danlb_2000
Premium Member
I did not want to copy this but you insisted. Read this portion of the contract and there are exceptions and geographic limitations that are not just east of the Mississippi.
B. Other Theme Parks
1.
MCA (or an MCA “Corporately Related Company” (defined below)), shall have an option to utilize the Marvel characters in THE SECOND GATE of the
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Universal Theme Park (Orlando) and an exclusive world-wide option to utilize the Marvel characters in additional THE MARVEL UNIVERSES in any other Universal Theme Parks, which initial option must be exercised during the two year period beginning on the date of the opening of THE MARVEL UNIVERSE in the Universal Theme Park (Orlando). The present inventory of the Marvel characters is set forth in the schedule to be attached or provided by Marvel promptly after execution hereof, plus any characters developed or acquired or licensed in the future by Marvel which (x) are marketed under the Marvel “Banner” or (y) were previously marketed under the Marvel “Banner” during the term hereof and are subsequently marketed under the “Banner” of a Marvel Related Company (defined below). Any characters which are licensed to Marvel by third parties subject to terms which require Marvel to pay a license fee based on revenues or which do not permit sublicensing may be excluded, at Marvel’s option, in the foregoing grant.
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a. After such 2 year period, MCA’s exclusive rights will be subject to “shrinkage” or “expansion” as follows:
1. If no action is taken by MCA, such exclusivity shall be limited as follows:
i. East of The Mississippi - any other theme park is limited to using characters not currently being used by MCA at the time such other license is granted. [For purpose of this subsection and subsection iv, a character is “being used by MCA” if (x) it or another character of the same “family” (e.g., any member of THE FANTASTIC FOUR, THE AVENGERS or villains associated with a hero being used) is more than an incidental element of an attraction, is presented as a costumed character, or is more than an incidental element of the theming of a retail store or food facility; and, (y) in addition, if such character or another character from the same “family” is an element in any MCA marketing during the previous year. Any character who is only used as a costume character will not be considered to be “being used by MCA” unless it appears as more than an incidental element in MCA’s marketing.]
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ii. West of The Mississippi - any other theme park may use any Marvel characters whether or not used by MCA.
iii. East or West of The Mississippi - permitted uses shall be limited to the use of specific Marvel characters and Marvel may not permit a licensee to use the name “Marvel” as part of the attraction name or marketing.
iv. East or West of The Mississippi - The foregoing permitted uses will be subject to the following marketing restrictions:
(a)
If the particular character is used by MCA (as defined above), such character will not be advertised or promoted East of The Mississippi, except by means of national Network buys
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of television, within printed materials such as brochures, or by print advertisements in periodicals directed to readers more than 300 miles from Orlando; and with regard to any of the foregoing permitted marketing, if the marketing is for a group of theme parks located both East and West of The Mississippi, the marketing shall make abundantly clear that the character only appears in the parks West of The Mississippi and shall not be subject to confusion on such point (such as would occur by visual inclusion of the character in a generic, multipark advertisement subject to a small print explanation of the parks where the character is present).
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(b) If the particular character is not used by MCA, such character will not be advertised or promoted by means of (x) spot television buys, billboards, personal appearances, or print advertisements which are (y) viewed, located or primarily directed to persons within 300 miles of Orlando. In other words, regional (i.e. covering a multi-state geographic region) or national television or print media buys, or brochures would not be prohibited within such 300 mile radius.
2. Within 2 years after opening of THE MARVEL UNIVERSE in Orlando, MCA may retain its worldwide exclusivity for up to 5 additional years by designating another location where it intends to develop THE MARVEL UNIVERSE as part of a theme park, and by paying an option fee of $*** per year. Provided such second theme park opens within such 5 year period, MCA shall maintain worldwide exclusivity for an additional two year period after such opening, and thereafter its rights will be subject to the “shrinkage” or “expansion” concept described above (in the manner described below).
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As used throughout this agreement, any subsequent THE MARVEL UNIVERSE must cost at least $*** (calculated in the manner described previously), must appear in a Universal Theme Park, and Marvel’s representation therein will be of at least comparable proportion and like quality to its representation (including as to the retail exposure and promotional efforts of MCA) within THE SECOND GATE at Universal City Florida.
i. With regard to the second and subsequent Universal Theme Parks in the areas specified below, MCA’s exclusivity shall be as follows:
a. Second U.S. Park - all of U.S.
b. Any of Japan, Hong Kong, the Philippines, Singapore, Malaysia, Indonesia, Mainland China, Taiwan, North or South Korea, Vietnam, or Thailand, exclusivity will apply to all others.
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c. Europe Park - all Europe, including Turkey, but excluding any areas that were part of the former USSR.
ii. With regard to subsequent Universal Theme Parks in areas other than as described in (i) above, the parties will in good faith agree upon comparable geographic provisions to the “East of the Mississippi” provisions applicable to the Orlando Universal Theme Park. Thereafter, the above “shrinkage” or “expansion” provisions shall continue to apply to all such future Universal Theme Parks described in this subsection (ii). If after opening any subsequent Universal Theme Park MCA does not institute the option payments within 2 years, continue the option payments, and open such newly designated subsequent Universal Theme Park within 5 years thereafter, its rights shall be permanently “shrunk”, and it will have no further right to build any new THE MARVEL UNIVERSE.
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3. Any THE MARVEL UNIVERSE constructed hereunder after THE MARVEL UNIVERSE (Orlando) shall be subject to the payment and other relevant terms of this agreement applicable to THE MARVEL UNIVERSE (Orlando), except as to CPI increases as set forth herein.
