8-K
BRAND HOUSE COLLECTIVE, INC. (TBHC)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
| Date of Report (Date of Earliest Event Reported): | September 15, 2025 |
|---|
The Brand House Collective, Inc.
(Exact name of registrant as specified in its charter)
| Tennessee | 000-49885 | 62-1287151 |
|---|---|---|
| (State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
| 5310 Maryland Way, Brentwood, Tennessee | 37027 | |
| (Address of principal executive offices) | (Zip Code) | |
| Registrant’s telephone number, including area code: | 615-872-4800 | |
| --- | --- |
Kirkland’s, Inc.
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock | TBHC | NASDAQ Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
On September 15, 2025, The Brand House Collective, Inc. (the “Company” or “Brand House Collective”) and its subsidiaries entered into Amendment No. 1 to the Amended and Restated Term Loan Credit Agreement with Bed Bath & Beyond, Inc. (formerly known as Beyond, Inc.) (“Beyond”) (the “Beyond Amendment”) amending the previous Amended and Restated Term Loan Credit Agreement dated May 7, 2025 among Brand House Collective and its subsidiaries and Beyond (the “Existing Beyond Credit Agreement”, and the Existing Credit Agreement as amended by the Beyond Amendment, the “Amended Beyond Credit Agreement”). Pursuant to the terms of the Amended Beyond Credit Agreement, new delayed-draw term loan commitments in an aggregate original principal amount of $20 million (the “Beyond Delayed Draw Term Loan Commitments”) were established.
The Company also entered into a Fourth Amendment to the Third Amended and Restated Credit Agreement (the “Fourth Amendment”) with Bank of America, N.A., as Administrative Agent and Collateral Agent for the Lenders (in such capacities, the “Agent”), which amends that certain Third Amended and Restated Credit Agreement dated as of March 31, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “2023 Credit Agreement”). Among other amendments, the Fourth Amendment was entered into to (i) permit the Beyond Delayed Draw Term Loan Commitments, (ii) adjust the definition of change of control with respect to Beyond by increasing the allowable ownership percentage from 65% to 75%, and (iii) consent to the transactions that are subject to the Purchase Agreement and release its lien on the Kirkland’s Brand (each as defined below).
The Company previously entered into the Asset Purchase Agreement dated May 7, 2025 (the “Existing Purchase Agreement”) by and between the Company and Beyond, pursuant to which Beyond has the right to purchase the Company’s right, title and interest in and to its trademarks and domain names comprised of or containing the element KIRKLAND’S (the “Kirkland’s Brand”). In connection with the closing of the Beyond Amendment and the Fourth Amendment described above, the Company has entered into an amendment to the Existing Purchase Agreement (the Existing Purchase Agreement, as amended by the amendment, the “Purchase Agreement”), increasing the purchase price from $5 million to $10 million. The consummation of the Purchase Agreement was conditioned upon obtaining the consent of Agent and the release of all liens on the Kirkland’s Brand, each of which was obtained and documented in the Fourth Amendment. The Purchase Agreement closed concurrently in connection with the closings of the Beyond Amendment and the Fourth Amendment on September 15, 2025, and in connection with the assignment of the Kirkland’s Brand to Beyond, the Amended and Restated Trademark License Agreement dated August 15, 2025 was amended, such that Beyond licenses the Kirkland’s Brand to Brand House Collective in connection with the Company’s operation of its then existing Kirkland’s-branded retail stores and e-commerce websites and any other retail stores or e-commerce websites approved by Beyond in its sole discretion (the “Second Amended and Restated Trademark License Agreement”). Pursuant to that amendment, the license with respect to Kirkland’s stores expires upon the earlier of (i) the rebranding or closure of such stores, or (ii) two years from the date of the amendment, and the license for other goods and services is terminable by Beyond upon expiration of the Kirkland’s stores license. The funds received by the Company from the purchase price will be used for general working capital and operating expenses.
The foregoing descriptions of the Beyond Amendment, the Purchase Agreement, the Fourth Amendment, and the Second Amended and Restated Trademark License Agreement do not purport to be complete and are qualified in their entirety by reference to the agreements, which are attached hereto as Exhibits 10.1 through 10.4, respectively, and are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.
Item 3.03 Material Modification to Rights of Security Holders
The information set forth under Item 1.01 above is incorporated by reference into this Item 3.03.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| The Brand House Collective, Inc. | ||
|---|---|---|
| September 15, 2025 | By: | /s/ Michael W. Sheridan |
| Name: Michael W. Sheridan | ||
| Title: Senior Vice President, General Counsel and Corporate Secretary |
ex_861143.htm
Exhibit 10.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT (this “Amendment”), dated as of September 15, 2025 (the “Amendment Date”), is entered into by and among KIRKLAND’S STORES, INC., a Tennessee corporation (“Lead Borrower), the other Loan Parties party hereto, the lenders party hereto (the “Lenders”) and BED BATH & BEYOND, INC., a Delaware corporation (f/k/a Beyond, Inc., a Delaware corporation), as the Administrative Agent and Collateral Agent (in such capacities, the “Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Amended Credit Agreement (as defined below).
RECITALS
A. Lead Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Agent are party to that certain Amended and Restated Term Loan Credit Agreement, dated as of May 7, 2025 (as amended, restated, supplemented or otherwise modified in writing prior to the date hereof, the “Credit Agreement”).
B. The Loan Parties have requested that the Agent and the Lenders amend, and the Agent and the Lenders have agreed to amend, the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the terms, covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 3 below, and in reliance on the representations, warranties, covenants and other agreements of the Loan Parties contained herein, the Loan Parties, Agent and the Lenders party hereto agree that the Credit Agreement is hereby amended as follows (the Credit Agreement as so amended, the “Amended Credit Agreement”):
(a) the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the document attached as Exhibit A hereto; and
(b) Schedule 2.01 of the Credit Agreement shall be amended to add the Delayed Draw Term Loan Commitments and the related Applicable Percentages specified on Exhibit B hereto.
SECTION 2. Representations and Warranties of the Loan Parties. In order to induce the Agent and the Lenders to enter into this Amendment, each of the Loan Parties represent and warrant that:
(a) Each Loan Party (a) is a corporation, limited liability company, partnership or limited partnership, duly incorporated, organized or formed, validly existing and, where applicable, in good standing under the Laws of the jurisdiction of its incorporation, organization or formation, (b) has all requisite power and authority and all requisite governmental licenses, permits, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under this Amendment and to perform its obligations under the Amended Credit Agreement, and (c) is duly qualified and is licensed and, where applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
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(b) The execution, delivery and performance of this Amendment and the performance of the Amended Credit Agreement by each Loan Party has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Loan Party’s Organization Documents; (b) conflict with or result in any breach, termination, or contravention of, or constitute a default under, or require any payment to be made under (i) any Material Contract or any Material Indebtedness to which such Loan Party is a party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject; (c) result in or require the creation of any Lien upon any asset of any Loan Party (other than Liens in favor of the Agent under the Security Documents); or (d) violate any Law.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment or the Amended Credit Agreement (as the case may be), except for such as have been obtained or made and are in full force and effect.
(d) This Amendment has been duly executed and delivered by each Loan Party that is party hereto. This Amendment and the Amended Credit Agreement each constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) All of the representations and warranties of the Loan Parties under this Amendment and the other Loan Documents are true and correct in all material respects (in each case, without duplication of any materiality qualifier contained herein or therein, as applicable) as of the date hereof (or if, any such representation or warranty relates to an earlier date, such earlier date), immediately before and immediately after giving effect to this Amendment, the Amended Credit Agreement and the transactions contemplated herein and therein.
(f) There shall not exist any Default or Event of Default, in each case immediately before and after giving effect to this Amendment, the Amended Credit Agreement and the transactions contemplated herein and therein.
(g) Since February 1, 2025, there has occurred no event which has had or would reasonably be expected to have a Material Adverse Effect.
SECTION 3. Effectiveness. This Amendment shall be effective at the time that each of the conditions precedent set forth in this Section 3 shall have been met (such date, the “Effective Date”):
(a) Amendment. The Agent shall have received duly executed counterparts of this Amendment signed by the Loan Parties and the Lenders.
