EX 10.11.5 - 2015 Intellectual Property License Agreement






Exhibit 10.11.5
2015 INTELLECTUAL PROPERTY LICENSE AGREEMENT
This 2015 Intellectual Property License Agreement (“Agreement”) is dated as of the 26th day of February 2015 (the “Effective Date”), by and among WYNN RESORTS HOLDINGS, LLC, a Nevada Limited Liability Company (hereinafter “Holdings”), WYNN RESORTS, LIMITED, a Nevada corporation (hereinafter “Limited”) and WYNN LAS VEGAS, LLC, a limited liability under the laws of Nevada (hereinafter “Licensee”). Holdings and Limited are collectively referred to herein as “Licensor”.
RECITALS
		
	A.
	Holdings is the owner or exclusive licensee with the right to license and/or sublicense certain marks and works as defined herein including but not limited to the marks and works that are listed and described in attached Schedule A, and is the licensee of other third party rights and works as defined herein that are listed and described in attached Schedule B, and certain trade secrets, data and know-how that are listed and described in attached Schedule C (hereinafter, collectively, the “Holdings Intellectual Property”).


		
	A.
	Limited is the parent entity of Holdings and is the owner of certain trade secrets, data, know-how and other intangible property that are listed and described in attached Schedule C (hereinafter, collectively the “Limited Intellectual Property”). The Holdings Intellectual Property and the Limited Intellectual Property are collectively referred to herein as the “Licensed Property”.


		
	B.
	Licensee is a subsidiary of Limited and currently owns and operates the Wynn Las Vegas and Encore Resort and Casino, an integrated hotel and casino resort located in Clark County Nevada (the “Operations”).


		
	C.
	By an agreement dated as of December 14, 2004, the Licensor and Licensee entered into an intellectual property license agreement under which the Licensor licensed the a subset of the Licensed Property to Licensee (the “2004 Intellectual Property License Agreement”) 


Now, therefore, in consideration of the foregoing and the mutual promises contained herein, the parties have agreed as follows:
		
	1.
	License. The Licensor grants the following licenses to the Licensee at the location specified herein.


		
	1.01
	Licensor provides to Licensee a non-exclusive license and/or non-exclusive sublicense to use the marks and works owned, or which will be owned, by the Licensor including but not limited to the marks and works listed in Schedule A, attached hereto, in connection with the operation, advertising, promotion, distribution and services of the Operations. The foregoing licenses granted in this Paragraph 1.01 shall hereinafter be known as the “Trademark License”.


		
	1.02
	Licensor provides Licensee a non-exclusive sublicense to the works listed in Schedule B, attached hereto, in connection with the operation, advertising, promotion, distribution and services of the Operations. The foregoing licenses granted in this Paragraph 1.02 shall hereinafter be known as the “Copyright and Persona License”.











		
	1.03
	Licensor provides to Licensee a non-exclusive license to use the data, trade secrets and know-how listed in Schedule C, attached hereto, developed by the Licensor and its employees, officers, directors and representatives, and such future items as may be provided from time to time for use in connection with the operation, advertising, promotion, distribution and services of the Operations. Licensor shall pay all costs associated with the development of such data, trade secrets and know-how and shall also be responsible for providing Licensee updates or upgrades to such materials. Licensee shall reimburse all installation and/or training costs incurred by Licensor in connection with providing Licensee such information. The foregoing license shall hereinafter be known as the “Trade Secret and Know-How License.”


		
	1.04
	Notwithstanding any other provision of this Agreement, including, without limitation, Sections 2.01 and 2.02 hereof, Licensee shall have the right to sublicense any or all of its rights under the Trademark License and the Copyright and Persona License to any lessee or sublessee operating or conducting business at the Operation of the Licensee (“Approved Sublessee”). The Trade Secret and Know-How License may not be sublicensed by the Licensee.


		
	1.05
	Licensee shall have the right to sublicense all of its rights and licenses granted pursuant to the Trademark License and the Copyright and Persona License in order to have persons other than Licensee produce and manufacture promotional products or the packaging thereof. Licensee will identify its products and manufacturers for the products to Licensor upon request. Licensee agrees that any person or entity licensed to manufacture such products shall be prohibited from manufacturing, producing, selling, distributing, or shipping products other than to the Licensee, the Licensor, or Approved Sublessees. Licensee further agrees to enforce such prohibition at its own expense and upon reasonable demand by Licensor.