4. To the extent and in the territories that MCA has exclusive theme park rights, such shall not prohibit (except for the limitations described below) Marvel from itself developing or licensing its planned Retail concept which may include interactive elements as a major or minor element (presently intended to be called “The Marvel Action Universe” and referred to as such herein, but which may also be called “The Marvel Universe” or another name chosen by Marvel). The Marvel Action Universe will consist, inter alia, of the sale of comic books, trading cards, software, licensed or Marvel produced merchandise, the use of electronic games and/or pinballs or other coin operated games, and may include one or more virtual reality and/or simulator ride using Marvel characters or other themes. The following restrictions shall apply to The Marvel Action Universe (or elements thereof whether owned or licensed by Marvel).
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a. Restrictions as to the geographic location of The Marvel Action Universe in areas where MCA has exclusive rights hereunder.
i. The Marvel Action Universe will not be within 60 miles of any Universal Theme Park with a THE MARVEL UNIVERSE
ii. Mini-theme parks, recreation centers, game centers and the like designated with the Marvel name or the name of any Marvel characters or any major entertainment component of a Marvel Action Universe such as a motion based film ride shall not be within 60 miles of any Universal Theme Park with a THE MARVEL UNIVERSE.
iii. Within the ADI market of the city containing a Universal Theme Park (even to the extent such ADI exceeds a 60 mile radius) there shall not be a Marvel themed simulator ride.
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b. Restrictions as to elements of The Marvel Action Universe in areas where MCA has exclusive rights hereunder.
i. Within 300 miles of any Universal Theme Park with a THE MARVEL UNIVERSE, no The Marvel Action Universe shall contain more than one simulator, nor shall such simulator hold more than 20 people. Motion based or virtual reality attractions which are coin operated and hold no more than 4 people shall not be deemed a “simulator” subject to the above restriction. Any such rides which are interconnected so as to create a simultaneous experience among multiple units exceeding an aggregate of 4 people shall be deemed simulator rides and the number of people in such interconnected rides shall be counted toward the 20 person limit above.
c. Restrictions as to affiliations or marketing of The Marvel Action Universe or elements thereof, in areas where MCA has exclusive rights hereunder.
i. The Marvel Action Universe will not be within any theme park, nor marketed in conjunction with any theme park. For purposes of these restrictions, an area of 10 acres or less will not be deemed a theme park. An area in excess of 10 acres may or may not be deemed a theme park based on its overall characteristics.
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ii. No The Marvel Action Universe will be marketed so as to infer or imply that such THE MARVEL ACTION UNIVERSE or one of its components (x) constitutes a theme park or (y) is a component of a theme park.
iii. No The Marvel Action Universe shall be in or marketed in conjunction with any themed entertainment areas owned, operated or marketed by Disney, Time-Warner, Six Flags, Sony, Paramount or Busch. As used herein, “theme park” and “themed entertainment areas” shall not include, inter alia, facilities or complexes where at least 70% of the revenues generated on the premises are derived from retail sales or whose primary source of revenue is lodging (which may include food, beverage and gaming revenues).
d. Pre-Existing Conditions in areas where MCA has exclusive rights hereunder.
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The restrictions set forth in subparagraphs a and b above shall not apply to any The Marvel Action Universe or elements thereof which already “Exists” on the “Trigger Date” (both defined below) and would be thereafter impacted by subparagraphs a and b above due to the creation of a new THE MARVEL UNIVERSE in a Universal Theme Park. However, no such Marvel Action Universe shall be materially enhanced in relation to any otherwise prohibited element (except as to matters of governmental compliance and general refurbishment and updating) after the opening of such new THE MARVEL UNIVERSE in a Universal Theme Park. For purposes of this subsection the following definitions shall apply:
(x) A Marvel Action Universe (or otherwise prohibited element) shall be deemed to “Exist” if it is (a) open for business or (b) a lease has been executed or a contract for purchase of land has been executed (in either case for a site for a The Marvel Action Universe) and Marvel is diligently proceeding to develop and open such The Marvel Action Universe.
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(y) The “Trigger Date” for any THE MARVEL UNIVERSE is the date hereof as to Orlando and,as to any subsequent THE MARVEL UNIVERSE in a Universal Theme Park, the later of the date on which (i) THE MARVEL UNIVERSE at the Universal Theme Park (Orlando) opens for business or (ii) MCA has announced development and paid the $*** (as adjusted by CPI) option fee relating to such new THE MARVEL UNIVERSE as set forth in Section IV(B)(1)(a)(2).
If Marvel is actively operating and/or developing The Marvel Action Universes in the 60 mile radius or ADI of any such newly announced THE MARVEL UNIVERSE at a Universal Theme Park, at the time of such announcement by MCA, Marvel may request MCA to consider, in good faith, modifying those terms of this subsection which limit Marvel’s enhancement and/or development of The Marvel Action Universes in such 60 mile area or ADI, although MCA shall be under no obligation to change the restrictions herein.
But the only part of that that applies to this situation and with regards to use of the characters in a theme park is..
" i. East of The Mississippi - any other theme park is limited to using characters not currently being used by MCA at the time such other license is granted"
P.S. To anyone who would accuse of "playing lawyer", yes I (and probably many others) are playing lawyer here, but this is no different then all of the people here (myself included) who make comments on things that we don't do as a profession. Very few (if any) of us have professional experience running a theme park, but that doesn't stop us from commenting on how Disney runs a theme park.
