LICENSINGCONTRIBUTION AGREEMENT between GUESS? LICENSING, INC., as Licensing and GUESS? IP HOLDER L.P., as IP Holder Dated as of April 28, 2003 TABLE OFCONTENTS

EX-10.2 6 j0645_ex10d2.htm EX-10.2

Exhibit 10.2

LICENSING CONTRIBUTION AGREEMENT

between

GUESS? LICENSING, INC.,

as Licensing

and

GUESS? IP HOLDER L.P.,

as IP Holder

Dated as of April 28, 2003

TABLE OF CONTENTS

ARTICLE I.

DEFINITIONS

SECTION 1.01		Definitions

ARTICLE II.

CONVEYANCE OF LICENSES

SECTION 2.01		Conveyance of Licensing Contributed License Agreements
SECTION 2.02		Filings
SECTION 2.03		Security Interests

ARTICLE III

REPRESENTATIONS AND WARRANTIES

SECTION 3.01		Representations and Warranties of Licensing
SECTION 3.02		Representations and Warranties of IP Holder
SECTION 3.03		Representations and Warranties of Licensing as to the Licensing Contributed License Agreements

ARTICLE IV.

COVENANTS OF LICENSING

SECTION 4.01		Covenants of Licensing

ARTICLE V.

DELIVERY OF GENERAL PARTNERSHIP INTERESTS

SECTION 5.01		Delivery of General Partnership Interests
SECTION 5.02		Tax-Free Capital Contribution.

ARTICLE VI.

MISCELLANEOUS PROVISIONS

SECTION 6.01		Indemnification
SECTION 6.02		Amendment

SECTION 6.03		Protection of Right, Title and Interest to Guess? IP
SECTION 6.04		Assignment
SECTION 6.05		Merger or Consolidation of, or Assumption of the Obligations of, Licensing
SECTION 6.06		Governing Law
SECTION 6.07		Submission To Jurisdiction; Waivers
SECTION 6.08		Notices
SECTION 6.09		Severability of Provisions
SECTION 6.10		Further Assurances
SECTION 6.11		No Waiver; Cumulative Remedies
SECTION 6.12		Counterparts
SECTION 6.13		Third-Party Beneficiaries
SECTION 6.14		Headings
SECTION 6.15		Merger and Integration
SECTION 6.16		Force Majeure.
SECTION 6.17		Nonpetition Covenants
SECTION 6.18		Interpretation.
SECTION 6.19		Waiver of Jury Trial.

Schedule A – Licensing Contributed License Agreements
Schedule B – Form of Instruction to Pay into Lockbox Account

This LICENSING CONTRIBUTION AGREEMENT (this “Licensing Contribution Agreement”), is dated as of April 28, 2003, by and between Guess? Licensing, Inc., a corporation organized and existing under the laws of the State of Delaware (“Licensing”), and Guess? IP Holder L.P., a limited partnership organized under the laws of the State of Delaware, as IP Holder.

RECITALS

WHEREAS, Licensing desires to absolutely contribute, sell, assign, convey, and transfer to IP Holder certain license agreements in exchange for general partnership interests in IP Holder; and

WHEREAS, IP Holder desires to acquire from Licensing certain license agreements pursuant to which certain trademarks and intellectual property are licensed to third parties, including the right to receive royalty payments due to the licensor thereunder, but not including the duties of Licensing thereunder that are in the nature of payment obligations or obligations to purchase from the licensees thereunder any goods manufactured, sold, or distributed by such licensees;

NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained, each party agrees as follows for the benefit of the other party and for the benefit of IP Holder, the Issuer and the Indenture Trustee:

ARTICLE I.

DEFINITIONS

SECTION 1.01 Definitions. Certain capitalized terms used in this Licensing Contribution Agreement that are not otherwise defined herein shall have the meanings ascribed to them in Annex X as attached hereto, and the following terms shall have the respective meanings set forth in this Section 1.01:

“Licensing Contributed License Agreements” means the specific trademark license agreements being transferred pursuant to this Licensing Contribution Agreement, , as the same may be amended, modified or extended from time to time, and all proceeds thereof and payments thereunder, that are identified on Schedule A.

“Licensing Contributed License Agreement File” means, with respect to each Licensing Contributed License Agreement:

(a) the fully executed original of the Licensing Contributed License Agreement; and

(b) any and all other documents that Licensing or the Servicer, as the case may be, shall keep on file, in accordance with its customary procedures, relating to such Licensing Contributed License Agreement or the related Licensing Licensee, including

any samples and other materials provided pursuant to the Licensing Contributed License Agreement terms.

“Licensing Licensee” means a Person who has licensed any of the Guess? Trademarks by the execution and delivery of a Licensing Contributed License Agreement, or any other Person who owes or may be liable for payments under such Licensing Contributed License Agreement.

“Schedule of Licensing Contributed License Agreements” means the schedule of Licensing Contributed License Agreements described in Section 2.01 and attached as Schedule A.

