Exhibit 10.4


 


GUESS? LICENSE AGREEMENT


 


between


 


GUESS? IP HOLDER L.P.,


 


and


 


GUESS?, INC.


 


Dated as of April 28, 2003


 

















 


TABLE OF CONTENTS


 


	
  I.

  	
  DEFINITIONS

  
	
  II.

  	
  LICENSE
  GRANT

  
	
   

  	
  SECTION
  2.01

  	
  Rights
  Granted

  
	
   

  	
  SECTION
  2.02

  	
  Rights
  Not Granted

  
	
  III.

  	
  QUALITY CONTROL

  
	
   

  	
  SECTION
  3.01

  	
  Quality
  of Guess? Trademarks

  
	
   

  	
  SECTION
  3.02

  	
  Assumption
  of Quality Control Responsibilities by Trademark Originator

  
	
   

  	
  SECTION
  3.03

  	
  Appointment
  of Officials for Quality Control

  
	
   

  	
  SECTION
  3.04

  	
  Modified
  Quality Standards

  
	
   

  	
  SECTION
  3.05

  	
  Quality
  Control of Products

  
	
   

  	
  SECTION
  3.06

  	
  Design
  Standards

  
	
   

  	
  SECTION
  3.07

  	
  Manufacturing
  of Products

  
	
   

  	
  SECTION
  3.08

  	
  Subcontractors
  and Distributors

  
	
   

  	
  SECTION
  3.09

  	
  Style
  Numbers

  
	
   

  	
  SECTION
  3.10

  	
  Right
  to Inspect Facilities

  
	
   

  	
  SECTION
  3.11

  	
  Advertising

  
	
   

  	
  SECTION
  3.12

  	
  Cooperation
  and Reservation of Rights

  
	
  IV.

  	
  OWNERSHIP AND PROTECTION OF GUESS?
  TRADEMARKS

  
	
   

  	
  SECTION
  4.01

  	
  Ownership

  
	
   

  	
  SECTION
  4.02

  	
  Prohibited
  Acts

  
	
  V

  	
  [RESERVED]

  	
   

  
	
  VI.

  	
  COMPENSATION

  
	
   

  	
  SECTION 6.01

  	
  Royalty and Fees

  
	
   

  	
  SECTION 6.02

  	
  Records and Inspection

  
	
   

  	
  SECTION 6.03

  	
  Review of Guess? License Agreement

  
	
  VII.

  	
  TERM AND TERMINATION

  
	
   

  	
  SECTION 7.01

  	
  Term

  
	
   

  	
  SECTION 7.02

  	
  Reorganization of Trademark Originator

  



 


i

















 


	
   

  	
  SECTION 7.03

  	
  Termination

  
	
   

  	
   

  	
  (a)     Material
  Breach

  
	
   

  	
   

  	
  (b)     Termination
  at Will

  
	
   

  	
  SECTION 7.04

  	
  Effect of Termination

  
	
  VIII.  

  	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
  SECTION 8.01

  	
  Trademark Originator’s Representations and
  Warranties

  
	
   

  	
  SECTION
  8.02

  	
  IP
  Holder’s Representations and Warranties

  
	
  IX.

  	
  MISCELLANEOUS

  
	
   

  	
  SECTION 9.01

  	
  Amendments.

  
	
   

  	
  SECTION 9.02

  	
  Assignment

  
	
   

  	
  SECTION 9.03

  	
  Governing Law; Arbitration

  
	
   

  	
  SECTION 9.04

  	
  Notices

  
	
   

  	
  SECTION 9.05

  	
  Relationship of the Parties

  
	
   

  	
  SECTION 9.06

  	
  Severability of Provisions

  
	
   

  	
  SECTION 9.07

  	
  Further Assurances

  
	
   

  	
  SECTION 9.08

  	
  No Waiver; Cumulative Remedies

  
	
   

  	
  SECTION 9.09

  	
  Counterparts

  
	
   

  	
  SECTION 9.10

  	
  Headings

  
	
   

  	
  SECTION 9.11

  	
  Merger and Integration

  
	
   

  	
  SECTION 9.12

  	
  Force Majeure

  
	
   