(b) Payment of Legal Fees and Expenses. The Loan Parties shall have paid all reasonable and documented out-of-pocket costs and expenses of the Agent and its professional advisors (including, without limitation, Latham & Watkins LLP) incurred in connection with this Amendment and the other documents related thereto.
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(c) Representations and Warranties. The representations and warranties contained herein shall be true, correct and complete in all respects.
(d) No Default, Event of Default. There shall exist no Default or Event of Default, in each case, immediately before and after giving effect to this Amendment, the Amended Credit Agreement and the transactions contemplated herein and therein.
(e) Closing/Solvency Certificate. The Agent shall have received a certificate of a Responsible Officer of the Lead Borrower certifying as to (i) the satisfaction of the conditions precedent set forth in Sections 3(c) and (d) of this Amendment, (ii) the Solvency of the Loan Parties as of the Effective Date after giving effect to the Amendment, the Amended Credit Agreement and the transactions contemplated herein and therein, and (iii) either that (A) no consents, licenses or approvals are required in connection with the execution, delivery and performance of this Amendment and the performance of the Amended Credit Agreement by such Loan Party and the enforceability against such Loan Party of the Amendment and the Amended Credit Agreement, or (B) that all such consents, licenses and approvals have been obtained and are in full force and effect.
(f) Secretary’s Certificate. The Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require certifying (i) the authority of such Loan Party to enter into this Amendment and to perform its obligations hereunder and under the Amended Credit Agreement, (ii) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Amended Credit Agreement, (iii) (A) that attached thereto are true, correct and complete copies of such Loan Party’s Organization Documents and that such Organization Documents are in full force and effect as of the Effective Date or (B) that there have been no changes to the Organizational Documents of such Loan Party since true, correct and complete copies of the same were delivered to the Agent on the Original Closing Date (as defined in the Amended Credit Agreement),and (iv) that such Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect (as evidenced by Certificates of Good Standing (or equivalent documents) issued on a recent date by the Secretary of State (or equivalent Person) in the jurisdiction of formation of such Loan Party.
(g) Notes. The Agent shall have received Delayed Draw Term Loan Notes in favor of each Lender requesting an Amendment No. 1 Term Loan Note.
(h) IP Purchase. The Closing (as defined in the Intellectual Property Purchase Agreement) shall have occurred and the Administrative Agent shall have received all material documents entered into in connection therewith (including, for the avoidance of doubt, all documentation evidencing the BofA Closing Consent (as defined in the Intellectual Property Purchase Agreement)).
(i) Opinion. The Agent shall have received a favorable opinion of Bass, Berry & Sims PLC, counsel to the Loan Parties, addressed to the Agent and each Lender and addressing such matters concerning the Loan Parties, the Amendment and the Amended Credit Agreement as the Agent may reasonably request;
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(j) Intercreditor Agreement Amendment. The Agent shall have received an amendment to the ABL Intercreditor Agreement, in form and substance acceptable to the Agent and duly executed by the persons party thereto.
(k) ABL Credit Agreement Amendment. The Agent shall have received an amendment to the ABL Credit Agreement (which, for the avoidance of doubt includes a consent to this Amendment), in form and substance acceptable to the Agent and duly executed by the persons party thereto.
(l) Lien Searches. The Agent shall have received Lien search results with respect to the Loan Parties from all jurisdictions and filing offices reasonably requested by the Agent disclosing no Liens with priority senior to the Liens on the assets of the Loan Parties granted or to be granted pursuant to the Security Documents, except Liens permitted under Section 7.01 of the Amended Credit Agreement.
SECTION 4. Reference to and Effect upon the Loan Documents.
(a) Except as expressly modified hereby, all terms, conditions, covenants, representations and warranties contained in the Amended Credit Agreement and the other Loan Documents, and all rights of the Lenders and all of the Obligations, shall remain in full force and effect. Each of the Loan Parties hereby confirms that the Amended Credit Agreement and the other Loan Documents are in full force and effect and that, as of the Effective Date, no Loan Party has any right of setoff, recoupment or other offset or any defense, claim or counterclaim with respect to any of the Obligations, the Amended Credit Agreement or any other Loan Document.
(b) The execution, delivery and effectiveness of this Amendment shall not directly or indirectly (i) constitute a consent or waiver of any past, present or future violations of any provisions of the Amended Credit Agreement, this Amendment or any other Loan Document or (ii) except as expressly provided herein, amend, modify or operate as a waiver of any provision of the Amended Credit Agreement or any other Loan Documents or any right, power or remedy of any of the Lenders.
(c) From and after the Effective Date, (i) the term “Agreement” in the Amended Credit Agreement, and all references to the Credit Agreement in any Loan Document, shall mean the Amended Credit Agreement and (ii) the term “Loan Documents” in the Amended Credit Agreement and the other Loan Documents shall include, without limitation, this Amendment and any agreements, instruments and other documents executed and/or delivered in connection herewith.
(d) Neither the Agent nor any other Lender has waived, is by this Amendment waiving or has any intention of waiving (regardless of any delay in exercising such rights and remedies) any Default or Event of Default which may be continuing on the Effective Date or any Default or Event of Default which may occur after the Effective Date, and neither the Agent nor any Lender has agreed to forbear with respect to any of its rights or remedies concerning any Defaults or Events of Default, which may have occurred or are continuing as of the Effective Date, or which may occur after the Effective Date.
(e) This Amendment shall not be deemed or construed to be a satisfaction, reinstatement, novation or release of the Amended Credit Agreement or any other Loan Document.
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SECTION 5. Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement
SECTION 6. Costs and Expenses. As provided in Section 10.04 of the Amended Credit Agreement, the Loan Parties agree to reimburse the Agent for all reasonable out-of-pocket costs and expenses, including the reasonable fees and disbursements of counsel, incurred by the Agent in connection with this Amendment.
SECTION 7. Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process; Actions Commenced by Loan Parties.. Section 10.14 of the Amended Credit Agreement is incorporated herein by reference as if separately set forth in full herein.
SECTION 8. Headings. Headings used in this Amendment are for convenience only and shall not affect the interpretation of any provision hereof.
SECTION 9. Loan Document. This Amendment shall constitute a Loan Document. For the avoidance of doubt, any breach of the representations, warranties and covenants contained in this Amendment shall be an Event of Default under the Amended Credit Agreement.
SECTION 10. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property, proxy rights with respect to its owned or issued equity or otherwise acts as accommodation party, indemnitor or guarantor, as the case may be, hereby (i) acknowledges, ratifies and reaffirms that all Obligations constitute valid and existing “Obligations” under the Amended Credit Agreement (including all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto)) and (ii) to the extent such Loan Party pledged, granted liens on or security interests in (or any other similar rights) any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrowers’ Obligations under or with respect to the Loan Documents, acknowledges, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such pledges, security interests, liens and other similar rights remain in full force and effect notwithstanding the effectiveness of this Amendment to secure all of the Obligations arising under or pursuant to and as defined in the Amended Credit Agreement. Without limiting the generality of the foregoing, each Loan Party further agrees (A) that any reference to “Obligations” contained in any Loan Documents shall include, without limitation, the “Obligations” as such term is defined in the Amended Credit Agreement and (B) that the related guarantees and grants of security contained in such Loan Documents shall include and extend to such Obligations. Each of the Loan Parties hereby consents to this Amendment and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.
SECTION 11. Severability. Section 10.12 of the Amended Credit Agreement is incorporated herein by reference as if separately set forth in full herein.
SECTION 12. Counterparts; Integration; Effectiveness. Section 10.10 of the Amended Credit Agreement is incorporated herein by reference as if separately set forth in full herein.
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SECTION 13. Release of Claims. In consideration of the Lenders’ agreements contained in this Amendment, each Loan Party signatory hereby irrevocably releases and forever discharges the Lenders and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which any such Loan Party ever had or now has against the Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of any Agent, any Lender or any other Released Person relating to the Amended Credit Agreement or any other Loan Document on or prior to the date hereof.
