VOID UNLESS, AT LEAST SIXTY (60) DAYS PRIOR TO
THE FIRST INTRODUCTION OF SUCH CHARACTER PROPERTY TO THE GENERAL PUBLIC,
LICENSEE SHALL HAVE SUBMITTED TO TDSF A WRITTEN, REASONABLY DETAILED
MERCHANDISING AND SALES PLAN WITH RESPECT TO DISNEY MERCHANDISE FEATURING SUCH
CHARACTER PROPERTY, TOGETHER WITH A WRITTEN CERTIFICATION FROM THE CHIEF
FINANCIAL OFFICER OF LICENSEE AND TCP STATING THAT, IN THE GOOD FAITH,
REASONABLE JUDGMENT OF SUCH PERSON(S), SALES OF DISNEY MERCHANDISE THAT FEATURE
SUCH CHARACTER PROPERTY WILL EXCEED FIVE PERCENT (5%) OF THE NET RETAIL SALES
GENERATED BY ALL OF THE FACILITIES DURING THE PERIOD COMMENCING ON THE DATE THAT
IS ONE (1) WEEK PRIOR TO THE FIRST INTRODUCTION OF SUCH CHARACTER PROPERTY TO
THE GENERAL PUBLIC AND ENDING EIGHT (8) WEEKS THEREAFTER; AND
(D)
DURING THE TERM, EACH DTR LICENSE GRANTED BY TDSF OR ANY OF ITS
AFFILIATES TO ANY CHAIN OF CHILDREN'S SPECIALTY RETAIL STORES THAT IS SUBJECT TO
THE PROVISIONS OF
9
THIS SECTION 6.2.2 SHALL INCLUDE A PROVISION EXPRESSLY PROHIBITING THE USE OF
ANY CHARACTER PROPERTIES AUTHORIZED FOR USE THEREUNDER IN A MANNER THAT IS NOT
AUTHORIZED THEREBY OR DOES NOT COMPLY THEREWITH; PROVIDED, THAT, IN THE EVENT
SUCH EXPRESS PROHIBITION IS BREACHED OR VIOLATED BY SUCH CHAIN OF CHILDREN'S
SPECIALTY RETAIL STORES OR ANY CHILDREN'S SPECIALTY RETAIL STORE THEREIN, TDSF
OR SUCH AFFILIATE SHALL DETERMINE IN ITS SOLE DISCRETION WHETHER, TO WHAT EXTENT
AND IN WHAT MANNER, IF ANY, TO ENFORCE SUCH EXPRESS PROHIBITION, AND LICENSEE
SHALL HAVE NO RECOURSE OR REMEDY NOR BE ENTITLED TO ANY ABATEMENT OR REDUCTION
OF ANY PAYMENTS OR OTHER OBLIGATIONS HEREUNDER ON ACCOUNT OF SUCH UNAUTHORIZED
OR NON-COMPLIANT USE BY SUCH CHAIN OF CHILDREN'S SPECIALTY RETAIL STORES OR SUCH
CHILDREN'S SPECIALTY RETAIL STORE THEREIN OR ANY DETERMINATION TO ENFORCE (IN
WHOLE OR IN PART) OR NOT ENFORCE (IN ANY MANNER WHATSOEVER, IN WHOLE OR IN PART)
SUCH PROHIBITION THAT IS MADE BY TDSF OR SUCH AFFILIATE WITH RESPECT THERETO;"
3.
SECTION 6.2.4 OF THE LICENSE AGREEMENT IS HEREBY DELETED AND
REPLACED IN ITS ENTIRETY WITH THE FOLLOWING:
"6.2.4
For purposes of clarification, the limitations set forth in the
preceding Sections 6.2.2 and 6.2.3 shall not, under any circumstances, apply to
or be deemed to apply to (i) any Non-Disney-Branded Properties; (ii) any
consumer products offered for sale by any Mass Merchandiser or Children's
Specialty Retail Store that are acquired by such retailer by any means other
than by a DTR License ("Non-DTR Products") (e.g., consumer products acquired by
a Children's Specialty Retail Store from another licensee of TDSF or its
Affiliates would not be subject to such limitations), provided, that, if seventy
percent (70%) or more of the gross leaseable square feet of any Walled
Store-Within-a-Store or unwalled Store-Within-a-Store Format within a physical
retail store operated by a Mass Merchandiser is occupied by Softlines and/or
Toys/Plush that bear, feature or incorporate any Character Property and are
produced under a General DTR License granted by TDSF or any of its Affiliates to
such Mass Merchandiser, any Non-DTR Products