventure, Universal’s CityWalk - Orlando, and
various resort hotels located on such property. Universal Orlando will also
include any additional real property, theme parks, buildings, hotels, and
improvements which may be added by UCDP from time to time. Notwithstanding the
foregoing, UCDP retains the absolute right to increase or decrease the
definition of what properties are included in or excluded from Universal
Orlando. Universal Orlando is also referred to herein as the “Resort.”
(y) Universal Scrip: UCDP produced
printed scrip worth the value noted on the face of the scrip (generally in five
dollar ($5.00) denominations), which may be exchanged for the face value of the
scrip at the UCDP vault. UCDP will accept Universal Scrip on Licensee’s behalf
as payment for Merchandise as provided below in Section 5(j). Universal Scrip
should not be confused with any other coupons, discounts, or other printed
media, whether the same originates from UCDP or any of its affiliates or from a
third party.
2. Term.
(a) Initial Term: The
Initial Term of this Agreement will be for five (5) Operating Years, unless
sooner terminated by UCDP as permitted in this Agreement. The commencement date
of the Initial Term and Licensee’s obligations to pay the Concession Fee,
Minimum Monthly Fee and other charges due hereunder will be the earlier of (i)
the date the Business opens any Kiosk to the public in any one or more of the
Attractions or (ii) November 1, 2000.
(b) Renewal Term: At the
option of Licensee, Licensee may, subject to the terms contained herein, extend
the Initial Term for one (1) additional term of five (5) Operating Years (the
“Renewal Term”) if, and
only if: (i) Licensee is not in default at the time of exercising the option to
extend the Initial Term or at the commencement of the Renewal Term; (ii)
Licensee properly and timely exercises its right to extend the Initial Term
within the time period provided herein (WITH TIME BEING OF THE ESSENCE), and
(iii) the annual Gross Revenues for the fifth (5th)
Operating Year of the Initial Term exceed Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000.00) (the “Renewal Base”).
The
Renewal Term will be upon the same terms, conditions and charges (including the
Concession Fees) as set forth in this Agreement except for the Minimum Annual
Fees which shall be adjusted as provided in Section 5(c) below. Licensee may
exercise its right to extend the Initial Term by giving written notice of such
intention to UCDP no earlier than nine (9) months and no later than three (3)
months prior to the end of the Initial Term. If Licensee fails to timely deliver
written notice to UCDP at least three (3) months prior to the expiration of the
Initial Term, Licensee’s right to extend the Initial Term will be null and void
and of no further effect and this Agreement shall terminate at the expiration of
the Initial Term. If Licensee exercises its right to extend the Initial Term as
provided herein and Gross Revenues for the fifth (5th)
Operating Year of the Initial Term do not exceed the Renewal Base, then the Term
of this Agreement shall expire thirty (30) days after the expiration of the
fifth Operating Year of the Initial Term.
(c) Unavoidable Delays:
If the regular operation of any of the Attractions is materially hampered,
interrupted or prevented due to an act of God, war (declared or undeclared),
riot, civil disturbance, fire, earthquake, casualty, act of any federal, state
or local instrumentality of for any other similar or dissimilar reasons beyond
its control and Licensee is unable to operate its Business in any of the
remaining unaffected Attractions, UCDP will have the right to suspend the
running time of the then existing Term until the resumption of regular
operations of the affected Attractions, and in such event UCDP may, at its
option, upon written notice to Licensee, extend the then existing Term by a
period equal to all or part of the suspension period. Notwithstanding the
foregoing, if Licensee is able to operate the Business in one or more of the
Attractions, then there shall be no suspension of the tolling of this Agreement
nor shall Licensee’s obligations hereunder be affected in any manner as relates
to the remaining Attraction(s). During any such period in which the running time
of the then existing Term is suspended under the provisions of this Section.
Licensee’s payment obligations under Section 4(a) below will also be suspended
except that any sums which have become owing prior to such suspension will be
paid in accordance with the payment schedule. Upon termination of the
suspension, all payments will be resumed. Nothing in this Section will otherwise
diminish UCDP’s rights under this Agreement.
(d) UCDP’s Early Termination
Option: Notwithstanding anything to the contrary contained in this
Agreement, UCDP may terminate this Agreement for its convenience, with or
without cause, in its sole and absolute discretion, on sixty (60) days written
notice to Licensee. Licensee acknowledges that the foregoing early termination
right is of significant and material consideration to UCDP in entering into this
License and that UCDP would not have otherwise considered this License without
such early termination right. If UCDP elects to terminate the Agreement during
the Initial Term as permitted in this Section 2(d), then Licensee’s right to
extend the Initial Term shall become null and void as of the date of such
termination by UCDP.
3. The
Business.
(a) Business, and Trade
Name: Licensee will offer for the retail sale to the guests visiting the
Attractions the following Merchandise: laser engraved crystal and glass objects
and any other products approved in writing by UCDP which have been etched and/or
engraved with individually designed and created images, names or photographs of
the consumer purchasing such product. The
creation
and production of any Merchandise completed at any Kiosk will only be for
Merchandise sold at such Kiosk. All other production and creation of the
Merchandise will occur at such other place or places as may be mutually agreed
upon between the parties. The other production and creation area or areas may
also be used for the sale at retail of the Merchandise; however, the other
production and creation of the Merchandise may be visible to the guests and
should be completed in such a manner as to enlighten and entertain the guests.
Licensee will be permitted twenty-four (24) hour access to the area or areas
used to produce and create the Merchandise in order to produce sufficient
amounts to adequately stock the Kiosks. The designs and images to be etched into
the glass and/or crystal will be limited to those items approved by UCDP, in
writing. The use of any Universal images, logos or licensed properties in the
laser etchings will be subject to the limitations contained in Sections 3(k) and
(l) below. Licensee will not be permitted to display or sell any items, wares or
products not specifically approved by UCDP. Licensee will operate the Business
from various Kiosks at the Locations in the Attractions as designated by UCDP
under the trade name “Crystal Magic.” Reference in this Agreement to the
“Business” will include all Kiosks operated by Licensee under this Agreement as
well as any designated areas in the Resort used by Licensee to manufacture the
Merchandise.
(b) Approval of Merchandise and
Pricing: Prior to being permitted to open any Kiosk for business,
Licensee will submit the following to UCDP: (i) drawings or pictures depicting
the designs and/or a catalogue containing the Merchandise to be sold at the
Kiosks, (ii) a detailed list of all of the Merchandise that Licensee intends to
sell at the Kiosks, and (iii) the price at which Licensee proposes to sell such
Merchandise. Licensee will only display and sell Merchandise which has been
pre-approved, in writing, by UCDP. The preceding restriction and required
approval will remain in full force and effect throughout the Term. The pricing
of the Merchandise will also be subject to UCDP’s written approval prior to any
sales of such Merchandise by the Licensee at the Locations. All Merchandise and
prices offered or used by Licensee in the Business will be subject to UCDP’s
prior written approval, to assure a quality and price level consistent and
compatible with the overall image of Universal Orlando.
In no
event will Licensee display or sell from any of the Locations, without the
express prior written approval of UCDP, which approval may be withheld at UCDP’s
sole and absolute discretion, any merchandise licensed by or affiliated with any
theme parks and related facilities, either alone or in conjunction with or as
part of any other word or name, including without limitation any merchandise
which uses or contains any of the characters or designs associated with any
theme parks and related facilities. The phrase “theme parks and related
facilities” is intended to mean tourist-oriented attractions having some
combination of permanent and
temporary
entertainment facilities, retail and restaurant facilities, recreational
activities and exhibitions based on or related to a unifying theme, and having
in excess of 250,000 visitors annually (as well as any area, attraction or
business which is associated, operated or marketed in conjunction with a theme
park). By way of example and not limitation, the following destinations, and the
component attractions, hotels and other support uses contained therein, are
“theme parks and related facilities” for the purposes of this Agreement: Magic
Kingdom, EPCOT. Disney/MGM Studios, Pleasure Island, and all other attractions
and entertainment facilities forming a part of, associated with or controlled by
Xxxx Disney World or The Xxxx Disney Company; Sea World; and/or Xxxxx Gardens.
Further, for the purpose of this Agreement, the term “merchandise licensed by or
affiliated with any theme parks” will include all licensed products issued by
such theme park or any of its affiliates or parent companies. (For example, any
licensed product sold by The Xxxx Disney Company will be deemed to be a product
that is affiliated with Disney World, EPCOT, and/or MGM Studios, as the case may
be). Further, Licensee expressly acknowledges and agrees that nothing contained
herein will permit or be deemed to permit the sale or display of any merchandise
licensed by or affiliated with “Universal,” “Universal Studios®,” “Universal
Studios Islands of AdventureSM”,
“Universal Studios Floridasm”.
“Universal Studios CityWalk™,” or “CityWalk™”, or any combination of the
foregoing (either alone or in conjunction with or as a part of any other word or
name), including without limitation any merchandise which uses or contains any
of the fanciful characters or designs of Universal or any of its related,
affiliated or subsidiary companies or entities.
(c) Hours: At a minimum,
the Business will be open to the guests visiting the Attractions during those
hours which the retail establishments in the Attractions are open to the public.
The parties acknowledge that UCDP has and retains the right, in its sole
discretion, to alter and vary the times during which the Business will be
required to remain open to the public, including without limitation during
special events and promotions in which the Attractions are open to the general
public.