ARTICLE II.

CONVEYANCE OF LICENSES

SECTION 2.01 Conveyance of Licensing Contributed License Agreements.

(a) Subject to the terms and conditions of this Licensing Contribution Agreement, Licensing hereby contributes, sells, assigns, conveys, and transfers to IP Holder pursuant to this Licensing Contribution Agreement, and IP Holder hereby accepts from Licensing (subject to Licensing’s obligations hereunder):

(i) all right, title, and interest of Licensing in and to the Licensing Contributed License Agreements, and all monies due or to become due thereon or paid thereunder by the Licensing Licensees (other than any duties of Licensing thereunder that are in the nature of payment obligations or obligations to purchase from licensees thereunder any goods manufactured, sold, or distributed by such licensees), including, without limitation, in the case of any Licensing Contributed License Agreement the provisions of which reserve to Licensing the right to consent to or withhold consent from any licensee with respect to retail sales of goods produced thereunder or sales of goods produced thereunder to specific stores or distribution channels, the right to give or withhold such consent and the right to delegate the giving or withholding of such consent to an agent of IP Holder; and

(ii) all proceeds of the foregoing.

(b) In connection with the foregoing contribution, Licensing further agrees, at its own expense, (i) to annotate and indicate in its master computer records (including backup files) that the Licensing Contributed License Agreements have been transferred to IP Holder pursuant to this Licensing Contribution Agreement, (ii) to deliver to IP Holder a true and complete list of all the Licensing Contributed License Agreements, identified by the name of the Licensing Licensee, which list shall be marked as Schedule A to this Licensing Contribution Agreement and is hereby incorporated into and made a part of this Licensing Contribution Agreement, (iii) to deliver the Licensing Contributed License Agreement Files to or upon the order of IP Holder, (iv) to provide any notices and to execute any assignment agreements necessary under the UCC or the laws of any state or foreign jurisdiction to give the Licensing

Licensees notice of the change in licensor or otherwise to effect properly the conveyance of the Licensing Contributed License Agreements, and (v) to deliver to each licensee with respect to a Licensing Contributed License Agreement an instruction to make all future payment of Royalty Receivables to the Lockbox Account in a form substantially the same as that set forth in Schedule B hereto.

(c) In connection with the foregoing contribution, IP Holder hereby expressly agrees to assume the obligations of Licensing as licensor under each of the Licensing Contributed License Agreements (except for those obligations retained by Licensing as described in clause (a)(i) of this Section 2.01).

SECTION 2.02 Filings. Licensing agrees, at its own expense, to cause all financing statements and continuation statements (including, but not limited to, filings under the UCC and relevant foreign equivalents), this Licensing Contribution Agreement and all amendments hereto, and any other documents necessary to provide third parties with notice of IP Holder’s right, title, and interest to the Licensing Contributed License Agreements to be promptly recorded, registered, and filed, and at all times to be kept recorded, registered, and filed, all in such manner and in such places as may be required by law fully to preserve and protect the right, title, and interest of IP Holder to the Licensing Contributed License Agreements. Licensing shall deliver to IP Holder file-stamped copies of, or filing receipts for, any document recorded, registered, or filed as provided above as soon as available following such recording, registration, or filing. IP Holder shall cooperate fully with Licensing in connection with the obligations set forth in this section and shall execute any and all documents reasonably required to fulfill the intent of this section.

SECTION 2.03 Security Interests. It is the intention of the parties that the contribution of assets from Licensing to IP Holder as contemplated by Section 2.01 hereof will constitute an absolute transfer and assignment, and that the beneficial interest in and title to the Licensing Contributed License Agreements shall not be property of Licensing’s estate in the event of the filing of a bankruptcy petition by or against Licensing under any bankruptcy law, and that the Licensing Contributed License Agreements will not be deemed “executory contracts” that Licensing (or the trustee in bankruptcy for Licensing) can reject in a bankruptcy or insolvency proceeding. However, if the transfer of any of the Licensing Contributed License Agreements is deemed to be other than an absolute assignment, the parties intend that all filings described in Section 2.02 shall give IP Holder a first priority perfected security interest in, to, and under the Licensing Contributed License Agreements. This Licensing Contribution Agreement shall be deemed to be the grant of a security interest in the Licensing Contributed License Agreements from Licensing to IP Holder, and IP Holder shall have all the rights, powers, and privileges of a secured party under the UCC.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

SECTION 3.01 Representations and Warranties of Licensing

(a) Licensing hereby represents and warrants to IP Holder that:

(i) Organization and Good Standing. Licensing is duly organized and validly existing as a corporation in good standing under the laws of the State of Delaware, and has power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and has corporate power, authority, and legal right to convey the Licensing Contributed License Agreements.

(ii) Due Qualification. Licensing is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications and where the failure to so qualify would have a Material Adverse Effect.