		
	2.
	License Term.


		
	2.01
	This Agreement shall be effective as of the Effective Date and shall continue until otherwise terminated under the provisions of this Agreement.


		
	3.
	Royalties.


		
	3.01
	Licensee shall pay to Licensor an aggregate monthly licensing fee (the “Licensing Fee”) for each of the licenses granted herein in the amount and in accordance with the payment schedule set forth in Schedule D. Any withholding taxes associated with such payments shall be made by Licensee and shall not be withheld from the payments described on Schedule D.


		
	4.
	Quality Control.


		
	4.01
	Licensee agrees that the facilities, amenities, services and goods covered by this Agreement will be of high quality and that such amenities, services and products will be designed, manufactured, sold and distributed in full and complete compliance with all applicable laws of the relevant jurisdictions of the Operations. To this end, Licensee shall, first request that the Licensor inspect and approve any and all advertising, promotion, public relations material, merchandise, or promotional products (“Product Sample”) before manufacture or production.  Any 











Product Sample that contains any of the Licensed Property submitted to Licensor shall be deemed approved unless Licensor disapproves the same in writing within thirty (30) days after receipt by Licensor.
		
	4.02
	All promotional items and products manufactured or assembled outside of the United States shall be marketed in accordance with prevailing U.S. Customs and Federal Trade Commission and other applicable laws, rules and regulations. To the extent that the Licensor’s obligations for quality control with and from its third party licensors may vary from time to time, Licensee agrees to accept and comply, upon reasonable written notice, with such quality control provisions as may be required under the Licensor’s license agreements with third parties from whom Licensor has obtained the rights to the Licensed Property.


		
	4.03
	Licensee acknowledges that providing substandard services or products would have an adverse effect upon the reputation of Licensor and any third party from whom Licensor has obtained such rights, including but not limited to the parties to the agreements listed on Schedule B. Accordingly, Licensee agrees to offer amenities or facilities of high quality standards and not to sell defective products (seconds) which bear the marks of the Licensed Property.


		
	4.04
	Licensee agrees to operate the Operations in a manner which meets or exceeds the following minimum quality standards: (a) the business shall be operated in compliance with all applicable laws and regulations of the relevant jurisdictions of the Operations, including, but not limited to, health, safety, fire and business codes, tax laws, gaming laws and labor codes; (b) the business shall maintain all applicable business licenses, including, but not limited to, business, alcohol, and gaming; (c) the business shall be conducted in a professional and reputable manner, reasonably free from consumer complaints; (d) the premises shall be maintained in a pristine manner, consistently neat, clean and in proper repair and décor, in a highly sanitary condition, and all food and beverage services shall maintain the highest possible rating for cleanliness established by the governing entity for the site; (e) the business shall be operated in a manner that does not tarnish or diminish the value of the goodwill represented by the Licensed Property; and (f) the business shall be operated in a manner that does not adversely affect the goodwill or reputation of the Licensor and its affiliates or the Licensor’s and its affiliates’ ability to obtain or maintain licenses from any regulatory authority, including the Nevada Gaming Commission.


		
	4.05
	Licensor (directly or through its authorized agents) shall have the right to inspect the premises upon reasonable notice, at any time. If, at any time, the Licensee fails to operate the Operations in conformity with the quality standards set forth herein, Licensor shall notify Licensee in writing of any such deficiency. Licensee shall have thirty (30) days within which to cure such deficiency. If the Licensee fails to cure any such failure, then Licensor may, at its option, cure the failure and charge the Licensee for the expense of doing so. In the event that the cure cannot be accomplished within thirty (30) days, but the Licensee has made a good faith effort to effect the cure, Licensor may extend the period to cure for a reasonable time, at Licensor’s sole and absolute discretion.











		
	5.
	Goodwill. All goodwill arising from the use of the Licensed Property shall inure to the benefit of the Licensor, or the party from whom the Licensor obtained its rights.


