Exhibit
10.1


 


GUESS?
CONTRIBUTION AGREEMENT


 


 


between


 


 


GUESS?, INC.,


 


as Trademark
Originator


 


 


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
  SUBJECT IP

  
	
   

  
	
  SECTION 2.01

  	
  Conveyance of Guess? Trademarks

  
	
  SECTION 2.02

  	
  Conveyance of Guess? Contributed License
  Agreements

  
	
  SECTION 2.03

  	
  Filings

  
	
  SECTION 2.04

  	
  Security Interests

  
	
   

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES

  
	
   

  
	
  SECTION 3.01

  	
  Representations and Warranties of
  Trademark Originator

  
	
  SECTION 3.02

  	
  Representations and Warranties of IP
  Holder

  
	
  SECTION 3.03

  	
  Representations and Warranties of
  Trademark Originator as to the Guess? Contributed IP

  
	
   

  	
   

  
	
  ARTICLE IV.

  
	
   

  	
   

  
	
  COVENANTS OF
  TRADEMARK ORIGINATOR

  
	
   

  
	
  SECTION 4.01

  	
  Covenants of Trademark Originator

  
	
   

  	
   

  
	
  ARTICLE V.

  
	
   

  	
   

  
	
  DELIVERY OF
  LIMITED PARTNERSHIP INTERESTS

  
	
   

  
	
  SECTION 5.01

  	
  Delivery of Limited Partnership Interests

  
	
  SECTION 5.02

  	
  Tax-Free Capital Contribution

  
	
   

  	
   

  
	
  ARTICLE VI.

  
	
   

  	
   

  
	
  MISCELLANEOUS
  PROVISIONS

  
	
   

  
	
  SECTION 6.01

  	
  Indemnification

  
			



 


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  SECTION 6.02

  	
  Amendment

  
	
  SECTION 6.03

  	
  Protection of Right, Title and Interest to
  Guess? Contributed IP

  
	
  SECTION 6.04

  	
  Assignment

  
	
  SECTION 6.05

  	
  Merger or Consolidation of, or Assumption
  of the Obligations of, Trademark Originator

  
	
  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 – Guess?
  Trademarks

  
	
  Schedule B – Goodwill

  
	
  Schedule C – Guess?
  Contributed License Agreements

  
	
  Schedule D – Form of
  Trademark Assignment

  
	
  Schedule E – Form of
  Instruction to Pay Into Lockbox Account

  



 


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


 


RECITALS


 


WHEREAS, Trademark
Originator desires to absolutely contribute, sell, assign, convey, and transfer
to IP Holder certain intellectual property and license agreements in exchange
for limited partnership interests in IP Holder; and


 


WHEREAS, IP Holder
desires to acquire from Trademark Originator (i) a portfolio of trademarks,
including their underlying goodwill, and associated intellectual property, and
(ii) certain license agreements pursuant to which certain of such 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 Trademark Originator 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
Guess? 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:


 


“Goodwill” means those
tangible and intangible assets and information being transferred pursuant to
this Guess? Contribution Agreement that are identified on Schedule B, which
constitute all of the goodwill connected with the use of, symbolized by, and
embodied in the Guess? Trademarks necessary for IP Holder to continue using the
Guess? Trademarks in continuity with Trademark Originator’s past practice.


 


“Guess? Contributed IP”
means the Guess? Trademarks and the Guess? Contributed License Agreements.


 


“Guess? Contributed
License Agreements” means the specific trademark license agreements being
transferred pursuant to this Guess? Contribution Agreement, and any amendment,
modifications or extensions thereto, and all proceeds thereof and payments
thereunder, that are identified on Schedule C.


 


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


 


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


 


(b)                                 any
and all other documents that Trademark Originator or the Servicer, as the case
may be, shall keep on file, in accordance with its customary procedures,
relating to such Guess? Contributed License Agreement or the related Guess?
Licensee, including any samples and other materials provided pursuant to the
Guess? Contributed License Agreement terms.


 


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


 


“Guess? Trademarks” means Trademark Originator’s
domestic and foreign trademarks and corresponding United States and foreign registrations
and applications therefor described in Section 2.01 and identified on Schedule
A, including all Goodwill.


 


“Licensees” means the Guess? Licensees and the
Licensing Licensees.


