BACKGROUND
XXX¡¯s baseball team entered into an 10-year agreement with a local bank in Phoenix (the ¡°Bank¡±) to provides the Bank with the exclusive right to use the names, trademarks, copyrights and logos (collectively ¡°the Marks¡±) of the XXX alumni association and athletic group in connection with marketing credit cards to the alumni, athletics fans, employees, faculty members, and students of XXX for a period of ten years. XXX has agreed to provide the Bank with a minimum of 200,000 names list of XXX alumni, athletics fans, employees, faculty members, and students of XXX. The list will be updated at least twice a year. The Bank has been approved to have the rights to use all marketing materials to market the credit card program. And XXX may not unreasonably be withheld the approval.
XXX will earn $1 royalty per new account at inception and on each anniversary, provided the card is renewed. XXX will also earn between .04 percent and .05 percent of net retail sales as royalties, which excludes refunds, financing charges, and cash advances.
XXX has authorizes the use of XXX¡¯s Marks and provides access to a list of at least 200,000 names to the Bank, and has received the one-time payment of $10,000,000 (the ¡°Guaranteed Advance¡±) that will be offset against future royalties earned by XXX. The Guaranteed Advance is not refundable to the Bank if XXX fulfills all it obligations. And the agreement is silent as to the consequences if XXX defaults on its obligations. If the agreement is terminated due to an ¡°uncured material breach¡± by the Bank, XXX is not required to remit any unearned portion of the Guaranteed Advance to the Bank. At the end of the fifth year, XXX has the right to terminate the agreement. If XXX elects to terminate the agreement a ...