SECTION 14. Assignments; No Third Party Beneficiaries. This Amendment shall be binding upon and inure to the benefit of the Agent, the Borrowers, the other Loan Parties, each Lender and their respective successors and permitted assigns. No Person other than the Borrowers, the other Loan Parties, the Lenders and in the case of Section 13, the Released Persons, shall have any rights hereunder or be entitled to rely on this Amendment and all third-party beneficiary rights (other than the rights of the Released Persons under Section 13 hereof) are hereby expressly disclaimed.
SECTION 15. Post-Closing Obligations. The Borrowers shall deliver to Agent, within five (5) Business Days after the Effective Date, evidence in form and substance reasonably acceptable to Agent that ABL Agent’s Liens encumbering the Acquired Assets (as defined in the Intellectual Property Purchase Agreement) have been released.
[Signature pages to follow]
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed and delivered as of the date first above written.
| BORROWERS: | |
|---|---|
| KIRKLAND’S STORES, INC., as Lead Borrower and as a Borrower | |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| KIRKLAND’S TEXAS, LLC, as a Borrower | |
| --- | --- |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| OTHER LOAN PARTIES: | |
| --- | --- |
| THE BRAND HOUSE COLLECTIVE, INC. (f/k/a Kirkland’s, Inc.), as Parent and as a Guarantor | |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| KIRKLAND’S DC, INC., as a Guarantor | |
| --- | --- |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| BED BATH & BEYOND, INC. (f/k/a Beyond Inc.), as Administrative Agent, Collateral Agent and a Lender | |
|---|---|
| By: | /s/ Marcus Lemonis |
| Name: | Marcus Lemonis |
| Title: | Executive Chairman |
ex_861144.htm
Exhibit 10.2
September 15, 2025
The Brand House Collective, Inc.
5310 Maryland Way
Brentwood, Tennessee 37027
Attn: Amy Sullivan, President, Chief Executive Officer
W. Michael Madden, Executive Vice President and Chief Financial Officer
Re: Amendment No. 1 to Asset Purchase Agreement
Ladies and Gentlemen:
Reference is hereby made to that certain Asset Purchase Agreement, dated as of May 7, 2025 (the “Purchase Agreement”), by and between Bed Bath & Beyond, Inc. (f/k/a Beyond, Inc.), a Delaware corporation (“Purchaser”), and The Brand House Collective Inc., a Tennessee corporation (f/k/a Kirkland’s Inc.) (the “Seller”) (each a “Party”, and together, the “Parties”). Capitalized terms used but not defined herein shall have their respective meaning in the Purchase Agreement.
The Parties hereby acknowledge and agree as follows:
| 1. | Amendment to the Purchase Agreement. Pursuant to and in accordance with Section 10.4 of the Purchase Agreement, notwithstanding anything to the contrary set forth in the Purchase Agreement: |
|---|---|
| a) | “Cash “Payment” as such term is used in the Purchase Agreement shall mean $10,000,000.00; and |
| --- | --- |
| b) | Section 1.1(a) of the Purchase Agreement is hereby deleted in its entirety and replaced with the following: the Trademarks, Trademark registrations, and Trademark applications set forth on Schedule 1.1(a), as well as all other Trademarks, Trademark registrations and Trademark applications owned by Seller and its Affiliates that are comprised of or contain the element “Kirkland” or any abbreviation, translation, or derivation thereof, together with all statutory and common law rights in any and all of the foregoing, all registrations and applications therefor and all renewals thereof (collectively, the “Acquired Trademarks”), all goodwill associated with, or symbolized by, such Trademarks, and all other rights, priorities and privileges arising therefrom or pertaining thereto, throughout the world |
| --- | --- |
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| 2. | Seller Disclosure Schedules. The disclosure schedules required to be delivered by Seller pursuant to the Purchase Agreement and attached hereto as Exhibit A shall constitute the “Seller Disclosure Schedules” for all purposes under the Purchase Agreement. |
|---|---|
| 3. | Effect on the Purchase Agreement: This amendment (“Amendment”) constitutes an amendment to the Purchase Agreement, and the Parties hereby agree and acknowledge that this amendment is made in accordance with the requirements thereof. Throughout the Purchase Agreement, references to “Agreement” or similar phrases shall be deemed to refer to the Purchase Agreement, as amended and supplemented by this Amendment. Except as set forth in this Amendment, the Purchase Agreement shall continue in full force and effect in accordance with its terms. If there is conflict between this Amendment and the Purchase Agreement, the terms of this Amendment will prevail. |
| --- | --- |
The validity, interpretation, construction, and enforcement of this Amendment shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to conflict of laws principles. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, .pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Amendment.
[remainder of page intentionally left blank]
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If this Amendment correctly states our mutual understanding and agreement, please indicate your approval and agreement by executing this Amendment below, as of the date first set forth above, and returning a fully executed copy to the undersigned.
Very truly yours,
| BED BATH & BEYOND, INC. | |
|---|---|
| By: | /s/ Marcus Lemonis |
| Name: | Marcus Lemonis |
| Title: | Executive Chairman |
Accepted and agreed to as of the date first above written:
| THE BRAND HOUSE COLLECTIVE, INC. | |
|---|---|
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
ex_861145.htm
Exhibit 10.3
FOURTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of September 15, 2025 (the “Fourth Amendment Effective Date”) among:
KIRKLAND’S STORES, INC., a Tennessee corporation (the “Lead Borrower”);
The other Borrowers party thereto (together with the Lead Borrower, individually, a “Borrower”, and collectively, the “Borrowers”);
The Guarantors party hereto;
the Lenders party hereto; and
BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent (in such capacities, the “Agent”);
in consideration of the mutual covenants herein contained and benefits to be derived here from.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agent, among others, have entered into a certain Third Amended and Restated Credit Agreement dated as of March 31, 2023 (as amended by that certain First Amendment to Third Amended and Restated Credit Agreement, dated as of January 25, 2024, that certain Second Amendment to Third Amended and Restated Credit Agreement, dated as of October 21, 2024, that certain Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 7, 2025, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, the Lead Borrower has informed the Agent of the Lead Borrower’s intent to amend the Term Loan Credit Agreement on the date hereof (the “Term Loan Amendment”);
WHEREAS, the Lead Borrower has requested that the Agent and the Lenders agree to amend the Credit Agreement to (i) permit the Term Loan Amendment and certain other transactions contemplated thereby, and (ii) amend certain provisions of the Existing Credit Agreement, in each case subject to the terms and conditions set forth herein; and
WHEREAS, the Loan Parties, the Agent and the Lenders have agreed, subject to the terms and conditions set forth herein, to (i) permit the Loan Parties to enter into the Term Loan Amendment and certain other transactions contemplated thereby, and (ii) amend certain provisions of the Existing Credit Agreement, as more particularly set forth herein (the Existing Credit Agreement, as amended by this Amendment and as the same may be further amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
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NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:
| 1. | Incorporation of Defined Terms. All capitalized terms not otherwise defined herein shall have the same meaning as in the Credit Agreement, as applicable. |
|---|---|
| 2. | Representations and Warranties. Each of the Loan Parties hereby represents and warrants that as of the date hereof, (a) no Default or Event of Default exists under the Credit Agreement or under any other Loan Document, and (b) all representations and warranties contained in the Credit Agreement and in any other Loan Document, or which are contained in any document furnished at any time under or in connection with the Credit Agreement or any other Loan Document are true and correct in all material respects, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects and (iii) for purposes of this Amendment, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement. |
| --- | --- |
| 3. | Ratification and Reaffirmation of Loan Documents. The Credit Agreement, as hereby amended, and all other Loan Documents, are hereby ratified and re-affirmed in all respects and shall continue in full force and effect, and each of the Loan Parties hereby affirms its absolute and unconditional promise to pay to the Lenders, the L/C Issuer, and the Agent, as applicable, the Revolving Loans, the Swing Line Loans, other Credit Extensions, reimbursement obligations and all other amounts due or to become due and payable to the Lenders, the L/C Issuer and the Agent, as applicable, under the Credit Agreement, as amended hereby, and it is the intent of the parties hereto that nothing contained herein shall constitute a novation or accord and satisfaction. Except as expressly amended hereby, the Credit Agreement shall continue in full force and effect. |
| --- | --- |
| 4. | Amendments to Credit Agreement. Agent and the Loan Parties hereby agree that from and after the Fourth Amendment Effective Date: |
| --- | --- |
| a. | Section 1.01 of the Existing Credit Agreement is hereby amended by adding the following definitions in the correct alphabetical order: |
| --- | --- |
“Fourth Amendment” means the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of the Fourth Amendment Effective Date, by and among, the Loan Parties, the Lenders party thereto, and the Agent.