(d) Staffing: Licensee
will at all times during the foregoing operating hours, staff each Kiosk with a
minimum of one (1) trained competent qualified employee at each of the Locations
or, if, at UCDP’s sole reasonable determination after taking into account the
guests counts for the applicable Attraction, more employees are required to
properly operate the Business and meet Licensee’s obligations under this
Agreement, such additional number of trained competent qualified personnel to
adequately operate the Business and meet Licensee’s obligations under this
Agreement during the operating hours designated by UCDP for the
Term.
(e) Permitted Discounts:
Licensee authorizes UCDP to recognize and grant the following discounts (“Permitted Discounts”) on all
Merchandise offered from the Business: (i) fifteen percent (15%) percent to all
individuals with valid and current Universal Orlando employee identification
cards; (ii) ten percent (10%) to all qualified members of the American
Automobile Association (“AAA”); (iii) ten percent (10%)
to all annual pass holders to any Universal Studios Orlando theme park; and (iv)
ten percent (10%) to such other groups or entities identified by UCDP, in
writing, to Licensee. For the purpose of this Agreement, the sum so discounted
and subtracted from the sales price of the Merchandise as a result of the
foregoing Permitted Discounts will be the only sums arising out of any discount
on the marked sales price which may be excluded from such sales price when
determining Gross Receipts, For the purpose of this provision. “Universal
Orlando employees” will mean any individual presenting a current and valid
Universal Orlando employee identification card. Qualified members of AAA will
mean any individuals presenting a valid and current AAA discount card. Annual
pass holders to Universal Orlando will include individuals presenting a current
and valid annual or seasonal pass to either or both of the theme parks located
in Universal Orlando.
(f) Sales Presentation:
All employees and management engaged by Licensee at the Business will be
properly trained by Licensee to interact with guests visiting or dealing with
employees of the Business. Licensee will develop interactive sales routines from
scripts which have been reviewed and approved in advance by UCDP. Licensee will
update and change such scripts (after review and approval by UCDP) on a
continuous basis to keep such routines “fresh and new.” UCDP, or its selected
representative, will have the right, from time to time and without notice to
Licensee, to randomly audit the sales presentations and service levels. UCDP
will notify Licensee of any portion of the presentation, service, material or
activity which UCDP finds objectionable. Licensee will, within twenty-four (24)
hours of receipt of such notice, cure and eliminate such objectionable matter
contained in the notice. Failure of Licensee to cure and eliminate the
objectionable matter within the foregoing twenty-four (24) hour period, will
constitute a material breach of this Agreement and UCDP may, at its option,
immediately terminate this Agreement and remove Licensee from the Locations. The
foregoing right to terminate this Agreement will not be subject to any
additional right to cure or remedy such objectionable matter by Licensee.
Further, a violation of this Section in one Attraction will be the same as a
violation of this Section in the other Attraction and UCDP may terminate this
Agreement as to both Attractions. The Licensee acknowledges and agrees that the
right to terminate this Agreement as to one or more of the Attractions due to a
violation in one Attraction is a material and significant element of this
Agreement
(g) Inventory/Supplies:
Licensee will provide at its own expense all inventory and Merchandise as well
as equipment, materials, labor and supplies (i.e. office supplies, etc.)
required to operate the Business. Licensee will maintain a complete and full set
of Merchandise inventory at all times during the Term to maximize its sales from
the Business and to guarantee a full impact presentation to the public visiting
the Attractions, taking into account peak and off-peak attendance fluctuations
at the Attractions.
(h) Cleanliness/Appearances:
Licensee will occupy, operate, maintain and manage Business in accordance with
the highest professional standards for an establishment or business located in
the Attraction and as required by UCDP, in its sole determination. Licensee will
keep the Locations neat and clean and free of all debris and in keeping with the
Attraction standards as determined by UCDP in its sole discretion. If Licensee
fails to keep the Locations clean, neat and free of all debris. UCDP may take
such action it deems necessary and charge Licensee for the cost thereof plus
interest at the lesser of the rate of eighteen percent (18%) per annum or the
maximum rate permitted by law.
(i) Business Plan: Any
and all changes in the Business operation or any other changes in merchandising
products or practices will be subject to UCDP’s prior written approval. On or
before the anniversary of this Agreement of each Operating Year, Licensee will
provide UCDP with a summary of its business plan which will contain information
as to Licensee’s plans for merchandising, entertainment and customer service for
the succeeding Operating Year. Licensee acknowledges that UCDP’s business
reputation will be substantially impacted by Licensee’s failure to achieve and
maintain the highest possible standards for its operations in the
Locations.
(j) Licensee’s
Warranties: Licensee represents and warrants that any Merchandise,
equipment, creative instruments or service and the Kiosks will meet or exceed
all applicable local, state or federal consumer and employee safety laws, health
standards and other applicable requirements and standards. Licensee warrants
that all such items are and will be free and clear of all liens and encumbrances
and that Licensee has and will have good and marketable title thereto. Licensee
will protect, defend, hold harmless and indemnify UCDP from and against any and
all claims arising from these items. Licensee represents and warrants that all
Merchandise offered and/or sold under this Agreement will be free from defects
of material and workmanship. The warranties of Licensee together with its
service warranties and guaranties, will run to UCDP, its successor, assigns and
guests. These warranties will remain in effect for so long as the Business is in
operation. Licensee upon notification from UCDP of a breach of warranty will, at
UCDP’s discretion, either repair or replace any defective item.
(k) Licensed Property: If
deemed appropriate, UCDP will provide Licensee with the logo and art work, which
may include Universal-owned or licensed property (“Licensed Property”) if any,
to be incorporated into or onto Merchandise produced and sold by Licensee at the
Locations. UCDP will provide to the Licensee a written list of each Licensed
Property that is approved by the Senior Vice President of Merchandise for
Universal Orlando which Licensee may, subject to the prior written approval of
UCDP, incorporate into the Merchandise. Licensee acknowledges that each Licensed
Property may be site specific and may have limitations as to where such Licensed
Property may be displayed and/or sold in the Resort. Licensee will only sell
Merchandise bearing or containing an approved Licensed Property at the Location
or Locations designated by UCDP and will not, in any event, sell any Merchandise
bearing or containing Licensed Property at any Location not previously approved
by UCDP. In no event will Licensee display or sell any Merchandise bearing or
containing any Licensed Property at any location outside of the Resort owned or
operated by Licensee or by any individual or entity directly or indirectly
controlled by the Licensee. The foregoing limitations as to where any
Merchandise bearing or containing Licensed Property may be displayed and/or sold
is of material importance to UCDP and the violation of the foregoing
restrictions by Licensee will be deemed a default hereunder. In the event of a
default under this Section, UCDP may, in addition to all other remedies
available to UCDP, including injunction and restraining orders, effect an
immediate termination of this Agreement. Licensee will submit to UDCP for UCDP’s
prior written approval any logos and artwork not provided to Licensee by UCDP
and Licensee will obtain any licenses and clearances necessary to use such logos
and artwork not furnished by UCDP. All Merchandise, regardless of whether the
same is licensed or not licensed, that Licensee either produces for sale at the
Locations and/or sells at the Locations will be subject to the approval of
UCDP.
(l) Royalty Payment: Upon
approval of the use of a Licensed Property by Licensee, UCDP will pay the
required royalty payments, if any, directly to third parties for any such
Licensed Property sold by Licensee (“Royalty Fees”), Licensee
hereby authorizes UCDP to deduct and retain such Royalty Fees actually paid by
UCDP for the use of such Licensed Property from Gross Revenues prior to paying
the Licensee’s Share to Licensee. UCDP will advise Licensee, on a monthly basis
within fifteen (15) days of the end of each month in which any Licensed Property
was sold, the total of all Licensed Property sold by the Business for the
applicable period, together with supporting documentation indicating the amount
of Royalty Fees paid by UCDP for same. UCDP will retain from Gross Revenues
prior to paying Licensee’s Share all Royalty Fees, if any, which UCDP is
required to pay for the use of such Licensed Property. The Royalty Fee will be
deducted from Gross Revenues prior to determining Licensee’s Share. It is the
intention of the parties that the Royalty Fees are in
payment
of all royalties which may be due and owing for the use of Licensed Properties
by Licensee in or on its Merchandise and such Royalty Fees are not payments for
the use of the Locations. The parties acknowledge that the Licensee’s use and
enjoyment of the Locations are not conditioned upon the Licensee using any fixed
or minimum amount of Licensed Property nor is such use and enjoyment subject to
the Licensee generating any particular amount of Royalty Fees from the sale of
Merchandise containing Licensed Property. Notwithstanding the foregoing, if the
State of Florida determines the Royalty Fees are a payment for the privilege of
using the Locations and, as such; is subject to the applicable Florida
sales/rent tax, then UCDP will be entitled to deduct such tax from Licensee’s
Share at the time of payment of the Royalty Fees by UCDP. The foregoing
obligation to pay the Royalty Fees hereunder will survive the Term hereof and
Licensee will reimburse UCDP of any payments made by UCDP which become due as a
result of the sale of Merchandise bearing or containing any Licensed Property.
