SECOND AMENDED AND RESTATED ART RENTAL AND LICENSING AGREEMENT between STEPHEN A. WYNN Lessor and WYNN RESORTS HOLDINGS, LLC, Lessee Dated September 18, 2002
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SECOND AMENDED AND RESTATED ART RENTAL
AND
LICENSING AGREEMENT
between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Lessor
and
WYNN RESORTS HOLDINGS, LLC,
Lessee
Dated September 18, 2002
SECOND AMENDED AND RESTATED ART RENTAL
AND LICENSING AGREEMENT
This Amended and Restated Art Rental and Licensing Agreement ("Agreement"), is entered into this 18 day of September, 2002, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Lessor") and WYNN RESORTS HOLDINGS, LLC, formerly known as Wynn Resorts, LLC ("Lessee").
R E C I T A L S
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").
▇. ▇▇▇▇▇▇ 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 in the former Desert Inn hotel at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, and subsequently in a gallery to be opened in the Le Rêve resort at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (each respectively, 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.
▇. ▇▇▇▇▇▇ and Lessee previously entered into an Art Rental and Licensing Agreement dated November 1, 2002, and an Amended and Restated Art Rental and Licensing Agreement dated August 19, 2002 (the "Prior Rental Agreements").
▇. ▇▇▇▇▇▇ and Lessee now desire to amend the Prior Rental Agreements, and in particular the rental terms and termination provisions thereof, and restate said agreement in its entirety.
Based upon the foregoing and the following terms and conditions, the parties hereto agree 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, and Lessee hereby accepts from Lessor the rental of the works. The location of the Gallery in the former Desert inn and subsequently in Le Rêve, and 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 N.R.S. 361.068, 361.186, 374.291, 374.2911, and agrees to comply with N.R.S. 597.720, et seq., and other applicable law.
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 event;.
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 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 right is in the 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 Fee/Expense Reimbursement. Lessee agrees to pay to Lessor a monthly rental in the amounts and at the times set forth in Exhibit B attached hereto and incorporated herein by this reference. In the event the computation of "Adjusted Gross Proceeds" as set forth in Exhibit B results in a deficit in any particular month, Lessor agrees to reimburse Lessee within fifteen (15) days after the end of such month the amount of the deficit.
6. Additions, Withdrawals, and Termination. Lessor and Lessee may, by mutual agreement, add other art works from time to time to the Worlds covered by this Agreement. Lessor shall have the right to withdraw any or all Works from this Agreement and terminate the rental of such Work(s) hereunder on fifteen (15) days' written notice to Lessee provided, however, that with respect to the Works identified as long-term rentals in Exhibit C attached hereto and incorporated herein by this reference, no such notice may be given before November 1, 2002. 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; provided, however, that with respect to the Works identified as long-term rentals in Exhibit C, no such notice may be given before November 1, 2002. 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, Lessee is specifically provided with a six-month period to discontinue sales and use of merchandise. Notwithstanding the foregoing, and without prejudice to any other rights or remedies that Lessor may have, 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 Managing Member of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC, a Nevada limited liability company ("Valvino") or the controlling shareholder of any entity that is the sole member of Valvino; (ii) Valvino, Lessee, or any of Valvino's other subsidiary companies makes an assignment for the benefit of creditors, is adjudicated bankrupt, files a voluntary petition or answer seeking any relief under bankruptcy or insolvency laws, has filed against it an involuntary petition under such laws, or applies for or permits the appointment of a receiver or trustee for all or a substantial portion of its assets; or (iii) Lessee defaults under any material provision of this Agreement and falls to cure such default within seven (7) days after it receives written notice of such default from Lessor unless such default relates to the care, custody, or protection of any of the Works, in which event suet default shall be cured immediately upon notice from Lessor. Upon termination of the rental of all Works hereunder or upon the termination of Lessee's lease of the Gallery from Valvino (or, subsequently, Le Rêve), this Agreement shall automatically terminate; provided, however, that the termination of this Agreement shall not affect the obligations of the parties under Sections 5, 7, 9, 10, or any other provision that can be fulfilled only after the termination date.
