exv10w2



 




Exhibit
10.2



EXECUTION VERSION




 





AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT




made by




EDDIE BAUER HOLDINGS, INC.,




EDDIE BAUER, INC.,

as Borrower,




and certain of its Subsidiaries




in favor of




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




Dated as of June 21, 2005

Amended and Restated as of April 4, 2007




 











 



 


TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 1.
	 	DEFINED TERMS	 	 	2	 
	1.1
	 	Definitions	 	 	2	 
	1.2
	 	Other Definitional Provisions	 	 	5	 
	 
	 	 	 	 	 	 
	SECTION 2.
	 	GUARANTEE	 	 	5	 
	2.1
	 	Guarantee	 	 	5	 
	2.2
	 	Right of Contribution	 	 	5	 
	2.3
	 	No Subrogation	 	 	6	 
	2.4
	 	Amendments, etc. with respect to the Borrower Obligations	 	 	6	 
	2.5
	 	Guarantee Absolute and Unconditional	 	 	6	 
	2.6
	 	Reinstatement	 	 	7	 
	2.7
	 	Payments	 	 	7	 
	 
	 	 	 	 	 	 
	SECTION 3.
	 	GRANT OF SECURITY INTEREST	 	 	7	 
	 
	 	 	 	 	 	 
	SECTION 4.
	 	REPRESENTATIONS AND WARRANTIES	 	 	8	 
	4.1
	 	Title; No Other Liens	 	 	8	 
	4.2
	 	Perfected First Priority Liens	 	 	9	 
	4.3
	 	Perfected Second Priority Liens	 	 	9	 
	4.4
	 	Jurisdiction of Organization; Chief Executive Office	 	 	9	 
	4.5
	 	Farm Products	 	 	9	 
	4.6
	 	Investment Property	 	 	9	 
	4.7
	 	Receivables	 	 	10	 
	4.8
	 	Contracts	 	 	10	 
	4.9
	 	Intellectual Property	 	 	10	 
	4.10
	 	Commercial Tort Claims	 	 	11	 
	 
	 	 	 	 	 	 
	SECTION 5.
	 	COVENANTS	 	 	11	 
	5.1
	 	Delivery of Instruments, Certificated Securities and Chattel Paper	 	 	11	 
	5.2
	 	Maintenance of Insurance	 	 	11	 
	5.3
	 	Payment of Obligations	 	 	11	 
	5.4
	 	Maintenance of Perfected Security Interest; Further Documentation	 	 	12	 
	5.5
	 	Changes in Name, etc.	 	 	12	 
	5.6
	 	Notices	 	 	12	 
	5.7
	 	Investment Property	 	 	12	 
	5.8
	 	Receivables	 	 	13	 
	5.9
	 	Contracts	 	 	14	 
	5.10
	 	Intellectual Property	 	 	14	 
	5.11
	 	Commercial Tort Claims	 	 	15	 
	 
	 	 	 	 	 	 
	SECTION 6.
	 	REMEDIAL PROVISIONS	 	 	15	 
	6.1
	 	Certain Matters Relating to Receivables	 	 	15	 
	6.2
	 	Communications with Obligors; Grantors Remain Liable	 	 	16	 
	6.3
	 	Pledged Stock	 	 	16	 
	6.4
	 	Proceeds to be Turned Over To Administrative Agent	 	 	17	 
	6.5
	 	Application of Proceeds	 	 	17	 
	6.6
	 	Code and Other Remedies	 	 	18	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 



i









 




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	6.7
	 	Deficiency	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 7.
	 	THE ADMINISTRATIVE AGENT	 	 	19	 
	7.1
	 	Administrative Agent’s
Appointment as Attorney-in-Fact, etc.	 	 	19	 
	7.2
	 	Duty of Administrative Agent	 	 	20	 
	7.3
	 	Execution of Financing Statements	 	 	20	 
	7.4
	 	Authority of Administrative Agent	 	 	21	 
	 