  	
  SECTION 9.13

  	
  Nonpetition Covenants

  
	
   

  	
  SECTION 9.14

  	
  Interpretation

  
	
   

  	
   

  	
   

  
				



 


	
  EXHIBIT
  A

  	
  Guess? Trademarks

  



 


ii

















 


This GUESS?
LICENSE AGREEMENT (“Guess? License Agreement”) is dated as of April 28, 2003,
by and between Guess? IP Holder L.P., a limited partnership organized under the
laws of the State of Delaware (“IP Holder”), and Guess?, Inc., a corporation organized and existing under the
laws of the State of Delaware (“Trademark Originator”).


 


RECITALS


 


WHEREAS,
Trademark Originator and its subsidiaries have used the Guess? Trademarks as
trade names, as part of their corporate names, and as trademarks for many
years, such use having commenced at least as early as 1981 and having been
continuous and extensive since that time throughout the United States and in
many foreign countries both directly through Trademark Originator and its
subsidiaries and through the licensing of the Guess? Trademarks to selected
licensees;


 


WHEREAS, this
use of the Guess? Trademarks has created public recognition, favorable
reputation, and goodwill associated with and embodied in the Trademarks,
principally in connection with the Business (as defined below);


 


WHEREAS,
pursuant to the Transaction Documents, Trademark Originator has transferred
ownership of the Guess? Trademarks and the goodwill connected with the use of,
symbolized by, and embedded in the Guess? Trademarks to IP Holder; and


 


WHEREAS,
contemporaneously with the execution of the Transaction Documents the parties
wish to grant Trademark Originator and its subsidiaries a right and license to
continue to use the Guess? Trademarks as a trade name, as a part of their
respective corporate names and as a trademark in order to carry on the Business
under the Guess? Trademarks to protect and enhance the Business and the
goodwill symbolized by the Guess? Trademarks for the exclusive benefit of IP
Holder consistent with the public’s expectations of the quality and types of
goods and services marketed under the Guess? Trademarks;


 


NOW,
THEREFORE, in consideration of the mutual covenants and promises herein
provided, the parties hereby agree as follows:


 


AGREEMENT


 


ARTICLE I.


DEFINITIONS


 


SECTION 1.01               Certain
capitalized terms used in this Guess? Licensing 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.


 


“Business”
means Trademark Originator and its subsidiaries’ business activities including,
but not limited to, designing, marketing and distributing, directly and
indirectly, collections of casual apparel, accessories and other related
products, in Trademark Originator’s retail and outlet stores, through a network
of wholesale accounts at selected department stores, over the Internet and
through other related channels.


 

















 


“Products” means the casual apparel, accessories and other related
products designed, marketed, distributed and otherwise used in connection with
the Business.


 


“Quality
Standards” has the meaning set forth in Section 3.04.


 


ARTICLE II.


LICENSE GRANT


 


SECTION 2.01               Rights Granted.  Subject to the terms and conditions
contained herein, IP Holder hereby grants to Trademark Originator, and
Trademark Originator hereby accepts, a worldwide, non-exclusive,
sublicenseable, irrevocable right to use the Guess? Trademarks (including all
Goodwill) in connection with the Business for the sole and exclusive benefit of
IP Holder, including, but not limited to, the right to use and to authorize its
subsidiaries to use the Guess? Trademarks as a trade name and as part of
Trademark Originator’s and its subsidiaries respective corporate names and to
use and to authorize its subsidiaries to use the Trademarks as a trademark on
or in connection the Business.  IP
Holder further grants to Trademark Originator all rights necessary to permit
Congress Financial Corporation (“Congress”) to exercise its rights under the
Congress Credit Facility, dated as of August 29, 2002, by and between Congress
and Trademark Originator, and to permit Congress Financial Corporation (Canada)
(“Congress Canada”) to exercise its rights under the Guaranty and Security
Agreement by and between Congress Canada, Trademark Originator, Guess? Retail,
Inc., and Guess.com, Inc., dated as of December 20 2002.  The parties acknowledge that they may
hereafter agree, subject to the terms of the Transaction Documents, to allow
Trademark Originator to grant to specific third parties exclusive licenses to
use one or more Guess? Trademarks.