“Fourth Amendment Effective Date” means September 15, 2025.
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| b. | Section 1.01 of the Existing Credit Agreement is hereby amended by amending and restating clause (a) of the definition of “Borrowing Base” appearing therein in its entirety as set forth below: |
|---|
“(a) the face amount of Eligible Credit Card Receivables multiplied by, 90%;”
| c. | Section 1.01 of the Existing Credit Agreement is hereby amended by amending and restating the definition of “Change of Control” in its entirety as set forth below: |
|---|
““Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 25% or more of the Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such Equity Interests that such “person” or “group” has the right to acquire pursuant to any option right); provided, however, that the Term Loan Agent and its Affiliates may be the “beneficial owner”, directly or indirectly, of an amount of Equity Interests of the Parent not to exceed 75% in the aggregate so long as a majority of the members of the board of directors or equivalent governing body of the Parent is comprised of members approved by shareholders other than the Term Loan Agent and its Affiliates; or
(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by (x) individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (y) subject to the proviso set forth below, the Term Loan Agent or any of its Affiliates, or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; provided, however, that the Term Loan Agent and its Affiliates shall not elect or nominate to the board of directors or other equivalent governing body of the Parent a majority of the members thereof and at all times, a majority of the members of the board of directors or other equivalent body of the Parent shall be comprised of members approved by shareholders other than the Term Loan Agent and its Affiliates; or
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(c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, control over the Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing 25% or more of the combined voting power of such securities; provided, however, that the Term Loan Agent and its Affiliates may acquire by contract or otherwise, and may enter into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, control over an amount of Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) not to exceed 75% in the aggregate of the combined voting power of such securities, so long as a majority of the members of the board of directors or equivalent governing body of the Parent is comprised of members approved by shareholders other than the Term Loan Agent and its Affiliates; or
(d) any “change in control” or “sale” or “disposition” or similar event as defined in any Organizational Document of any Loan Party or any document governing Material Indebtedness of any Loan Party; or
(e) the Parent fails at any time to own, directly or indirectly, 100% of the Equity Interests of each other Loan Party free and clear of all Liens (other than the Liens in favor of the Agent), except where such failure is as a result of a transaction permitted by the Loan Documents.”
| d. | Section 1.01 of the Existing Credit Agreement is hereby amended by amending and restating the definition of “Fee Letter” in its entirety as set forth below: |
|---|
““Fee Letter” means, collectively, (v) the fee letter, dated the Third Restatement Date, among the Borrowers and the Agent, (w) the fee letter, dated the First Amendment Effective Date among the Borrowers and the Agent, (x) the Second Amendment Fee Letter, (y) the fee letter, dated the Third Amendment Effective Date among the Borrowers and the Agent and (z) the fee letter, dated the Fourth Amendment Effective Date among the Borrowers and the Agent.”
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| e. | Section 1.01 of the Existing Credit Agreement is hereby amended by amending and restating the definition of “Required Availability Amount” in its entirety as set forth below: |
|---|---|
| f. | ““Required Availability Amount” means (a) from the Fourth Amendment Effective Date through but not including February 1, 2026, the greater of (x) 10% of the Loan Cap and (y) $5,000,000, (b) from February 1, 2026 through but not including March 1, 2026, the greater of (x) 10% of the Loan Cap and (y) $6,000,000, (c) from March 1, 2026 through but not including April 1, 2026, the greater of (x) 10% of the Loan Cap and (y) $7,000,000 and (d) on April 1, 2026 and thereafter, the greater of (x) 10% of the Loan Cap and (y) $8,000,000; provided, that in the case of clauses (a), (b) and (c) above, in the event Consolidated EBITDA for the Parent and its Subsidiaries for the trailing three (3) month period immediately preceding such calculation date is not at least 85% of the amount set forth in the forecasts delivered pursuant to Section 6.01(c) for projected Consolidated EBITDA (the “EBITDA Test”), the Required Availability Amount shall be deemed to be the greater of (x) 10% of the Loan Cap and (y) $8,000,000 at all times hereunder regardless of any later satisfaction of the EBITDA Test. With respect to any determination of the Required Availability Amount, in the event the financial statements required to be delivered pursuant to Section 6.01(b) are not delivered within two (2) Business Days of the time periods set forth therein, the Required Availability Amount shall be deemed to be the greater of (x) 10% of the Loan Cap and (y) $8,000,000 until such financial statements are delivered. Solely for purposes of calculating compliance with the EBITDA Test, Consolidated EBITDA shall be calculated excluding any components thereof not set forth in the forecasts delivered pursuant to Section 6.01(c).” |
| --- | --- |
| 5. | Conditions to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent has been fulfilled to the satisfaction of the Agent, unless otherwise waived in writing by the Agent: |
| --- | --- |
| a. | This Amendment shall have been duly executed and delivered by the Loan Parties and the Lenders. The Agent shall have received a fully executed original or pdf copy hereof. |
| --- | --- |
| b. | The Agent shall have received an amendment to the Term Loan Intercreditor Agreement, in form and substance satisfactory to the Agent. |
| --- | --- |
| c. | The Agent shall have received a certificate from a Responsible Officer of the Lead Borrower attaching a true, correct and complete copy of the Term Loan Amendment and all material agreements related thereto. |
| --- | --- |
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| d. | The Fee Letter dated as of the date hereof shall have been duly executed and delivered by the Borrowers. |
|---|---|
| e. | All action on the part of the Loan Parties necessary for the valid execution, delivery and performance by the Loan Parties of this Amendment shall have been duly and effectively taken. |
| --- | --- |
| f. | There shall not have occurred since May 7, 2025,^^any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect. |
| --- | --- |
| g. | After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing. |
| --- | --- |
| 6. | Consent to Intellectual Property Sale. Effective as of the Fourth Amendment Effective Date, in express reliance upon the terms and conditions of this Amendment, including without limitation, the Loan Parties’ representations and warranties herein, and subject to the terms and conditions of this Amendment, the Agent hereby consents to the sale of the Acquired Assets (as defined in the Term Loan IP Purchase Agreement) pursuant to the Term Loan IP Purchase Agreement as required pursuant to Section 7.05 of the Existing Credit Agreement. It is agreed that the consent set forth herein in this Section 6 shall be limited expressly as set forth herein and shall not (i) constitute a modification or waiver of any other provision of the Credit Agreement or the other Loan Documents or the obligations of the Loan Parties thereunder, each of which remains in full force and effect, (ii) impair, modify, abrogate or limit any other provision of the Loan Documents, or (iii) constitute a waiver of any Default or Event of Default. |
| --- | --- |
| 7. | Binding Effect. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their heirs, representatives, successors and assigns. |
| --- | --- |
| 8. | Expenses. The Borrowers shall reimburse the Agent for all reasonable out-of-pocket costs and expenses of the Agent, including, reasonable attorneys’ fees pursuant to Section 10.04 of the Credit Agreement. |
| --- | --- |
| 9. | Multiple Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Amendment. |
| --- | --- |
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| 10. | Governing Law. THIS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. |
|---|---|
| 11. | Release by the Loan Parties. Each Loan Party for and on behalf of itself and its legal representatives, successors and assigns, fully, unconditionally, and irrevocably waives, releases, relinquishes and forever discharges the Agent, the Lenders and each of their parents, subsidiaries, and affiliates, its and their respective past, present and future directors, officers, managers, agents, employees, insurers, attorneys, representatives and all of their respective heirs, successors and assigns, (collectively, the “Released Parties”), of and from any and all manner of action or causes of action, suits, claims, liabilities, losses, costs, expenses, demands, judgments, damages (including compensatory and punitive damages), levies and executions of whatsoever kind, nature and/or description arising on or before the Fourth Amendment Effective Date, in each case whether known or unknown, asserted or unasserted, liquidated or unliquidated, joint or several, fixed or contingent, direct or indirect, contractual or tortious, which the Loan Parties, or their legal representatives, successors or assigns, ever had or now has or may claim to have against any of the Released Parties, that relate to the Loan Documents, the administration of any Loan Documents, the negotiations relating to this Amendment and the other Loan Documents executed in connection herewith and any other instruments and agreements executed by the Loan Parties in connection therewith or herewith, arising on or before the Fourth Amendment Effective Date. |
| --- | --- |
[remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the parties hereto as of the date first above written.