7. Insurance. Lessee shall reimburse Lessor for the actual cost of insuring the Works on a "wall-to-wall" basis, for the full rental period hereunder (including packing and shipping), for the value of the Works as stipulated in writing by Lessor, less the costs of insurance for the dates the Works are
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not on display or in transit to or from the Gallery. Upon reasonable prior notice to Lessee, Lessor shall have the right from time to time to reasonably increase the stated value of any one or more of the Works, and require Lessee to increase the reimbursement required by this Section 7. Lessee shall be named as an additional insured on Lessor's insurance policy. A certificate of insurance and a copy of those portions of the Insurance policy covering the Works and setting forth any exclusions to coverage shall be furnished by Lessor to Lessee, and shall be subject to Lessor's reasonable approval as to form and content (including any deductible). The foregoing insurance policy shall include coverage against all risk of physical loss or damage from any external cause while in transit and on location in the Gallery during the rental period hereunder. Lessee shall bear sole responsibility and shall be liable to Lessor for all loss, damage, or destruction of the Works and any of them during the rental period hereunder (including loss, damage, or destruction incurred during packing or crating or while in transit), regardless of any exceptions, exclusions, or limitations to its insurance policy covering the Works, regardless of fault or the degree of care exercised by Lessee, and regardless of the presence or supervision of, or any direction or approval by, Lessor or any Lessor's representative; provided, however, that Lessee's liability in the event of such loss, damage, on destruction shall not exceed the value of the Works as stipulated in writing by Lessor. Lessee shall be responsible to pay any and all deductibles relating to the insurance coverage required by this Section 7. In the event any Work is lost or stolen, and then recovered after Lessor has been reimbursed by its insurance, Lessor shall have the option to exchange those insurance proceeds for such Work. In the event any Work is damaged but not destroyed, Lessee agrees to be responsible for both the cost of repairing and restoring such Work and the loss in value of such Work as determined by an appraiser mutually agreed upon by the parties.
8. Security. Lessee agrees to take all reasonable steps necessary to secure and protect the Works from loss, theft or injury and to treat them in a manner consistent with maintaining its own most valuable assets at all times the Works are in its possession, control or custody, or in transit to or from Lessor. Without limiting the generality of the foregoing, Lessee shall provide for an adequate number of guards to be on duty in and around the Gallery at all times while the Works are in the Gallery. All Works shall be within direct sight lines of the guards or under direct video surveillance at all times during the rental period hereunder. Lessee shall comply with further reasonable security restrictions and arrangements as directed in writing by Lessor. Lessee represents and warrants to Lessor that the Gallery is and shall be equipped with adequate fire detection/prevention systems and protected by alarm systems that are activated at all times.
9. Indemnification. Lessee agrees to and does indemnify, defend, protect, and hold harmless Lessor, his agents, heirs, assigns, and successors (collectively, "Indemnitees") from and against any and all claims, damages, liabilities, losses, actions, complaints, or judgments, including attorneys' fees, threatened against, incurred, or suffered by the Indemnitees, arising out of Lessee's breach of or failure to perform, under this Agreement, the inaccuracy when made of any representation or warranty made by Lessee, or any act or omission by or on behalf, of Lessee or its respective agents, employees, contractors, or representatives, relation to the Works or this Agreement.
10. Taxes. Lessee shall pay all of the following Nevada state and local taxes, along with all interest, penalties, and other additions related thereto: (a) sales and use taxes applicable to the rental of the Works pursuant hereto; and (b) except to the extent provided otherwise in the following sentence, personal property taxes applicable to each of the Works for each fiscal year during which Lessee is renting such Work hereunder and, if such Work was purchased no earlier than two years before the opening of the Gallery in the Desert Inn, for each of the two full fiscal years immediately preceding the opening of the Gallery in the Desert Inn. In the event that Lessor withdraws any Work from this Agreement and terminates the rental of such Work hereunder pursuant to the first sentence of Section 6, Lessor and Lessee shall make an equitable allocation of the personal property taxes applicable to such Work for the fiscal year in which such withdrawal occurs.