 


SECTION 2.02               Rights Not Granted.  All rights other than those expressly
granted to Trademark Originator are reserved to IP Holder.  This Guess? License Agreement is not an
assignment or grant to Trademark Originator of any right, title or interest in
or to the Guess? Trademarks other than as described herein.


 


ARTICLE III.


QUALITY CONTROL


 


SECTION 3.01               Quality of Guess? Trademarks.  The parties recognize that the use of the
Guess? Trademarks by Trademark Originator and its subsidiaries over the years
has created a reputation that the Products and related services offered to the
public under the Guess? Trademarks are of the highest quality and that the
reputation and goodwill associated with the Guess? Trademarks extends
throughout the United States and many foreign countries.  The foregoing factors are understood to
require Trademark Originator to conduct and in turn to require each of its
subsidiaries to conduct their business activities using or under the Guess?
Trademarks so as to maintain the high standards of quality that the purchasing
public has come to expect over the years and not to damage the reputation for
quality and the public recognition thereof that has been established in the
Guess? Trademarks.


 


SECTION  3.02              Assumption of Quality Control
Responsibilities by Trademark Originator. 
The parties recognize that Trademark Originator, by virtue of its
relationship to IP


 


2

















 


Holder and its numerous years
of experience in conducting the Business under the Guess? Trademarks, has an
interest equal to that of IP Holder in protecting and fostering the good
reputation and public perception of high quality associated with the Guess?
Trademarks; accordingly, Trademark Originator will conduct and direct its
operations and the operations of its subsidiaries in the use of the Guess?
Trademarks as a trade name, as part of a corporate name, as part of a family of
corporations, and as a trademark as to maintain said good reputation and the public
perception of high quality associated with the Guess? Trademarks.  The parties recognize that the burden of
controlling the nature and quality of the goods, services, and business
operations in which Trademark Originator and its subsidiaries use the Guess?
Trademarks is the ultimate responsibility of IP Holder.  The parties have determined that the best
way to perform this obligation, given Trademark Originator’s long and extensive
experience in performing these control functions, and given the unnecessary
cost and impracticality of having IP Holder establish and maintain a
duplicative system and department to control the nature and quality of the
goods and services produced by various licensees of the Guess? Trademarks, is
for Trademark Originator to assume that burden on IP Holder’s behalf and
prevent the Guess? Trademarks from being used on or in connection with goods or
business activities of a nature or quality that could damage the reputation and
goodwill associated with the Guess? Trademarks.  Therefore, Trademark Originator agrees to ensure that the nature
and quality of the Business and any other use of the Guess? Trademarks under
this Guess? License Agreement is conducted with at least the same nature and
quality as such Business or use has been conducted in the past; provided, however, that IP Holder
expressly reserves the right, in its sole discretion, to perform these services
itself or to have another party perform these services in the future.  Trademark Originator agrees not to take any
action in connection with the Guess? Trademarks that it reasonably believes to
be inconsistent with the servicing obligations of the Servicer under the
Servicing  Agreement, and Trademark
Originator further agrees to consult with the Servicer if it is uncertain
whether any contemplated course of action will be inconsistent with such
Servicer obligations.


 


SECTION 3.03               Appointment of Officials for
Quality Control.  The parties
contemplate that Trademark Originator may control the nature and quality of the
goods, services and business of its subsidiaries by appointing or causing the
appointment of the senior officials of these companies and by overseeing the
operations of its subsidiaries to the extent reasonably necessary to maintain
or exceed the above mentioned high standards of quality.


 


SECTION 3.04               Modified Quality Standards.  Notwithstanding the foregoing, IP Holder has
the right, but not the obligation, to promulgate, from time to time, new or
additional rules (and amendments thereto) relating to use of the Guess?
Trademarks (“Quality Standards”).  Any
amendments to the Quality Standards will be effective upon receipt by Trademark
Originator.  Trademark Originator agrees
to comply with and enforce the Quality Standards as in effect at any given
time.  Any action related to the Guess?
Trademarks taken by Trademark Originator that is not prohibited by the Quality
Standards, or otherwise expressly disapproved in writing by IP Holder, shall be
deemed approved by IP Holder, so long as Trademark Originator adheres to the
past standards of quality for use of the Guess? Trademarks and abides by the
usage guidelines for store fixtures and programs as currently in effect and as
may be modified in the future.


