SECOND LIEN TRADEMARK SECURITY AGREEMENT
Exhibit 10.3
EXECUTION COPY
SECOND LIEN TRADEMARK SECURITY AGREEMENT (as amended, restated, supplemented, waived or
otherwise modified from time to time) (this “Agreement”), dated as of March 4, 2011,
between CBI Distributing Corp., a Delaware corporation (the “Grantor”), and The Bank of New
York Mellon Trust Company, N.A., as collateral agent for the Indenture Secured Parties (as
hereinafter defined) (in such capacity, the “Collateral Agent”).
Reference is made to (x) the Collateral Agreement dated March 4, 2011 (as amended, restated,
supplemented, waived or otherwise modified from time to time, the “Security Agreement”)
among Claire’s Stores, Inc., a Florida corporation (the “Issuer”), the other Pledgors (as
defined below) party thereto from time to time, and the Collateral Agent, and (y) the Indenture
dated as of March 4, 2011, among Claire’s Escrow Corporation, a Delaware corporation (“Claire’s
Escrow”), and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity,
the “Trustee”) and Collateral Agent, as supplemented by the Supplemental Indenture dated
March 4, 2011 among the Issuer, the Issuer’s Subsidiaries named therein and the Trustee and
Collateral Agent (such agreement, as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”).
The Issuer and each other Pledgor (including the Grantor) will receive substantial benefits
from the execution, delivery and performance of the obligations under the Indenture and the other
Noteholder Documents and each is, therefor, willing to enter into this Agreement. This Agreement
is given by the Grantor in favor of the Collateral Agent for the benefit of the Indenture Secured
Parties to secure the payment and performance of all of the Noteholder Claims (as hereinafter
defined).
Accordingly the parties hereto agree as follows:
SECTION 1. Terms. Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meanings specified in the Security Agreement. The rules of construction specified
in Section 1.02 of the Security Agreement also apply to this Agreement.
SECTION 2. Grant of Security Interest. As security for the payment or performance, as the
case may be, in full of the Noteholder Claims, the Grantor, pursuant to the Security Agreement, did
and hereby does grant to the Collateral Agent, its successors and assigns, for the benefit of the
Indenture Secured Parties, a security interest in, all right, title or interest in or to any and
all of the following assets and properties now owned or at any time hereafter acquired by the
Grantor or in which the Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the “Trademark Collateral”):
(a) all trademarks, service marks, corporate names, company names, business names,
fictitious business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations thereof (if any), and all registration and recording
1
applications filed in connection therewith, including registrations and registration
applications in the United States Patent and Trademark Office or any similar offices in any
State of the United States or any other country or any political subdivision thereof (except
for “intent to use” applications for trademark or service xxxx registrations filed pursuant
to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, unless and until an Amendment to Allege
Use or a Statement of Use under Sections 1(c) and 1(d) of the Xxxxxx Act has been filed, to
the extent that, and solely during the period for which, any assignment of an “intent to
use” application prior to such filing would violate the Xxxxxx Act), and all renewals
thereof, including those listed on Schedule I (the “Trademarks”);
(b) all goodwill associated with or symbolized by the Trademarks;
(c) all claims for, and rights to xxx for, past or future infringements of any of the
foregoing; and
(d) all income, royalties, damages and payments now or hereafter due and payable with
respect to any of the foregoing, including damages and payments for past or future
infringement thereof.
SECTION 3. Security Agreement. The security interests granted to the Collateral Agent herein
are granted in furtherance, and not in limitation of, the security interests granted to the
Collateral Agent pursuant to the Security Agreement. The Grantor hereby acknowledges and affirms
that the rights and remedies of the Collateral Agent with respect to the Trademark Collateral are
more fully set forth in the Security Agreement, the terms and provisions of which, including
without limitation, all rights, privileges, protections, benefits, immunities and indemnities
provided the Collateral Agent, are hereby incorporated herein by reference as if fully set forth
herein. In the event of any conflict between the terms of this Agreement and the Security
Agreement, the terms of the Security Agreement shall govern.