| BORROWERS: | |
|---|---|
| KIRKLAND’S STORES, INC., as Lead Borrower and as a Borrower | |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| KIRKLAND’S TEXAS, LLC, as a Borrower | |
| --- | --- |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| GUARANTORS: | |
|---|---|
| THE BRAND HOUSE COLLECTIVE, INC., as Parent and as a Guarantor | |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| KIRKLAND’S DC, INC., as a Guarantor | |
| --- | --- |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |
| BANK OF AMERICA, N.A., as Administrative Agent, as Collateral Agent and as a Lender | |
|---|---|
| By: | /s/ Matthew Potter |
| Name: | Matthew Potter |
| Title: | Senior Vice President |
ex_861146.htm
Exhibit 10.4
SECOND AMENDED AND RESTATED TRADEMARK LICENSE AGREEMENT
This Second Amended and Restated Trademark License Agreement (this “Agreement”) is entered into as of September 15, 2025 (the “Second A&R Effective Date”) by and between Bed Bath & Beyond, Inc. (f/k/a Beyond, Inc.), a Delaware corporation (“Licensor”), and The Brand House Collective, Inc., a Tennessee corporation (f/k/a Kirkland’s Inc.), a Tennessee corporation (“Licensee”) (each a “Party”, and together, the “Parties”).
WHEREAS, Licensor and Licensee are party to that certain Trademark License Agreement, dated as of October 21, 2024 (the “Original Trademark License Agreement”), which was entered into concurrently with that certain Collaboration Agreement dated as of October 21, 2024 (as amended and restated on May 7, 2025, as further amended and restated August 15, 2025, and as may be further amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Collaboration Agreement”);
WHEREAS the Parties entered into the Collaboration Agreement for the purpose of engaging in various collaborative efforts and services regarding their respective business operations, including Licensee’s operation of retail concept stores under Licensor’s Trademarks identified on Schedule A (“Beyond Licensed Marks”), as may be modified by the Parties, upon the terms and conditions herein;
WHEREAS, on May 7, 2025, Kirkland’s Stores, Inc., a Tennessee corporation and a subsidiary of Licensee (“Borrower”), and Licensor entered that certain Amended and Restated Term Loan Credit Agreement, dated as of May 7, 2025 (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Amended Beyond Credit Agreement”) pursuant to which, on the terms and subject to the conditions set forth therein, Licensor made additional term loans to Borrower in the aggregate principal amount of $5,232,405.54;
WHEREAS, in connection with the consummation of the transactions contemplated by the Amended Beyond Credit Agreement, the Parties amended and restated the Original Trademark License Agreement on August 15, 2025, such amendment being effective as of May 7, 2025 (the “A&R Trademark License Agreement”);
WHEREAS, pursuant to the Collaboration Agreement, the Parties have entered into that certain Asset Purchase Agreement, dated as of May 7, 2025 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”), pursuant to which Licensee agreed to sell to Licensor, and Licensor agreed to purchase from Licensee, certain assets, including the “Kirkland” Trademarks identified on Schedule C (“Kirkland Licensed Marks” and together with the Beyond Licensed Marks, the “Licensed Marks”); and
WHEREAS, in connection with the consummation of the sale of the Kirkland Licensed Marks to Licensor pursuant to the Purchase Agreement, Licensor agreed, in accordance with Section 2(i) of the Collaboration Agreement, to amend this Agreement to provide for the license of the Kirkland Licensed Marks by Licensor to Licensee, and in furtherance thereof, the Parties desire to amend and restate the A&R Trademark License Agreement, effective as of Second A&R Effective Date.
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NOW, THEREFORE, in consideration of the foregoing, the mutual conditions and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
| 1. | DEFINITIONS |
|---|
As used herein, the following terms shall have the following meanings:
“Affiliate” of any Person means any Person, directly or indirectly, Controlling, Controlled by or under common Control with such Person.
“Business Day” means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
“Control” (including its correlative meanings “under common Control with” and “Controlled by”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through ownership of securities or partnership or other interests, by contract or otherwise.
“Licensor Products” means those products that are sourced by or on behalf of Licensor for retail sale on Licensor’s Bed Bath & Beyond e-commerce site, overstock.com and such other branded retail channels as further described in the Collaboration Agreement.
“Person” means an individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization or a government or agency or political subdivision thereof.
“Shop-within-a-Shop” means a space within a Licensee-branded brick-and-mortar retail store that is branded with the Licensed Marks and reflects branding elements associated with the Licensed Marks and in which Licensee promotes, features and sells solely Licensor Products. A “Shop-within-a-Shop” may take the form of a pop-up shop, semi-permanent shop-within-a-shop, designated merchandised or branded areas within stores, end-caps or other merchandising and promotional settings, in each case, as mutually agreed to in writing by the Parties.
“Trademark” means all trademarks, brand names, trade dress, logos and other identifiers of source, together with all registrations and applications for registration thereof.
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| 2. | LICENSE GRANTS |
|---|
2.1 Neighborhood Format Brick-and-Mortar Stores. Subject to the terms and conditions of this Agreement, and subject to Licensee’s obligation to pay the Collaboration Fees pursuant to the Collaboration Agreement, Licensor hereby grants to Licensee, during the term of this Agreement, a non-exclusive (except as set forth in Section 2.2), non-transferable, non-sublicensable license to operate brick-and-mortar retail stores branded under the Beyond Licensed Marks, in each case, in an in-store format ranging from 7,000 to 15,000 sq. ft. per store location, (which shall, for avoidance of doubt, exclude Shop-within-a-Shops) (such format, a “Neighborhood Format”), pursuant to the Collaboration Agreement or otherwise approved in writing by Licensor from time to time (“Licensed Stores”), including the advertising, marketing and promotion of such Licensed Stores; provided that the aesthetics of the Licensed Stores, the assortment of products therein and the concentration of the vendors of such products shall be substantially consistent with the historical practice of Licensor and its Affiliates and its or their predecessors in connection with their operation of retail stores under the Beyond Licensed Marks, unless Licensee obtains Licensor’s prior written consent to sell other products, which may be given or withheld in Licensor’s sole and absolute discretion.
2.2 Exclusivity.
| (a) | During the term of this Agreement, directly or indirectly, Licensor shall not, and shall not grant a license or right to any Affiliate or third party to, operate any BED BATH & BEYOND, BED BATH & BEYOND HOME, BABY AND BEYOND or BUYBUYBABY branded brick-and-mortar retail stores in the Neighborhood Format in the United States. |
|---|---|
| (b) | During the term of this Agreement, directly or indirectly, Licensor shall not, and shall not grant a license or right to any Affiliate or third party to, operate any brick-and-mortar retail store under the name KIRKLAND’S or any Kirkland Licensed Mark in the United States. |
| --- | --- |
2.3 Shop-within-a-Shops. Subject to the terms and conditions of this Agreement, and subject to Licensee’s obligation to pay the Collaboration Fees pursuant to the Collaboration Agreement, Licensor hereby grants to Licensee, during the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable, license to use the BED BATH & BEYOND marks and associated branding elements owned by Licensor to create and operate a Shop-within-a-Shop at the locations and in the size and format mutually agreed upon by the Parties in writing from time to time, and to advertise, market and promote such Shop-within-a-Shops; provided that, in each Shop-within-a-Shop, Licensee shall solely promote, feature and sell Licensor Products as mutually agreed upon.
