Certain portions of this agreement have been omitted pursuant to a request for
confidential treatment and are replaced herein by ***. The omitted material has
been filed separately with the Securities and Exchange Commission.
AGREEMENT
As of January 20, 1987
The following documents the agreement (the "Agreement") which has been
reached between Xxxxxx Xxxxxxxxx ("Xxxxxx") and Universal City Florida Partners
(a partnership between Cineplex Holdings, Inc. Corporation and Universal City
Property Management Company, hereinafter referred to as the "Partnership") with
respect to Xxxxxx rendering his services as a creative consultant in connection
with the Universal Studios/Florida project (the "Florida Project"). The Florida
Project consists of the approximate 440 acre parcel owned by the Partnership. If
additional land contiguous to the Florida Project (as it may be extended
pursuant to this sentence) is acquired, such additional land shall be deemed
part of the Florida Project to the extent the additional land is used: to expand
the gated area of the studio tour or the gated area of the motion picture and
television themed attraction and/or for parking for the aforementioned studio
tour or themed attraction area, or to expand any building located on the 440
acres or for parking specifically for a building located on the 440 acres.
If instead of charging a single front gate admission to the overall
themed attraction, the ticket policy is revised so that tickets are sold to the
individual shows or rides, the parties will negotiate in good faith as to
whether revisions in the references to "gated" throughout this Agreement are
necessary.
1. Consulting Services. Xxxxxx will render services as a creative
consultant to the Partnership in connection with the Florida Project. Steven's
consultation services will entail his suggestions, views, and opinions with
respect to the creation and development of visitor attractions. Steven's
services may be rendered via a loan-out arrangement with a corporation
controlled by Xxxxxx, substantially all of the stock of which is beneficially
owned by Xxxxxx or his immediate family. Xxxxxx shall personally guarantee the
obligations of such corporation.
2. Availability. Steven's services as a consultant will be subject to
his availability and the Partnership acknowledges and recognizes that his
"producing" and/or directing services may require him to be unavailable (or
available on a very restricted basis) for periods of time.
3. Period and Areas Covered. The provisions of this Agreement were
effective on January 20, 1987 and subject to the termination rights hereinafter
provided will continue on a world-wide basis through the opening of the Florida
Project and thereafter as long as the themed attraction at the Florida Project
has not been permanently and completely closed to the general public or
abandoned ("closed"). Even if the themed
attraction at the Florida Project is closed, the provisions of this Agreement
will still continue i) on a world-wide basis if and as long as a Comparable
Project (as defined in Paragraph 9) exists in the USA and ii) after the Florida
Project and all Comparable Projects in the USA are closed, on a territorial
basis with respect to any "Territory" in which a Comparable Project exists or is
thereafter created or re-established and has not been closed. "Territory" means
each of the following: North America (USA and Canada); Central America
(including Mexico); South America; Western Europe and the U.K.; Eastern Europe
and the USSR; Africa; China and India; Australia; and the rest of the world.
This Paragraph is subject to later provisions in this Agreement. Notwithstanding
anything else to the contrary set forth above, Steven's obligation to render
consulting services and Steven's obligations under Paragraphs 5 through 7
hereunder shall be limited to the periods set forth in Paragraphs 13 and 14.
4. Use of Name. The Partnership will have the right to use Steven's
name in a factual manner as a creative consultant in connection with promoting
the Florida Project in press releases, brochures, and the narrative text of
advertising. For purposes of this Paragraph, the narrative text of advertising
shall not include advertising in any of the following media: motion pictures
(wherever and however exhibited or exploited) television (however transmitted,
and whether free, pay, subscription or otherwise) radio, slide or similar
presentations (with or without audio) and all other audio and audio-visual uses
whether now known or hereafter developed, posters, displays, transit advertising
or billboards unless advertising in any of the otherwise excluded media is
available only for limited times to limited non-public groups for the purpose of
promoting the Florida Project (such as travel agent conventions and the like),
and shall not be disseminated or available under any circumstances to members of
the general public. Xxxxxx shall have the right to approve those portions of all
press releases, brochures and advertising which use his name, provided that such
approval shall be given in a general or conceptual manner. Xxxxxx agrees that a
statement such as "Xxxxxx Xxxxxxxxx is Creative Consultant to the Florida Tour"
or a similar statement is acceptable to him. The Partnership cannot use Steven's
name in a fashion such as "Xxxxxx Xxxxxxxxx presents the Florida Tour," or
"Xxxxxx Xxxxxxxxx, Executive Producer of the Florida Tour" or in any other
manner except as set forth above. Steven's name (or reference to the creative
consultant) shall not be given undue prominence, such as appearing in a
headline, caption or underscored or by the use of bold face or special type. The
Partnership shall not be in breach for any inadvertent violation of any of the
limitations or prohibitions in this Paragraph if (a) it establishes a procedure
to notify all those who generally disseminate such press releases, brochures and
advertising and
2.
requires them to obtain approval of all such materials from a legal department
or other source which is aware of the requirements of this paragraph, and (b) it
uses its best efforts to promptly stop any unauthorized use after receiving
notice from Xxxxxx. Notwithstanding any of the above limitations, in no event
will the Partnership's right to use Steven's name be any less expansive than the
manner in which Steven's name is used in the Subject Field by any other (see
Paragraph 7) pursuant to Steven's authorization.