	 	 	 	 	 	 
	SECTION 8.
	 	MISCELLANEOUS	 	 	21	 
	8.1
	 	Amendments in Writing	 	 	21	 
	8.2
	 	Notices	 	 	21	 
	8.3
	 	No Waiver by Course of Conduct; Cumulative Remedies	 	 	21	 
	8.4
	 	Enforcement Expenses; Indemnification	 	 	21	 
	8.5
	 	Successors and Assigns	 	 	22	 
	8.6
	 	Set-Off	 	 	22	 
	8.7
	 	Counterparts	 	 	22	 
	8.8
	 	Severability	 	 	22	 
	8.9
	 	Section Headings	 	 	22	 
	8.10
	 	Integration	 	 	22	 
	8.11
	 	GOVERNING LAW	 	 	23	 
	8.12
	 	Submission To Jurisdiction; Waivers	 	 	23	 
	8.13
	 	Acknowledgements	 	 	23	 
	8.14
	 	Additional Grantors	 	 	23	 
	8.15
	 	Releases	 	 	24	 
	8.16
	 	WAIVER OF JURY TRIAL	 	 	24	 
	 
	 	 	 	 	 	 
	SCHEDULES	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Schedule 1
	 	Notice Addresses	 	 	 	 
	Schedule 2
	 	Investment Property	 	 	 	 
	Schedule 3
	 	Perfection Matters – Term Lender Priority Collateral	 	 	 	 
	Schedule 4
	 	Perfection Matters – Revolving Lender Priority Collateral	 	 	 	 
	Schedule 5
	 	Jurisdictions of Organization and Chief Executive Offices	 	 	 	 
	Schedule 6
	 	Intellectual Property	 	 	 	 
	Schedule 7
	 	Contracts	 	 	 	 





ii









 



 




AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT




          AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT, dated as of June 21, 2005 and amended
and restated as of April 4, 2007, made by each of the signatories hereto (together with any other
entity that may become a party hereto as provided herein, the “Grantors”), in favor of
JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) for the banks and other financial institutions or entities (the “Lenders”) from
time to time parties to the Term Loan Agreement, dated as of June 21, 2005 and amended and restated
as of April 4, 2007 (as amended, supplemented or otherwise modified from time to time, the
“Loan Agreement”), among Eddie Bauer Holdings, Inc. (“Holdings”), Eddie Bauer, Inc.
(the “Borrower”), the Lenders and the Administrative Agent.




W I T N E S S E T H:




          WHEREAS, Holdings, the Borrower, certain of the Lenders and the Administrative Agent are
parties to that certain Term Loan Agreement, dated as of June 21, 2005 (as heretofore modified and
supplemented and in effect immediately before giving effect to the amendment and restatement
contemplated by the Loan Agreement, the “Existing Loan Agreement”) and the Grantors and the
Administrative Agent are parties to that certain Guarantee and Collateral Agreement, dated as of
June 21, 2005 (as heretofore modified and supplemented and in effect immediately before giving
effect to the amendment and restatement contemplated hereby, the “Existing Guarantee and
Collateral Agreement”);




          WHEREAS, the Borrower has requested that the Existing Loan Agreement and the Existing
Guarantee and Collateral Agreement be amended and restated;




          WHEREAS, pursuant to the Loan Agreement, the Lenders have severally agreed to make
$225,000,000 of loans and other extensions of credit to the Borrower upon the terms and subject to
the conditions set forth therein;




          WHEREAS, the Borrower is a member of an affiliated group of companies that includes each other
Grantor;




          WHEREAS, the proceeds of the loans and the other extensions of credit under the Loan Agreement
will be used in part to enable the Borrower to make valuable transfers to one or more of the other
Grantors in connection with the operation of their respective businesses;




          WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each
Grantor will derive substantial direct and indirect benefit from the making of the loans and other
extensions of credit under the Loan Agreement; and




          WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
loans and other extensions of credit to the Borrower under the Loan Agreement that the Grantors
shall have executed and delivered this amendment and restatement of the Existing Guarantee and
Collateral Agreement to the Administrative Agent for the ratable benefit of the Secured Parties;




          NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the Loan Agreement and to induce the Lenders to make their respective
loans and other extensions of credit to the Borrower thereunder, each Grantor hereby agrees that
effective on the Restatement Effective Date (as defined in the Loan Agreement), the Existing
Guarantee and Collateral Agreement shall be amended and restated as follows:










 



2




SECTION 1. DEFINED TERMS




     1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Loan
Agreement and used herein shall have the meanings given to them in the Loan Agreement, and the
following terms are used herein as defined in the New York UCC: Accounts, Certificated Security,
Chattel Paper, Commercial Tort Claims, Documents, Equipment, Farm Products, Fixtures, General
Intangibles, Instruments, Inventory, Letter-of-Credit Rights and Supporting Obligations.



     (a) The following terms shall have the following meanings:



          “Agreement”: this Amended and Restated Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.




          “Borrower Obligations”: the collective reference to the unpaid principal of and
interest on the Loans and all other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the Loan Agreement after the
maturity of the Loans and interest accruing at the then applicable rate provided in the Loan
Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) to any Secured Lender whether direct or
indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Loan Agreement, this Agreement, the other
Loan Documents or any other document made, delivered or given in connection with any of the
foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid
by the Borrower pursuant to the terms of any of the foregoing agreements).




          “Collateral”: as defined in Section 3.




          “Collateral Account”: any collateral account established by the Administrative Agent
as provided in Section 6.1 or 6.4.




          “Contracts”: the material contracts and agreements of any Grantor listed in
Schedule 7, as the same may be amended, supplemented or otherwise modified from time to
time, including, without limitation, (i) all rights of any Grantor to receive moneys due and to
become due to it thereunder or in connection therewith, (ii) all rights of any Grantor to damages
arising thereunder and (iii) all rights of any Grantor to perform and to exercise all remedies
thereunder.




          “Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 6), granting any right
under any Copyright, including, without limitation, the grant of such rights to manufacture,
distribute, exploit and sell materials embodying any work protected by such Copyright.




          “Copyrights”: (i) all copyrights arising under the laws of the United States, any
other country or any political subdivision thereof, whether registered or unregistered and whether
published or unpublished (including, without limitation, those listed in Schedule 6), all
registrations and recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United States Copyright
Office, and (ii) the right to obtain all renewals thereof.










 



3




          “Deposit Account”: as defined in the Uniform Commercial Code of any applicable
jurisdiction and, in any event, including, without limitation, any demand, time, savings, passbook
or like account maintained with a depositary institution.




          “Foreign Subsidiary”: any Subsidiary organized under the laws of any jurisdiction
outside the United States of America.




          “Foreign Subsidiary Voting Stock”: the voting Capital Stock of any first tier Foreign
Subsidiary.




          “Guarantor Obligations”: with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with this Agreement
(including, without limitation, Section 2) or any other Loan Document to which such Guarantor is a
party, in each case whether on account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid
by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).




          “Guarantors”: the collective reference to each Grantor other than the Borrower.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, technology, know-how
and processes, and all rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.




          “Intercompany Note”: any promissory note evidencing loans made by any Grantor to
Holdings or any of its Subsidiaries.




          “Intercreditor Agreement”: the Intercreditor Agreement, dated as of June 21, 2005,
among the Grantors, the Administrative Agent and the ABL Facility Agent.




          “Investment Property”: the collective reference to (i) all “investment property” as
such term is defined in Section 9-102(a)(49) of the New York UCC (other than any Foreign Subsidiary
Voting Stock excluded from the definition of “Pledged Stock”) and (ii) whether or not constituting
“investment property” as so defined, all Pledged Notes and all Pledged Stock.




          “Issuers”: the collective reference to each issuer of any Investment Property.




          “Material Intellectual Property”: any Intellectual Property owned by a Grantor and
material to the operation of such Grantor’s business as currently conducted.