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11. Intellectual Properties. Lessor consents to the photography, filming, videotaping and recordation of the Works for the purpose of obtaining photographic and other copyrights in the new derivative works, which shall be owned and controlled by Lessor, but which is hereby licensed to Lessee for use in advertising, promotion, and merchandising of, and education relating to, the Works, such license to run concurrently, with respect to any Work, with 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.
12. Notice. Any notice to be given pursuant to this Agreement by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested, or facsimile. Notice by mail shall be sent concurrently with any facsimile notice. Notices shall be addressed to the parties at the address specified below, but each party may change such party's address by written notice in accordance with this Section 12. Notices delivered, personally shall be deemed communicated as of actual receipt; facsimile notices (with a concurrent mailing) shall be deemed communicated three (3) days after mailing. Notices shall be made as follows:
| Wynn Resorts Holdings, LLC Legal Department ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ |
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ |
13. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties and supersedes any oral or written communications between representatives of Lessor and Lessee, with respect to its subject matter, including without limitation the Prior Rental Agreements. This Agreement may be amended only if such amendment is set forth in writing and executed by each of the parties.
14. Governing Law. This Agreement shall in all respect, be construed according to the laws of the State of Nevada, regardless of the choice or conflict of laws provisions of Nevada or any other jurisdiction.
15. Assignment; Binding Effect. Lessor may assign any or all of his rights and obligations under this Agreement. Lessee may not assign all or any portion of its rights or obligations under this Agreement. Subject to the preceding, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, legal representatives, successors, and assigns. This Agreement does not create, and shall not be construed or deemed to create, any rights or benefits enforceable by or for the benefit of any person or entity other than the parties hereto and their respective heirs, legal representatives, successors, and assigns.
16. Headings; Context. All headings herein are inserted only for convenience and ease of reference and shall not be considered in the construction or interpretation of any provision of this Agreement. Whenever used in this Agreement, the singular shall include the plural and the plural shall include the singular, and the neuter gender shall include the male and female as well as an entity, all as the context and meaning of this Agreement may require.
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17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute orbs and the same instrument.
| WYNN RESORTS HOLDINGS, LLC | ||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Chief Operating Officer |
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| Artist: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | Curtain, Jug and Fruit Bowl (Rideau, Cruchon et Compotier) |
|
| Date: | c. 1893-94 | |
| Medium | Oil on Canvas | |
| Size | 231/2 × 283/4 in. | |
Artist: |
▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| Title: | Bathers (Promenade au bord de la mer) (Famille Tahitienne) |
|
| Date: | c. 1902 | |
| Medium | Oil on Canvas | |
| Size | 361/4 × 283/4 in. (92 cm × 73 cm.) | |
Artist: |
▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: | Portrait of Mademoiselle ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, In Profile (Portrait de Mademoiselle ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, de profil) |
|
| Date: | c. 1880 | |
| Medium | Pastel on Paper | |
| Size | 213/8 × 173/4 in. (54.3 × 45.1 cm.) | |
Artist: |
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| Title: | La Robe Persane | |
| Date: | c. 1940 | |
| Medium | Oil on Canvas | |
| Size | 32 × 25 in. (81 × 65 cm.) | |
Artist: |