5. Exclusivity re: Services. Steven's services will be exclusive to the
Partnership in the "Subject Field," which is defined to mean the field of theme,
amusement, tour and/or similar tourist park attractions, subject to the
following exceptions:
a. Xxxxxx xxx render consulting services in the Subject Field
pursuant to his now existing commitment to Xxxxx pertaining to RAIDERS OF THE
LOST ARK and any other productions based thereon or upon any element from any
such production.
b. Xxxxxx xxx render consulting services in the Subject Field
pursuant to a now existing contract pertaining to XXXXX RABBIT.
c. Xxxxxx reserves the right to engage in passive activities
outside the Subject Field which may, however, include activities within the
Subject Field, provided (without derogating from Paragraph 7) his name will not
be used in connection with such activities (except as part of shareholder lists
and in similar business informational documents of a non-advertising nature or
as may be required by law or regulation).
6. Exclusivity re: Properties. Aside from the now existing commitment
to Xxxxx relating to RAIDERS OF THE LOST ARK as specified in Paragraph 5a and
the contract relating to XXXXX RABBIT as specified in Xxxxxxxxx 0x, Xxxxxx has
not previously entered into specific grants of rights with respect to properties
with which he was associated for the use of such rights in the Subject Field,
but Xxxxxx has entered into numerous agreements in connection with his motion
picture and television activities which contain grants of rights in language
which is customary in the entertainment industry and Xxxxxx cannot represent
that such agreements may not be construed to enable third persons to exploit
rights in the Subject Field. Xxxxxx will act in good faith and cooperate with
the Partnership to resist any third person's efforts to rely on any such
construction of such pre-existing contracts, but neither the Partnership nor
Xxxxxx shall take any action against any such third person if Xxxxxx in good
faith determines that the Partnership's construction of such contracts is not
likely to prevail; Xxxxxx will not be required
3.
to expend funds in connection with such cooperation and the Partnership will
indemnify Xxxxxx with respect to all costs and expenses arising out of any claim
or action brought by the Partnership to prevent third parties from exploiting
such rights in the Subject Field. Xxxxxx will not hereafter grant any rights, or
consent to the use of any rights, with respect to properties with which he has
previously been associated for use in the Subject Field. Xxxxxx will endeavor to
provide in any agreement which he may hereafter enter into with respect to any
future motion picture or television property, that such property may not be
utilized in the Subject Field.
7. Exclusivity re: Name. Aside from the existing commitment relating to
RAIDERS OF THE LOST ARK as specified in Paragraph 5a and the contract relating
to XXXXX RABBIT, as specified in Xxxxxxxxx 0x, Xxxxxx has not authorized the use
of his name in connection with the Subject Field and will not in the future do
so (even in those instances described in Paragraph 6 above in which, after
endeavoring not to, he grants rights to use properties in the Subject Field).
The preceding sentence is subject, however, to any rights which a third person
may now or in the future have by reason of customary billing and credit
provisions in the motion picture and television industry, and Xxxxxx cannot
represent that such agreements may not be construed to enable third persons to
use his name in the Subject Field. Xxxxxx will act in good faith and cooperate
with the Partnership to resist any third person's efforts to use Steven's name
in the Subject Field; but if such third person is a party to one of the
aforementioned agreements, neither the Partnership nor Xxxxxx shall take any
action against such third person if Xxxxxx in good faith determines that the
Partnership's construction of such agreement is not likely to prevail. With
respect to the prior sentence, Xxxxxx will not be required to expend funds in
connection with such cooperation and the Partnership will indemnify Xxxxxx with
respect to all costs and expenses arising out of any claim or action brought by
the Partnership to prevent third persons from exploiting Steven's name in the
Subject Field.
8. Affiliates Exclusivity Exceptions. Paragraphs 5, 6 and 7 will not be
deemed violated by reason of any transactions pertaining to the Universal City
Studio Tour or any transaction between Xxxxxx and the Partnership or any other
transaction between Xxxxxx and any of the "Affiliates" (which is defined to mean
MCA Inc. and any of the partners of the Partnership and any of their
affiliates).
9. Comparable Project. Comparable Project means a development which is
intended to be a permanent facility and is intended to include, or in which
there is, a gated "motion picture and/or television themed attraction" (other
than at Universal City or at the Florida Project) which is owned or
4.
operated in whole or in part by, or operated pursuant to license from, the
Partnership or any Affiliate. To be a "motion picture and/or television themed
attraction" (as used in the preceding sentence), the themed attraction need not
include any, motion picture studio or tour thereof, but the predominant
underlying concept of the attraction must be based upon the subject matter or
production of motion pictures and/or television programs. A Comparable Project
shall consist of all land within the proposed gated area of a proposed motion
picture and/or television themed attraction and all contiguous land having the
same relationship to such proposed gated area as the designated commercial land
within the Florida Project has to the gated attraction portion of the Florida
Project which land is purchased or leased in the developmental stage (i.e.,
prior to the opening of such themed attraction) of such Comparable Project by a
developer group which includes the Partnership or any Affiliate and any
additional land purchased or leased by such developer group to the extent that
such additional land meets the same criteria as specified in the last sentence
of the first introductory paragraph of this Agreement.
If the Partnership or any of the Affiliates becomes involved in
Comparable Projects in locations other than the Florida Project, such as Japan
or Europe, Xxxxxx will function with respect to each such Comparable Project in
a like manner as with respect to the Florida Project and the terms of this
Agreement shall apply to each such Comparable Project.