 


“Schedule of Guess? Contributed License Agreements”
means the schedule of Guess? Contributed License Agreements described in
Section 2.02 and attached as Schedule C.


 


ARTICLE II.


 


CONVEYANCE OF GUESS?
CONTRIBUTED IP


 


SECTION 2.01                    Conveyance
of Guess? Trademarks.


 


(a)                                  Subject
to the terms and conditions of this Guess? Contribution Agreement, Trademark
Originator hereby agrees to contribute, sell, assign, convey, and transfer to
IP Holder pursuant to this Guess? Contribution Agreement and the trademark
assignment agreement attached hereto as Schedule D, and IP Holder agrees to
acquire from Trademark Originator (subject to Trademark Originator’s
obligations hereunder), all right, title, and interest in and to the Guess?
Trademarks (including without limitation the right to bring suit and recover
damages for past or future infringement of the Guess? Trademarks).


 


(b)                                 In
connection with the foregoing contribution, Trademark Originator agrees to
record and file at the United States Patent and Trademark Office and any
necessary foreign equivalents, at its own expense, the original executed
trademark assignment set forth in Schedule D to provide third parties with
notice of the conveyance hereunder and to perfect the assignment of the Guess?
Trademarks to IP Holder within the applicable timeframes required in each
jurisdiction.


 


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(c)                                  In
connection with the foregoing contribution, Trademark Originator shall also
provide IP Holder, its successors, assigns, or other legal representatives,
cooperation and assistance at IP Holder’s request and expense (including, but
not limited to, the execution and delivery of any and all affidavits,
declarations, oaths, assignments, powers of attorney, or other documentation as
may be reasonably required) in:


 


(i)                                     the
preparation and prosecution of any applications for registration or any
applications for renewal of a registration covering the Guess? Trademarks;


 


(ii)                                  the
prosecution or defense of any trademark office proceedings, infringement
proceedings, or other proceedings that may arise in connection with any of the
Guess? Trademarks, including, but not limited to, testifying as to any facts
relating to the Guess? Trademarks or this Guess? Contribution Agreement;


 


(iii)                               obtaining any additional
trademark protection reasonably appropriate that may be secured under the laws
now or hereafter in effect in the United States or any other jurisdiction for
the Guess? Trademarks; and


 


(iv)                              the
implementation or perfection of this Guess? Contribution Agreement.


 


SECTION 2.02                    Conveyance
of Guess? Contributed License Agreements.


 


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


 


(i)                                     all
right, title, and interest of Trademark Originator in and to the Guess?
Contributed License Agreements, and all monies due or to become due thereon or paid
thereunder by the Guess? Licensees (other than any duties of Trademark
Originator 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 Guess? Contributed License Agreement, the provisions which reserve to
Trademark Originator 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, Trademark Originator further
agrees, at its own expense, (i) to annotate and indicate in its master computer
records (including backup files) that the Guess? Contributed License Agreements
have been transferred to IP Holder pursuant to this Guess? Contribution
Agreement, (ii) to deliver to IP Holder a true and complete list of all the
Guess? Contributed License Agreements, identified by the name of


 


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the Guess? Licensee, which list shall be marked as Schedule C to
this Guess? Contribution Agreement and is hereby incorporated into and made a
part of this Guess? Contribution Agreement, (iii) to deliver the Guess?
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 Guess?
Licensees notice of the change in licensor or otherwise to effect properly the
conveyance of the Guess? Contributed License Agreements, and (v) to deliver to
each licensee with respect to a Guess? Contributed License 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 E hereto.


 


(c)                                  In
connection with the foregoing contribution, IP Holder hereby expressly agrees
to assume the obligations of Trademark Originator as licensor under each of the
Guess? Contributed License Agreements (except for those obligations retained by
Trademark Originator as described in clause (a)(i) of this Section 2.02).


