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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