10. Ideas. Although the Partnership and/or the Affiliates may use the
results of Steven's consulting services hereunder at the Florida Project and at
Comparable Projects, except as provided herein no compensation shall be payable
for such use whether such matters are first used in Florida, Universal City or
at any Comparable Project.
11. Compensation. For Steven's services as consultant, he will be paid
the following compensation:
a. With respect to all revenue received by or on behalf of the
Partnership from the Florida Project commencing on January 20, 1987 and
continuing through the third anniversary of the initial opening to the general
public of the Florida Project, Xxxxxx shall be paid.
(i) ***% of 100% of the Florida Project's "gross revenues"
received. The definition of "gross revenues" shall be the same as applicable to
the computation of MCA's special fee in Paragraph 20(a) of the Partnership
Agreement attached hereto as Exhibit "A"; plus
5.
(ii) ***% of 100% of the gross real estate rentals received
(excluding expenses actually borne by the third parties to the extent that it is
not unusual in such transactions for third parties to bear them) by the
Partnership or any Affiliate from third parties as rent for all or any part of
the Florida Project. If the Partnership itself or any of the Affiliates develops
the land (other than by making infrastructure type improvements as described in
(iv), below) for uses other than the themed attraction and studio uses (such as
restaurants and stores which can be entered without going through the themed
attraction admission gate, and hotels, office buildings and theaters) (which
development is referred to herein as a "Partnership Commercial Development)," a
fair-market rental value of the land shall be determined as imputed rent and
Xxxxxx shall be paid ***% of 100% of such imputed rent in the same fashion as he
would share in rentals from third party lessees; plus
(iii) ***% of 100% of the gross sales price received by the
Partnership or any Affiliate from sales of land comprising the Florida Project.
(iv) If the Partnership or any Affiliate makes any
infrastructure type improvements (such as grading, streets, curbs, utility
installations and the like) to any of the commercial land within the Florida
Project (i.e., the areas of the Florida Project outside the gated areas and the
parking areas directly relating to the activities on the gated areas) the
following procedure shall be applicable:
((a)) The value of the affected commercial land shall
be ascertained as of the time immediately prior to the
making of the improvements (and without regard to the fact
that improvements were to be made); there shall be added to
the aforementioned value the costs incurred by the
Partnership or its Affiliate in making the infrastructure
improvements to arrive at a presumed total value of the
affected commercial land including the infrastructure
improvements; the aforementioned costs of the infrastructure
improvements shall then be divided by the above-referenced
presumed total value to arrive at a "Specified Percentage".
((b)) Thereafter the Partnership or its Affiliates
shall be entitled to recoup (over whatever period it takes
to effect full recoupment) the entire costs of the
infrastructure improvements (as above-described) plus
interest at the rate provided in Paragraph 11c hereof on the
unrecouped balance of such
6.
costs from the date of expenditure until recoupment. The
recoupment shall be from the Specified Percentage of what
would otherwise be the gross real estate rentals and/or
gross sales price of any of the commercial land (whether or
not directly affected by said improvements) in which Xxxxxx
would participate. Steven's percentage shall be based upon,
and payable out of, the balance which remains after
subtracting such recoupment. Any amounts received by the
Partnership or its Affiliate pursuant to these provisions
shall be applied first to the interest factor and to the
extent the amounts are insufficient to cover the interest
factor, then there shall be a compounding of interest on a
quarterly basis.
((c)) The Partnership or its Affiliate shall make all
the determinations and calculations required to give effect
to the above provisions and if made in good faith they shall
be binding upon Xxxxxx.
((d)) None of the provisions of subparagraphs ((a))
through ((c)) above shall be applicable to any
infrastructure or other improvements made by the Partnership
or any Affiliate on any Partnership Commercial Development.
In determining the fair market rental value of the land of
such Partnership Commercial Development for the purposes of
the imputed rent specified in paragraph 11a (ii), the land
shall be valued as raw land and such value shall not take
into account any infrastructure improvements which may have
been made or which may thereafter be made.
b. Subsequent to the above three-year period as to the Florida
Project and for all years during the term of this agreement as to Comparable
Projects, Xxxxxx shall be paid ***% of 100% of the gross revenues, gross
rentals, sales price, etc. instead of the above-provided ***%. If the cost of
the Florida Project's construction exceeds the "originally contemplated cost" by
***% or more, ***% out of the ***% participation referred to herein with respect
only to the Florida Project shall, for a period of five years from the
conclusion of above three-year period, at the Partnership's election be
deferred. The "originally contemplated cost" is $***, which represents the
project capital expenditures (exclusive of land costs), related fees and
construction interest expense for the Project's construction up to the third
anniversary of the opening, as
7.
provided in the Projection for Revised Base Case to Steven's representatives.
The "cost of construction" refers to the amounts actually incurred for the same
types of costs for the same period.
c. The deferred ***% specified in subparagraph b above shall be
accrued and payable out of an additional ***% of gross revenues, gross rents,
sales price, etc., of the Florida Project commencing in year nine and continuing
until paid. Such accrued amounts shall bear interest as in the case of MCA's
deferred special fees in the manner set forth in Exhibit "B", attached hereto.