(iii) Power and Authority. Licensing has the corporate power and authority to execute and deliver this Licensing Contribution Agreement and to carry out its terms; and the execution, delivery and performance of this Licensing Contribution Agreement has been duly authorized by Licensing by all necessary corporate action.

(iv) Binding Obligation. This Licensing Contribution Agreement constitutes a legal, valid, and binding obligation of Licensing, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors’ rights generally, or by general principles of equity.

(v) No Violation. The consummation of the transactions contemplated by this Licensing Contribution Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time) a default under, the articles of incorporation or bylaws of Licensing, or conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement, or other instrument to which Licensing is a party or by which it is bound; nor result in the creation or imposition of any Lien (other than Permitted Liens) upon any of its properties pursuant to the terms of any such indenture, agreement, or other instrument; nor violate any law or, to the best of Licensing’s knowledge, any order, rule, or regulation applicable to Licensing of any court or of any federal, state, or foreign regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over Licensing or its properties, which breach, default, conflict, lien, or violation would have a Material Adverse Effect.

(vi) No Proceedings. There is no action, suit, or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to Licensing’s knowledge, threatened, against or affecting Licensing: (i) asserting the invalidity of this Licensing Contribution Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Licensing Contribution Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance by Licensing of its obligations under, or the validity or enforceability of, this Licensing Contribution Agreement.

(vii) Solvency. Licensing is, and immediately after giving effect to the transactions contemplated by this Licensing Contribution Agreement and the other Transaction Documents will be, solvent.

(viii) Taxes. Licensing has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations that are required to be filed by them or any of them. All information in such tax returns, reports, and declarations is complete and accurate in all material respects. Licensing has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Licensing and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, state, county, local, foreign, and other taxes whether or not due and payable and whether or not disputed.

(ix) Non-Contravention. The execution, delivery and performance of this Licensing Contribution Agreement in accordance with its terms and the consummation of the transactions contemplated hereby by Licensing do not and will not require the consent or approval of any Person, except for such consents and approvals as have already been obtained and (ii) violate any applicable laws.

(x) Governmental Regulation. Licensing is not required to obtain any consent, approval, authorization, permit or license from, or effect any filing or registration with any Governmental Authority in connection with the execution, delivery and performance of this Licensing Contribution Agreement in accordance with its terms other than filings intended to perfect the security interest granted hereunder.

(xi) State of Organization. As of the date hereof, Licensing is incorporated under the laws of the State of Delaware.

(b) The representations and warranties set forth in this Section 3.01 will survive the conveyance of the Licensing Contributed License Agreements by Licensing to IP Holder pursuant to this Licensing Contribution Agreement. Upon discovery by Licensing or IP Holder of a breach of any of the foregoing representations and warranties or the occurrence of an event that materially and adversely affects the interests of IP Holder (or any assignee thereof) in

this Licensing Contribution Agreement, the party discovering such breach or event shall give prompt written notice to the other and the Indenture Trustee.

SECTION 3.02 Representations and Warranties of IP Holder.

(a) IP Holder hereby represents and warrants to Licensing that:

(i) Organization and Good Standing. IP Holder is duly organized and validly existing as a limited partnership in good standing under the laws of the State of Delaware, and has the power, authority, and legal right to acquire and become licensor under the Licensing Contributed License Agreements.

(ii) Due Qualification. IP Holder is duly qualified to do business as a foreign limited partnership in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which assignment of the Licensing Contributed License Agreements or the conduct of its business requires such qualifications and where the failure to so qualify would have a Material Adverse Effect.

(iii) Power and Authority. IP Holder has the power and authority to execute and deliver this Licensing Contribution Agreement and to carry out its terms; IP Holder has full power and authority to acquire the Licensing Contributed License Agreements and has duly authorized such acquisition; and the execution, delivery, and performance of this Licensing Contribution Agreement has been duly authorized by IP Holder by all necessary action.

(iv) Binding Obligation. This Licensing Contribution Agreement constitutes a legal, valid, and binding obligation of IP Holder, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors’ rights generally or by general principles of equity.

(v) No Violation. The consummation of the transactions contemplated by this Licensing Contribution Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time) a default under, the certificate of limited partnership or limited partnership agreement of IP Holder, or conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement, or other instrument to which IP Holder is a party or by which it is bound; nor result in the creation or imposition of any Lien (other than Permitted Liens) upon any of its properties pursuant to the terms of any such indenture, agreement, or other instrument; nor violate any law or, to the best of IP Holder’s knowledge, any order, rule, or regulation applicable to IP Holder of any court or of any federal, state, or foreign regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over IP Holder or its properties, which breach, default, conflict, Lien, or violation would have a Material Adverse Effect.

(vi) No Proceedings. There is no action, suit, or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to IP Holder’s knowledge, threatened, against or affecting IP Holder: (i) asserting the invalidity of this Licensing Contribution Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Licensing Contribution Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance by IP Holder of its obligations under, or the validity or enforceability of, this Licensing Contribution Agreement.