 


SECTION 2.03                    Filings.  Trademark Originator 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 Guess? 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 Guess? Contributed IP 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 Guess? Contributed IP. 
Trademark Originator 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 Trademark Originator 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 2.04                    Security
Interests.  It is the intention of
the parties that each of the contributions of assets from Trademark Originator
to IP Holder as contemplated by Sections 2.01 and 2.02 hereof will constitute
an absolute transfer and assignment, and that the beneficial interest in and
title to the Guess? Contributed IP shall not be property of Trademark
Originator’s estate in the event of the filing of a bankruptcy petition by or
against Trademark Originator under any bankruptcy law, and that the Guess?
Contributed License Agreements will not be deemed “executory contracts” that
Trademark Originator (or the trustee in bankruptcy for Trademark Originator)
can reject in a bankruptcy or insolvency proceeding.  However, if the transfer of any of the Guess? Contributed IP is
deemed to be other than an absolute assignment, the parties intend that all
filings described in Section 2.03 shall give IP Holder a first priority
perfected security interest in, to, and under the Guess? Contributed IP.  This Guess? Contribution Agreement shall be
deemed to be the grant of a security interest in the Guess? Contributed IP from
Trademark Originator to IP Holder, and IP Holder shall have all the rights,
powers, and privileges of a secured party under the UCC.


 


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ARTICLE III.


 


REPRESENTATIONS AND
WARRANTIES


 


SECTION 3.01                    Representations
and Warranties of Trademark Originator.


 


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


 


(i)                                     Organization and Good Standing.  Trademark Originator 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
acquire, own, and convey the Guess? Contributed IP.


 


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


 


(iv)                              Financial Condition.  Trademark Originator’s financial condition
is fairly stated in its most recent public filings and, since the date of
publication of its most recent financial statements, there has been no material
adverse change in Trademark Originator’s financial condition, operation, or
prospects.  Trademark Originator has no
unfunded pension liabilities.


 


(v)                                 Binding Obligation.  This Guess? Contribution 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.


 


(vi)                              No Violation.  The consummation of the transactions contemplated by this Guess?
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 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


 


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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.


 


(vii)                           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 Trademark
Originator’s knowledge, threatened, against or affecting Trademark Originator:
(i) asserting the invalidity of this Guess? Contribution Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Guess? Contribution 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? Contribution Agreement.


 


(viii)                        Solvency.  Trademark
Originator is, and immediately after giving effect to the transactions
contemplated by this Guess? Contribution Agreement and the other Transaction
Documents will be, solvent.


 


(ix)                                No Consents.  Subject to Section 3.03(a)(xiii), 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? Contribution Agreement, except such as have
been obtained as of the Closing Date or such as may be required under state
securities laws.


 


(x)                                   Taxes. 
Trademark Originator 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.  Trademark Originator
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 Trademark Originator 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.


 


(xi)                                Non-Contravention.  The execution, delivery and performance of
this Guess? Contribution Agreement in accordance with its terms and the
consummation of the transactions contemplated hereby by Trademark Originator


 


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do not and will not (i) 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.


 


(xii)                             Governmental Regulation.  
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? Contribution Agreement in accordance with its terms
other than filings intended to perfect the security interest granted hereunder.


 


(xiii)                          State of Organization. 
As of the date hereof, Trademark Originator 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 Guess? Contributed IP by Trademark Originator to IP Holder
pursuant to this Guess? Contribution Agreement.  Upon discovery by Trademark Originator or IP Holder of a breach
of any of the foregoing representations and warranties or the occurrence of a
materially adverse event directly affecting the enforceability of this Guess?
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 Trademark Originator 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 own
the Guess? Contributed IP.


 


(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 the ownership of the
Guess? Contributed IP 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 Guess? Contribution Agreement and to carry out its
terms; IP Holder has full power and authority to acquire and own the Guess?
Contributed IP and has duly authorized such acquisition; and the execution,
delivery, and performance of this Guess? Contribution Agreement has been duly
authorized by IP Holder by all necessary action.


 


(iv)                              Binding Obligation.  This Guess? 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,


 


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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 Guess?
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 Guess? Contribution Agreement, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Guess?
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 Guess? 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 Guess? 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.


 


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(b)                                 The
representations and warranties set forth in this Section 3.02 shall survive the
conveyance of the Guess? Contributed IP by Trademark Originator to IP Holder
pursuant to this Guess? Contribution Agreement.  Upon discovery by Trademark Originator 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 the Guess? Contributed IP, 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 Trademark Originator as to the Guess? Contributed IP.


 


(a)                                  Trademark
Originator hereby represents and warrants that:


 


(i)                                     Characteristics of Licenses.  Each Guess? 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 Guess? Contributed License Agreement and protect its
ownership and control over the Guess? Trademarks.