 


3

















 


SECTION 3.05               Quality Control of Products.  Trademark Originator agrees that Products
designed, marketed, and distributed by Trademark Originator and each of its
subsidiaries shall be of high-quality workmanship and materials, shall be of at
least the same quality as is consistent with past practices, and shall strictly
adhere to any Quality Standards promulgated by IP Holder.


 


SECTION 3.06               Design Standards.  Although Trademark Originator shall perform
quality-control services on IP Holder’s behalf, IP Holder shall have the right,
but not the obligation, to approve or disapprove, upon request and in its
reasonable discretion, all designs of Products proposed to be manufactured by
Trademark Originator or any of its subsidiaries, including styles, materials,
colors, designs, dimensions, styling, details, and fabrication and, upon IP
Holder’s reasonable request, Trademark Originator shall submit to IP Holder
samples of each Product to be manufactured, with the actual fabrics or other
materials to be used for such Product, as well as a packaging and trim board
for each Product.


 


SECTION 3.07               Manufacturing of Products.  Trademark Originator shall be responsible
for supervising and controlling the acts of its own factories and those of its
subsidiaries to prevent the manufacturing or sale of Products that do not meet
the Quality Standards.  Trademark
Originator shall regularly carry out or cause to be carried out quality-control
inspections of the Products manufactured and packaged by its subcontractors,
and shall inform IP Holder as soon as possible of any defects found, and shall
take any and all necessary steps to remedy such defects.  Trademark Originator also shall comply, and
shall ensure its manufacturing subcontractors, as well as those of its
subsidiaries, comply, with past practices for quality of manufacturing, and
with any Quality Standards and other requirements relating to manufacture of
the Products that may be promulgated by IP Holder.


 


SECTION 3.08               Subcontractors and
Distributors.  IP Holder shall have
the right, but not the obligation, to require that Trademark Originator or any
of its subsidiaries terminate its relationship with any subcontractor or
distributor who, in the reasonable discretion of IP Holder, acts in a manner
detrimental to IP Holder or the Guess? Trademarks.  Upon the expiration or termination of any manufacturing agreement
between any such party, Trademark Originator shall cause the subcontractor
immediately to cease the manufacture of Products and fully to perform and
observe its obligations under such manufacturing agreement and this Guess?
License Agreement with respect to such expiration or termination.


 


SECTION 3.09               Style Numbers.  Each Product shall bear the trademarks in
the form established by past practices regarding the Guess? Trademarks or by
any Quality Standards promulgated by IP Holder, including all required legends,
markings and notices.  If Trademark
Originator or any subsidiary purchases labels, tags, or other materials bearing
the Guess? Trademarks from third parties, or produces any such materials itself
or through an affiliate, Trademark Originator shall obligate all providers of
such materials to comply with the past practices for quality of such labels,
tags, or other materials bearing the Guess? Trademarks or to any Quality
Standards promulgated by IP Holder.


 


SECTION 3.10               Right to Inspect Facilities.  Trademark Originator, on behalf of IP
Holder, shall have the right, upon reasonable notice during normal business
hours, to inspect, or to designate a trained designee to inspect, all
facilities utilized by any party, subcontractor and


 


4

















 


supplier in connection with the
manufacture, storage or distribution of any Products, and to examine Products
in the process of manufacture, in order to protect the Guess? Trademarks and
ensure the quality of the Products.  In
addition, Trademark Originator shall have the right, on behalf of IP Holder, to
examine any Products held by its customers for resale, upon reasonable notice
during normal business hours, by any party using a Guess? Trademark.  Trademark Originator shall continue to
conduct inspections at distribution and manufacturing centers, including
vendors facilities, in accordance with its current practices.


 


SECTION 3.11               Advertising.  In order to protect the Guess? Trademarks
and the quality and reputation of the Products, Trademark Originator shall at
all times maintain the high standards and consistency of the Guess? Trademarks,
Products and image associated therewith in all advertising, packaging and
promotion of Products and shall have the right, acting on IP Holder’s behalf,
to review any such advertising, and if it determines that any such advertising
is inconsistent with the Quality Standards, shall have the right to require that
the party cease such advertising within a reasonable time.