          “New York UCC”: the Uniform Commercial Code as from time to time in effect in the
State of New York.




          “Obligations”: (i) in the case of the Borrower, the Borrower Obligations, and (ii) in
the case of each Guarantor, its Guarantor Obligations.










 



4




          “Patent License”: all agreements, whether written or oral, providing for the grant by
or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in
part by a Patent, including, without limitation, any of the foregoing referred to in Schedule
6.




          “Patents”: (i) all letters patent of the United States, any other country or any
political subdivision thereof, and all reissues and extensions thereof, including, without
limitation, any of the foregoing referred to in Schedule 6, (ii) all applications for
letters patent of the United States or any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any of the foregoing referred to in
Schedule 6, and (iii) all rights to obtain any reissues or extensions of the foregoing.




          “Pledged Notes”: all promissory notes listed on Schedule 2, all Intercompany
Notes at any time issued to any Grantor and all other promissory notes issued to or held by any
Grantor (other than promissory notes issued in connection with extensions of trade credit by any
Grantor in the ordinary course of business).




          “Pledged Stock”: the shares of Capital Stock listed on Schedule 2, together
with any other shares, stock certificates, options, interests or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect; provided that in no event shall more than 66% of
the total outstanding Foreign Subsidiary Voting Stock of any Foreign Subsidiary be required to be
pledged hereunder.




          “Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New
York UCC and, in any event, shall include, without limitation, all dividends or other income from
the Investment Property, collections thereon or distributions or payments with respect thereto.




          “Receivable”: any right to payment for goods sold or leased or for services rendered,
whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has
been earned by performance (including, without limitation, any Account).




          “Revolving Lender Priority Collateral”: as defined in the Intercreditor Agreement.




          “Secured Parties”: the collective reference to the Administrative Agent and the
Lenders.




          “Securities Act”: the Securities Act of 1933, as amended.




          “Term Lender Priority Collateral”: as defined in the Intercreditor Agreement.




          “Trademark License”: any agreement, whether written or oral, providing for the grant
by or to any Grantor of any right to use any Trademark, including, without limitation, any of the
foregoing referred to in Schedule 6.




          “Trademarks”: (i) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade dress, service marks, logos and other source or
business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in connection therewith,
whether in the United States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without limitation, any of the
foregoing referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.










 



5




     1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.



     (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



     (c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part
thereof.



SECTION 2. GUARANTEE




     2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt
and complete payment and performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.



     (b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of contribution established
in Section 2.2).



     (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee
contained in this Section 2 or affecting the rights and remedies of the Secured Parties hereunder.



     (d) The guarantee contained in this Section 2 shall remain in full force and effect until all
the Borrower Obligations and the obligations of each Guarantor under the guarantee contained in
this Section 2 shall have been satisfied by payment in full.



     (e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by any Secured Party from the Borrower, any of the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or in payment of the
Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability
of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment received or collected
from such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower
Obligations up to the maximum liability of such Guarantor hereunder until the Borrower Obligations
are paid in full.



     2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to
the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect
limit the obligations and liabilities of any Guarantor to the Secured Parties, and each Guarantor
shall remain liable to the Secured Parties for the full amount guaranteed by such Guarantor
hereunder.









 



6


     2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or
any set-off or application of funds of any Guarantor by any Secured Party, no Guarantor shall be
entitled to be subrogated to any of the rights of any Secured Party against the Borrower or any
other Guarantor or any collateral security or guarantee or right of offset held by any Secured
Party for the payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Borrower or any other Guarantor in respect of
payments made by such Guarantor hereunder, until all amounts owing to the Secured Parties by the
Borrower on account of the Borrower Obligations are paid in full. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the Borrower
Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust
for the Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon
receipt by such Guarantor, be turned over to the Administrative Agent in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if required), to be
applied against the Borrower Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.