(vii) No Consents. No consent, approval, or order of, or filing with, any court or governmental body is required to be obtained or made by IP Holder for the consummation of the transactions in the manner contemplated by this Licensing Contribution Agreement, except such as have been obtained as of the Closing Date or such as may be required under state securities laws.

(viii) Taxes. IP Holder has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations that are required to be filed by them or any of them. All information in such tax returns, reports, and declarations is complete and accurate in all material respects. IP Holder has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to IP Holder and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, state, county, local, foreign, and other taxes whether or not due and payable and whether or not disputed.

(b) The representations and warranties set forth in this Section 3.02 shall survive the conveyance of the Licensing Contributed License Agreements by Licensing to IP Holder pursuant to this Licensing Contribution Agreement. Upon discovery by Licensing or IP Holder of a breach of any of the foregoing representations and warranties or the occurrence of event that materially and adversely affects the interests of IP Holder (or any assignee thereof) in the Licensing Contributed License Agreements, the party discovering such breach or event shall give prompt written notice to the other and the Indenture Trustee.

SECTION 3.03 Representations and Warranties of Licensing as to the Licensing Contributed License Agreements.

(a) Licensing hereby represents and warrants that:

(i) Characteristics of Licenses. Each Licensing Contributed License Agreement (A) is an Eligible License Agreement, (B) has been fully and properly executed by the parties thereto, and (C) contains customary enforceable provisions such that the rights and remedies of the licensor shall be adequate for IP Holder or its agent to enforce the Licensing Contributed License Agreement.

(ii) Schedule of Licenses. The information set forth in the Schedule of Licensing Contributed License Agreements is true and correct in all material respects.

(iii) Compliance with Law. Each of the Licensing Contributed License Agreements, and the assignment and contribution thereof pursuant to this Licensing Contribution Agreement, complies in all material respects with all requirements of applicable federal, state, local, and foreign laws, and regulations thereunder.

(iv) Binding Obligation. Each of the Licensing Contributed License Agreements, and the assignment and contribution thereof pursuant to this Licensing Contribution Agreement, constitutes the legal, valid, and binding payment obligation of the related Licensing Licensee, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.

(v) No Consent. No consent of any Licensing Licensee is required in connection with the execution, delivery, and performance of this Licensing Contribution Agreement, except as has been obtained.

(vi) No Bankrupt Licensees. To the knowledge of Licensing, none of the Licensing Licensees is presently the subject of a bankruptcy proceeding or is insolvent.

(vii) No Government Licensees. None of the Licensing Licensees is a local, state or federal domestic or foreign government, or an agency, department, or instrumentality thereof.

(viii) Licenses in Force, No Amendments. None of the Licensing Contributed License Agreements has been terminated , rescinded, amended or modified except as is indicated on the attached Schedule A.

(ix) No Defenses. No Licensing Licensee has any right of rescission, setoff, counterclaim, or defense any Licensing Contributed License, nor has any been asserted or threatened.

(x) Good Title; Liens. The Licensing Contributed License Agreements have not been sold, transferred, assigned, or pledged by Licensing to any Person other than IP Holder, and Licensing is the licensor under each of the Licensing Contributed License Agreements, which are free and clear any Liens (other than Permitted Liens), claim or encumbrance of any Person. Immediately upon the transfer and assignment thereof to IP Holder, IP Holder will be the licensor under

each of the Licensing Contributed License Agreements, free and clear of all Liens and rights of others (other than Permitted Liens).

(xi) Perfected Liens. This Licensing Contribution Agreement creates a valid and continuing security interest (as defined in the UCC) in the Licensing Contributed License Agreements in favor of IP Holder, which security interest is prior to all other Liens (other than Permitted Liens), and is enforceable as such as against creditors of and purchasers from Licensing.

(xii) General Intangibles. The Licensing Contributed License Agreements constitute “general intangibles” within the meaning of the UCC.

(xiii) All Filings Made. Licensing has caused or will have caused the filing of all appropriate financing statements and other filings (including, but not limited to, UCC filings (and relevant foreign equivalents) and trademark filings (with the United States Patent and Trademark Office and relevant foreign equivalents)) in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Licensing Contributed License Agreements granted to IP Holder hereunder, or as otherwise necessary in any jurisdiction to provide third parties with notice of the transfers and assignments herein contemplated and to perfect the absolute conveyance of the Licensing Contributed License Agreements from Licensing to IP Holder on the Closing Date, and no other consent, approval, or order of, or filing with, any court or governmental body is required to be obtained or made by Trademark Originator for the consummation of the transactions in the manner contemplated by this Licensing Contribution Agreement, except such as have been obtained as of the Closing Date or such as may be required under state securities laws; provided, however, that if (A) any filing or trademark filing is not accepted by the relevant governmental authority or is not effective to provide such notice or to perfect such conveyance, and (B) such nonacceptance or ineffectiveness would not have a Material Adverse Effect, then such event will not constitute a breach of this covenant.