UCDP will pay the owner(s) or licensor(s) of the Licensed Property the amount
due such owners and will indemnify and defend Licensee from any claims of such
owner(s) or licensor(s) for such Royalty Fees to the extent Licensee has either
paid UCDP such Royalty Fees or UCDP has deducted same from Gross Revenues. The
Licensee will be solely responsible for advising UCDP as to any other royalty
payments which may be result from the sale of any Merchandise containing or
bearing any logos, images, or other properties not listed as Licensed Property
and Licensee will indemnify and defend UCDP for all such additional royalty
payments, expenses, attorneys fees or interest associated with any inaccuracies
in the information furnished by Licensee, including but not limited to costs or
claims arising out of or related to any late or insufficient royalty payment by
UCDP made based on inaccurate information provided by the Licensee.
4. Revenue
Distribution.
(a) Concession Fee:
Licensee will pay to UCDP for each Operating Year during the Term a Concession
Fee equal to thirty percent (30%) of the first Three Million Five Hundred
Thousand and no/100 Dollars ($3,500,000.00) of Gross Revenues generated from the
Business from all Kiosks for each Operating Year during the Term; plus
thirty-two percent of all Gross Revenues in excess of Three Million Five Hundred
Thousand and no/100 Dollars ($3,500,000.00) generated from the Business from all
Kiosks for each Operating Year during the Term. Licensee’s obligation to pay the
Concession Fee for the portion of any Operating Year preceding the date of
termination of this Agreement shall survive the termination hereof.
UCDP will
provide cashier’s change fund, cash registers, cashiers, money counting and
accounting services (“Cash
Handling Services”). Licensee will
design,
produce, display, merchandise and sell the Merchandise and UCDP will accept
payment for same on Licensee’s behalf. Any Merchandise sold by Licensee will be
rung up on UCDP’s designated cash registers by UCDP and payment for the
Merchandise will be made to and accepted by a UCDP employee. UCDP will assign
special sku numbers for Licensee’s Merchandise processed through UCDP cash
registers. Licensee will not be permitted to accept payment for any Merchandise
and any acceptance of payment by Licensee or its employees shall be deemed to be
a default under this Agreement. UCDP will be liable for any cash shortage unless
the Merchandise was mislabeled as to the price, in which event, any loss
associated with a shortage due to under-charging for an item due to such
mislabeling will be at Licensee’s sole cost.
All daily
sales proceeds received by UCDP from the Business shall be retained and
deposited by UCDP daily at the end of each day and weekly proceeds from the sale
of Merchandise shall be accounted for by UCDP on a weekly basis from Sunday
through Saturday. On Thursday following the conclusion of each week, UCDP will
retain its Concession Fee, sales tax, rent tax (if any) and any additional
deductions from Gross Receipts described and permitted in this Agreement, and
pay the balance of the Gross Receipts (the Licensee’s Share) to the Licensee by
check, together with a report in a form mutually agreeable between the parties,
to such address as Licensee shall provide to UCDP. In consideration of UCDP
providing the Cash Handling Services, Licensee shall indemnify, defend and hold
UCDP, together with UCDP’s partner’s and /or joint ventures, the respective
parent and affiliated companies of UCDP and/or any such partner and/or joint
venturer and all of the foregoing persons and/or entities respective officers,
directors, employees agents and assigns, free and harmless from any and all
claims, damages, liabilities, losses, costs and expenses (including attorneys’
fees) for errors, omissions, or negligent acts arising out of or relating to
UCDP’s Cash Handling Services. The aforesaid indemnification shall apply as to
all of the aforementioned claims, demands and causes of action except for those
instances where UCDP is solely liable for proven dishonest acts. In the process
of determining the Concession Fee, UCDP will also withhold from the Licensee’s
Share: (i) all actual credit card and Resort Hotel room charge fees as the same
become due; (ii) an amount equal to the sales tax payable as a result of and on
the Concession Fee (commonly referred to as a “rent tax”), which sales tax UCDP
will be solely responsible for remitting to the proper taxing authority within
the State of Florida; (iii) the Royalty Fees, if any, due pursuant to Section
3(1) above and, (iv) when applicable, any Deferral Repayments described in
Section 4(b) below. If any check is returned to UCDP, any loss suffered as a
result of such returned check shall be deducted from the Gross Receipts.
Licensee’s credit card fees will be equal to that sum derived by multiplying the
amount of
credit
card collection and processing fees charged by the credit card clearing house
for the applicable time period by a fraction, the numerator of which will be the
total credit card purchases and payments received in payment of Merchandise for
such time period and the denominator of which will be the total credit card
purchases and payments which included the Merchandise charge purchases which
were processed by the clearing house for the same period. Licensee’s Resort
Hotel room charge fees will be equal to those fees charged by the applicable
Resort Hotel for processing the Resort Hotel room charges.
By way of
example, the manner of calculating the Concession Fee, the permitted deductions
and Licensee’s Share shall be as follows:
Step 1. Determine the
Gross Receipts of all Kiosks for the reporting period by deducting the following
from all income, proceeds and moneys, including, but not limited to, all moneys
and all other things of value (including credit card charge receipts and Resort
Hotel room charge receipts) received by or paid to UCDP on behalf of Licensee
for Merchandise or any other person on Licensee’s or UCDP’s account by reason of
Licensee’s operation of the Business:
(i) the
amount of any returns or refunds with respect to sales from the Business
actually paid by UCDP to Licensee’s customers, provided that the original sales
price of such return or refund was included in the reported income, proceeds and
moneys received by UCDP; and
(ii) any
Permitted Discounts on Merchandise to the same extent the same were included in
the total funds received by UCDP.
Step
2. Determine
the Gross Revenues by deducting the following from the Gross Receipts: sales or
excise tax imposed by law on the sale of goods and services which are payable to
the taxing authority and which are actually stated separately and collected by
the UCDP, which sales tax UCDP shall be solely responsible for remitting to the
proper taxing authority within the State of Florida.
Step
3. Calculate
the Concession Fee to be retained by UCDP in accordance with the rates contained
in the first paragraph of this Section 4(a).
Step
4. Determine
Licensee’s Share by deducting the following from the Gross Revenues determined
under Step 2 above:
(i)
|
the
Concession Fee as calculated in Step
3;
|
(ii) all
allowable deductions from the Licensee’s Share which would otherwise be payable
to Licensee, including, but not limited
to the
“rent tax,” credit card fees, Resort Hotel room charge fees, and, if applicable,
any Orientation Fees, Wardrobe Charge, Royalty Fees, Deferral Repayments
shortages due UCDP, Monthly Adjustments, and, to the same extent the same had
previously been included in prior Gross Revenues, returned checks, charge backs
from credit card processing centers, and charge backs from Resort Hotel room
charges;
(iii) the
balance of the Gross Revenues, after deducting all of the items set forth in
Step 4 (i) and 4(H) above, will be paid to Licensee as Licensee’s
Share.
If the
Concession Fee retained by UCDP for its own account in any Operating Year is
greater than the Concession Fee actually due for such Operating Year. Licensee
will be entitled to a credit against Licensee’s next payment(s) of the
Concession Fee(s) coming due until Licensee has received full credit for any
overage retained by UCDP for such Operating Year. If the Concession Fee retained
by UCDP for any Operating Year is less than the Concession Fee actually due UCDP
for such. Operating Year, then, at UCDP’s sole option, UCDP may deduct such
shortage from future Licensee’s Shares or invoice Licensee for same, in which
event Licensee shall pay such difference to UCDP within five (5) days of such
invoice.
(b) Deferred Concession
Fee: Notwithstanding anything to the contrary contained in this
Agreement, provided Licensee is open and operating the Business and is not
otherwise in default hereunder, Licensee will be entitled to defer a portion of
the Concession Fees coming due during the first Operating Year (the “Deferred Concession Fee”). Provided Licensee
complies with the requirements set forth herein, the Deferred Concession Fee
will be equal to the total sum of the loan payments to be made by Licensee
during the first Operating Year of the Initial Term to Licensee’s lender in
repayment of the loan undertaken by Licensee to purchase Licensee’s equipment
used in the operation of the Business. Licensee shall furnish to UCDP, prior to
the commencement date of this Agreement and prior to Licensee’s obligation to
pay the charges and fees due hereunder, a copy of such loan documents as well as
the repayment schedule for said loan. In no event will the Deferred Concession
Fee permitted hereunder exceed a “Maximum Deferral” equal to
the lesser of (i) the total of the payments becoming due under the foregoing
loan for and during the first Operating Year of the Initial Term or (ii) three
hundred thousand dollars ($300,000.00). Notwithstanding the foregoing, if
Licensee fails to furnish copies of the loan documentation together with the
loan repayment schedule as required hereunder or any other documentation
relating, to the loan as may be reasonably required by UCDP, Licensee shall not
be entitled to any portion of the Deferred Concession Fee until such documents
are submitted and approved
by UCDP.
Further, notwithstanding anything to the contrary contained herein, should
Licensee fail to submit such documentation prior to the commencement date as
determined in Section 2(a) above, then the weekly deductions credited to
Licensee as part of the Deferred Concession Fee will not begin until such
documents are submitted to and approved by UCDP. For example, if Licensee fails
to submit such required documentation until the end of the sixth full week of
the first Operating Year of the Initial Term, then the deductions permitted
hereunder as a credit towards the Deferred Concession Fee shall only occur for
the remaining forty-six (46) full weeks of the first Operating
Year.