 


SECTION 3.12               Cooperation and Reservation of
Rights.  IP Holder shall have the
right, but not the obligation, to consult with Trademark Originator’s personnel
and that of its subsidiaries, and the personnel of any of their subcontractors,
suppliers, and other resources to ensure that the Quality Standards are being
met and to monitor Trademark Originator’s efforts under this Guess? License
Agreement in policing and protecting the Guess? Trademarks.  Upon request by IP Holder, Trademark
Originator shall make its personnel, the personnel of its subsidiaries, and (to
the extent reasonably possible) the personnel of any of its subcontractors,
suppliers and other resources, available by appointment during normal business
hours for consultation with IP Holder and its agents or representatives, in
order to ensure quality control of the Products and protection of the Guess?
Trademarks.  In addition, IP Holder expressly
reserves the right, in its discretion, to exercise directly or indirectly any
rights granted to Trademark Originator to perform quality control services at
any time.


 


ARTICLE IV.


OWNERSHIP AND PROTECTION OF GUESS? TRADEMARKS


 


SECTION 4.01               Ownership.  Trademark Originator acknowledges that IP
Holder is the exclusive owner of the Guess? Trademarks, that all direct and
indirect uses of the Guess? Trademarks by Trademark Originator and its
subsidiaries shall inure to the exclusive benefit of IP Holder, and that IP
Holder may license, assign, convey, sell, or otherwise dispose of the Guess?
Trademarks without the consent of Trademark Originator.


 


SECTION 4.02               Prohibited Acts.


 


(a)           In light of the
transfer of the Guess? Trademarks to IP Holder pursuant to the Guess?
Contribution Agreement, Trademark Originator shall not (i) engage in any
activity that may contest, dispute, or otherwise impair the right, title,
interest, or goodwill of IP Holder in the Subject Trademarks, including,
without limitation, any action to prevent or cancel any registration of the
Subject Trademarks, (ii) contest the fact that Trademark Originator’s rights
under this Agreement are solely those of a licensee and will cease upon
termination or expiration of this Guess? License Agreement, (iii) attempt to
register or use any trademark or symbol that is


 


5

















 


confusingly similar with in
appearance or commercial impression to the Guess? Trademarks, or that features
or incorporates any portion of the Guess? Trademarks, in its own name or for
its own benefit (provided that Trademark Originator may use the word “Guess” on
its labels to the extent required by law), (iv) take any action, or allow any
licensee to take any action, that would impair the Subject Trademarks or the
enforceability of the Subject License Agreements, or (v) enter into a trademark
license that permits a licensee thereunder to distribute or sell certain
products in certain territories if a Subject License Agreement grants the
Licensee thereunder an exclusive right to distribute or sell the same products
in the same territories.


 


(b)           Trademark Originator
shall not take any action, or allow any licensee to take any action, that would
adversely affect the ability or right of IP Holder to collect the Royalty
Receivables, decrease the amount of the Royalty Receivables, or decrease the
value of the Subject Trademarks if after giving effect to 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, or would otherwise reasonably be expected to result
in a Material Adverse Effect.


 


(c)           IP Holder covenants
and agrees that if it transfers any or all of the Guess? Trademarks to a third
party it will (i) take no action that is reasonably likely to invalidate or
constitute an assignment in gross of the Guess? Trademarks, (ii) take no action
that would result in a material breach or impairment of the rights of any
licensee under any license thereof (including this Guess? License Agreement),
and (iii) when the related licenses are not also transferred to such third
party, retain rights to such Guess? Trademarks sufficient to preserve the
rights of all licensees as of the time of such transfer under any license
thereof (including the rights of Trademark Originator under this Guess? License
Agreement).  For the avoidance of doubt,
IP Holder’s cooperation in any foreclosure proceedings instituted by
beneficiaries of the Indenture or the Guarantee are not violations of this
covenant.


 


ARTICLE V.


[RESERVED]


 


ARTICLE VI.