If MCA is at any time accorded a more favorable interest rate for its deferred
special fee, interest on the amounts set forth in this paragraph shall be paid
at such more favorable rate. (The Partnership, of course, can accelerate such
payments.)
d. Xxxxxx will be entitled to quarterly accountings and payments
based thereon within 45 days from the end of each quarter.
e. Except as provided in the remainder of this Paragraph 11e, the
payment to Xxxxxx of ***% of the Project's revenues specified above in this
Paragraph 11 shall, subject to Paragraphs 13e and l4e, apply also to Comparable
Projects which are initially opened while Xxxxxx has an obligation to render
consulting services hereunder (as the term of his obligation to render
consulting services may be extended pursuant to Paragraph 13). As to Comparable
Projects outside the United States and Canada which are initially opened while
Xxxxxx has an obligation to render services hereunder (as the term of his
obligation to render services may be extended pursuant to Paragraph 13) (and are
not exempted by Paragraphs l3e or 14e), in which the Partnership and/or any
Affiliate(s) do(es) not own or control at least 50% of the equity thereof, in
lieu of all other sums provided above in this Xxxxxxxxx 00, Xxxxxx shall receive
a participation in the gross revenues, gross rentals and sales price, etc., of
such Comparable Project determined by multiplying *** times the ratio that the
Partnership's (and/or any Affiliate's) equity in such a Comparable Project bears
to 50% but in no event shall Steven's participation be less than 1*** % of 100%
of the gross revenues, gross rentals, sales price, etc., of such Comparable
Project. For example, if the Partnership and the Affiliates own 35% of the
equity of a Comparable Project, then Xxxxxx shall receive ***% of 100% of the
gross revenues, gross rental, sales price, etc., of such Comparable Project.
"Gross revenues" of such Comparable Project shall be defined as set forth in
Exhibit "A", as if the Partnership was the sole owner and operator of such
Comparable Project. Notwithstanding the foregoing, if the Partnership and the
Affiliates have less than 50% of the equity in a Comparable Project, and Xxxxxx
feels that the participation set forth in the formula set forth above leaves
8.
the Partnership and/or its Affiliates in a better position compared to Xxxxxx
than it has at the Florida Project, taking all considerations into account
(including the capital investment of the Partnership), Xxxxxx shall have the
right to initiate an arbitration to determine the appropriate participation
(which shall not be less than ***% of 100% nor more than, ***% of 100% of the
gross revenues, gross rentals, sales price, etc.) which will leave Xxxxxx in at
least the same relative financial participation compared to the Partnership
(and/or its Affiliates) as Xxxxxx has in the Florida Project. The arbitration
shall be conducted as provided in Paragraph 4b. There shall be no reduction
(i.e., no lower percentage comparable to that provided in paragraph 11a) in the
percentage payable to Xxxxxx with respect to Comparable Projects outside the
United States and Canada during the first three years.
12. Vesting. Xxxxxx has, as of January 20, 1987, earned the right to
receive the ***% of 100% of the gross revenues, gross rentals, sales price,
etc., from the Florida Project specified in Paragraph 11a (which means that such
compensation is "vested"`). The term "vest" and "vested" as hereinafter used in
this Agreement means Xxxxxx cannot be deprived of payments which are "vested"`
by reason of Steven's death or disability or by reason of Steven's default. The
term "conditionally vested" as hereinafter used in this Agreement means that
Xxxxxx cannot after such conditional vesting be deprived of payments which are
"conditionally vested" by reason of Steven's death or disability or by reason of
Steven's default unless such default is substantial and is either not
correctable or is not corrected after written notice and a fair and reasonable
opportunity to cure. Steven's right to receive the balance of the compensation
to which he is entitled from the Florida Project (i.e., the difference between
***% and ***%) shall be conditionally vested if this Agreement has not been
terminated as a result of Steven's material breach and Xxxxxx is not then
deceased or permanently and substantially mentally disabled on the opening of
the themed attraction at the Florida Project. Similarly his right to be paid
***% of the compensation to which he is entitled from any Comparable Projects is
vested now and therefore governed by the first sentence of this Paragraph 12,
and his right to be paid the additional remaining compensation to which he is
entitled from the particular Comparable Project shall become conditionally
vested with respect to each such Comparable Project if this Agreement has not
been terminated as a result of Steven's material breach and Xxxxxx is not then
deceased or permanently and substantially mentally disabled on the date the
themed attraction at such Comparable Project is initially opened to the general
public. Nothing set forth above deprives the Partnership of its right to damages
(and its offset rights at law or in equity, if any) in the event of Steven's
material breach
9.
hereof. This Paragraph is subject to Paragraphs 14-16 of this Agreement.