The
Deferred Concession Fee will be credited to the Licensee on a weekly basis by
deducting from the Concession Fee otherwise due UCDP for each full week during
the first Operating Year of the Initial Term that sum equal to ten percent (10%)
of such weekly Gross Revenues for each full week during said first Operating
Year until the earlier of (i) the date such credit deductions equal the Maximum
Deferral or (ii) the expiration of the first Operating Year of the Initial Term.
If, at the end of the first Operating Year the Maximum Deferral has not been
attained, then any unused portion Maximum Deferral will no longer be available
to defer any future Concession Fees coming due after the expiration of the first
Operating Year.
As
example of the above, if Gross Revenues for the first Operating Year totaled
four Million Dollars ($4,000,000.00), then the Maximum Deferral would be equal
to the lesser of Three Hundred Thousand Dollars ($300,000.00) or the total of
Licensee’s loan repayments described above. If Licensee fails to submit the loan
documentation required above until the end of the tenth (10th) full
week of the first Operating Year, then the deduction of ten percent (10%) of
Gross Revenues from the Concession Fee shall not occur until the eleventh
(11th) full
week and the amount that would have otherwise have been deducted from the
Concession Fee during the first ten (10) full weeks will be deemed to be waived
by Licensee.
If at
anytime during the first Operating Year or immediately thereafter it is
determined that there has been an error in calculating the Deferred Concession
Fee previously during the said Operating Year, then an applicable adjustment
will be made to the next Concession Fee coming due hereunder.
Beginning
with the first week of the second Operating Year, and for each week thereafter
for the second through the fourth Operating Year, Licensee shall repay UCDP the
Deferred Concession Fee as the same finally determined plus interest thereon at
an annual rate of twelve percent (12%) from the date of each deferred payment,
(the “Deferral Repayment”).
The weekly Deferral Repayment sum shall be calculated by applying the
foregoing twelve percent (12%) interest
to the
total Deferred Concession Fee on a payment schedule which would result in two
hundred eight (208) equal consecutive weekly payments and would include the
foregoing interest on the unpaid balance from the date of deferral until paid.
UCDP will be entitled to deduct such weekly Deferral Repayment from the
Licensee’s Share prior to paying same to Licensee under Section 4(a) above. If
this Agreement should terminate for any reason, excepting only the early
termination by UCDP pursuant to Section 2(d) above, prior to the repayment of
the Deferred Concession Fee, then the balance due and owing on the date of such
early termination shall become due, in full, without deduction or setoff. If
this Agreement is terminated by UCDP pursuant to Section 4(a) above and not due
to any other reason or default on the part of the Licensee, then any remaining
unpaid Deferred Concession Fee shall be waived by UCDP. Licensee shall have the
right, at anytime, to prepay all or a portion of the Deferred Concession Fee and
an applicable adjustment shall be made to the Deferral Repayment Schedule.
Further, Licensee may elect, at its sole option, to instruct UCDP not to defer
any portion of the Concession Fee during the first Operating Year. It is
understood that the Deferred Concession Fee has been agreed to by UCDP solely
for the purpose of assisting Licensee in paying for its start up costs during
the first Operating Year and such deferral of Concession Fees is made at the
Licensee’s request and solely for Licensee’s benefit.
(c) Sales Tax: UCDP will
be solely liable for the collection of all applicable state sales tax due on the
sales Merchandise from the Business (regardless of whether Licensee or UCDP
makes such payment to the taxing authority). Any shortage in the sales tax
collected by UCDP will be deducted from the Gross Revenues. UCDP will comply
with all laws, regulations, and orders relating to, and shall promptly pay to
the appropriate authorities when due, for Licensee’s account, all applicable
sales, excise or other similar taxes imposed by any governmental body or agency
upon the Gross Receipts (excluding, however, any taxes based on the net income
of Licensee other than the “rent tax” based on such income). At Licensee’s
request, UCDP shall produce such records as may be required to evidence UCDP
direct payments to the proper taxing authorities. Any fines, penalties, or
interest imposed on late payments of any sales tax shall be borne by UCDP,
provided Licensee has not withheld information necessary for UCDP to meet its
obligation. Any fines, penalties or interest imposed on late payment of any
sales tax due to Licensee’s failure to timely provide UCDP with accurate
information shall be paid by Licensee. Any fees, taxes, or other lawful charges
paid by Licensee upon failure of UCDP to make such sales tax payments shall
become immediately due and payable from UCDP to Licensee, provided UCDP withheld
the payment of such fees, taxes other lawful charges for Gross Receipts but
failed to pay the same to the .proper authority and provided Licensee has not
withheld information or submitted false information with respect to such sales
tax. If Licensee failed to furnish UCDP with any
required
or accurate information relating to such taxes, then Licensee shall not be
entitled to recover same from UCDP.
(d) Resort Hotel Charges;
Licensee authorizes UCDP, on Licensee’s behalf, to honor all requests by guests
which are registered in a hotel located within the Resort (a “Resort Hotel” and such
guest(s) being referred to as “Guest” or “Guests”) to charge items or services
to their Resort Hotel room accounts when purchased by such Guests at or from the
Business. Licensee further authorizes UCDP to treat such Resort Hotel room
charges as per the terms of this Section 4(d). Licensee shall familiarize its
employees with this Section in order that Licensee’s employees respond correctly
to any Guests queries regarding the acceptance of such Resort Hotel room charge
privileges. All Guests will be identified by the Resort Hotel room charge
authorization card issued by the applicable Resort Hotel. A memoranda (duplicate
credit card receipt) of any charge made by a Guest will retained by UCDP. Such
memorandum will contain the Guest’s name, authorization code and an adequate
description of the Merchandise covered by the transaction, and will be properly
dated, signed by the Guest, and transmitted promptly to the applicable Resort
Hotel by UCDP through a compatible TCP/IP modem device. On request, UCDP will
produce a copy of such memorandum to the applicable Resort Hotel to verify the
charge and the Guest’s signed approval thereof.
The
collections of such Resort Hotel room charges will be credited by the applicable
Resort Hotel for the account of Licensee and will be paid to UCDP on Licensee’s
behalf at a weekly or such longer intervals as may be agreed upon, in writing,
by Licensee and the applicable hotel. Initially, such payments to Vendor will
occur on each Friday of each week. The specific day of payment may be modified
from time to time so long as such time period does not extend more than one week
from the prior week’s payment.
Licensee
acknowledges and agrees that the applicable hotel may deduct and retain from the
amounts collected by hotel for the account Resort Hotel Licensee, a handling
charge equal to three percent (3%) of the amounts so collected. Licensee further
acknowledges and agrees that the Resort Hotel does not guarantee collection from
any Guest or will be accountable to Licensee only for money actually received
from such Guest’s or from such Guest’s credit card charge account, provided that
the Resort Hotel acted with due diligence when registering such Guest and the
Resort Hotel followed its credit card processing center’s requirements in
handling such Guest’s credit charges.
If the
Resort Hotel pays UCDP on Licensee’s account any money billed to any Guest’s
room account prior to the actual collection of such bills from the Guest, and if
any such charges will subsequently be found to be uncollectible
for
any
reason other than the Resort Hotel’s failure to exercise due diligence in
processing such Guest’s credit card charges, then the Resort Hotel will have the
right, at its election, either to require repayment by UCDP on Licensee’s
account or to deduct such uncollectible charges from any subsequent payment to
be made by the Resort Hotel to UCDP.
UCDP will
not make any charges to any Guest’s room prior to the actual delivery of the
Merchandise to such Guest.
It is
UCDP’s responsibility to validate the Guests’ identity and signature by
comparing and verifying the signature shown on the charge authorization card
against a valid photo ID (i.e., driver’s license, passport, military
identification). If there is a dispute made by a Guest as to the amount of any
charge made by the Guest to the Guest’s account, UCDP’s copy of the Guest’s
signature on the charge documentation will be satisfactory to the Resort Hotel
provided such signature has been duly and properly obtained by
Licensee.
For the
purpose of calculating Concession Fee due under this Agreement, any charges made
by a Guest to a Resort Hotel as provided above will be treated and reported in
the same manner as a charge made to a credit card.
(e) Recording of Sales:
Licensee acknowledges that the Business will be operated on a cash basis, with
any credit card, Resort Hotel charge, Universal Scrip, traveler’s check or
personal check transaction being deemed to be the same as cash. Each payment on
a credit card, Resort Hotel room charge, Universal Scrip, personal check or
traveler’s check will be treated as a sale for the full price in cash during the
week in which such safe is initially made, irrespective of the time when UCDP
actually receives payment (whether full or partial) from the applicable credit
card agency or bank or Resort Hotel, and no deduction will be allowed for
uncollected or uncollectible credit card, Resort Hotel room charge, personal
check or traveler’s check sales. UCDP will record, at the time of purchase or
other transaction, each and every sale and transaction from the operation of the
Business at the time of the transaction, whether cash, Universal Scrip, or
credit, in a cash register or registers furnished by UCDP at UCDP’s sole cost
and expense. The cash register will be equipped with credit card reading and
approval devices and shall have a sealed continuous cash register tape with a
cumulative totals that numbers, records, and duplicates each transaction entered
into the register, or such other type of cash register as UCDP may deem proper.