SECTION 4. Choice of Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. Intercreditor Agreement Controls. Notwithstanding anything herein to the
contrary, (i) the liens and security interests granted to the Collateral Agent pursuant to this
Agreement are expressly subject and subordinate to the liens and security interests granted to
Credit Suisse AG, Cayman Islands Branch (f/k/a Credit Suisse, Cayman Islands Branch), as collateral
agent (and its permitted successors), for the benefit of the secured parties referred to below,
pursuant to the Guarantee and Collateral Agreement dated as of May 29, 2007 (as amended, amended
and restated, supplemented or otherwise modified from time to time), from the Issuer and the other
“Pledgors” referred to therein, in favor of Credit Suisse AG, Cayman Islands Branch (f/k/a Credit
Suisse, Cayman Islands Branch), as collateral agent for the benefit of the secured parties referred
to therein, and (ii) the exercise of any right or remedy by the Collateral Agent hereunder is
subject to the limitations and provisions of the Intercreditor Agreement dated as of March 4, 2011
(as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), by and among Credit Suisse AG, Cayman Islands Branch, in
2
its capacity as Credit Agreement Agent, The Bank of New York Mellon Trust Company, N.A., as
Trustee and Collateral Agent, Claire’s Inc., the Issuer and the Subsidiaries party thereto. In the
event of any conflict between the terms of the Intercreditor Agreement and the terms of this
agreement, the terms of the Intercreditor Agreement shall govern.
3
IN WITNESS WHEREOF, the Grantor and the Indenture Secured Parties have caused this Agreement
to be duly executed and delivered as of the date first written above.
| CBI DISTRIBUTING CORP. |
||||
| By: | /s/ J. Per Xxxxxx | |||
| Name: | J. Per Xxxxxx | |||
| Title: Executive Vice President and Chief Financial Officer |
||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent |
||||
| By: | /s/ Xxxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxxx | |||
| Title: Vice President | ||||
Schedule I
Trademark Registrations
| Trademark | Reg. No. | Owner | Classes | Status | ||||||||
...IT’S AT CLAIRE’S
|
3,817,929 | CBI Distributing Corp. | 35 | Registered | ||||||||
C Swirl
|
3,512,546 | CBI Distributing Corp. | 4, 14, 16, 20, 26 | Registered | ||||||||
CLAIRE
|
2,813,344 | CBI Distributing Corp. | 28 | Registered | ||||||||
CLAIRE’S
|
2,908,860 | CBI Distributing Corp. | 20 | Registered | ||||||||
CLAIRE’S
|
2,978,984 | CBI Distributing Corp. | 16 | Registered | ||||||||
CLAIRE’S
|
2,967,212 | CBI Distributing Corp. | 20 | Registered | ||||||||
CLAIRE’S
|
2,908,861 | CBI Distributing Corp. | 26 | Registered | ||||||||
CLAIRE’S
|
3,190,840 | CBI Distributing Corp. | 21 | Registered | ||||||||
CLAIRE’S
|
3,190,839 | CBI Distributing Corp. | 35 | Registered | ||||||||
CLAIRE’S
|
2,925,470 | CBI Distributing Corp. | 25 | Registered | ||||||||
CLAIRE’S
|
1,891,172 | CBI Distributing Corp. | 25 | Registered | ||||||||
CLAIRE’S
|
2,919,171 | CBI Distributing Corp. | 21 | Registered | ||||||||
CLAIRE’S
|
2,951,866 | CBI Distributing Corp. | 3 | Registered | ||||||||
CLAIRE’S
|
2,908,858 | CBI Distributing Corp. | 11 | Registered | ||||||||