13. Option. Except as provided below, Steven's obligation to render
consulting services hereunder shall terminate one year after the opening of the
Florida Project and, provided there is such a termination, the provisions of
Paragraphs 5, 6 and 7 shall terminate 3 years after the termination of Steven's
obligation to render consulting services. Steven's right to receive compensation
with respect to the Florida Project and all Comparable Projects which are opened
more than one year prior to the date he ceased to have an obligation to render
consulting services hereunder shall continue perpetually, subject only to the
termination provisions of Paragraph 14 and to the provisions of Paragraph 16
with respect to public offer and private sale. The Partnership and Xxxxxx shall
have the rights set forth below to continue the terms and provisions of this
Agreement with respect to Steven's services and exclusivity on the terms and
conditions set forth below:
a. Subject only to the provisions of Paragraph 14, the
Partnership shall have an unlimited number of consecutive options (each referred
to as an "Extension Option") to extend Steven's obligation to render consulting
services for one additional year (an "Extension Year") provided that an option
for a later option year may not be exercised unless the option under Paragraph
13a or 13b for the immediately preceding option year was exercised and provided
further that there has not been a "change of control" of MCA or of any successor
to MCA's interest in the Partnership prior to the commencement of such Extension
Year. A "change of control" shall be defined as set forth in Exhibit "C"
attached hereto. The Partnership shall be deemed conclusively to have exercised
the Extension Option unless the Partnership shall have given to Xxxxxx a written
notice of the declination to exercise such option which declination in order to
be effective must be given at any time no more than one year, nor less than 60
days prior to the date on which Steven's obligation to render consulting
services terminates, as such date may be extended by exercise of the Extension
option in the previous year. If the Partnership exercises the Extension option
for any Extension Year, the Partnership guarantees to Xxxxxx that the
compensation for such Extension Year with respect to the Florida and all
Comparable Projects shall in the aggregate equal or exceed the lesser of ***% of
the amount paid to Xxxxxx in the year prior to the Extension Year (based upon-
the provisions of Paragraph 11, and without regard to any additional amounts
paid in such prior year based upon this Paragraph 13a) or $*** for an Extension
Year which begins after the third anniversary of the initial opening to the
general public of the Florida Project, and $***for an Extension Year which
begins prior to such third anniversary, payable no later than 45 days after the
end of such Extension
10.
Year. If the Florida Project or any Comparable Project which was open at any
time during the year prior to the Extension Year is closed or its operations
curtailed during the Extension Year, the ***% figure and the $***or $*** figure
shall each be equitably reduced.
b. Subject only to the provisions of Paragraph 14, if the
Partnership does not exercise (or does not have the right to exercise) its
Extension Option, Xxxxxx shall have the option(s) ("Steven's Option") for such
year and each year thereafter (until he does not exercise such option) to extend
his obligation to render consulting services for an additional Extension Year,
by written notice to the Partnership given no later than the commencement of
such Extension Year. The Partnership shall not guarantee Xxxxxx any minimum
compensation for any Extension Year for which the Partnership does not exercise
the Extension Option.
c. Steven's obligations set forth in Paragraphs 5, 6 and 7 shall
continue until the third anniversary date following termination of Steven's
obligation to render consulting services, as it may be extended pursuant to the
provision of Paragraphs 13a and 13b above.
d. Notwithstanding anything to the contrary set forth above, the
provisions of Paragraph 4 will continue in perpetuity, but the Partnership
agrees that in exercising its rights under Paragraph 4 after Xxxxxx no longer
has an obligation to render consulting services, Steven's name cannot be used in
a manner which states or implies that he is then rendering services on the
Florida Project or on any Comparable Project.
e. Following a termination, notwithstanding Paragraphs 9 and 12,
Xxxxxx will have no interest of any kind, or right to receive compensation
(other than accrued compensation) with respect to any Comparable Project as to
which the themed attraction is opened anytime after the date which is one year
prior to the date Steven's obligation to render consulting services terminates.
Furthermore, from and after the date Xxxxxx ceases to be obligated to render
services by reason of nonexercise (including by reason of not having the right
to exercise) of the Extension Option or Steven's Option, Xxxxxx will have no
further rights under Paragraphs 16 and/or 21.
f. The provisions of this Paragraph 13 shall have no force or
effect whatsoever unless Xxxxxx is alive on the date his services would
otherwise terminate under any provisions of this Paragraph 13.
14. Termination. The "Termination Date" is defined to be the first to
occur of December 31, 2005 or the 15th
11.
anniversary of the opening to the general public of the Florida project themed
attraction except that if prior to what would otherwise be the Termination Date
a Comparable Project is opened while Xxxxxx has an obligation to render
consulting services hereunder, the Termination Date shall be the first to occur
of December 31, 2010 or 20th anniversary from said opening of the Florida
Project. A Comparable Project shall be deemed "opened" on the date the themed
attraction located therein is initially opened to the general public. If on the
Termination Date Xxxxxx has an obligation to render consulting services, Xxxxxx
shall have the right to give a notice any time on or after the Termination Date
that his obligation to render consulting services will terminate 90 days after
the giving of such notice. If on the Termination Date (or at any time
thereafter) Xxxxxx does not have an obligation to render consulting services,
Xxxxxx shall have the right, exercisable by notice, to terminate his right to
receive compensation hereunder 90 days after the giving of such notice. (The
date 90 days after Xxxxxx gives notice pursuant to either of the preceding
sentences is referred to below as the "Stop Date".) If Xxxxxx does so terminate
his obligation to render consulting services or his right to receive
compensation, the following consequences will apply:
a. His interest in the Florida Project and in all Comparable
Projects (including without limitation his right to receive any compensation
under Paragraph 11 or otherwise which would otherwise accrue after the Stop
Date) will be extinguished as of the Stop Date and thereafter the Partnership
will have no further payment obligation except to pay amounts which accrued
before the Stop Date and except as provided in Xxxxxxxxx 00x. Furthermore, from
and after the date Xxxxxx gives the notice specified above, Xxxxxx will have no
further rights under Paragraphs 16 and/or 21.
b. The Partnership will pay Xxxxxx the fair market value of his
interest in the Florida Project and in all Comparable Projects which were open
to the general public as of the date which is one year prior to the Stop Date
(i.e., the then present value of the anticipated payments to Xxxxxx computed as
if there had been no termination under this Paragraph 14) which will be
determined, if the parties cannot agree after good faith negotiations, by a
binding appraisal procedure involving two national public accounting firms each
designated by one of the parties and a third national public accounting firm
selected by the other two firms. Subject to the foregoing, the appraisal will be
conducted as an arbitration pursuant to Paragraph 20.
c. The provisions of Paragraphs 5, 6 and 7 (if still effective)
will terminate 5 years from the Stop Date.
12.
d. The provisions of Paragraph 4 will continue in perpetuity
after the Stop Date but the Partnership agrees that in exercising its rights
under Paragraph 4 after the termination of Steven's services, Steven's name
cannot be used in a manner which states or implies that he is then rendering
services on the Florida Project or on any Comparable Project.
e. Notwithstanding Paragraphs 9, 11 and 12, Xxxxxx will have no
interest of any kind, or right to receive compensation with respect to, any
Comparable Project as to which the themed attraction is opened within one year
before or anytime after the Stop Date, nor will Xxxxxx have any further
obligation to render consulting services on any such Comparable Project.
15. Changes. Subject to the provisions of Paragraphs 13 and 16,
Steven's rights and obligations with respect to the Florida Project and
Comparable Projects will not be affected by change of ownership (e.g., the
Partnership or the Affiliates ceasing to be the owner thereof) whether such
change affects all or any of the Florida Project and/or Comparable Projects and
Xxxxxx will perform his obligations to the new owner[s] of the Project or
Projects as to which there was a change of ownership. In performing his
obligations to the new owners, Xxxxxx will have the right to choose which
representative of new owners he will consult with (which right shall not be used
to frustrate his obligation to render consulting services) and he will have no
obligation to render services to any new owners or to the Partnership in the
event of a change of control of either of the Partners or any Affiliates to a
greater extent or different nature than as previously rendered to the
Partnership. If the Partnership and its Affiliates transfer ownership in the
Florida Project and any existing Comparable Projects as a unit to a new owner,
provided that as of the date of such change of ownership, the financial
condition of the new owner reasonably appears to Xxxxxx to be sufficiently
strong to enable the new owner to comply with its obligations to Xxxxxx and such
new owner assumes for Steven's benefit all of the Partnership's obligations to
Xxxxxx in writing, Xxxxxx will look solely to the new owner for any obligations
accruing or arising after said date and the guarantees by MCA Inc. and Cineplex
Odeon Corporation referred to in Paragraph 22 will terminate. Except as set
forth above, no transfer of ownership shall affect the rights and obligations of
the parties.
16. Public Offering; Private Sale. The following shall apply each time
there is a private sale or a public offering (whether primary, secondary, or a
combination) of all or any portion of either or both Partner's (and/or any
Affiliate's) equity in the Florida Project or any Comparable Project other than
a sale of substantially all such Partner's (or Affiliate's) assets or a spinoff
or corporate reorganization which does not constitute
13.
principally a sale of the Florida Project or any Comparable Project, to the
extent either or both Partners (and/or any Affiliates) realize proceeds
therefrom (as distinguished from using the proceeds in connection with the
Project) which reduce their budgeted investment below the amount contemplated at
the first to occur of commencement of construction of the Project or becoming
substantially committed to develop the particular project ("Base Capital
Investment"). For each such sale during Steven's lifetime, Xxxxxx shall have the
right, subject to paragraphs 13(e) and 14(a) and to an underwriter's out if the
Partners or Affiliates are not themselves realizing cash out of the offering, to
value his compensation rights (in equity terms) in the Florida Project or
Comparable Projects being sold, in a manner specified in good faith by the
Partnership. Then, subject to and upon consummation of the sale, Xxxxxx shall
have the right to sell in such public offering or private sale the portion of
his compensation rights that equals the same percentage that the Partners' (and
Affiliates') equity ownership being sold bears to their total equity ownership,
but in determining the applicable percentage only the portion of the Partners'
and Affiliates' equity ownership which reduces their investment below the Base
Capital Investment will be considered as being sold. Xxxxxx recognizes that it
may be necessary to adhere to tight time schedules and upon reasonable notice
agrees to follow the procedures and methods for the conversion and for the
public offering as may be reasonably specified by the Partnership in
consultation with the underwriters. If Xxxxxx elects to convert and sell any of
his compensation rights in any sale, Xxxxxx will bear his proportionate share of
all fees and expenses of such sale and will be required to be bound by such
undertakings as are normally applicable to a seller in his position. The parties
will make necessary representations normal for such transactions and execute
customary cross-indemnification agreements. If Xxxxxx does not agree with the
Partnership's valuation of his compensation rights sold, or to be sold, he shall
be entitled to submit the matter to arbitration as provided in Paragraph 14b.
The arbitrators in any such arbitration shall be empowered to adjust Steven's
remaining compensation rights or to afford other appropriate relief so that the
compensation rights sold, or to be sold, are accurately valued. Steven's will
continue to be obligated under all the provisions of this Agreement without
regard to his exercise of any rights under this Paragraph 16.
17. Abandonment. Although the Partnership has every intention of
opening and operating the Florida Project, the Partnership retains all decision
making rights in connection therewith, including the rights to abandon the
themed attraction and/or the studio prior to, or subsequent to, opening.
However, Steven's rights to participate in revenues from land sales or rentals
shall not be affected by such abandonment. Furthermore, if the Florida Project
themed attraction is not opened by
14.
December 31, 1999 (which date is subject to extension for delays caused by force
majeure, acts of God, or the like), if Xxxxxx so elects all of Steven's rights
and obligations shall automatically terminate except Paragraph 10 shall continue
to be applicable and Xxxxxx shall continue to be entitled to receive all
compensation provided in this Agreement with respect to revenue from land sales
or rentals; the failure to open any Comparable Project by any particular date
will not have a similar consequence.
18. Other Exploitation. Except as may be expressly set forth in this
Agreement to the contrary, nothing in this Agreement prevents or restricts the
production, distribution, exhibition and exploitation of any motion picture,
television production or other audio visual production or the sales or rental of
copies thereof or the exploitation of any publishing, merchandising or any other
exploitation in any manner or media of any rights of any kind of nature now or
hereafter known.
19. Insurance; Indemnity. Xxxxxx, his companies, and their employees
will be covered by all relevant Partnership insurance policies applicable to the
Florida Project with respect to their involvement with the Florida Project and
each Comparable Project. The Partnership will defend and indemnify Xxxxxx, his
companies, and their employees with respect to any claims of any nature which
may be asserted by reason of, related to, occasioned by or occurring as the
result of the Florida Project or any Comparable Project. The provisions of this
paragraph shall survive the expiration or termination of this Agreement.
20. Arbitration. If there is any dispute arising under or in connection
with this Agreement, the dispute shall be resolved by binding arbitration in Los
Angeles County, California in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award of the
arbitration tribunal may be enforced in any court of competent jurisdiction.
21. Investment Opportunities. Xxxxxx shall have the right during his
lifetime (but subject to Paragraphs 13e and 14a) either personally or through an
affiliate (as defined in Paragraph 23) to invest in any further real estate
development activities of the Partnership or its Affiliates which are part of
the Florida Project or of any Comparable Project. Steven's right, pursuant to
the foregoing, shall be to acquire up to ***% of the interest which would
otherwise be acquired by the Partnership and its Affiliates and shall be on the
same terms and conditions as applicable to the Partnership or its Affiliates
except, with the approval of the other parties involved which the Partnership
will use reasonable efforts to procure if not inconsistent with the goals and
intentions of such development, Steven's liability will not be joint and several
but will only be several.
15.
22. Priority and Guarantee. The Partnership represents that (except as
may be required by law) Steven's interest in the Florida Project and Comparable
Projects will have priority over the interest of all financiers, lenders and
others who may have an interest in such project, but Steven's priority over the
lenders on any particular project will only apply with respect to compensation
payable to Xxxxxx on account of revenues generated by that project. The
Partnership or its Affiliates will notify all lenders of Steven's priority and
attempt to secure for Xxxxxx acknowledgment by the lenders of Steven's priority.
If prospective lenders for a Comparable Project (or a proposed Comparable
Project) decline to make a satisfactory loan because of Steven's priority,
Xxxxxx will deal in good faith with the Partnership or its Affiliates in an
effort to tailor a substitution for such priority. By their signatures below,
MCA Inc. and Cineplex Odeon Corporation each guarantee, jointly and severally,
the performance by the Partnership of the Partnership's obligations to Xxxxxx.
23. Successors. Xxxxxx xxx not assign his rights except to an affiliate
of Steven's which affiliate will be similarly restricted. For this purpose, an
affiliate is a trust controlled by Xxxxxx and/or any immediate family member for
his benefit or the benefit of his immediate family and/or his or their heirs and
also includes a corporation substantially all the stock of which is beneficially
owned and/or controlled by Xxxxxx and/or his heirs or immediate family. This
Agreement is binding upon, and subject to the preceding sentence, inures to the
benefit of the respective successors and assigns and, in Steven's case, heirs of
the parties. Without derogating from the generality of the foregoing, the
provisions of Paragraphs 4, 6 and 7 shall survive Steven's death and shall be
binding upon Steven's successors, assigns and heirs.
24. Construction. This Agreement is binding upon the parties. The
parties recognize that this Agreement does not contain all the express detailed
provisions which would be appropriate for the arrangements contemplated hereby,
and accordingly, it may be necessary to construe and apply the provisions hereof
to situations not expressly covered. This Agreement will be construed and
applied in an even-handed manner, without regard to which party suggested or
drafted particular language, and recognizing that it was arrived at after good
faith bargaining between parties who possess comparable bargaining power.
25. Public Disclosure. This Agreement shall remain confidential and
treated as a trade secret at all times, subject to disclosure only as required
by law to comply with the requirements of the Securities Act of the United
States or of any state thereof, or of any jurisdiction in which Comparable
Project is situated or the terms of a valid subpoena or order issued by a
16.
court of competent jurisdiction or by a judicial or administrative agency or
legislative body or committee, after the parties have taken all lawful steps to
prevent or, if that is not possible, to limit such disclosure by the terms of an
appropriate protective order. No party shall divulge the terms and conditions of
this Agreement to any other person or entity, nor to its own employees, except
the minimum number of employees and to the minimum extent necessary in the
conduct of its business. No party shall issue any press release or announcement
of relating to the terms of this Agreement or to the services rendered by Xxxxxx
except as expressly permitted pursuant to this Agreement, without the other
party's approval of the content and timing of such announcement.
/s/ Xxxxxx Xxxxxxxxx UNIVERSAL CITY FLORIDA PARTNERS,
--------------------------
Xxxxxx Xxxxxxxxx
by Cineplex Holdings, Inc.
by /s/
-------------------------------
by Universal City Property Management
Company
by /s/
-------------------------------
17.
GUARANTEE
As an inducement to Xxxxxx to execute the foregoing Agreement and in
consideration thereof, the undersigned, jointly and severally, guarantee to
Xxxxxx, his successors and assigns, the full prompt and faithful performance by
the Partnership of all of the Partnership's obligations to Xxxxxx under the
Agreement.
The undersigned, jointly and severally, waive acceptance, demand,
notice of acceptance, and all other notices to which they may be entitled. No
modification of the Agreement and no indulgence or change in terms of
performance under the Agreement shall release the undersigned from this
guarantee. Each of the undersigned agree that Xxxxxx xxx proceed against either
or both of the undersigned for all amounts due under the Agreement or
performance of other obligations therein provided without taking any action
against the Partnership or any Partner or any other party or proceeding against
or applying any security he may hold. The undersigned consent to be joined as
party to any arbitration conducted pursuant to the foregoing Agreement and that
judgment on any award in any such arbitration may be enforced against the
undersigned in any court of competent jurisdiction.
Dated: November 4 , 1988
------------
MCA INC. CINEPLEX ODEON CORPORATION
By: /s/ By: /s/
------------------------------- -------------------------------
Exhibit "A"
20. MCA's Special Fee.
(a) The term "gross revenues" shall for purposes of this
Agreement mean gross revenues received by the Partnership or any successor
operator of the Tour and of the Studio, from all phases of the Tour and Studio
after excluding sales tax, rebates, refunds, discounts, credit card commissions,
non-cash tradeouts, all as determined in accordance with generally accepted
accounting principles. Without derogating from the generality of the foregoing,
gross revenues includes gross revenues received from activities which have a
clear genesis in the Tour and/or Studio, such as from "Universal Orlando Tour"
T-shirts, whether sold on or off the Site. Gross revenues shall not include
amounts received from the sales and leasing of land outside the Project Site,
hotels, restaurants and the like to which customer access may be readily
obtained without admission to the Project (even if accessible also through the
Project), the sale of fixtures or equipment, receipt of insurance proceeds
(other than business
interruption type of proceeds), nor shall it include amounts received under
corporate sponsorship deals. In those instances in which the Partnership grants
licenses, concessions or similar rights in connection with the Project, the
gross revenues received by the licensee, concessionaire or similar entity shall,
for the purposes of this Section 20, be deemed gross revenues received by the
Partnership and any "key money," license fee, commission or other consideration
paid to the Partnership by such licensee, concessionaire or similar entity shall
not be included in the Partnership's gross revenues.
Exhibit "B"
The Special Fee shall not be payable but shall accrue (together with
interest at the floating Prime compounded monthly) until the date . . .
.
Prime is defined as the prime or reference rate quoted from time to
time by Bank of America.
Exhibit "C"
Change in Control:
For the purpose of this Agreement, a "Change in Control" shall be deemed to have
occurred only if individuals who, as of the date hereof, constitute the Board of
Directors of MCA INC. (the "Board" generally and as of the date hereof the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board of MCA INC. (or of any successor to MCA INC. by merger, consolidation,
reorganization, sale of assets or otherwise or of any corporation or other
entity that directly or indirectly controls a majority of the outstanding voting
securities of MCA INC.), provided that any person becoming a director subsequent
to the date hereof whose election, or nomination for election by MCA INC.'s
shareholders, was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors of MCA
INC., as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Securities Exchange Act of 1934) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board.
Amendment
Reference is made to the Agreement dated as of January 20, 1987 between
Diamond Lane Productions (successor in interest to Xxxxxx Xxxxxxxxx) on the one
hand and Universal City Florida Partners on the other (the "Agreement").
Paragraph 23 of the Agreement is hereby amended to add the following
language after the second sentence and before the third sentence: "The word
"affiliate" also includes any corporation or trust (a "charitable affiliate")
which qualifies as a charitable entity under ss.501(c)(3) of the Internal
Revenue Code, gifts to which are deductible under ss. 170(c), ss.2055(a) and
ss.2522(a) of said Code, to which Diamond Lane Productions or Xxxxxx grants any
rights hereunder (whether directly or indirectly, e.g. by granting the stock of
Diamond Lane Productions, Inc., or any successor entity) by will, or any other
instrument (such as a trust) which becomes irrevocable only upon Steven's death,
provided that during Steven's lifetime, neither Xxxxxx nor any of his affiliates
(including Diamond Lane Productions) shall assign to a charitable affiliate
(whether directly or indirectly) any of his or its rights other than the
assignment to a charitable affiliate of the right to receive amounts payable
hereunder." The next following sentence is hereby amended to read as follows:
"This Agreement is binding upon, and subject to the preceding sentences, inures
to the benefit of the respective successors and assigns and, in Steven's case,
heirs of the parties".
Except as expressly set forth above, the Agreement remains in force and
effect.
Agreed & Accepted:
/s/ Xxxxxx Xxxxxxxxx
-------------------------------
Diamond Lane Productions
/s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx
/s/
-------------------------------
Universal City Florida Partners
Dated: February 5, 2001
-----------------