The continuous tape will be sealed or locked in such a manner that it is not
accessible to the person operating the cash register in the usual course of the
days business. Each day, UCDP will retain the daily cash register detail tape
for each cash register and a copy of the daily sales reports showing Licensee’s
sales processed through such register, which will reflect,
among
other things, the Gross Receipts rung up on each register. The foregoing will be
submitted daily during the Term to the Finance Department (i.e. Revenue
Accounting) of UCDP or such other department as selected o by UCDP. In addition,
UCDP shall furnish UCDP’s Finance Department with copies of all over-rings and
voids which have been generated by the Business. If Licensee and UCDP are
sharing space at any Location, the daily operating and cash handling procedures
may be changed, amended or altered, in a manner mutually agreeable to the
parties should either party determine that the daily operating and cash handling
procedures are networking in the best interest of the parties.
(f) Books and Records:
UCDP will keep accurate books of account and records for the cash handling
portion of the Business in accordance with generally accepted accounting
principles consistently applied.
(g) Reporting of Gross
Receipts: Within twenty-four (24) hours following the closing of the
Business on each day of the Term, UCDP will, on request of Licensee, advise
Licensee, orally, of the Gross Receipts for that day by using a Daily Sales
Reporting form that is developed and used by UCDP. A copy of the applicable
portion of the final register reading for each register used by the UCDP in the
Business will be attached to such Daily Sales Reporting form.
(h) Deleted:
(i) Deleted,
(j) Acceptance of Universal
Scrip: Universal Scrip will be accepted by UCDP on Licensee’s account
when offered in payment for merchandise or services from the Business. UCDP will
redeem Universal Scrip on behalf of Licensee’s account for its full face value.
UCDP represents that, to its best knowledge, there have been no incidents
involving any such counterfeit scrip; however, UCDP will not will not be
responsible for nor shall it redeem any counterfeit scrip unless UCDP was not
diligent in checking the validity of the scrip or was otherwise negligence in
its policies for accepting such scrip. The acceptance of any other types of
discount media, coupons, scrip or printed matters, which may or may not involve
discounts, should .not be confused with Universal Scrip. Licensee is not
obligated to accept such other types of discount media, coupons, scrip or
printed matters, regardless of whether the same is in the form of scrip or
coupons, unless Licensee specifically agrees to same. If Licensee agrees to
accept such other types of discount media, coupons, scrip or printed matters,
the redeeming of such other types of discount media, coupons, scrip or printed
matters will be as provided-in such agreement and may or may not be for the full
face value, depending on such agreement Universal Scrip shall be treated the
same as cash by UCDP and Licensee in their respective accounting
procedures.
All
Universal Scrip shall be included in Gross Sales at its full face value when
calculating the Concession Fee due hereunder.
5. Minimum
Annual/Weekly Fees.
(a) Minimum Weekly Fees:
The parties are entering into this Agreement with the understanding and
agreement that Licensee will generate sufficient Gross Revenues from the
Business for the first Operating Year of the Initial Term to enable Licensee to
pay a Minimum Annual Fee during the first Operating Year equal to Three Hundred
Thousand Dollars ($300,000.00) and, further, Licensee will generate sufficient
Gross Revenues from the Business for the second Operating Year of the Initial
Term to enable Licensee to pay a Minimum Annual Fee during the second Operating
Year equal to Five Hundred Thousand Dollars ($500,000.00). Beginning with the
third Operating Year of the Term and each Operating Year thereafter, the
foregoing Five Hundred Thousand Dollars ($500,000.00) Minimum Annual Fee will be
adjusted as provided in Section 5(c) below. The Annual Minimum Fee will be paid
in fifty-two (52) equal installments over the applicable Operating Year (the
“Minimum Weekly Fee”).
The Minimum Weekly Fee for any partial week during the Term shall be calculated
as provided in Section 1(n) above. If the total Gross Revenues from the Business
for any week during any Operating Year are not sufficient to generate a weekly
Concession Fee which equals or exceeds the Minimum Weekly Fee for such week,
then Licensee will pay, in addition to the Concession Fee for that week, a
Weekly Adjustment for such week. Such Weekly Adjustment will be deducted from
Gross Revenues and retained by UCDP prior to paying Licensee’s Share to Licensee
for any week that the Concession Fee does not equal or exceed Minimum Weekly
Fee.
Excepting
only as specifically provided otherwise herein with regards to the abatement of
the Minimum Weekly Fees for the first sixty (60) days of the Initial Operating
Year, the Minimum Weekly Fees shall not be subject to any reduction, whether by
virtue of any Deferred Concession Fee or for any other reductions or payments
due hereunder; provided, however, in determining whether any Weekly Adjustment
is due, the weekly Deferred Concession Fee shall not be deducted from the weekly
Concession Fee prior to calculating the Weekly Adjustment, if any, {For example,
if Gross Revenues are $8,000.00 for one week of the first Operating Year, the
Concession Fee for that week would be $2,400.00 (30% of $8,000.00), the Minimum
Weekly Fee for that week would be $600,00 ($3,000.00 - $2,400.00), the Deferred
Concession Fee for that week would be $800.00 (10% of $8,000.00), then UCDP
would deduct the foregoing Deferred Concession Fee of $800.00 from the foregoing
total of the Concession
Fee and
Minimum Weekly Fee of $3,000.00 and UCDP would retain $2,200.00 as its total
weekly fees after deduction of the Deferred Concession Fee}
(b) Initial Abatement of Minimum
Weekly Fee: Provided Licensee is open and operating the Business as
required under this Agreement and is not otherwise in default hereunder, the
Minimum Weekly Fee will xxxxx, in full, for the first sixty (60) days of the
Initial Term.
(c) Adjustment of Minimum Annual
Fee. Commencing on the third Operating Year of the Initial Term and for
each Operating Year thereafter during the Term, the Minimum Annual Fee of Five
Hundred Thousand Dollars ($500,000.00) (the “Base Amount”) will be subject
to annual increases, but not decreases, as provided herein. The measure for such
adjusted increases will be the Department of Labor, Bureau of Labor Statistics
Consumer Price Index for all Urban Consumers (CPI-U) - U.S. City Average (the
“Index”). The term “Base Index” will mean the
Index for the calendar month occurring thirty (30) days prior to the month in
which the commencement date of the Initial Term occurs, as such date is
determined under Section 2(a) above (the “Base Month”), and the term
“Adjusted Index” shall
mean the Index for the calendar month occurring thirty (30) days prior to the
applicable anniversary of such commencement date of the Initial Term as
determined under Section 2(a) above for which the adjustment is being calculated
(the “Month of Adjustment”).
The procedure for making the adjustment to the Minimum Annual Fee will be
to increase the Base Amount by a percentage, such percentage to be equal to the
percentage increase, if any, in the Adjusted Index over the Base Index. Such
increase, as so determined, shall be added to the then existing Minimum Annual
Fee and such adjusted Minimum Annual Fee shall be the Minimum Annual Fee used
for the ensuing Operating Year. Should publication of the Index be discontinued,
then UCDP shall adopt a substitute procedure which reasonably reflects and
monitors consumer prices and/or shall substitute any official index published by
the Bureau of Labor Statistics or by such successor or similar governmental
agency as may then be in existence and shall be, most nearly equivalent thereto
as reasonably determined by UCDP. Notwithstanding anything herein to the
contrary, no reduction in any amount due shall occur based on an adjustment
pursuant to this Section 5(c).
6. Construction
of Kiosks.
(a) Kiosks Design: The
Kiosks will be of such design, size, theme, and decor as is approved by UCDP.
Upon written approval of Licensee’s plans, if any, by UCDP, such approved
Licensee’s plans will, by reference thereto, be deemed to be part of and will be
incorporated into this Agreement. UCDP agrees that Licensee and its personnel,
agents and representative will be entitled to access
to the
Attractions after normal the business hours of the Attractions as may be
required for Licensee to complete and install the Kiosks. Licensee will not be
permitted to undertake any installation or construction during those hours which
the Attractions are open to the public. UCDP may provide certain decorative
improvements and materials to be used in the vicinity of the Kiosks. UCDP will
retain all rights, title interest and ownership of any such decorative
improvements and materials and other materials provided for Licensee’s use by
UCDP. Licensee will provide all necessary rights and clearances to use the
Kiosks or any other materials required by Licensee to operate the Business.
Licensee will not use any designs, decorations or themes on the Kiosks which
have not been previously approved by UCDP, in writing, and will not provide any
backgrounds or designs for use on the Kiosks which incorporate any property of
UCDP or its affiliated companies, or any famous person or fictional character,
without the written permission of UCDP.
(b) Licensee’s Plans: If
UCDP requires Licensee to renovate, construct or install any improvements in any
of the Locations prior to the opening of the Business in such Location, Licensee
will, within fifteen (15) days of execution of this Agreement, at Licensee’s
sole cost and expense, submit preliminary design and plans for the Kiosks to
UCDP for review and approval by UCDP. Prior to submitting such preliminary
plans, Licensee is encouraged to enter into discussions with UCDP’s design
personnel to obtain guidance on the design criteria, goals, objectives and
expectations of UCDP as to the type and nature of the Kiosks. UCDP will, within
fifteen (15) days of receipt of Licensee’s preliminary plans, notify Licensee,
in writing, as to any required changes or modifications to the Licensee’s
proposed preliminary plans. Such submittal and review will continue until UCDP
approves Licensee’s plans. If Licensee’s plans are not approved within sixty
(60) days of the date of execution of this Agreement, UCDP may, at any time
thereafter, terminate this Agreement and the parties will be relieved of all
obligations hereunder unless, the Licensee secures the written approval of
Licensee’s plans prior to the termination date set forth in the notice given by
UCDP.