COMPENSATION


 


SECTION 6.01               Royalty
and Fees. 
In consideration of the rights granted to Trademark Originator in this
Guess? License Agreement and the services performed by the Trademark Originator
hereunder, Trademark Originator agrees to pay to IP Holder, for so long as this
Guess? License Agreement shall remain in effect, a royalty equal to*.  Such payments shall be made in United States
currency, and shall be made quarterly within thirty (30) days following the
close of each of Trademark Originator’s fiscal quarters.


 












*
Information for which confidential treatment has been requested pursuant to
Rule 24(b)(2) of the Securities Exchange Act of 1934, as amended.


 


6

















 


SECTION 6.02               Records and Inspection.  Trademark Originator shall maintain accurate
records of the royalties paid under this Guess? License Agreement, and upon the
request of IP Holder shall provide copies of such records to the Indenture
Trustee.  At all times during the term
of this Guess? License Agreement and any time following its termination or
expiration, the records maintained by Trademark Originator under this Section
6.02 and all other reports and books of account of Trademark Originator and
each of its subsidiaries with respect to the Business shall be available for
inspection, copying, and audit by IP Holder, its agents and representatives
during normal business hours, upon not less than two Business Days advance
notice, and shall be made by IP Holder at its own expense.


 


SECTION 6.03               Review of Guess? License
Agreement. 
IP Holder shall have the right, but not the obligation, to review this
Guess? License Agreement periodically to determine if royalties being paid
under this Guess? License Agreement are commensurate with income attributable
to use of the Guess? Trademarks.  IP Holder
shall have the right, but not the obligation, to adjust royalties accordingly
upon such review, with Trademark Originator’s written consent, which shall not
be unreasonably withheld.


 


ARTICLE VII.


TERM AND TERMINATION


 


SECTION 7.01               Term.  Unless terminated earlier, this Guess?
License Agreement, including the license granted herein, shall commence on the
date hereof and remain in full force and effect until the Maturity Date, and
thereafter for successive one year periods, unless terminated earlier by the
mutual written consent of the parties or by IP Holder pursuant to its rights in
Sections 7.03 and 7.04 below.


 


SECTION 7.02               Reorganization of Trademark
Originator. 
If any subsidiary of Trademark Originator, other than IP Holder and its
subsidiary, ceases to be a subsidiary, or if IP Holder and Trademark Originator
cease to be “related companies” within the meaning of 15 U.S.C. § 1127 (each a
“Termination Event”), such former subsidiary or Trademark Originator, as the
case may be, shall (i) take immediate steps to change its corporate name to
eliminate any Guess? Trademarks or any colorable simulation thereof, (ii) take
immediate steps to phase out all uses of the Guess? Trademarks or any colorable
simulation thereof as a trade name, trademark, or otherwise, such phase-out to
be complete as soon as possible but in no event more than 180 days after the
date of the Termination Event, and (iii) not use a colorable simulation of any
of the Guess? Trademarks.  In the event
that Trademark Originator and IP Holder cease to be “related companies” within
the meaning of 15 U.S.C. § 1127, Trademark Originator shall, in addition, cause
its subsidiaries to comply with the provisions of the preceding sentence.


 


SECTION 7.03               Termination.


 


(a)           Material Breach.  Upon a Material Breach, as hereinafter
defined, by Trademark Originator of this Guess? License Agreement, IP Holder
shall have the right to terminate this Guess? License Agreement, provided that
IP Holder first gives written notice of such breach (other than with respect to
clause (1) or (6) below) to Trademark Originator and (other than with respect
to clause (6) below) gives Trademark Originator thirty (30) days to cure or to
take effective steps to cure the breach (unless such breach cannot be cured
within a 30-day


 


7

















 


period and Trademark Originator
shall have commenced to cure such breach and cures it within any additional
30-day period; provided, that
this additional 30-day period will not apply in the case of clause (1)
below).  Material Breach shall include
Trademark Originator’s:


 


(1)                                  failure
to make any payments under this Guess? License Agreement;


(2)                                  breach
of its representations and warranties under Section 8.01 hereof;


(3)                                  breach
of its covenants under Section 4.02(a) hereof;