2.4 Subsidiaries. The licenses and rights set forth above and other rights set forth herein shall extend to each Licensee Affiliate set forth on Schedule B, but only for so long as they remain Affiliates of Licensee. Licensee shall be responsible for each such Licensee Affiliate’s compliance with the terms of this Agreement.
2.5 New Trademarks. Schedule A may be updated by the Parties from time to time upon the Parties’ mutual written agreement to reflect (i) a Trademark that uses, incorporates or modifies a Beyond Licensed Mark, and (ii) a Trademark acquired by Licensor and under which Licensee has the right to sell Licensed Products pursuant to Section 8 of the Collaboration Agreement.
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2.6 License to Kirkland Licensed Marks. Subject to the terms and conditions of this Agreement, and subject to Licensee’s obligation to pay the Collaboration Fees pursuant to the Collaboration Agreement, Licensor hereby grants to Licensee, during the term of this Agreement, a non-exclusive (except as set forth in Section 2.2), non-transferable, non-sublicensable license to operate the brick-and-mortar retail stores and e-commerce websites which are branded under the Kirkland Licensed Marks and operated by Licensee, in each case as of the Second A&R Effective Date (and excluding, for the avoidance of doubt, any Kirkland-branded e-commerce websites operated by Licensor), and any other retail stores or e-commerce websites approved by Licensor in its sole and absolute discretion (collectively the “Kirkland Licensed Stores”), including the advertising, marketing and promotion of the Kirkland Licensed Stores; provided that the aesthetics of the Kirkland Licensed Stores, the assortment of products therein and the concentration of the vendors of such products shall be substantially consistent with the historical practice of Licensee and its Affiliates and its or their predecessors in connection with their operation of retail stores and e-commerce websites under the Kirkland Licensed Marks, unless Licensee obtains Licensor’s prior written consent to sell other products, which may be given or withheld in Licensor’s sole and absolute discretion.
| 3. | OWNERSHIP AND USE RESTRICTIONS |
|---|
3.1 Ownership, Goodwill and Reservation of Rights. Any rights not expressly granted in this Agreement are expressly reserved for Licensor. Licensor reserves all rights to the Licensed Marks except as specifically granted herein to Licensee and Licensor may exercise such rights at any time. Any and all goodwill arising from Licensee’s and its sublicensees’ use of the Licensed Marks shall inure solely to the benefit of Licensor. Licensee agrees that nothing in this Agreement shall give Licensee any right, title or interest in the Licensed Marks other than the right to use the Licensed Marks in accordance with this Agreement. Licensee is only licensed to use the Licensed Marks, and not any variations, adaptations, translations, abbreviations, localizations or derivatives thereof without the prior written consent of Licensor.
3.2 No Inconsistent Action. Licensee shall not take any action or fail to take any action that would reasonably be expected, in any material respect, to impair or reduce the value or strength of any Licensed Mark, the reputation of Licensor or any of its Affiliates, or the goodwill associated with or symbolized by any Licensed Mark.
3.3 Restrictions. Licensee acknowledges the validity and Licensor’s sole and exclusive ownership of the Licensed Marks, and shall not, directly or indirectly, (a) assert any claim of ownership or right in the Licensed Marks, other than the rights expressly granted pursuant to the license hereunder, (b) interfere with, oppose, cancel or otherwise challenge Licensor’s or its Affiliates’ registrations or applications for registration of the Licensed Marks (including domain name registrations), (c) apply for, or participate with or cause any other entity to apply for, the registration of any Licensed Marks or any logo, symbol, trademark, service mark, company or corporate name, product name, domain name or commercial slogan that comprises or is confusingly similar to any of the Licensed Marks, or (d) challenge the ownership or use of the Licensed Marks by Licensor or its Affiliates or its or their licensees. For avoidance of doubt, (x) except in connection with advertising and promotional campaigns using the Licensed Marks to promote the Licensor Products in the Neighborhood Format or Shop-within-a-Shops locations as approved by the Review Committee on a case-by-case basis, Licensee shall not have the right to use the Beyond Licensed Marks in any domain name or on or in connection with any online, mobile or other electronic stores or social media accounts, and (y) except in connection with the operation of the ecommerce websites included in the Kirkland Licensed Stores, Licensee shall not have the right to use the Kirkland Licensed Marks in any domain name or on or in connection with any online, mobile or other electronic stores or social media accounts. Any violation of the foregoing shall be deemed a material and uncurable default hereunder.
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3.4 Confusing Use. Licensee shall not use the Licensed Marks in any manner likely to cause confusion or doubt in the mind of the public as to the ownership and control thereof or in any manner that does not make clear that the Licensed Marks are owned and controlled exclusively by Licensor. In addition, except to the extent approved in writing by Licensor, Licensee shall not use or co-mingle with the Licensed Marks any other trademarks, characters or properties, whether owned by Licensee or another, so as to suggest that such other trademarks, etc. may have been created or may be owned, controlled, licensed or approved by Licensor or that they are in any way related to the Licensed Marks or Licensor.
3.5 Customer Complaints. Licensee shall, in connection with its duty to use the Licensed Marks so as to promote the continuing goodwill thereof, give immediate attention and take necessary action to satisfy all legitimate customer complaints brought against Licensee in connection with the Licensed Stores, Shop-within-a-Shops, or Kirkland Licensed Stores, or products or services provided therein. Licensee shall give Licensor notice within five (5) days of receipt of all complaints that might reasonably be expected to affect the good standing of the Licensed Marks or the reputation of Licensor and also of all complaints that might reasonably be expected to result in legal action between Licensor and any third party, and cooperate with Licensor upon request to achieve as good a reputation and press for the Licensed Marks as possible.
| 4. | REGISTRATION, INFRINGEMENT AND ENFORCEMENT |
|---|
4.1 Registration. Licensor shall, in its reasonable discretion, prosecute and maintain the applications and registrations for the Licensed Marks during the term of this Agreement at Licensor’s sole cost and expense. Licensor may, in its discretion, seek to apply for the registration of New Trademarks in any jurisdiction. Licensee shall not seek to apply for the registration of the Licensed Marks or any New Trademarks.
4.2 Infringement; Enforcement. Licensee shall promptly inform Licensor in writing of any infringement, dilution, or other violation of a Licensed Mark of which Licensee becomes aware and shall reasonably cooperate with Licensor, at Licensor’s reasonable expense, in the protection and defense of the Licensed Marks. Licensor shall, in its reasonable discretion, defend and enforce the Licensed Marks. For avoidance of doubt, Licensor shall have the sole and exclusive right, but not the obligation, to defend and enforce the Licensed Marks.
| 5. | QUALITY CONTROL |
|---|
5.1 Branding Guidelines. The Review Committee (as defined in the Collaboration Agreement) shall manage all matters that require the Parties’ cooperation or consultation with each other under this Agreement. Licensee shall use the Licensed Marks in accordance with (a) the specifications set forth on Schedule A or Schedule C, as applicable, and (b) in a manner that is consistent with the branding guidelines provided by Licensor to Licensee in writing from time to time (the “Branding Guidelines”). Licensor agrees to consider in good faith any revisions to the Branding Guidelines that are proposed by the Review Committee; however, Licensor shall have the right to accept or reject any such proposals in its sole discretion. Licensee shall obtain Licensor’s prior written approval or approval of the Review Committee for all advertising, marketing and promotional materials bearing the Licensed Marks, which approval shall not be unreasonably withheld, conditioned or delayed.
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5.2 Quality Standards.
(a) Beyond Licensed Marks. The quality of the goods and services sold, provided or otherwise commercialized by Licensee in the Licensed Stores and Shop-within-a-Shops will be of the same or higher quality as the goods and services sold, provided, or otherwise commercialized by Licensor and its Affiliates and its or their predecessors in connection with the Beyond Licensed Marks at its or their brick-and-mortar retail stores historically, and at least of a quality so as to maintain the value, reputation and goodwill of Licensor, its Affiliates and the Beyond Licensed Marks. Licensee agrees to undertake any actions that Licensor may reasonably request to assist Licensor in inspecting and monitoring the quality of the goods and services offered in the Licensed Stores and Shop-within-a-Shops and the use of the Beyond Licensed Marks in connection with such goods and services.