(c) Construction/Fabrication:
Any approval or consent by Landlord of any and all of Licensee’s plans will
neither constitute an assumption of responsibility by Landlord for any aspect of
Licensee’s plans, including, their accuracy or efficiency, nor will UCDP be
obligated in any manner with respect to the construction of the Kiosks. Licensee
will be solely responsible for the design, construction and fabrication of the
Kiosks. Licensee will commence construction of the Kiosks promptly upon receipt
of approval of Licensee’s plans and will complete the construction of the Kiosks
within thirty (30) days of receipt of such approval; provided, however, in any
event the Kiosks must be completed and placed in service within ninety (90) days
of the date of this Agreement. If
Licensee
fails to complete the Kiosks within the foregoing periods, then UCDP may deliver
written notice of such failure to Licensee, and thereupon, Licensee will have
ten (10) days within which to complete the Kiosks. If Licensee fails to complete
the Kiosks within said ten (10) day period, UCDP will be entitled to terminate
this Agreement upon written notice thereof to Licensee. Licensee will, at all
times, retain ownership of the Kiosks.
(d) Delays in
Plans/Construction: The failure of Licensee to submit its plans or
revised plans within or to start and complete the construction of the Kiosks
within the time periods required hereunder will not affect nor delay the
commencement of the Initial Term or the Licensee’s obligations to pay the
Minimum Monthly Fee due hereunder. If UCDP fails to return Licensee’s plans
within the time period provided for herein or if UCDP otherwise delays Licensee
in beginning and completing its plans or construction of the Kiosks within the
time periods required hereunder, then the Initial Term commencement date will be
delayed one (1) day for each day that Licensee is so delayed by UCDP provided
that Licensee gives notice to UCDP of such delays within three (3) days of the
occurrence thereof. Licensee acknowledges and agrees that any delays in
completing its plans and the construction of the Kiosks not attributed to delays
caused by UCDP for which UCDP has received notice, that the Initial Term and
Licensee’s obligations to, pay the Minimum Monthly Fee and other charges due
hereunder will commence on the commencement date set forth under Section 2(a)
above.
7. Utilities
& Taxes.
(a) Electrical Power:
UCDP will furnish, at its expense and at no cost to Licensee, all, electrical
power required to operate the Business at the Locations provided such electric
power is presently existing and in place at the applicable Location. The power
will consist of a 3 phase, 30 amp, 110V duplex receptacle. If there is no
existing utility line at any Location or if an existing utility line at a
Location does not carry sufficient power for Licensee’s business, then Licensee
shall be solely responsible for any costs or expenses in securing such electric
power, including, but not limited to, the cost to run cable, install fuse boxes
and outlets and any other cost associated with furnishing a Location with
electric power.
(b) Telephone Line:
Licensee will, at its sole cost and expense, be permitted to obtain a telephone
line from UCDP or, if UCDP does not furnish same, from the appropriate telephone
service provided servicing the Attraction to connect with the internal fax modem
of the Kiosks if it is deemed feasible or Licensee may install such other
non-invasive method of direct communication with the Kiosks. UCDP will, if
available, furnish a telephone/data outlet at the Locations
for the
Business. UCDP will not be under any obligation to provide Licensee with a
hook-up or terminal for such telephone service if there are no existing
facilities available for Licensee’s use, such availability to be determined by
UCDP, at its sole discretion, taking into account the needs of UCDP and the
guests visiting the Attraction. The cost for any telephone service furnished by
UCDP will be paid by Licensee directly to UCDP if Licensee obtains such service
from UCDP.
8. Ownership/Maintenance.
(a) Ownership: Licensee
will be the sole owner and operator of the Business (excluding UCDP provided
materials), including all equipment and inventory used in the Business. Licensee
will be totally responsible for care, product quality, image management,
insurance, upkeep and maintenance of the Kiosks and all associated equipment
used in the Business. Licensee will bear all the risk of loss of, or damage to
the Business and its equipment and inventory, except to the extent” such loss or
damage is due to the sole negligence or willful misconduct of UCDP, its parent,
subsidiary or affiliated companies, its and their respective officers, employees
and agents. Licensee will repair and replace, as required, at Licensee’s sole
expense, such equipment, materials and finishes to maintain the appearance and
appeal of the Business at a level satisfactory to UCDP and to meet the demand of
guests visiting the Attraction. Nothing contained in this Section will be deemed
to grant to Licensee any ownership or other interest in the background or other
materials provided by UCDP.
(b) Maintenance/Upgrades:
The Kiosks will be maintained by Licensee and will be inspected by Licensee as
often as required to keep the Kiosks and the equipment used in the Business in
first class condition. The term “first class condition” will mean that Licensee
will maintain the Kiosks and operate the Business at a level that is equal or
exceeds any similar type of business operated from a kiosk or cart in the
Central Florida area. To maintain such level, Licensee will be required to
update the equipment, Kiosks and appearance to a level that is considered to be
“state of the art” for such business operation. Any replacements made by
Licensee will be of like size, kind and quality to the items replaced as they
existed when originally installed and will be subject to UCDP’s approval. If
Licensee fails to perform its obligations under this Section, UCDP may, at its
sole option, perform such obligations and UCDP shall have the right and Licensee
authorizes UCDP to deduct from the Gross Revenues prior to paying Licensee’s
Share to Licensee, the cost thereof plus interest thereon from the date of such
expenditure at the lesser of eighteen percent (18%) per annum or the maximum
rate permitted by law. Notwithstanding the foregoing, on or before the
expiration of the twenty-fifth (25th) month
of the Initial Term and on or before the expiration of each twenty-fifth
(25th) month
thereafter throughout the Term. Licensee will refurbish and replace all worn
surfaces, fixtures and
equipment
used in the Business so as to restore the Kiosks to a “like new” condition.
Licensee will submit its plans to UCDP for such refurbishment and repair at the
end of each twenty-three (23) consecutive month period following each
refurbishment and repair work required hereunder. UCDP will review and either
approve such plans or advise Licensee of such additional work as may be required
to comply with the refurbishment requirement hereunder. The foregoing
refurbishment requirement is of material and significant importance to UCDP in
entering into this Agreement with Licensee. If Licensee will fail to abide by
the foregoing schedule or fail to make such refurbishment and repairs as
approved or requested by UCDP, then UCDP, in addition to any other rights
contained herein (including the right to make such refurbishment and/or repairs
on Licensee’s behalf as provided above), will have the immediate right to
terminate this Agreement upon ten (10) days notice to Licensee.
9. Insurance.
(a) Coverage: Licensee
agrees to provide during the entire Term the following
insurance
coverage on the forms and in amounts not less than specified:
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(i)
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Statutory
Workers’ Compensation, as and to the extent required by law, and
Employer’s Liability insurance with a limit of not less than One Million
Dollars ($1,000,000).
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(ii)
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Comprehensive
General or Commercial Liability insurance (and/or Excess Umbrella
Liability) including personal/advertising injury coverage, which will be
written on an “occurrence” basis, with a standard broad form endorsement
and/or excess umbrella liability with a combined single limit of not less
than Two Million Dollars ($1,000,000) each occurrence and Three Million
Dollars ($2,000,000) general aggregate. The completed operations portion
of this policy will remain in effect for two (2) years after completion of
this Agreement.
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(iii)
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Business
Automobile Liability coverage and/or Excess Umbrella Liability for all
owned, hired, or non-owned vehicles utilized by Licensee with reasonable
limits as required by UCDP.
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(iv)
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An
“all risk” property damage floater policy covering Licensee’s personal
property and Licensee’s equipment, whether owned, leased or rented by
Licensee.
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(v)
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Licensee
will be required to maintain insurance covering loss or damage to its
personal property, whether owned, leased or rented by
Licensee.
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(b) Additional Insureds:
Licensee will cause all policies to name Universal City Development Partners,
LP, Universal Studios, Inc., and their respective
affiliated
and related companies as additional insureds. All policies will be primary and
non-contributing with any insurance maintained by UCDP and will include a waiver
of subrogation.
(c) Proof of Coverage:
Upon execution of this Agreement, Licensee will deliver to UCDP satisfactory
evidence of such insurance coverage as required by UCDP for Licensee on a
standard XXXXX form, or other form acceptable to UCDP or if required, copies of
the policies. Said policies or certificate will indicate that such policies are
in full force and effect will be delivered to UCDP at the time of execution of
this Agreement by Licensee and will contain a provision indicating that the
insurance can not be canceled or modified without giving UCDP twenty (20) days
prior written notice. All certificates will be issued to Universal City
Development Partners, LP, attention: Risk Management, 0000 Xxxxxxxxx Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000. All required insurance will be placed with
carriers satisfactory to UCDP and will provide twenty (20) days written notice
to UCDP if the carrier elects not to renew such policy. Licensee will give UCDP
a replacement of such certificate or policies in advance, so that UCDP will
always have the current policies or certificates. If Licensee will be using any
contractor to do any work at the Locations, such contractor will provide
evidence of insurance in the amounts set forth above.
(d) Licensee’s
Obligations: All insurance furnished by Licensee or its subcontractors
hereunder will be in full force and effect during Licensee’s performance of this
Agreement. The failure of UCDP to request copies of the insurance certificate or
policies or the failure of Licensee to deliver satisfactory evidence of
coverage, will in no way be construed as a waiver of Licensee’s obligation to
provide the required insurance coverage specified in this Agreement. Further,
the coverage and limits of insurance required in this Agreement will not be
construed as a limitation of any liability to UCDP.