		
	6.
	Use of Licensed Property and Persona


		
	6.01
	Licensee shall comply, within a period not to exceed thirty (30) days, with the commercially reasonable conditions set forth by the Licensor, in writing, from time to time, with respect to the style, appearance and manner of use of the Licensed Property and any trade secrets, data and know-how provided to the Licensee pursuant to this Agreement. The Licensee may not make any use of the Licensed Property that is not in compliance with this Agreement, unless Licensee obtains the prior written permission of Licensor. Licensor may, at its option, require that the Licensee, at Licensee’s cost, place a notice or notices acceptable to the Licensor of the Licensor’s respective registration of the marks, works or persona rights.


		
	6.02
	Licensee shall provide Licensor for prior approval copies of all print advertisements and marketing materials containing any of the Licensed Property prior to printing, publishing or distribution. Licensor shall not unreasonably withhold approval of such advertisements or marketing materials, and any disapproval shall specify the basis for such disapproval. In the event that the Licensor does not approve or disapprove of such use within thirty (30) days of receipt, the use shall be deemed to be approved.


		
	6.03
	Licensee agrees not to use any of the Licensed Property in connection with any other trademark or service mark not owned by Licensor without the express written permission of Licensor. Licensor shall not unreasonably withhold approval of such use, and any disapproval shall be in writing specifying the basis for the disapproval. In the event that the Licensor does not approve or disapprove such request within thirty (30) days of receipt, such request shall be deemed approved.


		
	6.04
	Licensee will not permit any person or entity that leases, subleases or rents any portion of the Operations, to use any of the Licensed Property without a written agreement.


		
	7.
	Termination.


		
	7.01
	Upon any breach of this Agreement by the Licensor, the Licensee shall provide written notice to the Licensor, describing the nature of the breach. Except as provided in Paragraph 7.04 herein, the Licensor shall have ten (10) days within which to cure the breach. If the breach is not cured within that period of time, the Licensee may elect to terminate this Agreement. In the event that the cure cannot be accomplished within ten (10) days, but the Licensor has made a good faith effort to effect the cure, Licensee may extend the period to cure for a reasonable time, at Licensee’s sole and absolute discretion. Termination of the Agreement is effective upon receipt by the Licensor of the written notice of termination.  


		
	7.02
	Upon any material breach of this Agreement by the Licensee, the Licensor shall provide written notice to the Licensee, describing the nature of the material breach.  Except as provided in Paragraph 7.04 herein, the Licensee shall have thirty (30) days within which to cure the material breach. If the material breach is not cured 











within that period of time, the Licensor may elect to terminate this Agreement.  In the event that the cure cannot be accomplished within thirty (30) days, but the Licensee has made a good faith effort to effect the cure, Licensor may extend the period to cure for ninety (90) days, at Licensor’s sole and absolute discretion. Termination of the Agreement is effective upon receipt by the Licensee of the written notice of termination.
		
	7.03
	The Licensor may require the Licensee to terminate any license granted hereunder to any approved third party licensee, or other sublicensee, if any such approved third party licensee, or other sublicensee (a) materially breaches this license and fails to cure the breach upon thirty (30) days notice from Licensor; or (b) becomes insolvent or bankrupt.  Licensor may, in its sole and absolute discretion, first seek to cure any such breach or failure prior to termination, but any such attempt to cure shall not restrict the Licensor’s right at any time to require termination as to the third party licensee or other sublicensee as otherwise provided in this Section.


		
	7.04
	Licensee acknowledges that Licensor and its affiliated companies conduct businesses that are subject to and exist because of privileged gaming licenses issued by governmental authorities.  Licensee agrees that the Licensor shall have the right to terminate this Agreement in the event (1)(i) any such privileged license is suspended or revoked, or (ii) the Licensor in good faith deems that the acts of the Licensee jeopardizes any such privileged license, or the gaming business activities of the Licensor, or its affiliated companies (in each case, the “Relevant Event”); and (2) the Relevant Event continues for thirty (30) consecutive days after written notice has been provided to the Licensee describing the nature of the event or activity creating the problem for the privileged license.