 


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


 


(iii)                               Compliance with Law.  Each of the Guess? Contributed License
Agreements, and the assignment and contribution thereof pursuant to this Guess?
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 Guess? Contributed License
Agreements, and the assignment and contribution thereof pursuant to this Guess?
Contribution Agreement,  constitutes the
legal, valid, and binding payment obligation of the related Guess? 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 Guess? Licensee is required in connection with
the execution, delivery, and performance of this Guess? Contribution Agreement,
except as has been obtained.


 


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


 


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(vii)                           No Government Licensees. 
None of the Guess? 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 Guess? Contributed License Agreements has been
terminated, rescinded, amended or modified except as is indicated on the
attached Schedule C.


 


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


 


(x)                                   Good Title; Liens.  The Guess? Contributed IP has not been sold,
transferred, assigned, or pledged by Trademark Originator to any Person other
than IP Holder, and Trademark Originator is the licensor under each of the
Guess? Contributed License Agreements and has good and marketable title to the
Guess? Trademarks free and clear of any Lien (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 Guess? Contributed License
Agreements and will have good and marketable title to the Guess? Trademarks,
free and clear of all Liens and rights of others (other than Permitted Liens).


 


(xi)                                Perfected Liens.  This Guess? Contribution Agreement creates a valid and continuing
security interest (as defined in the UCC) in the Guess? Contributed IP 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 Trademark Originator.


 


(xii)                             General Intangibles. 
The Guess? Contributed IP constitutes “general intangibles” within the
meaning of the UCC.


 


(xiii)                          All Filings Made. 
Trademark Originator 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 Guess? Contributed IP
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 Guess? Contributed
IP from Trademark Originator 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 Guess? Contribution
Agreement, except such as have been obtained as of the Closing Date or such as


 


10

















 


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 Guess? Contribution
Agreement, Trademark Originator has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Guess? Contributed
IP.  Trademark Originator has not
authorized the filing of and is not aware of any financing statements against
Trademark Originator that include a description of collateral covering the
Guess? Contributed IP other than any financing statement relating to the
security interest granted to IP Holder hereunder or that has been
terminated.  Trademark Originator is not
aware of any judgment or tax lien filings against Trademark Originator.


 


(xv)                            Lawful Assignment.  The contribution, transfer, and assignment
of the Guess? Contributed IP under this Guess? 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
Guess? Contributed IP.


 


(xvi)                         Validity.  The Guess?
Trademarks are valid, subsisting, enforceable, and have not been abandoned in
any applicable jurisdiction.


 


(xvii)                      No
Infringement.  The Guess?
Trademarks do not violate the trademark rights of any third party and there is
no action or proceeding pending or threatened alleging that the Guess?
Trademarks infringe upon the rights of any third party.


 


(xviii)                   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 Trademark Originator’s interest in the Guess? Contributed IP.


 


(xix)                           No Pending Actions. 
No action or proceeding is pending or, to Trademark Originator’s
knowledge, threatened, seeking to limit, cancel, or question the validity of
any material portion of the Guess? Contributed IP or of Trademark Originator’s
ownership interest therein, that if adversely determined would have a Material
Adverse Effect.


 


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


 


11

















 


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


 


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


 


(xxiii)                     Other
Defaults.  The execution and
implementation of this Guess? 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 Guess? Contributed IP or to which any of the Guess? Contributed IP is
subject.  Neither Trademark Originator
nor any person, firm or corporation associated with or deriving rights in any
Guess? Contributed IP through or from Trademark Originator is in default of any
applicable agreement constituting a portion of the Guess? Contributed IP.


 


(xxiv)                    Advances.  No advances or other charges heretofore
received by Trademark Originator in connection with the Guess? Contributed IP
remain recoupable from any Royalty Receivables by Guess? on or after the
Closing Date, regardless of when advanced or earned.


 


(xxv)                       Bulk
Transfers.  Trademark
Originator’s transfer and assignment of the Guess? Contributed IP hereunder is
not subject to the provisions of the UCC relating to bulk transfers.


 


(xxvi)                    Quality
Control.  Through the Closing
Date, Trademark Originator has examined, monitored and otherwise policed the
activities of the Guess? 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 Guess? Contribution Agreement, but shall
survive the transfer, conveyance, and assignment of the Guess? Contributed IP
to IP Holder.  So long as any Notes are
outstanding, Trademark Originator agrees that (i) each representation and
warranty made by Trademark Originator pursuant to Sections 3.03(a)(xi), (xii),
(xiii) and (xiv) shall survive, and (ii) Trademark Originator shall not waive,
by course of conduct or in writing, any of such representations and
warranties.  Upon discovery by Trademark
Originator 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 Guess? Contributed IP, the party discovering such breach or event shall
give prompt written notice to the other and the Indenture Trustee.