(4)                                  failure
to fulfill any of its other obligations under this Guess? License Agreement,
including, but not limited to, Trademark Originator’s quality control
obligations;


(5)                                  permitting
any of its subsidiaries to commit what would be a material breach if committed
by Trademark Originator; or


(6)                                  filing a petition for
relief under applicable bankruptcy law, or the filing of such a petition
against Trademark Originator, if not discharged within sixty (60) days after
the date of filing; or making any assignment for the benefit of creditors; or
becoming the subject of proceedings under any insolvency, reorganization or
receivership law; or having a receiver appointed for Trademark Originator or a
substantial part of its business.


 


Upon or before expiration of any sixty (60) or thirty (30) day period
to cure, as applicable, Trademark Originator shall inform IP Holder in writing
of any cure or any steps it has taken to cure the Material Breach.  If, in IP Holder’s sole discretion, such
steps are not effective to cure the Material Breach, IP Holder may immediately
terminate this Guess? License Agreement and all rights of Trademark Originator
and its subsidiaries.


 


(b)           Termination at Will.  At any time from and after the Maturity
Date, IP Holder also shall have the right to terminate this Guess? License
Agreement upon sixty (60) days prior notice to Trademark Originator.


 


SECTION 7.04               Effect of Termination.  Upon termination or expiration of this
Guess? License Agreement, whether pursuant to Section 7.03 hereof or otherwise,
Trademark Originator agrees promptly to comply with and to cause its
subsidiaries promptly to comply with the provisions of Section 7.02 hereof,
provided that any phase-out be complete as soon as possible but in no event more
than six (6) months after the effective date of termination.  Trademark Originator shall also promptly
return to IP Holder all materials that bear the Guess? Trademarks or destroy
such materials and certify their destruction to IP Holder.


 


ARTICLE VIII.


REPRESENTATIONS AND WARRANTIES


 


SECTION 8.01               Trademark Originator’s
Representations and Warranties.  Trademark Originator hereby represents and
warrants that:


 


(a)           It is a corporation
duly organized and validly existing 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.


 


8

















 


(b)           It 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.


 


(c)           It has the corporate
power and authority to execute and deliver this Guess? License Agreement and to
carry out its terms; and the execution, delivery and performance of this Guess?
License Agreement has been duly authorized by Trademark Originator by all
necessary corporate action.


 


(d)           This Guess? License
Agreement constitutes a legal, valid, and binding obligation of Trademark
Originator, 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.


 


(e)           The consummation of
the transactions contemplated by this Guess? License 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
Trademark Originator, 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 Trademark
Originator 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 Trademark Originator’s knowledge, any
order, rule, or regulation applicable to Trademark Originator of any court or
of any federal, state, or foreign regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over Trademark Originator
or its properties, which breach, default, conflict, lien, or violation would
have a Material Adverse Effect.


 


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


 


(g)           No 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 Guess? License Agreement,
except such as have been obtained as of the Closing Date or such as may be
required under state securities laws.


 


(h)           The execution,
delivery and performance of this Guess? License Agreement in accordance with
its terms and the consummation of the transactions contemplated hereby by
Trademark Originator do not and will not (i) require the consent or approval of
any


 


9

















 


Person, except for such
consents and approvals as have already been obtained and (ii) violate any
applicable laws.


 


(i)            Trademark
Originator 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 Guess? License Agreement in accordance with its terms other
than filings intended to perfect the security interest granted hereunder.


 


(j)            As of the date
hereof, Trademark Originator is incorporated under the laws of the State of
Delaware.


 


SECTION 8.02               IP Holder’s Representations
and Warranties.  IP Holder hereby
represents and warrants that:


 


(a)           It is a limited
partnership duly organized and validly existing in good standing under the laws
of the State of Delaware.


 


(b)           It has the ability
and capacity to perform its obligations hereunder, and those obligations do not
conflict with any other obligations of IP Holder.


 


ARTICLE IX.