(xiv) Priority. Other than the security interest granted to IP Holder pursuant to this Licensing Contribution Agreement, Licensing has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Licensing Contributed License Agreements. Licensing has not authorized the filing of and is not aware of any financing statements against Licensing that include a description of collateral covering the Licensing Contributed License Agreements other than any financing statement relating to the security interest granted to IP Holder hereunder or that has been terminated. Licensing is not aware of any judgment or tax lien filings against Licensing.

(xv) Lawful Assignment. The contribution, transfer, and assignment of the Licensing Contributed License Agreements under this Licensing Contribution Agreement and the related assignments are not unlawful, void, or voidable

pursuant to the laws or statutes of any jurisdiction, nor will they result in a breach, default, conflict, lien, violation of, or material adverse effect upon, any of the Licensing Contributed License Agreements.

(xvi) No Adverse Judgments. No domestic or foreign court, tribunal, or other official governmental authority, including the United States Patent and Trademark Office or any foreign equivalent, has entered a holding, judgment, or decision canceling or otherwise limiting Licensing’s interest in the Licensing Contributed License Agreements.

(xvii) No Pending Actions. No action or proceeding is pending or, to Licensing’s knowledge, threatened, seeking to limit, cancel, or question the validity of any material portion of the Licensing Contributed License Agreements or of Licensing’s rights thereunder, that if adversely determined would have a Material Adverse Effect.

(xviii) No Waivers. No material provision of a Licensing Contributed License Agreement has been waived in such a manner that such Licensing Contributed License Agreement fails to meet all of the other representations and warranties made by Licensing herein with respect thereto.

(xix) No Delinquency. None of the Royalty Receivables payable under any of the Licensing Contributed Licenses is 30 or more days past due as of the date hereof.

(xx) Past Defaults. No material default has occurred with respect to any of the Licensing Contributed Licenses which has not been cured by the related licensee as of the date hereof.

(xxi) Other Defaults. The execution and implementation of this Licensing Contribution Agreement will not result in the breach of any conditions or constitute a default (with or without notice or lapse of time or both) under any license or agreement constituting any portion of the Licensing Contributed License Agreements or to which any of the Licensing Contributed License Agreements is subject. Neither Licensing nor any person, firm or corporation associated with or deriving rights in any Licensing Contributed Licensing Agreement through or from Licensing is in default of any applicable agreement constituting a portion of the Licensing Contributed License Agreements.

(xxii) Advances. No advances or other charges heretofore received by Licensing in connection with the Licensing Contributed License Agreements remain recoupable from any Royalty Receivables by Licensing on or after the Closing Date, regardless of when advanced or earned.

(xxiii) Bulk Transfers. Licensing’s transfer and assignment of the Licensing Contributed License Agreements hereunder is not subject to the provisions of the UCC relating to bulk transfers.

(xxiv) Quality Control. Through the Closing Date, Licensing has examined, monitored (or caused to be examined or monitored) and otherwise policed (or caused to be policed) the activities of the Licensing Licensees in a manner and to an extent necessary and sufficient to prevent the abandonment of any Subject Trademark.

(b) The representations and warranties set forth in this Section 3.03 shall speak as of the execution and delivery of this Licensing Contribution Agreement, but shall survive the transfer, conveyance, and assignment of the Licensing Contributed License Agreements to IP Holder. So long as any Notes are outstanding, Licensing agrees that (i) each representation and warranty made by Licensing pursuant to Sections 3.03(a)(xi), (xii), (xiii) and (xiv) shall survive, and (ii) Licensing shall not waive, by course of conduct or in writing, any of such representations and warranties. Upon discovery by Licensing or IP Holder (including by receipt of notice thereby from any other Person with respect thereto) of a breach of any of the foregoing representations and warranties or the occurrence of an event that materially and adversely affects the interests of IP Holder (or any assignee thereof) in the Licensing Contributed License Agreements, the party discovering such breach or event shall give prompt written notice to the other and the Indenture Trustee.

(c) Licensing hereby indemnifies and holds harmless IP Holder for any and all actual costs, expenses, losses, claims, damages, injury, and liabilities suffered by IP Holder to the extent such actual cost, expense, loss, claim, damage, injury, or liability results from any breach by Licensing of the representations and warranties set forth in this Section 3.03, or a licensee being bankrupt as of the Closing Date, with or without the knowledge of Licensing.

ARTICLE IV. COVENANTS OF LICENSING.

SECTION 4.01 Covenants of Licensing. Licensing hereby covenants that:

(a) Transaction Documents; Licensing Contributed License Agreements. Licensing will perform all of its obligations under, and otherwise comply with the terms of the Transaction Documents, and will notify IP Holder, the Issuer and the Indenture Trustee if it becomes aware of (i) any breach under the Transaction Documents by any party thereto, or (ii) any claimed material breach, right of offset, or other material claim made or brought by any Licensing Licensee.