 


(c)                                  Trademark
Originator hereby indemnifies and holds harmless IP Holder for any and all
actual costs, expenses, losses, claims, damages, injury, and liabilities
suffered by


 


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IP Holder to the extent such actual cost, expense, loss, claim, damage,
injury, or liability results from any breach by Trademark Originator of the
representations and warranties set forth in this Section 3.03, or results from
any infringement contemplated by Section 3.03(a)(xvii) or a licensee being
bankrupt as of the Closing Date, with or without the knowledge of Trademark
Originator.


 


ARTICLE IV.


 


COVENANTS OF TRADEMARK
ORIGINATOR.


 


SECTION 4.01                    Covenants of
Trademark Originator.  Trademark
Originator hereby covenants that:


 


(a)                                  Transaction Documents; Guess?  Contributed License Agreements.  Trademark Originator will perform all of its
obligations under, and otherwise comply with the terms of the Transaction
Documents (including, without limitation, the Servicing Agreement), 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 breach, right of offset, or other material claim made or brought by
any Guess? Licensee.


 


(b)                                 Material Agreements.  The Trademark Originator will not extend,
amend, or modify any Guess? Contributed License Agreement or, as licensee of
the Guess? Trademarks under the Guess? License Agreement, enter into a license
of any Guess? Trademarks, 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,
Trademark Originator 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 piece of the Guess? Contributed IP, whether now
existing or hereafter created, or any interest therein.  Trademark Originator will immediately notify
IP Holder and the Indenture Trustee of the existence of any Lien (other than
Permitted Liens) on any piece of the Guess? Contributed IP, and Trademark
Originator shall defend the right, title, and interest of IP Holder in, to, and
under the Guess? Contributed IP, whether now existing or hereafter created,
against all claims of third parties claiming through or under Trademark
Originator.


 


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


 


13

















 


(e)                                  No Impairment.  Trademark Originator shall take no action, nor omit to take any
action, that would impair the rights of IP Holder in the Guess? Contributed IP,
nor shall it reschedule, revise, offset, or defer payments due on any Guess?
Contributed License Agreement if any such action would have a Material Adverse
Effect.  In the event that any state
trademarks containing the “Guess?” name are not effectively transferred to IP
Holder in connection with the contribution contemplated by Section 2.01,
Trademark Originator shall promptly cause any such state trademarks to be
transferred or cancelled.  Nothing
contained in this Section 4.01(e) shall limit the rights and duties of the
Trademark Originator in its capacity as Servicer or of any party with respect
to Downstreaming that is permitted under the Transaction Documents.


 


(f)                                    Indemnity; Continued Performance.  Trademark Originator 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 Licensee, under any of the
Guess? Contributed License Agreements or the Licensing Contributed License
Agreements.  For the avoidance of doubt,
the parties hereto intend that if IP Holder repurchases any Royalty Receivables
from the Issuer in connection with a breach of a representation or warranty by
IP Holder in the Receivables Contribution Agreement that is the same as or
substantially similar to any representation or warranty of the Trademark
Originator herein contained or of Licensing contained in the Licensing
Contribution Agreement, the foregoing indemnity includes an undertaking by
Trademark Originator promptly to pay over to IP Holder an amount equal to the
related Repurchase Price; provided that the parties hereto agree that
any portion of such amount paid by Trademark Originator equal to the then-fair
market value of the Royalty Receivables so repurchased by IP Holder will
constitute a non-recourse loan (which shall bear interest at the rate of
interest applicable to the Notes) made to IP Holder that is fully subordinated
to IP Holder’s obligations under the Guarantee and under the Receivables
Contribution Agreement, that is repayable only from amounts that are freely
distributable by IP Holder to Trademark Originator pursuant to the Transaction
Documents and that represent amounts distributed to IP Holder by Issuer in
accordance with the Indenture and the operating agreement of the Issuer or from
amounts paid to IP Holder pursuant the Guess? License Agreement or any license
that is not a Subject License Agreement.


 


ARTICLE V.