10. Indemnification/Waiver
of Subrogation.
(a) Indemnification:
Licensee hereby agrees to indemnify, defend and hold UCDP, together with UCDP’s
partners and/or joint venturers, the respective parent and affiliated companies
of UCDP and/or any such partner and/or joint venturer and any licensee or lessee
of UCDP’s and all of the foregoing persons’ and/or entities’ respective
officers, directors, employees, agents and assigns, free and harmless from any
and all claims, damages, liabilities, losses, costs and expenses (including
attorneys’ fees) for errors, omissions or negligent acts arising out of or
relating to this Agreement or Licensee’s performance of this Agreement by any
agents, servants, independent contractors-or employees of Licensee. The
aforesaid indemnification will apply as to all the aforementioned claims,
demands and causes of action except for those instances where
UCDP
is solely
at fault. This indemnification includes any claim asserted against UCDP by
agents, servants, independent contractors or employees of Licensee.
(b) Release: Licensee
hereby releases each and all of the foregoing indemnified parties from liability
to Licensee for loss of or damage to any of Licensee’s or its subcontractor’s
property arising out of any act or omission, negligent or otherwise, in
connection with the performance of this Agreement by UCDP to the extent Licensee
is or is otherwise required to be insured against such damage and/or loss or to
the extent Licensee is self-insured under a formal self-insurance
program.
(c) Waiver: Licensee
hereby waives all rights to claim against UCDP and any entities related thereto
with respect to any bodily injury, personal injury or losses or damage to real
or personal property howsoever caused to the extent any such losses are covered
by insurance (including deductibles or self-insurance), Licensee hereby waives
all rights of subrogation on behalf of any insurance company insuring its
interest so long as said waiver does not violate any terms and conditions of any
such insurance policy. Licensee’s compliance with the requirements of this
Section will not relieve Licensee of any other obligations or requirements
contained in this Agreement.
11. Default.
(a) Default: This
license is made upon the condition that Licensee will punctually and faithfully
perform all the covenants and agreements to be performed by Licensee as herein
set forth and the occurrence of either of the following will constitute an event
of default and a breach of this Agreement by Licensee: (a) failure by Licensee
to observe or perform any of the covenants or conditions of this Agreement and
said failure will continue for twenty-four (24) hours after oral or written
notice from UCDP to Licensee; (b) any Kiosk is abandoned or vacated by Licensee;
(c) the removal of any Kiosk from its designated Locations to another location
in Attractions without the prior approval of UCDP; (d) the repeated violation or
failure to observe or perform any of the covenants or conditions of this
Agreement that Licensee has been given notice on one (1) prior occasion in any
twelve (12) month period; (e) the assignment of this Agreement or the transfer
of any interest herein to a third party without the prior written approval of
UCDP; (f) if Licensee becomes insolvent or files any debtor proceedings, or
should any adjudication in bankruptcy be rendered against Licensee, or should
Licensee take or have taken against Licensee in any court pursuant to any
statute either of the United States or of any state a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of Licensee’s property, and if the same is not discharged
within sixty (60) days thereafter, (g) Licensee makes an
assignment
for the benefit of creditors, or petitions for or enters into an arrangement;
(h) Licensee suffers any portion of its property used for the operation of the
Business to be taken under any writ of attachment or execution, and the same is
not discharged within thirty (30) days thereafter; or (i) the default of
Licensee in the performance of any of its obligations and duties under any other
agreement, license or lease, if any, between Licensee and UCDP and/or Universal,
or either of their respective affiliates, subsidiaries or parents, wheresoever
located, including, but not limited to all of Universal Orlando, Universal
Studios Hollywood and its related facilities, including Universal Studios
CityWalk Hollywood or any other locations owned, controlled or operated by UCDP
and/or Universal, or either of their respective affiliates, subsidiaries or
parents.
(b) Remedies: Licensee
hereby agrees that in any of the foregoing events, UCDP may elect any and all of
the following remedies; (i) UCDP may xxx to collect any and all sums which may
accrue to UCDP by virtue of a violation of any provision of this Agreement and
for any and all damages that may occur by virtue of the breach of this Agreement
by the Licensee; (ii) UCDP may xxx to restrain by injunction any violation or
threatened violation of this Agreement; (iii) UCDP may terminate this Agreement
by oral or written notice to Licensee; or (iv) UCDP may re-enter the Locations
without terminating this Agreement and upon giving five (5) days oral or written
notice, remove all personal property of Licensee therefrom at Licensee’s cost
and expense. The remedies hereunder will be cumulative and not exclusive of any
other remedy hereunder or to which UCDP may be entitled. If UCDP elects to
terminate this Agreement due to a default by Licensee, UCDP will not be required
to pay or otherwise reimburse Licensee for any costs, including, but not limited
to, Licensee’s cost to construct the Kiosks, equip the Business or purchase
inventory.
(c) Termination: UCDP
will, at its sole and subjective discretion, have the right to terminate this
Agreement upon twenty-four (24) hours prior written notice to Licensee and to
immediately regain possession of the Locations upon which or where the Business
is operating upon a material breach of this Agreement by Licensee.
12. Notice. Except
as specifically provided elsewhere in this Agreement, any notice given under the
provisions of this Agreement will be in writing and will be delivered
personally, delivered by a nationally recognized courier or sent by certified or
registered mail, postage prepaid:
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To
UCDP:
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Xxxxxx
X. Xxxxx. V.P., Legal and Business
Affairs
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Universal
Studios Florida
0000
Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx,
Xx 00000
To
Licensee Crystal
Magic Inc.
0000
Xxxxxx Xxxx Xxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx
00. Relationship of Parties.
Licensee will furnish all of the obligations to be performed hereunder to
UCDP in Licensee’s capacity as an independent contractor. In no event will UCDP
in be construed or held to be a partner, joint venturer or business associate of
Licensee in the operation of the Business. Licensee agrees that the personnel
necessary in the performance of its services hereunder will be Licensee’s
employees, not employees of UCDP and Licensee will have all of the duties and
responsibilities of an employer, including but not limited to payment of wages,
payroll deductions and withholdings, employers’ taxes and workers’ compensation
insurance.
14. Non-Discriminatory Practices.
Licensee agrees neither Licensee nor its subcontractors will discriminate
against any business invitee, customer, employee or applicant for employment
because of race, religion, color, sex, age, physical handicap, or national
original except where sex or absence of physical handicap is a bona fide
occupational qualification, and that Licensee will execute and cause each of its
subcontractors to execute any such certificate and covenants not to
discriminate, as may be required by any governmental authority.
15. Logo Usage. Neither Licensee
nor any of its employees, suppliers or others engaged by it in connection with
its Business, by virtue of this Agreement, will acquire any right to use, and
they will not use, the name of Universal or the name “Universal Studios” (either
alone or in conjunction with or as a part of any other word, phrase or name) or
any fanciful characters or designs of Universal Studios or any of its parent,
related, affiliated or subsidiary entities in any advertising, publicity or
promotion or to express or imply any endorsement of Licensee, except to the
extent UCDP may expressly consent to in advance in writing, which consent UCDP
may withhold at its discretion.
16. Trade Secrets. Licensee agrees
to refrain at all times from disclosing UCDP’s trade secrets, systems, concepts
and designs, financial data and general business information which is not
generally known by the public and which gives UCDP an advantage over its
competitors who do not know or use this information to others or from using it
except for the benefit of UCDP and/or its related entities, and to refrain from
any other acts which would tend to destroy the value of this information to
UCDP. Further, without the prior written approval of UCDP, Licensee and
Licensee’s employees will not discuss the terms of this Agreement or their
relationship to it or to UCDP with any branch of the media or with any third
party, nor will they furnish any written materials.
photographs,
drawings or sketches relating to the Agreement to any media entity or third
party. Licensee will not use UCDP’s name or its association with UCDP in any
form of advertising or promotions without UCDP’s prior written consent. Further,
Licensee will not utilize the name of UCDP or any of its fanciful characters or
themes, whether real or fictitious, associated with UCDP’s products, or any
other intellectual properties owned or controlled by UCDP without the prior
written consent of UCDP, which consent may be withheld by UCDP in its sole
judgment
17. Personnel.
(a) Policies/Procedures:
All proposed personnel policies and procedures, costume designs and grooming
standards will be consistent with those of UCDP. All uniforms; costumes and
other attire utilized by Licensee’s employees in the performance of their work
activities at the Locations are subject to the prior written approval of UCDP
and UCDP reserves the right to require Licensee to modify, replace, upgrade or
otherwise change the same should UCDP deem such change to be in the best
interests of the Attractions. Licensee shall be solely responsible to ensure
that its employees, at all times, comply with the UCDP procedures regarding
appearance, attire and grooming standards. UCDP may, at its option, offer
Licensee the right to avail itself to the use of UCDP costumes or uniforms
(“UCDP Wardrobe”) which
are used by UCDP in the various Locations. If UCDP offers License the right to
purchase of otherwise utilize UCDP’s services for such UCDP Wardrobe, then the
procedure and costs shall be as set forth in Section 17(b) below. If UCDP does
not offer Licensee the right to purchase or use UCDP Wardrobe, then the attire
of Licensee’s employees shall be subject to UCDP’s prior approval and must be in
keeping with the theme of the Locations in which each Kiosk is situated.
