MERCHANDISE LICENSE AGREEMENT
This Merchandise License Agreement (the “Agreement”) is entered into as of December 1, 2000 (the “Effective Date”) by and between MGM Consumer Products, a division of Metro-Goldwyn-Mayer Home Entertainment Inc., a Delaware corporation, and Metro-Goldwyn-Mayer Lion Corp., a Delaware corporation (collectively, “Licensor”), on the one hand, and MGM MIRAGE Retail, a Nevada corporation (“Licensee”), on the other hand.
WHEREAS, the parties to this Agreement acknowledge that they enjoy a unique historical relationship to each other; and
WHEREAS, Licensor is the owner of all right, title and interest throughout the world to the “Metro-Goldwyn-Mayer,” “MGM” and the MGM Lion Logo trademarks and service marks, and variants thereof as represented on Exhibit A attached hereto and incorporated herein by reference (the “Marks”); and
WHEREAS, Licensee is an indirect wholly owned subsidiary of MGM MIRAGE, a Delaware corporation, which, through other subsidiaries, owns and operates hotels, casinos and resorts throughout the world; and
WHEREAS, Licensor desires to license the use of the Marks to Licensee solely in connection with the retail sale of merchandise by Licensee and its Affiliates (as hereinafter defined) pursuant to the terms of this Agreement, and Licensee desires to accept such license from Licensor.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, the parties agree as follows:
1. Incorporation of Recitals. The parties acknowledge and agree that the recitals to this Agreement are true and correct and are incorporated in and made a part of this Agreement.
2. Definitions. For purposes of this Agreement, the following terms shall have the respective meanings set forth below:
(a) “Advertising Materials” shall have the meaning set forth in Section 4.2.
(b) “Affiliate” means any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the person or entity specified. Notwithstanding the foregoing, neither Licensor nor Metro-Goldwyn-Mayer Inc. or any of its subsidiaries shall be deemed “Affiliates” of Licensee or MGM MIRAGE.
(c) “Annual Period” shall mean each period of one year beginning on the Effective Date and on each anniversary of the Effective Date.
(d) “Effective Date” shall have the meaning set forth in the first paragraph of this Agreement.
(e) “License” shall have the meaning set forth in Section 3.
(f) “Licensed Locations” means all retail outlets located within hotels, casinos or resorts which are at least majority-owned or are operated by Licensee or an Affiliate of Licensee anywhere in the world, and any retail outlet which is at least majority-owned or is operated by Licensee or an Affiliate of Licensee located in the same metropolitan area as any such hotel, casino or resort. Notwithstanding the foregoing, Licensee and its Affiliates may offer for sale and sell Merchandise by catalog or direct mail order or through Internet sites which are owned and operated by Licensee or an Affiliate of Licensee.
(g) “Licensee” shall have the meaning set forth in the first paragraph of this Agreement.
(h) “Licensor” shall have the meaning set forth in the first paragraph of this Agreement.
(i) “Marks” shall have the meaning set forth in the second Recital to this Agreement.
(j) “Merchandise” means retail merchandise which bears any of the Marks, including without limitation wearing apparel, jewelry and personal accessories, housewares, stationery and backpacks, tote bags and duffel bags, in each case subject to the approval rights of Licensor as set forth in Section 4.
(k) “Net Revenues” means the gross revenues actually received by Licensee or any Affiliate of Licensee from retail sales of Merchandise pursuant to this Agreement, as determined in accordance with Licensee’s or such Affiliate’s invoice, less
||sales, value added, use and similar taxes that are separately itemized, billed by Licensee or its Affiliate to its customers and required to paid to the appropriate taxing authority by Licensee or its Affiliate; |
||amounts paid by Licensee or its Affiliate and billed to its customers for insurance, shipping and similar charges; and |
||credits for refunds and returns of Merchandise. |
(l) “Packaging Materials” shall have the meaning set forth in Section 11.2.
(m) “Royalties” means royalty payments by Licensee to Licensor as provided in Section 6.