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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| Title: | Pineapple and Anemones | |
| Date: | c. 1940 | |
| Medium | Oil on Canvas | |
| Size | 283/4 × 361/4 in. (73 × 92 cm.) | |
Artist: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
|
| Title: | Nu Couche (sur ▇▇ ▇▇▇▇ gauche) | |
| Date: | 1917 | |
| Medium | Oil on Canvas | |
| Size | 35 × 57 in. (88.9 × 144.8 cm) | |
Artist: |
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| Title: | Le Reve | |
| Date: | 1932 | |
| Medium | Oil on Canvas | |
| Size | 511/8 × 381/8 in. (129.8 × 97.2 cm) | |
Artist: |
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ |
|
| Title: | Portrait of a Peasant Girl in a Straw Hat | |
| Date: | June 1890 | |
| Medium | Oil on Canvas | |
| Size | 361/4 × 283/4 in. (92 × 73 cm) | |
Artist: |
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
| Title: | ▇▇▇▇▇ ▇▇▇▇ (three consisting of gold, white, red) | |
| Date: | 1983 |
| Medium | Synthetic polymer paint, silkscreen ink and diamond dust on canvas | |
| Size | 40 × 40 in. (each) | |
Artist: |
▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: | ▇▇▇▇▇▇▇ a l'Ombrelle Verte | |
| Date: | 1876 | |
| Medium | Oil on Canvas | |
| Size | 317/8 × 235/8 in. |
A framed photograph of ▇▇▇▇▇ ▇▇▇▇▇▇▇ that is owned by ▇▇▇▇▇ ▇▇▇▇ will also be included in the gallery. It is approximately 11 × 14 inches.
A framed photograph of ▇▇▇▇▇ ▇▇▇▇▇▇▇ that is owned by ▇▇▇▇ Design and Development, LLC. It is approximately 11 × 14 inches.
No rental fee shall be due hereunder for the period from the effective date of this Agreement to April 30, 2002 (the "Abatement Period"). For each calendar month beginning after the Abatement Period, Lessee shall within fifteen (15) days after the end of such month (including any partial month in which the term hereof ends pay to Lessor the lesser of (i) One Million Dollars ($1,000,000.00) or (ii) one-half (1/2) of all Adjusted Gross Proceeds (as hereinafter defined) for such month (or partial month as the case may be), and furnish to Lessor a written statement explaining the calculation of such Adjusted Gross Proceeds. The foregoing statement from Lessee shall be in form and style, and contain such detail, as Lessor may reasonably require. Lessee agrees to keep accurate books and records of all business activities conducted at or relating to the Gallery. Upon prior reasonable notice and at reasonable times, Lessor or his representatives shall have the right to inspect and copy such books and records for the purpose of auditing or verifying such business activities and monthly statements.
For purposes hereof, "Adjusted Gross Proceeds" means (i) all gross revenues received by the Gallery, including without limitation admission fees, fees for electronic touring devices, and merchandise sales revenues, less (ii) all out-of-pocket expenses paid by the Gallery in connection with the exhibition and promotion of the Works, including without limitation payroll and benefits for Gallery staff and security, advertising and printing costs, the cost of "Openings" and "Receptions," fine art transportation and insurance costs, the cost of goods sold, and Nevada state and local sales and use taxes and personal property taxes. Notwithstanding anything herein expressed or implied to the contrary, for purposes of calculating Adjusted Gross Proceeds, such out-of-pocket expenses shall not include: (i) indirect or overhead expenses of Valvino, Lessee, or any of Valvino's other subsidiary companies (such as real property and/or Gallery rental costs and general and administrative expense allocations); (ii) any liability under any indemnity by Lessee; (iii) any costs or expenses associated with any damage to or loss of any of the Works; (iv) any costs or expenses associated with any breach, default, or failure to perform by Lessee relating to this Agreement; or (v) any capital expenditures or depreciation.
| Artist |
Title |
|
|---|---|---|
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | Nu Couche (surle cote gauche) | |
▇▇▇▇ ▇▇▇▇▇▇▇ |
Bathers |
Exhibit 10.42
SECOND AMENDED AND RESTATED ART RENTAL AND LICENSING AGREEMENT
EXHIBIT A WORKS OF ART
EXHIBIT B RENTAL FEES
EXHIBIT C LONG-TERM RENTALS