		
	7.05
	Upon the termination of any agreement between Licensor and any third party for the license of any of the Licensed Property, including but not limited to termination of any of the agreements listed on Schedule B, the portions of this Agreement relating to (or granting a license pursuant to) such terminated agreement shall concurrently terminate, without affecting any other provisions of this Agreement (including the Licensing Fee) provided that the Licensor shall not exercise its right to terminate any of their rights to the Licensed Property, including but not limited to the termination of the agreements listed in Schedule B without the prior written consent of the Licensee and any of its third party licensees.  


		
	7.06
	This Agreement shall automatically terminate one month after the occurrence of either of the following events: (1) Limited ceases to own, directly or indirectly a majority of the member’s interest of Licensee, or (ii) Limited ceases to have the ability to direct or cause the direction of the management and policies of Licensee.    


		
	8.
	Indemnification.


		
	8.01
	Licensee agrees to obtain, or cause to be obtained,  insurance which provides personal injury and property damage and product liability coverage for any and all claims, suits, losses and damages arising out of the operation of the Licensee’s premises and sale of promotional merchandise, including coverage for any claims, suits, losses or damage arising out of negligence concerning the design, manufacture, distribution and sale of such promotional merchandise, from an 











insurance company, acceptable to Limited, providing coverage and defense. The coverage for each occurrence shall be at least US$5,000,000 with the deductible or self-insurance retention not greater than US$500,000 or such in such other amounts as Limited may advise Licensee. Licensee shall maintain or cause to be maintained public liability insurance coverage during the term of this Agreement. Licensor shall be named as an additional insured and shall receive notice of any cancellation of insurance from the insurance carrier not less than 30 days prior to effective date of such cancellation.  
		
	8.02
	Licensor shall defend, indemnify and hold Licensee and all of Licensee’s directors, officers, employees, agents, affiliates, sublicensees, sublessors and assigns (collectively, the “Licensed Protected Parties”) harmless from and against any demand, claims and losses arising from any third party claim alleging infringement of Licensed Property.


		
	8.03
	Licensee shall defend, indemnify and hold Licensor and its directors, officers, employees, agents and affiliates (collectively, “Licensor’s Protected Parties”) harmless from and against any and all demands, claims, losses or damages by reason of premise liability or product defect or negligent design or manufacture by or for the Licensee, or arising from the Licensee’s operation of the Operations.


		
	9.
	Notices. Except as otherwise set forth herein, any notices, statements or payments required to be made or given under this Agreement shall hand delivered or sent via registered mail, postage prepaid or by facsimile, to the following persons and addresses which may change or be modified at any time in writing by the receiving parties.




	
		
	To Holdings:
   
	Wynn Resorts Holdings, LLC
3131 Las Vegas Boulevard South, Las Vegas, Nevada 89109, United States 
Fax No.: (702) 770-1349 
Attention: General Counsel



	To Limited:


	Wynn Resorts, Limited
3131 Las Vegas Boulevard South, Las Vegas, Nevada 89109, United States 
Fax No.: (702) 770-1349 
Attn: General Counsel



	To Licensee:


	Wynn Las Vegas, LLC
3131 Las Vegas Boulevard South, Las Vegas, Nevada 89109, United States
Fax No.: (702) 770-1349
Attention: General Counsel 






		
	10.
	Miscellaneous.


		
	10.01
	The parties each represent and warrant to the other that their own officer, or other duly authorized representative executing this Agreement, has the full power and authority to do so on their behalf.











		
	10.02
	This Agreement shall be construed without regard to the rule of presumption requiring construction against the party who drafted the agreement, or caused it to be drafted. Neither party shall be deemed to be the drafting party. The parties hereto shall, and they hereby do, waive trial by jury with respect to any action brought by a party hereto against any other party or to any other matter arising out of or in any way connected with the Licensed Property.


		
	10.03
	The parties agree that they have each read and understand this Agreement; they understand its content and meaning; and they have executed it of their own free will in accordance with their own judgment, after having the opportunity to obtain the advice of counsel and having actually received the advice of counsel. The parties acknowledge that they have not been coerced, influenced or induced to execute this Agreement by any improper action.


		
	10.04
	To facilitate the execution of this Agreement by the parties, the parties may execute it in subparts, and the signature transmitted by facsimile shall have the same force and effect as the original signature.