 


DELIVERY OF
LIMITED PARTNERSHIP INTERESTS


 


SECTION 5.01                    Delivery of
Limited Partnership Interests.  The
execution of this Guess? 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 limited partnership interests (as opposed to general partnership
interests) to Trademark Originator.


 


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


 


14

















 


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.  Trademark Originator 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 Guess? Contribution
Agreement through the willful misconduct or gross negligence of Trademark
Originator in the performance of its duties under this Guess? Contribution
Agreement, by reason of reckless disregard of its obligations and duties under
this Guess? Contribution Agreement, or by breach of its representations and
warranties under this Guess? 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 Trademark Originator 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 Trademark Originator of the commencement thereof, Trademark
Originator will assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who may be counsel to Trademark
Originator unless there is an unwaivable conflict of interest as evidenced by
an Opinion of Counsel stating such), and Trademark Originator 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 the Trademark Originator set forth herein.


 


The Trademark Originator
will be liable for settlement of any claim made against any Indemnified Party
that is made with the Trademark Originator’s written consent, which consent
will not be unreasonably withheld.  The
Trademark Originator 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.


 


15

















 


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


 


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


 


(a)                                  Trademark
Originator at its expense shall cause this Guess? 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 Guess? Contributed IP 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
Guess? Contributed IP.  Trademark
Originator 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
Trademark Originator 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 Trademark Originator makes any change in (i) its location of
organization under Section 9-307(e) of 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 2.03 seriously
misleading within the meaning of Section 9-507 or 9-508 of the UCC as in effect
in the applicable state, Trademark Originator 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 Guess? Contributed IP and the proceeds thereof.


 


SECTION 6.04                    Assignment.  Neither party to this Guess? 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 Guess?
Contributed License Agreements, and the Guarantee; provided, however, that simultaneously with the execution
and delivery of this Guess? Contribution Agreement, IP Holder shall assign all
of its right, title, and interest herein to the proceeds from the Subject
License Agreements to the Issuer and shall pledge the Subject IP pursuant to
the Receivables Contribution Agreement, 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
Trademark Originator hereby expressly consents.  Trademark Originator agrees to perform its obligations hereunder
for the benefit of the Issuer, and agrees that the Indenture Trustee may
enforce the provisions of this Guess? Contribution Agreement, exercise the
rights of IP Holder and enforce the obligations of Trademark Originator 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 Guess?
Contribution Agreement and the other Transaction Documents are subject to the
provisions of Sections 4.02(c) of the Guess? License


 


16

















 


Agreement, Sections 2.02(d) and 6.03(f) of the Servicing 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, Trademark Originator.


 


(a)                                  Trademark
Originator 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 Trademark Originator is
merged or the Person which acquires by conveyance or transfer the properties
and assets of Trademark Originator 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 Trademark Originator 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
Trademark Originator hereunder and, prior to the Termination Date, shall
benefit from all the rights granted to Trademark Originator hereunder in all
material respects; and


 


(ii)                                  Trademark
Originator shall have delivered to IP Holder and the Issuer an Officer’s
Certificate of Trademark Originator 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 Trademark Originator hereunder shall not be assignable nor shall
any Person succeed to the obligations of Trademark Originator 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 Guess? 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
Trademark Originator 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;


 


17

















 


(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 Trademark Originator, Guess?, 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;


 


(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, 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 Guess? 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 Guess? Contribution
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Guess? Contribution Agreement.


 


SECTION 6.10                    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? Contribution Agreement.


 


18

















 


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 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,
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 Guess? 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 Guess?
Contribution Agreement will inure to the benefit of and be binding upon the
parties signatory hereto and, with regard to the Subject IP 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 Guess? 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 Guess? 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 Guess?
Contribution Agreement.  This Guess?
Contribution Agreement may not be modified, amended, waived or supplemented
except as provided herein.


 


SECTION 6.16                    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 6.17                    Nonpetition
Covenants.  Notwithstanding any
prior termination of this Guess? Contribution 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


 


19

















 


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 Guess? 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 Guess?
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 Guess? 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 Guess? 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 TRADEMARK
ORIGINATOR AND IP HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUESS CONTRIBUTION
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


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


 


	
  GUESS?
  IP HOLDER L.P.

  	
  GUESS?, INC.

  
	
  as
  IP Holder

  	
  as
  Trademark Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
  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:

  
				



 


 


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