Licensee shall require its employees to adhere to the dress code, attire and
appearance as is approved by UCDP. UCDP may require Licensee to incorporate, at
Licensee’s expense, employee name tags into the attire of its employees in a
form and style as established from time to time by UCDP, which name tag may
include the first name of the employee and his or her “home town.” Licensee may
acquire such name tags from UCDP and reimburse UCDP on receipt of invoice for
the cost of such name tags. The cost for the name tags, if acquired from UCDP,
shall be the same charge as is levied against UCDP employees for a replacement
name tag. Licensee is responsible for making arrangements with its employees
regarding the purchase and maintenance of such name tags and as well as the
purchase and maintenance of any approved attire or UCDP Wardrobe required while
at work in the Business. UCDP may, at any time, direct Licensee to require any
of its employee without name tags or employees not dressed in approved attire
which is clean and neat in appearance and not worn or otherwise unsightly, to
immediately conform to the requirements of this Section or leave the Attraction.
Each and every representative and employee of
Licensee
will adhere to the standard policies of UCDP relating to courteous guest
relations and guest service while operating the Business.
(b) Wardrobe /Appearance:
If UCDP elects to offer Licensee the opportunity to utilize UCDP’s services to
furnish, service and maintain Licensee’s employees’ attire and Licensee elects
to use such services, then, Licensee will reimburse UCDP for the cost of
servicing, repairing and cleaning such UCDP Wardrobe (the “Wardrobe Charge”) and
Licensee hereby authorizes and directs UCDP to deduct any such Wardrobe Charge
from Gross Receipts prior to paying Licensee’s Share to Licensee. Any charges to
Licensee’s employees by Licensee will be solely within Licensee’s purview and
any arrangements between Licensee and its employees with regards to any costs or
charges for UCDP Wardrobe will be between such employees and Licensee. The
procedure for the fitting, daily pick-up and turn-in of the UCDP Wardrobe by
Licensee’s employees shall be the same as those policies and procedures for UCDP
employees as are issued by the Wardrobe Department of UCDP, as the same may be
modified, from time to time. It shall be Licensee’s responsibility to insure its
employees are familiar with the Wardrobe Department’s policies and procedures
and abide by same. Any violation of the Wardrobe Department’s procedures by a
Licensee employee could, at UCDP’s sole option, result in the refusal of the
Wardrobe Department to issue UCDP Wardrobe to such employee or to further
service Licensee’s wardrobe needs.
For each
UCDP Wardrobe Licensee elects to have furnished and maintained by UCDP, Licensee
shall be charged by and shall pay to UCDP, on a monthly basis, a Wardrobe Charge
of Fifty Dollars ($50.00) per month per employee for the handling, cleaning,
servicing and replacing of each employee’s wardrobe. Any partial month occurring
at the beginning or end of the period in which Licensee utilizes UCDP services
for furnishing UCDP Wardrobe will be considered a full month for the purposes of
calculating the monthly Wardrobe Charge. The Wardrobe Charge will also cover the
fitting and other start-up costs incurred by UCDP in furnishing UCDP Wardrobe to
Licensee’s employees. Licensee’s obligation to pay the Wardrobe Charge contained
in this Section17 (b) shall be without setoff or deduction, shall be a material
condition of this Agreement and shall survive the termination of this
Agreement.
If
Licensee elects to use the services of UCDP in furnishing, maintaining and
cleaning Licensee’s wardrobe, if any UCDP Wardrobe is lost or is otherwise
damaged beyond reasonable repair due to the misconduct or negligence of the
Licensee’s employee, then Licensee will be charged a replacement fee of Thirty
Dollars (30.00) for each article of clothing of UCDP Wardrobe which UCDP elects
to replace. UCDP’s determination as to when it is necessary to replace UCDP
Wardrobe or a part thereof due to an employee’s misconduct or negligence
shall
guideline,
policy, rule or regulation established by UCDP from time to time relating to the
Licensee’s employees or their conduct within the Attraction. Licensee will have
an opportunity to object to the suspension or revocation of an entry permit or
the removal of an employee by requesting in writing to UCDP for a hearing.
Pending such hearing, UCDP’s action will not be disturbed or changed. UCDP’s
decision after such hearing will then be final.
(e) Solicitation of
Employees: Licensee will not knowingly employ or solicit employment of
any employee or ex-employee of UCDP or any other tenant, licensee, exhibitor or
concessionaire of UCDP without the prior written consent of UCDP. Licensee will
submit to UDCP the names of all employees of Licensee that will work at the
Locations. UDCP may do’ a background check on any Licensee employee, and such
background will be at no cost to Licensee.
(f) Managers/Employees:
The identity and occupational background of all key Business management
personnel, including without limitation the Site Manager, will be provided in
writing by Licensee to UCDP for review and approval. Further, on request,
Licensee will submit the names and occupational background of other employees
engaged in the Business to UCDP for its review and approval. Licensee will
assign an on-site full time Site Manager to act as the primary interface with
UCDP’s designated representative. The Site Manager will coordinate with UCDP’s
representative on all technical questions, schedule conflicts, special requests,
and other matters pertaining to the operation of the Business.
18. Filming
Operations. UCDP
and persons designated by UCDP may take photographs and make motion pictures of
the Business and may make sound recordings of, and otherwise visually and
audibly reproduce (for example, but not by way of limitation, make live” or
filmed television broadcasts, feature films, or radio broadcasts) all or a
portion of the Business and persons and activities thereon, and UCDP or persons
designed by UCDP may exploit the results or proceeds thereof without any payment
of any kind to Licensee. Licensee will grant UCDP’s request for access to the
Business in connection with the foregoing, and such activities will be conducted
in a manner so as not to unreasonably interfere with the operations of Licensee
or cause Licensee any cost or expense. UCDP will indemnify Licensee with respect
to any claims that may arise out of any such activities.
19. Miscellaneous.
(a) Rules &
Regulations/Parking/Access: Licensee agree to abide by all rules and
regulations of UCDP and will follow any directions given by UCDP personnel with
respect to the location of parking, areas of access, safety and other general
operating instructions. UCDP will provide Licensee, on a daily basis,
appropriate
approved
by the UCDP in writing: (i) Licensee will keep no live animals of any kind at
the Locations; (ii) Licensee will not display or sell Merchandise, portable
signs, devices or any other objects, outside of the Locations; (iii) Licensee
will not erect or install any aerial antenna or “dish” and (iv) Licensee will
not solicit or distribute material in any manner in any of the common areas of
the Attraction.
20. Governing
Law/Compliance/Headings.
(a) Occupational
Fees/Licenses: Licensee will fully comply with payments of any fees
related to all health, safety and other regulations and restrictions imposed by
any governmental agency with jurisdiction over the operation of the Business.
Licensee will be responsible for obtaining and maintaining at its expense during
the Term all licenses, permits and other governmental approvals necessary to
engage in, conduct and carry on the Business operations provided for in this
Agreement and will comply with any and all governmental laws and regulations
relating to the business conducted by Licensee at the Locations(s).
(b) Compliance With Laws:
Licensee will comply with all applicable federal, state and local laws,
regulations and order with respect to the operation of the
Business.
(c) Governing Law: This
Agreement will be construed in accordance with the laws of the State of Florida.
This Agreement includes the entire understanding of the parties with respect to
the subject matter hereof and all prior agreements with respect to subject
matter have been merged herein. No representations or warranties have been made
other than those expressly provided for herein. This Agreement may not be
altered, modified, or changed in any way except by an instrument in writing
signed by the parties.
(d) Headings: The
headings used in this Agreement are for reference only and will hot be construed
to define or otherwise limit the terms and conditions expressed in the
respective paragraphs.
(e) Jurisdiction: Any
legal proceeding of any nature brought by either party hereto against the other
party to enforce any right or obligation under this Agreement, or arising out of
any matter pertaining to this Agreement to be performed hereunder, will be
submitted for trial without jury before any court of competent jurisdiction in
Orange County, Florida.
(f) WAIVER OF
JURY TRIAL: THE PARTIES
HERETO EXPRESSLY WAIVE TRIAL BY JURY IN ANY LEGAL PROCEEDING, CONSENT AND SUBMIT
TO THE JURISDICTION OF ANY SUCH COURT AND AGREE TO ACCEPT SERVICE OF PROCESS
OUTSIDE THE STATE OF FLORIDA IN
AGREED to
and ACCEPTED:
Universal
City Development Partners,
LP, Crystal
Magic, Inc.
By: /s/ Xxxxxx X. XxxxxBy: /s/ Xxxxxx X. Xxxxxx
Its: Vice PresidentIts: President
Date: 9/15/00Date: 8/21/00
Tax ID#: 00-0000000
GUARANTY
For
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned Guarantor agrees to be personally bound to UCDP
for the full and faithful performance of the obligations undertaken in this
Agreement by Licensee, including, but not limited to, the payment of all fees
and sums arising or becoming due under the Agreement and, upon reasonable
written notice from UCDP, will perform each and all of the obligations of
Licensee hereunder in a timely manner. Nothing contained in this guaranty will
modify, impair or otherwise limit the rights and remedies of UCDP provided for
in this Agreement or by operation of law. This Guaranty and the obligations
arising hereunder will survive the termination and/or expiration of the
Agreement.
By:
Xxxxxx X. Xxxxxx
Date: