Exhibit 10.10
FOURTH AMENDED AND
RESTATED
ART RENTAL
AND
LICENSING
AGREEMENT
between
STEPHEN A. WYNN
(Lessor)
and
WYNN GALLERY, LLC
(Lessee)
Dated June 30,
2005
FOURTH AMENDED AND
RESTATED
ART RENTAL AND LICENSING
AGREEMENT
This Fourth Amended and Restated Art
Rental and Licensing Agreement (“Agreement”), is
entered into this 30th day of June, 2005 (the “ Effective
Date ”), by and between STEPHEN A. WYNN (“
Lessor ”) and WYNN GALLERY, LLC (“ Lessee
”).
RECITALS
A. Lessor is the owner of the
paintings and other art works identified in Exhibit A
attached hereto and incorporated herein by this reference
(collectively, the “ Works ”), which may be
updated from time to time in accordance with this
Agreement.
B. Lessor wishes to lease to Lessee,
and Lessee wishes to lease from Lessor, the Works, in order to
publicly display the Works in a gallery located at the Wynn Las
Vegas resort (the “ Resort ”) at 3131 Las Vegas
Boulevard South, Las Vegas, Nevada (the “ Gallery
”).
C. By publicly displaying the Works,
Lessor and Lessee desire to promote the Works and to enhance the
cultural and educational opportunities for Nevada residents and
visitors.
AGREEMENT
Based upon the foregoing and the
following terms and conditions, the parties hereto agree that the
foregoing recitals are true and correct and as follows:
1. Rental . Upon the terms
and subject to the conditions of this Agreement, Lessor hereby
grants to Lessee a continuing right to publicly display the Works
in the Gallery, and Lessee hereby accepts from Lessor the rental of
the works. The installation layout and plan for the Works shall be
subject to Lessor’s prior approval.
2. Compliance with Law .
Lessee agrees to maintain the Works on public display, make the
Gallery available for student tours, and take such other actions as
may be necessary or appropriate for meeting the requirements of
Sections 361.068,
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361.186, 374.291 and 374.2911 of the Nevada
Revised Statutes (“ NRS ”), and agrees to comply
with NRS 597.720, et seq ., and all other applicable
laws.
3. Exhibition and Promotion .
Lessee agrees (a) to exhibit the Works under the title “The
Wynn Collection” or such other title as may be approved by
Lessor, (b) to transport, handle, care for, and display the Works
in a manner consistent with the world-class quality of the Works,
(c) to maintain the Gallery as a first-class facility, and (d) to
promote the Works through “Openings,”
“Receptions,” and public events.
4. Merchandising . To the
extent, if any, that he possesses the required rights, Lessor
hereby authorizes Lessee to develop, manufacture (by subcontract or
otherwise), and sell such merchandising and promotional items based
upon the Works as Lessee may determine in its best business
judgment. To the extent, if any, that he possesses any such rights
in any Work, Lessor hereby grants to Lessee a nonexclusive license
for such purposes for the period of the rental of such Work
hereunder. In the event that any Work is withdrawn or rental
terminated, the corresponding license shall automatically
terminate; provided, however, that following such
termination, Lessee shall have six (6) months to discontinue sales
and use of the applicable merchandise. The merchandise and
promotional items based on the Works may include, but are not
limited to, educational catalogues, educational works (including
audiovisual and audio recordings), fine art reproductions, and
retail merchandise based upon the Works. Lessee shall be solely
responsible for clearing and/or obtaining such rights, for
obtaining all required permissions, and for taking all reasonable
steps necessary to obtain intellectual property protection for said
items based on the Works, all of which shall, with respect to any
Work, inure to the benefit of Lessee during the rental of such Work
hereunder and to the benefit of Lessor thereafter. Notwithstanding
any other provision of this Agreement (including without limitation
this Section 4 and Section 11 below), Lessor does not make (and
hereby disclaims) any and all representations and/or warranties to
Lessee or otherwise in respect of the Works or any rights in
the
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Works, including, but not limited to, title,
quiet enjoyment, authenticity, copyright, or moral rights. Lessor
shall not have any liability to Lessee in respect of any, and
Lessee hereby expressly and to the full extent permitted by law
waives as against Lessor all, claims. damages, expenses, fees, or
losses that may be incurred by or threatened against Lessee as a
result of the Works being leased to Lessee, in the possession of
Lessee during the term hereof, displayed at the Gallery and/or
reproduced (by, on behalf of, or with the consent of Lessee) in
merchandising, promotional, or other items relating to the
Works.
5. Rental Fees . Lessee
agrees to pay to Lessor a rental fee of One Dollar ($1.00) on the
Effective Date and each anniversary of the Effective
Date.
6. Additions, Withdrawals, and
Termination . Lessor and Lessee may, by mutual agreement, add
other art works from time to time to the Works covered by this
Agreement. Lessor shall have the right to withdraw any but not all
of the Works from this Agreement and terminate the rental of such
Work(s) hereunder on fifteen (15) days’ written notice to
Lessee. Lessee shall have the right to return any or all Works
covered by this Agreement and terminate the rental of such Work(s)
hereunder on thirty (30) days’ written notice to Lessor. Upon
termination of the rental of any Work hereunder, Lessee shall have
no further right or license with respect to such Work, except to
the extent that, under Section 4 and Section 11 hereof, Lessee is
specifically provided with a six-month period to discontinue sales
and use of merchandise. The parties shall amend Exhibit A
hereto to reflect Works added to or withdrawn from this Agreement.
Notwithstanding the foregoing, and without prejudice to any other
rights or remedies that Lessor may have hereunder, Lessor may
terminate the rental of all Works hereunder (a) by delivery of
notice to Lessee no less than ninety (90) days in advance of the
date selected by Lessor for termination, or (b) immediately by
delivery of notice to Lessee at any time if any of the following
events occurs: (i) Lessor ceases to be the Chairman of the Board
and Chief Executive Officer of Wynn Resorts, Limited (“
Wynn
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Resorts ”), or any successor company; (ii) there
is filed any petition in bankruptcy by or against Lessee or any of
Wynn Resorts’ other subsidiary companies (collectively, the
“ Lessee Parties ”), which petition is not
dismissed within ninety (90) days of its filing, or there is
appointed a receiver or trustee to take possession of any of the
Lessee Parties or of all or substantially all of the assets of any
Lessee Parties, or there is