(b) Kirkland Licensed Marks. The quality of the goods and services sold, provided or otherwise commercialized by Licensee in the Kirkland Licensed Stores will be of the same or higher quality as the goods and services sold, provided, or otherwise commercialized by Licensee and its Affiliates and its or their predecessors in connection with the Kirkland Licensed Marks at its or their brick-and-mortar retail stores and e-commerce websites historically, as applicable, and at least of a quality so as to maintain the value, reputation and goodwill of Licensor, its Affiliates and the Kirkland Licensed Marks. Licensee agrees to undertake any actions that Licensor may reasonably request to assist Licensor in inspecting and monitoring the quality of the goods and services offered in the Kirkland Licensed Stores and the use of the Kirkland Licensed Marks in connection with such goods and services.
5.3 Compliance with Law. Licensee shall only use the Licensed Marks in compliance with applicable laws, and shall comply with all applicable laws and obtain all appropriate governmental approvals pertaining to (a) the operation of Licensee’s business, (b) the sale, provision, or other commercialization of goods and services in the Licensed Stores, Shop-within-a-Shops, and Kirkland Licensed Stores, and (c) any other activities conducted by Licensee in association with the Licensed Marks.
5.4 Notices and Legends. In all uses of the Licensed Marks, Licensee shall include all notices and legends with respect to the Licensed Marks as reasonably requested by Licensor, and, to the extent practical, shall place the symbols “®”, “™” or “℠”, as applicable, or other designations legally required or useful for enforcement of trademark or service mark rights, next to the Licensed Marks consistent with the same manner in which Licensor and its Affiliates use such symbols or other designations.
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| 6. | BOOKS AND RECORDS; AUDITS. |
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Licensor and its duly authorized representatives, may, during regular business hours at times agreed upon by the Parties and with at least thirty (30) days prior written notice, for the duration of this Agreement and for three (3) years thereafter, examine all documents and materials in the possession or under the control of Licensee as necessary to verify Licensee’s compliance with its obligations under this Agreement; and Licensor shall have free and full access thereto for said purposes and for the purpose of making abstracts therefrom and copies thereof. All copies and information accessed, produced or obtained in connection with such audit is the Confidential Information of Licensee and shall be protected as such under Section 4 of the Collaboration Agreement. Any such audit commenced within such period may continue through completion in the ordinary course; provided, that such audit is conducted in a manner designed to minimize disruption to Licensee’s business. All such records and documents, including computer records, shall be kept available by Licensee for at least three (3) years (or such longer period as required by law) after the end of the term of this Agreement and through the completion of any audit commenced prior to the end of such period.
| 7. | TERM AND TERMINATION |
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7.1 Term. The term of this Agreement commenced on October 21, 2024 and, subject to earlier termination under Section 7.2, will continue until the later of (a) the expiration or termination of the Collaboration Agreement, or (b) the expiration of the then-existing term or initial term (not to exceed five (5) years), as applicable, of the lease(s) for all Licensed Stores and all brick-and-mortar retail stores included in the Kirkland Licensed Stores.^^
7.2 Termination for Breach. Without limiting any of Licensor’s other remedies at law or in equity, Licensor may terminate this Agreement:
(a) on seven (7) Business Days’ prior written notice (such notice effective upon expiration of the seven (7) Business Day notice period) if Licensee fails to timely pay the Collaboration Fee pursuant to the terms of the Collaboration Agreement, such notice of termination shall become effective unless, within such seven (7) Business Day period, Licensee shall completely remedy the breach and furnish the required payments;
(b) on thirty (30) days’ prior written notice (such termination effective upon expiration of the thirty (30) day notice period) for any other material breach of this Agreement by Licensee, in the event that Licensee fails to cure such breach within such thirty (30) day period; or
(c) if, in Licensor’s reasonable opinion, Licensee’s ability to perform under this Agreement is or will be impaired due to Licensee’s financial inability to comply with its anticipated obligations under this Agreement; a petition in bankruptcy is filed by or against Licensee; Licensee is adjudicated bankrupt or insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law; Licensee discontinues its business; or a receiver is appointed for Licensee or Licensee’s business and such receiver is not discharged within thirty (30) days.
7.3 Bankruptcy.
(a) No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, sheriff or any other officer of the court or official charged with taking over custody of Licensee’s assets or business may continue this Agreement or exploit or in any way use the Licensed Marks if Licensor terminates this Agreement pursuant to Section 7.2(c).
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(b) In the event of a Licensee bankruptcy proceeding, the Parties acknowledge and agree that: (i) this Agreement is an executory contract within the meaning of Section 365 of Bankruptcy Code; and (ii) as set forth in Section 13.2 below, Licensor, in its interest to safeguard its valuable interests (including, without limitation, the Licensed Marks), has relied on the particular identity, skill and knowledge of the Licensee and, as a result, this Agreement: (A) is personal in nature to the Licensee; (B) is an agreement of the type described by Sections 365(c)(1) and 365(e)(2)(A) of the Bankruptcy Code; and (C) may not be assumed or assigned.
7.4 Effect of Termination. Upon expiration or termination of this Agreement, the licenses granted by this Agreement shall immediately and automatically terminate, and Licensee shall cease and desist from all use of the Licensed Marks. Notwithstanding the foregoing, if Licensee is not in breach of this Agreement as of the date of termination or expiration (it being understood and agreed that a breach of Licensee’s obligation to pay the Collaboration Fees under the Collaboration Agreement shall be deemed to be a breach of this Agreement), upon request from Licensee, Licensor will grant Licensee an additional six (6) month period to transition off the use of the Licensed Marks (the “Transition Period”), provided that Licensor determines, in its reasonable discretion, that there is no material risk of Licensee failing to pay the Collaboration Fees on applicable revenue generated during the Transition Period. This Agreement shall remain in effect during any such Transition Period. The following provisions shall survive termination or expiration of this Agreement (or the Transition Period, if applicable): Sections 1, 3, 6 (for the time period set forth therein), 7.3, 7.4, 8, 9, 10, 11, 12, (for the time period set forth therein) and 13.
| 8. | REPRESENTATIONS AND WARRANTIES |
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Each Party represents and warrants to the other Party that: (a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; and (b) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
| 9. | DISCLAIMER OF WARRANTIES |
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LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSED MARKS ARE LICENSED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND THAT LICENSOR DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED MARKS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ANY IMPLIED WARRANTY OF NONINFRINGEMENT, SUFFICIENCY, QUALITY, USEFULNESS, COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE).
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| 10. | INDEMNIFICATION |
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10.1 Indemnification by Licensor. Licensor shall indemnify, defend and hold harmless Licensee and its Affiliates and its and their respective officers, directors, equityholders, employees and agents (“Licensee Indemnitees”) from and against any and all damages, losses, liabilities, costs, expenses and other payments (“Losses”) resulting from a demand, claim, lawsuit, or action asserted by any third Person against any of the Licensee Indemnitees to the extent such Losses arise out of or are in connection with allegations that Licensee’s use of a Beyond Licensed Mark in compliance with this Agreement infringes, dilutes or otherwise violates the intellectual property rights of a third Person.
10.2 Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates and its and their respective officers, directors, equityholders, employees and agents (“Licensor Indemnitees”) from and against any and all Losses resulting from a demand, claim, lawsuit, or action asserted by any third Person against any of the Licensor Indemnitees to the extent such Losses arise out of or are in connection with (a) Licensee’s operation of the Licensed Stores, Shop-within-a-Shops, or Kirkland Licensed Stores, including the sale, distribution and other commercialization of products and services through the Licensed Stores, Shop-within-a-Shops, or Kirkland Licensed Stores, with the exception of claims for which Licensor is required to indemnify the Licensee Indemnitees pursuant to Section 10.1, or (b) Licensee’s breach of this Agreement.