MISCELLANEOUS


 


SECTION 9.01               Amendments.  This Guess? License Agreement may be amended
by mutual written consent of the parties hereto; provided that, as a condition
of effectiveness of any such amendment, (i) an authorized officer of Trademark
Originator shall have delivered to the Indenture Trustee a copy of such
amendment together with a certificate, to the effect that such amendment could
not reasonably be expected to have a Material Adverse Effect, and (ii) the
Rating Agency Condition is satisfied with respect thereto.


 


SECTION 9.02               Assignment.  Unless Guarantee
Collateral is foreclosed upon, liquidated or sold pursuant to the Guarantee,
this Guess? License Agreement may not be assigned without the prior written
consent of the other party except in connection with a merger, consolidation,
reorganization, or similar transaction.


 


SECTION 9.03               Governing Law; Arbitration.
 All questions
concerning this Guess? License Agreement, the rights and obligations of the
parties, enforcement and validity, effect, interpretation and construction that
are governed by state law shall be determined under the laws of the State of
California.  United States federal law
shall apply to all other issues.  Except
as otherwise provided in this Guess? License Agreement, the parties consent and
submit to the exclusive jurisdiction and venue of the State of California, for
the adjudication of any dispute pertaining to this Guess? License Agreement or
the alleged breach of any provision hereof. 
Except as provided in this Guess? License Agreement, any dispute,
controversy, or claim arising out of or relating to this Guess? License Agreement
or breach thereof shall be settled by binding arbitration heard by one (1)
arbitrator, in accordance with the Commercial Arbitration Rules (“Rules”) of
the American Arbitration Association. 
The arbitrator shall be appointed in


 


10

















 


accordance with the Rules.  The parties hereto agree that the venue of
such arbitration shall be the City of Los Angeles, Los Angeles County,
California.


 


SECTION 9.04               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
Trademark Originator, 1444 South Alameda Street, Los Angeles, CA 90021;


 


(b)           in the case of IP
Holder, 1444 South Alameda Street, Los Angeles, CA 90021;


 


(c)           in the case of the
Issuer, Guess? Royalty Finance LLC, 2222 Glendale Galleria 2, Glendale, CA
91324; and


 


(d)           in the case of the
Indenture Trustee, 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 9.05               Relationship of the Parties.  Except as otherwise specifically provided herein,
this Guess? License Agreement shall not be construed to place the parties in
the relationship of legal representatives, partners, joint venturers, or agents
of or with each other.  Under this
Guess? License Agreement, Trademark Originator is an independent contractor and
shall be solely responsible for the payment of all income tax withholding,
payroll taxes, contributions and other obligations relating to Trademark
Originator’s employment and compensation of its employees and consultants.  No party shall have any power to obligate or
bind any other party in any manner whatsoever, except as specifically provided
herein.


 


SECTION 9.06               Severability of Provisions.
 If any one or
more of the covenants, agreements, provisions or terms of this Guess? License
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 Guess? License Agreement
and shall in no way affect the validity or enforceability of the other provisions
of this Guess? License Agreement.


 


SECTION 9.07               Further Assurances.  Trademark Originator 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 Guess? License
Agreement.


 


SECTION 9.08               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
Trademark Originator, 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,


 


11

















 


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 9.09               Counterparts.  This Guess? License 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 9.10               Headings.  The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.


 


SECTION 9.11               Merger and Integration.  Except as specifically stated otherwise
herein, this Guess? License 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 Guess? License
Agreement.  This Guess? License
Agreement may not be modified, amended, waived or supplemented except as
provided herein.


 


SECTION 9.12               Force Majeure.  Neither IP Holder nor Trademark Originator
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 9.13               Nonpetition Covenants.  Notwithstanding any prior termination of
this Guess? License Agreement, Trademark Originator 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 9.14               Interpretation.  As applied to this Guess? License 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 Guess? License
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 Guess? License
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


 


12

















 


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 Guess? License Agreement; and (j) references
to Persons include their permitted successors and assigns.


 


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13

















 


IN WITNESS
WHEREOF, the parties hereto have entered this Guess? License Agreement as of
the date first written above.


 


	
  GUESS ? IP HOLDER L.P.

  	
  GUESS ?, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
  Name:

  
	
  Title:

  	
  Title:

  
					



 


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EXHIBIT
A


Guess?
Trademarks


 


A - 1