		
	10.05
	This Agreement shall be subject to, governed by and construed according to the laws of Nevada or, where applicable, federal statutory and common law. Any dispute regarding or relating to this Agreement shall be non-exclusively adjudicated in a court of competent jurisdiction in the State of Nevada.


		
	10.06
	No term or provision hereof shall be construed to be waived by any party, and no breach shall be excused by a party, unless such waiver or consent in writing, signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by any party.


		
	10.07
	The schedules form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the schedules.


		
	10.08
	This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations and agreements unless otherwise provided. Each party acknowledges and agrees by executing this Agreement that it is not relying upon any representation or promise whatsoever that is not contained herein and that any such representation or promise is acknowledged to be immaterial. Accordingly, each party to this Agreement waives the defense or claims of fraud in inducement or mistake of law or fact to any claim arising out of, based on, or related to this Agreement, except with respect to the express representations set forth in this Agreement.


[signature pages to follow] 











In witness whereof, the parties have caused this Agreement to be duly executed as of the Effective Date.




	
	
	Wynn Las Vegas, LLC,

	a Nevada limited liability company

	 

	By: Wynn Resorts Holdings, LLC, 

	       a Nevada limited liability company, its sole member

	 

	  By: Wynn Resorts, Limited, 

	         a Nevada corporation, its sole member

	 

	 

	By:  Stephen Cootey

	Its: Chief Financial Officer, SVP and Treasurer

	 

	 

	 

	Wynn RESORTS, LIMITED,

	a Nevada corporation

	 

	By:  Stephen Cootey

	Its: Chief Financial Officer, SVP and Treasurer

	 

	 















Sch. A




Schedule A




LICENSORS MARKS AND WORKS















Schedule B




THIRD PARTY RIGHTS AND WORKS






All rights which are the subject of the Surname Rights Agreement dated as of August 6, 2004, by and between Stephen A. Wynn and Wynn Resorts Holdings, LLC.


All rights which are the subject of the Rights of Publicity License dated as of August 6, 2004, by and between Stephen A. Wynn and Wynn Resorts Holdings, LLC.


All rights which are the subject of the Trademark Assignment, dated as of August 6, 2004, 
by and between Stephen A. Wynn and Wynn Resorts Holdings, LLC.













Sch. C






Schedule C


TRADE SECRETS, DATA AND KNOW-HOW




1.    Customer Lists, include, but not limited to, all customer data and information that may reside on Licensee’s computer systems.
2.    Marketing Concepts, Design and Coordination
3.    Payout Ratio Computation Formulas
4.    Employee Training Manuals
5.    Security Know How
6.    Casino Operations Know How
7.    Cash Handling Systems
8.    Regulatory Compliance Procedures
9.    Insurance Know How
10.    Human Resources Know How
11.    IT Development Know How
12.    Investor Relations Know How
13.    Community Relations Know How
14.    Development Know How































Sch. D


Schedule D
LICENSING FEE


	
		
	Licensing Fee:
	Licensee shall pay a monthly Licensing Fee to Licensor equal to three percent (3%) of Licensee’s IP gross monthly revenues, provided however, that such fee shall be reduced to one and one-half percent (1.5%) of Licensee’s IP gross monthly revenues so long as the 2004 Intellectual Property License Agreement is in effect and had not been terminated.  

For the avoidance of doubt, a reference to “IP gross monthly revenues” refers to the Licensee’s IP gross revenues at the end of each calendar month.  “IP gross revenues” refers to Licensee’s total operating revenues as adjusted by adding back discounts and promotional allowances.  The calculation of Licensee’s operating revenues, promotional allowances, and discounts in connection with the IP gross revenues in connection with this Agreement shall always be consistent with the Licensee’s accounting policies.   If any subsidiary of the Licensee requires the Licensed Property, “IP gross revenue” and “IP monthly gross revenue” will be interpreted to include the gross revenues of such subsidiary.

	Timing of Payments:
	The Licensing Fee shall be payable by Licensee not later than the last business day of the month following the month in which it was earned. The Licensor shall inform Licensee of the account or accounts to be used by Licensee for payment.