(b) Material Agreements. Licensing will not extend, amend, or modify any Licensing Contributed License Agreement in any manner that would (i) impair the enforceability of the Subject License Agreements or materially adversely affect the ability or right of IP Holder to collect the Royalty Receivables, or (ii) if after taking such action, the Prospective Coverage Ratio (calculated on a pro forma basis) would not be greater than or equal to 110% or, if the Prospective Coverage Ratio is already equal to or lesser than 110%, the Prospective Coverage Ratio (calculated on a pro forma basis) would not be greater than the Prospective Coverage Ratio before taking such action, decrease the amount of the Royalty Receivables, or decrease the value of the Guarantee Collateral.

(c) Security Interests. Except for the conveyances hereunder, Licensing will not sell, pledge, assign, or transfer to any other Person, or grant, create, incur, assume, or suffer to exist any Lien (other than Permitted Liens) on any Licensing Contributed License Agreement, or any interest therein. Licensing will immediately notify IP Holder and the Indenture Trustee of the existence of any Lien (other than Permitted Liens) on any Licensing Contributed License Agreement, and Licensing shall defend the right, title, and interest of IP Holder in, to, and under the Licensing Contributed License Agreements against all claims of third parties claiming through or under Licensing.

(d) Delivery of Payments. Licensing agrees to deliver in kind upon receipt to the Servicer any and all payments received by Licensing of royalties under the Licensing Contributed License Agreements as soon as practicable (but in any event within two Business Days) after receipt thereof by Licensing from and after the Closing Date.

(e) No Impairment. Licensing shall take no action, nor omit to take any action, that would impair the rights of IP Holder in the Licensing Contributed License Agreements, nor shall it reschedule, revise, offset, or defer payments due on any Licensing Contributed License Agreement if any such action would have a Material Adverse Effect.

(f) Indemnity; Continued Performance. Licensing hereby indemnifies and holds harmless IP Holder for any and all actual costs, expenses, losses, claims, damages, injury, and liabilities relating to any payments due by the licensor, or offsets against payments due by any Licensing Licensee, under any of the Licensing Contributed License Agreements.

ARTICLE V.

DELIVERY OF GENERAL PARTNERSHIP INTERESTS

SECTION 5.01 Delivery of General Partnership Interests. The execution of this Licensing Contribution Agreement and all other Transaction Documents, the completion of all filings contemplated hereunder and thereunder, and the performance of the parties’ obligations hereunder and thereunder, shall be concurrent with and shall be against delivery of the increased capital account balance representing the partnership interests of IP Holder that are designated as general partnership interests (as opposed to limited partnership interests) to Licensing.

SECTION 5.02 Tax-Free Capital Contribution. It is the express intent of the parties hereto that the contributions set forth herein be characterized as tax-free capital contributions within the meaning of Section 721 of the Internal Revenue Code of 1986, as amended, and that the related cash distributions on account of the Notes not be treated as part of a “disguised sale” of the assets contributed to IP Holder, but rather be characterized, for tax purposes, as a borrowing against such assets within the meaning of Sections 1.707-5(b) and 1.707-5(f) (Ex. 11) of the Treasury Regulations.

ARTICLE VI.

MISCELLANEOUS PROVISIONS

SECTION 6.01 Indemnification. Licensing shall indemnify and hold harmless IP Holder, the Issuer, the Indenture Trustee, and the Noteholders (the “Indemnified Parties”) from and against any and all costs, expenses, losses, claims, damages, injury, and liabilities to the extent that such cost, expense, loss, claim, damage, or liability arose out of, and was imposed upon such Person as a result of the transactions contemplated by this Licensing Contribution Agreement through the willful misconduct or gross negligence of Licensing in the performance of its duties under this Licensing Contribution Agreement, by reason of reckless disregard of its obligations and duties under this Licensing Contribution Agreement, or by breach of its representations and warranties under this Licensing Contribution Agreement, including, but not limited to, any judgment, award, settlement, reasonable attorneys’ fees, and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding, or claim; provided, however, that Licensing shall not indemnify any such Person if such acts, omissions or alleged acts or omissions constitute gross negligence or willful misconduct by IP Holder, the Issuer, the Indenture Trustee, or any Noteholders. In case any such action is brought against a party indemnified under this Section 6.01 and it notifies Licensing of the commencement thereof, Licensing will assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who may be counsel to Licensing unless there is an unwaivable conflict of interest as evidenced by an Opinion of Counsel stating such), and Licensing will not be liable to such indemnified party under this section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than reasonable costs of investigation. This indemnity is in addition to any other indemnity from Licensing herein.

Licensing will be liable for settlement of any claim made against any Indemnified Party that is made with Licensing’s written consent, which consent will not be unreasonably withheld. Licensing will not, with out the prior written consent of the Indemnified Parties, which consent will not be unreasonably withheld, settle or compromise any claim, or permit a default under or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the applicable Indemnified Party of an unconditional release from all liability in respect thereof.

