4th Amended/Restated Art Rental & Licensing Agreement



 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 a general assignment by any of the Lessee Parties for the benefit of creditors, or any action is taken by or against any of the Lessee Parties under any state or federal
insolvency or bankruptcy act, or any similar law now or hereafter in effect, including, without limitation, the filing of execution or attachment against any of the Lessee Parties and such levy continues in effect for a period of sixty (60) calendar
days; or (iii) Lessee defaults under any material provision of this Agreement and fails 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 such default must be cured immediately upon notice from Lessor. Upon termination of the rental of all Works hereunder, 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 or 10 hereof or any other provision that can be fulfilled only after the termination date. 
  
 7. Insurance. Lessee shall, at its expense, insure the Works on a
“wall-to-wall” basis, for the full rental period hereunder (including, without limitation, terrorism insurance), in an amount equal to the value of the Works as stipulated in writing by Lessor, provided, however that Lessee shall not be
responsible for insuring the Works during any period when the Works are not on display or are in transit to or from the Gallery (the “Non-Displayed Period”). 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 amount of insurance required by this Section 7. Lessor shall be named as an additional insured on Lessee’s 

  

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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 Lessee to Lessor, and shall be subject to Lessor’s reasonable approval as to form and content (including, without limitation, 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, without limitation, loss, damage, or destruction incurred during packing or crating or while in transit) other than during any Non-Displayed Period, 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, or 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 obtained insurance proceeds, 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 

  

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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 at least one guard and
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 shall 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, without limitation, 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 officers, agents,
employees, contractors, or representatives, relating 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. In the event that
Lessor withdraws any Work from this Agreement and terminates the rental of such Work hereunder pursuant to the second sentence of Section 6 hereof, 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. 
  
 11. Intellectual Properties. Lessor consents to the photography, filming, videotaping and recordation of the Works for the purpose of obtaining photographic and 

  

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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 shall be in writing and may be effected either by personal delivery, by mail, registered or certified, postage prepaid, with return receipt requested, or by 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; and mailed notices and facsimile notices (with a concurrent mailing) shall be deemed communicated three (3) days after mailing. Notices shall be given as follows: 
  

			
	 Wynn Gallery, LLC
 Legal Department
 3131 Las Vegas Boulevard South
 Las Vegas, Nevada 89109
 Telephone: 702-770-2111
 Fax: 702-770-1520
	  	 Mr. Stephen A. Wynn
 One Shadow Creek Drive

North Las Vegas, Nevada 89031
  
 Telephone: 702-733-4123
 Fax: 702-791-0167


  
 13. Entire
Agreement; Amendment. This Agreement constitutes the entire agreement between the parties and supersedes any oral or written communications between Lessor and Lessee, with respect to its subject matter, including, without limitation, that
certain Third Amended and Restated Art Rental Licensing Agreement, as amended, between Lessor and Lessee’s affiliate, Wynn Las Vegas, LLC, and that certain Second Amended and Restated Art Rental and Licensing Agreement, as 

  

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amended, between Lessor and Lessee’s affiliate, Wynn Resorts Holdings, LLC. 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 respects 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 without Lessor’s prior consent. Subject to the preceding sentence, 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 permitted 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 one and the same instrument. 
  
 [Signature page follows.] 
  

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 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. 

 

					
	 “Lessor”

	
	 /s/ Stephen A. Wynn

	 Stephen A. Wynn

	
	 “Lessee”

	
	 Wynn Gallery, LLC,

	 a Nevada limited liability company

		
	 By:
	 	 Wynn Resorts, Limited,

	 	 	 a Nevada corporation

			
	 	 	 By:
	 	 /s/ John Strzemp

	 	 	 John Strzemp, Executive Vice President

	 	 	 and Chief Financial Officer


  

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