CLAIRE’S
|
2,908,859 | CBI Distributing Corp. | 16 | Registered | ||||||||
CLAIRE’S
|
2,996,103 | CBI Distributing Corp. | 14 | Registered | ||||||||
CLAIRE’S
|
2,908,857 | CBI Distributing Corp. | 9 | Registered | ||||||||
CLAIRE’S
|
2,900,024 | CBI Distributing Corp. | 24 | Registered | ||||||||
CLAIRE’S
|
2,974,652 | CBI Distributing Corp. | 35 | Registered | ||||||||
CLAIRE’S
|
1,890,335 | CBI Distributing Corp. | 42 | Registered | ||||||||
CLAIRE’S
|
1,925,359 | CBI Distributing Corp. | 14 | Registered | ||||||||
CLAIRE’S
|
3,319,826 | CBI Distributing Corp. | 3 | Registered | ||||||||
CLAIRE’S
|
1,929,317 | CBI Distributing Corp. | 5 | Registered | ||||||||
CLAIRE’S ACCESSORIES
|
1,946,557 | CBI Distributing Corp. | 42 | Registered | ||||||||
CLAIRE’S ACCESSORIES
|
1,956,047 | CBI Distributing Corp. | 42 | Registered | ||||||||
CLAIRE’S ACCESSORIES & Design
|
2,294,937 | CBI Distributing Corp. | 35 | Registered | ||||||||
CLAIRE’S BOUTIQUES & Design
|
1,514,045 | CBI Distributing Corp. | 42 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,867 | CBI Distributing Corp. | 20 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,191 | CBI Distributing Corp. | 26 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,868 | CBI Distributing Corp. | 25 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,863 | CBI Distributing Corp. | 9 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,862 | CBI Distributing Corp. | 3 | Registered | ||||||||
CLAIRE’S CLUB
|
3,343,775 | CBI Distributing Corp. | 35 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,866 | CBI Distributing Corp. | 18 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,865 | CBI Distributing Corp. | 14 | Registered | ||||||||
CLAIRE’S CLUB
|
2,992,613 | CBI Distributing Corp. | 21 | Registered | ||||||||
CLAIRE’S CLUB
|
2,908,864 | CBI Distributing Corp. | 11 | Registered | ||||||||
CLAIRE’S ETC.
|
2,064,149 | CBI Distributing Corp. | 42 | Registered | ||||||||
| Trademark | Reg. No. | Owner | Classes | Status | ||||||||
CLAIRE’S ETC.
|
2,065,959 | CBI Distributing Corp. | 42 | Registered | ||||||||
CLAIRE’S (logo)
|
3,602,239 | CBI Distributing Corp. | 35 | Registered | ||||||||
CLAIRE’S (stylized)
|
2,623,039 | CBI Distributing Corp. | 35 | Registered | ||||||||
ICING
|
3,743,653 | CBI Distributing Corp. | 3, 9, 14, 18, 20, 25, 26, 35 | Registered | ||||||||
ICING BY CLAIRE’S
|
3,050,863 | CBI Distributing Corp. | 35 | Registered | ||||||||
ICING BY CLAIRE’S
|
3,475,495 | CBI Distributing Corp. | 14 | Registered | ||||||||
THE ICING
|
3,461,876 | CBI Distributing Corp. | 35 | Registered | ||||||||
THE ICING
|
1,466,727 | CBI Distributing Corp. | 35 | Registered | ||||||||
THE ICING
|
2,762,642 | CBI Distributing Corp. | 35 | Registered | ||||||||
THE ICING ACCESSORIES & Design
|
2,234,841 | CBI Distributing Corp. | 35 | Registered | ||||||||
SENSITIVE SOLUTIONS
|
1,951,435 | CBI Distributing Corp. | 14 | Registered | ||||||||
WHERE GETTING READY IS HALF THE FUN
|
2,664,513 | CBI Distributing Corp. | 35 | Registered | ||||||||
WHERE THROWING A PARTY IS ALL THE FUND
|
3,136,920 | CBI Distributing Corp. | 41 | Registered | ||||||||
BEE WHO YOU WANNA BE
|
2,888,867 | CBI Distributing Corp. | 35 | Registered | ||||||||