SECTION 6.02 Amendment. This Licensing Contribution Agreement may be amended from time to time by IP Holder and Licensing only in accordance with Section 3.13 of the Indenture.

SECTION 6.03 Protection of Right, Title and Interest to Guess? IP.

(a) Licensing at its expense shall cause this Licensing Contribution Agreement, all amendments hereto and/or all financing statements and continuation statements and any other necessary documents covering IP Holder’s right, title, and interest to the Licensing Contributed License Agreements to be promptly recorded, registered, and filed, and at all times to be kept recorded, registered, and filed, all in such manner and in such places as may be

required by law fully to preserve and protect the right, title and interest of IP Holder hereunder to all of the Licensing Contributed License Agreements. Licensing shall deliver to IP Holder file-stamped copies of, or filing receipts for, any document recorded, registered, or filed as provided above as soon as available following such recording, registration, or filing. IP Holder shall cooperate fully with Licensing in connection with the obligations set forth above and will execute any and all documents reasonably required to fulfill the intent of this subsection.

(b) Within 30 days after Licensing makes any change in (i) its location of organization under the UCC, or (ii) its name, identity, or corporate structure that would make any financing statement or continuation statement filed in accordance with Section 6.03(a) or in Section 2.02 seriously misleading within the meaning of Section 9-507 or 9-508 of the UCC as in effect in the applicable state, Licensing shall give IP Holder notice of any such change and shall execute and file such financing statements or amendments as may be necessary to continue the perfection of IP Holder’s security interest in the Licensing Contributed License Agreements and the proceeds thereof.

SECTION 6.04 Assignment. Neither party to this Licensing Contribution Agreement may assign any of its rights, duties, or obligations hereunder except as contemplated by this section, the Indenture, the Receivables Contribution Agreement, the Servicing Agreement, the Guess? License Agreement, the Licensing Contributed License Agreements, and the Guarantee; provided, however, that simultaneously with the execution and delivery of this Licensing Contribution Agreement, IP Holder shall assign all of its right, title, and interest herein to the royalty proceeds from the Subject License Agreements to the Issuer, and the parties hereto acknowledge that the Issuer will pledge all of the foregoing and certain other property to the Indenture Trustee for the benefit of any Noteholders as provided in the granting clause of the Indenture, to which transfer, assignment, and pledge Licensing hereby expressly consents. Licensing agrees to perform its obligations hereunder for the benefit of the Issuer, and agrees that the Indenture Trustee may enforce the provisions of this Licensing Contribution Agreement, exercise the rights of IP Holder and enforce the obligations of Licensing hereunder as they relate to the Subject IP and the Royalty Receivables without the consent of IP Holder, provided, however, that the parties hereto, and all assignees hereof acknowledge and agree or, by taking assignment of any of the benefits hereof, are deemed to acknowledge and agree, that all remedial actions permitted to be taken under this Licensing Contribution Agreement are subject to the provisions of Sections 4.02(b) and 6.03(f) of the Guess? License Agreement, Section 5.6 of the Indenture, Section 5.2(d) of the Receivables Contribution Agreement, and Section 6.6 of the Guarantee.

SECTION 6.05 Merger or Consolidation of, or Assumption of the Obligations of, Licensing.

(a) Licensing shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless:

(i) the corporation formed by such consolidation or into which Licensing is merged or the Person which acquires by conveyance or transfer the properties and assets of Licensing substantially as an entirety shall be organized and existing

under the laws of the United States or any State or the District of Columbia, and, if Licensing is not the surviving entity, shall expressly assume, by an agreement supplemental hereto, executed and delivered to IP Holder and the Issuer, in form reasonably satisfactory to IP Holder and the Issuer, the performance of every covenant and obligation of Licensing hereunder and, prior to the Termination Date, shall benefit from all the rights granted to Licensing hereunder in all material respects; and

(ii) Licensing shall have delivered to IP Holder and the Issuer an Officer’s Certificate of Licensing and an Opinion of Counsel each stating that such consolidation, merger, conveyance, or transfer and such supplemental agreement comply with this Section 6.05, that such assumption agreement is enforceable against the assuming party (subject to customary caveats and assumptions) and that all conditions precedent herein provided for relating to such transaction have been complied with.

(b) The obligations of Licensing hereunder shall not be assignable nor shall any Person succeed to the obligations of Licensing hereunder except in each case in accordance with the provisions of the foregoing paragraph and of Section 6.04.

SECTION 6.06 Governing Law. This Licensing Contribution Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.

SECTION 6.07 Submission To Jurisdiction; Waivers. Each of Licensing and IP Holder hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Transaction Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;

(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address referred to in Section 6.08 or at such other address as shall be designated by such Person in a written notice to the other such Persons;

(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive, or consequential damages.