10.3 Indemnity Procedures. If any claim or action is asserted against any Licensee Indemnitee or Licensor Indemnitee (each, an “Indemnified Party”) that would entitle such Indemnified Party to indemnification pursuant to this Section 10 (a “Proceeding”), the Indemnified Party will give prompt written notice thereof to the other party (the “Indemnifying Party”); provided, however, that the failure of any Indemnified Party to give timely notice hereunder will not affect its rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. The Indemnifying Party may elect to direct the defense or settlement of any such Proceeding by giving written notice to the Indemnified Party, which election will be effective immediately upon receipt by the Indemnified Party of such written notice of election. The Indemnifying Party will have the right to employ counsel reasonably acceptable to the Indemnified Party to defend any such Proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnifying Party deems it advisable to do so, all at the expense of the Indemnifying Party; provided that the Indemnifying Party will not settle, or consent to any entry of judgment in, any Proceeding without obtaining either: (a) an unconditional release of the Indemnified Party from all liability with respect to all claims underlying such Proceeding; or (b) the prior written consent of the Indemnified Party. An Indemnified Party will not settle, or consent to any entry of judgment, in any Proceeding without obtaining the prior written consent of the Indemnifying Party. Each Indemnifying Party and Indemnified Party will fully cooperate with each other in any such Proceeding and will make available to each other any books or records useful for the defense of any such Proceeding.
| 11. | LIMITATION OF LIABILITY |
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WITH THE EXCEPTION OF LICENSOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 AND LIABILITY ARISING FROM LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR SHALL NOT BE LIABLE UNDER THIS AGREEMENT TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) OR CONTRIBUTION, AND IRRESPECTIVE OF WHETHER LICENSOR OR ANY RELATED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
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| 12. | INSURANCE |
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Simultaneously with the execution of this Agreement, Licensee shall promptly obtain and maintain in full force and effect at all times during the term of this Agreement and for at least three (3) years thereafter, at its own cost and expense, commercial general liability insurance on a per occurrence form, including broad form coverage for contractual liability, property damage, products liability and personal injury liability (including bodily injury and death), waiving subrogation, all which is satisfactory to Licensor, in the amount of $5,000,000 of primary and umbrella coverage from one or more insurance companies, each with a Best’s rating of “A” or better, and qualified to transact business in the territories where the Licensed Stores, Shop-within-a-Shops and Kirkland Licensed Stores are located. Licensee also agrees to maintain in full force and effect at all times while this Agreement is in effect such Worker’s Compensation Insurance as is required by applicable law and Employer’s Liability Insurance with coverage as is customary for similarly situated companies. All insurance shall be primary and not contributory. All of said insurance shall: (a) provide for coverage resulting from claims reported after the policy period; (b) name Licensor as an additional insured; and (c) provide for at least thirty (30) days’ prior written notice to Licensor of any cancellation, modification, surrender, or any other action that would affect Licensor’s status or benefits thereunder. During the term of this Agreement, Licensee shall promptly furnish or cause to be furnished to Licensor evidence, in form and substance satisfactory to Licensor, of the maintenance and renewal of the insurance required herein, including copies of policies with applicable riders and endorsements, certificates of insurance, and continuing certificates of insurance. Contemporaneously with the execution and delivery of this Agreement, evidence of the full force and effect of the insurance required herein shall be delivered to Licensor. In all events, Licensor shall under no circumstances operate any Licensed Stores, Shop-within-a-Shops, or Kirkland Licensed Stores at any time or times when Licensee knows or should know that the insurance required herein has not been acquired, has been cancelled or for any other reason is not in full force and effect. Nothing contained in this Section 12 shall be deemed to limit in any way the indemnification provisions of Section 10.
| 13. | MISCELLANEOUS |
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13.1 Independent Contractor. Neither Party is and shall not represent itself to be a subsidiary, affiliate, legal representative, agent, employee, or partner of the other Party or otherwise connected with the other Party, except Licensee as an independent distributor of the Licensor Products in Shop-within-a-Shops, and neither Party shall have the authority to assume, create or incur any obligation or liability on behalf of the other Party.
13.2 Assignment. Nothing herein shall restrict Licensor from assigning or transferring any Licensed Marks to any Person; provided that any such transfer shall have no effect on the license granted to Licensee hereunder, and the Licensed Marks shall remain subject to this Agreement. This Agreement is personal to Licensee, and neither this Agreement nor any of the rights of Licensee hereunder shall be sold, transferred or assigned by Licensee by operation of law or otherwise, without the prior written consent of the Licensor. Any assignment, transfer, hypothecation, pledge or encumbrance of this Agreement by Licensee in violation of the foregoing shall be void from the beginning and constitute a material breach of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors (whether by contract, operation of law or otherwise) and permitted assigns.
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13.3 Notices. **** All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth below (or to such other address that may be designated by the receiving Party from time to time in accordance herewith). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
Licensor shall send notices to Licensee as follows:
The Brand House Collective, Inc.
5310 Maryland Way
Brentwood, Tennessee 37027
Attn: Amy Sullivan, President, Chief Executive Officer
With a copy to:
The Brand House Collective, Inc.
5310 Maryland Way
Brentwood, Tennessee 37027
Attn: General Counsel
Licensee shall send notices to Licensor as follows:
Bed Bath & Beyond, Inc.
433 W. Ascension Way, 3rd Floor
Murray, UT 84123
Attention: Melissa Smith, General Counsel
13.4 Governing Law; Forum; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of Delaware, without giving effect to the conflict of law provisions of Delaware, and any action or proceeding arising out of, or related to, this Agreement, shall only be brought in an appropriate state or federal court in Delaware. The Parties expressly consent to venue in Delaware and to the personal jurisdiction of the Delaware courts. EACH PARTY HERETO, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT OR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
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13.5 Waiver. Failure of either Party to enforce or exercise any of its rights with respect to any provisions hereof against the other Party shall not constitute a waiver thereof nor shall it in any way affect the validity of this Agreement or act as a bar to such Party’s subsequent enforcement or exercise of any right created hereby. The exercise or enforcement by either Party of any of its rights hereunder shall not preclude or prejudice such Party from thereafter exercising the same or any other right which it may have under this Agreement.
13.6 Headings; Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All words used in this Agreement will be construed to be of such gender or number as the context requires. The word “including” shall be read as “including but not limited to” and otherwise shall be considered illustrative and non-limiting. All references to dollars or “$” in this Agreement will be to U.S. dollars. **** The language used in this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party has reviewed this Agreement and that rules of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be available in the interpretation of this Agreement.
13.7 Successors and Assigns. This Agreement is entered into solely between, and may be enforced only by, the Parties and their permitted successors and assigns, and except as expressly set forth herein, this Agreement shall not be deemed to create any rights in third parties, including, without limitation, suppliers and customers of a Party, or to create any obligations of a Party to any such third parties.
13.8 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, inoperative, or unenforceable, the remainder of this Agreement shall not be affected by such determination, and the remainder of this Agreement shall be given effect as if the invalid, inoperative, or unenforceable provision had not been included in this Agreement.
13.9 Equitable Relief; Cumulative Remedies. Licensee acknowledges that a breach of this Agreement by Licensee may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief against Licensee without the obligation to post a bond or other security. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
13.10 Entire Agreement and Modification. Except as otherwise set forth herein, the Parties agree that this Agreement contains the entire agreement between the Parties and there are no other oral statements, representations, warranties or other agreements between the Parties. This Agreement can only be modified, amended or supplemented in writing signed by authorized representatives of both Parties.
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13.11 Counterparts; Integration; Effectiveness This Agreement may be executed in counterparts (and by different Parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement constitutes the entire contract between the Parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective when it shall have been executed by each of Parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective authorized officers as of the Second A&R Effective Date.
| LICENSOR: | |
|---|---|
| BED BATH & BEYOND, INC. | |
| By: | /s/ Marcus Lemonis |
| Name: | Marcus Lemonis |
| Title: | Executive Chairman |
| LICENSEE: | |
| --- | --- |
| THE BRAND HOUSE COLLECTIVE, INC. | |
| By: | /s/ Andrea K. Courtois |
| Name: | Andrea K. Courtois |
| Title: | Senior Vice President and Chief Financial Officer |