SECTION 6.08 Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered at or mailed by registered mail, return receipt requested, to:

(a) in the case of Licensing, Guess? Licensing, Inc. 1444 South Alameda Street, Los Angeles, CA 90021;

(b) in the case of IP Holder, Guess? IP Holder, L.P., 1444 South Alameda Street, Los Angeles, CA 90021;

(d) in the case of the Indenture Trustee, BNY Midwest Trust Company, 2 North LaSalle Street, Suite 1020, Chicago, IL 60602;

or, as to any of such Persons, at such other address as shall be designated by such Person in a written notice to the other Persons.

SECTION 6.09 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Licensing Contribution Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions and terms of this Licensing Contribution Agreement and shall in no way affect the validity or enforceability of the other provisions of this Licensing Contribution Agreement.

SECTION 6.10 Further Assurances. Licensing and IP Holder agree to do and perform, from time to time, any and all acts and to execute any and all further instruments required or reasonably requested by the other party hereto or by the Issuer more fully to effect the purposes of this Licensing Contribution Agreement.

SECTION 6.11 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of IP Holder, the Issuer, the Indenture Trustee, or Licensing, of any right, remedy, power, or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The rights, remedies, powers, and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law.

SECTION 6.12 Counterparts. This Licensing Contribution Agreement may be executed in two or more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument.

SECTION 6.13 Third-Party Beneficiaries. This Licensing Contribution Agreement will inure to the benefit of and be binding upon the parties signatory hereto and, with regard to the Subject License Agreements and the Royalty Receivables, the Issuer and the Indenture Trustee for the benefit of any Noteholders, each of which shall be considered to be a third-party beneficiary hereof. Except as otherwise provided in this Licensing Contribution Agreement, no other Person will have any right or obligation hereunder.

SECTION 6.14 Headings. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.

SECTION 6.15 Merger and Integration. Except as specifically stated otherwise herein, this Licensing Contribution Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Licensing Contribution Agreement. This Licensing Contribution Agreement may not be modified, amended, waived or supplemented except as provided herein.

SECTION 6.16 Force Majeure. Neither IP Holder nor Licensing shall be held responsible for any loss, damage, or delay suffered by the other party owing to any cause that is beyond the reasonable control of the defaulting party and cannot be attributed to negligence or willful nonperformance of its obligation. Such causes include, but are not limited to, wars, embargoes, riots, civil disturbances, terrorism, fires, storms, floods, typhoons, earthquakes and other natural calamities, strikes and labor disputes, government acts and restrictions, and other causes that cannot be overcome or prevented by due diligence. Either party wishing to invoke this section shall give notice to the other party stating the relevant cause. The defaulting party shall promptly resume performance of its obligations the moment such cause or causes cease to operate.

SECTION 6.17 Nonpetition Covenants. Notwithstanding any prior termination of this Licensing Contribution Agreement, Licensing shall not, prior to the date which is one year and one day after the Termination Date, with respect to IP Holder or the Issuer, acquiesce, petition, or otherwise invoke or cause IP Holder or the Issuer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against IP Holder or the Issuer under any federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other similar official of IP Holder or the Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of IP Holder or the Issuer.

SECTION 6.18 Interpretation. As applied to this Licensing Contribution Agreement, unless the context otherwise requires: (a) words in the singular include the plural, and words in the plural include the singular; (b) reference to a law, statute, rule, regulation, charter, or bylaws, is deemed to be followed by “as amended from time to time”; (c) “herein,” “hereof,” and other similar words refer to this Licensing Contribution Agreement as a whole and not to any particular section, subsection, paragraph, clause, or other subdivision; (d) unless otherwise indicated or obvious, all references to “Section,” “Exhibit,” “Schedule,” “Appendix,” or similar words refer to the particular Section in or Exhibit, Schedule, Appendix, or similar item attached to this Licensing Contribution Agreement; (e) “include,” “includes,” or “including” will be

deemed to be followed, as appropriate, by “, but not limited to,”; (f) the masculine feminine and neuter genders shall each be deemed to include the others; (g) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (h) references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; (i) references to agreements and other contractual instruments include all subsequent amendments thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Licensing Contribution Agreement or any other Transaction Document; and (j) references to Persons include their permitted successors and assigns.

SECTION 6.19 Waiver of Jury Trial. EACH OF LICENSING AND IP HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LICENSING CONTRIBUTION AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

[Remainder of the page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have caused this Licensing Contribution Agreement to be duly executed by their respective officers as of the day and year first above written.

GUESS? IP HOLDER L.P. as IP Holder			GUESS? LICENSING, INC. as Licensing


By:			By:
Name:			Name:
Title:			Title:

ACCEPTED:

GUESS? ROYALTY FINANCE LLC, not in its individual capacity but solely as Issuer

By:
Name:
Title:



BNY MIDWEST TRUST COMPANY, not in its individual capacity but solely as Indenture Trustee

By:
Name:
Title:

S-1