     2.4 Amendments, etc. with respect to the Borrower Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any
of the Borrower Obligations made by any Secured Party may be rescinded by such Secured Party and
any of the Borrower Obligations continued, and the Borrower Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or released by any
Secured Party, and the Loan Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Required Lenders or all Lenders, as the case
may be) may deem advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. No Secured Party shall have
any obligation to protect, secure, perfect or insure any Lien at any time held by it as security
for the Borrower Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.



     2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or
proof of reliance by any Secured Party upon the guarantee contained in this Section 2 or acceptance
of the guarantee contained in this Section 2; the Borrower Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended
or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the
Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or nonpayment to or
upon the Borrower or any of the Guarantors with respect to the Borrower Obligations. Each
Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed
as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity
or enforceability of the Loan Agreement or any other Loan Document, any of the Borrower Obligations
or any other collateral security therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by any Secured Party, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be available to or be
asserted by the Borrower or any other Person against any Secured Party, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor)
which constitutes, or might be construed to constitute, an equitable or legal discharge of the
Borrower for the Borrower Obligations, or









 



7

of such Guarantor under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise
pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall
be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as
it may have against the Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and
any failure by any Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower, any other Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance of any legal proceedings.




     2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Borrower Obligations is rescinded or must otherwise be restored or returned by any
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been made.



     2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid
to the Administrative Agent for the ratable benefit of the Secured Parties without set-off or
counterclaim in Dollars at the Funding Office.



SECTION 3. GRANT OF SECURITY INTEREST




          Each Grantor hereby assigns and transfers to the Administrative Agent, and hereby grants to
the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in,
all of the following property now owned or at any time hereafter acquired by such Grantor or in
which such Grantor now has or at any time in the future may acquire any right, title or interest
(collectively, the “Collateral”), as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of
such Grantor’s Obligations:




     (a) all Accounts;



     (b) all Chattel Paper;



     (c) all Contracts;



     (d) all Deposit Accounts;



     (e) all Documents (other than title documents with respect to Vehicles);



     (f) all Equipment;



     (g) all Fixtures;



     (h) all General Intangibles;









 



8


     (i) all Instruments;



     (j) all Intellectual Property;



     (k) all Inventory;



     (l) all Investment Property other than the Capital Stock of the Securitization Subsidiaries
and any dividends from the Securitization Subsidiaries payable to Holdings in respect of the
Securitization Note;



     (m) all Letter-of-Credit Rights;



     (n) all Commercial Tort Claims with respect to Brookstone Company, Inc., et al., Plaintiffs
(Eddie Bauer, Inc.) v. Pyramid Company of Hadley, et al., Defendants, pending before the United
States District Court for the Northern District of New York (Case No. 96-CV-1215-NAM-GLS);



     (o) all other property not otherwise described above (except for any property specifically
excluded from any clause in this section above, and any property specifically excluded from any
defined term used in any clause of this section above);



     (p) all books and records pertaining to the Collateral; and



     (q) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of
any and all of the foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing;



          provided, however, that notwithstanding any of the other provisions set forth in this
Section 3, this Agreement shall not constitute a grant of a security interest in any property to
the extent that such grant of a security interest is prohibited by any Requirements of Law of a
Governmental Authority, requires a consent not obtained from any Governmental Authority pursuant to
such Requirement of Law or is prohibited by, or constitutes a breach or default under or results in
the termination of or requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property or, in the case of any
Investment Property, Pledged Stock or Pledged Note, any applicable shareholder or similar
agreement, except to the extent that such Requirement of Law or the term in such contract, license,
agreement, instrument or other document or shareholder or similar agreement providing for such
prohibition, breach, default or termination or requiring such consent is ineffective under
applicable law.




SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent and the Lenders to enter into the Loan Agreement and to
induce the Lenders to make their respective loans and other extensions of credit to the Borrower
thereunder, each Grantor hereby represents and warrants to the Secured Parties that:




     4.1 Title; No Other Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and
the other Liens permitted to exist on the Collateral by the Loan Agreement (including the Liens
granted to secure the obligations under the ABL Facility Agreement), such Grantor owns each item of
the Collateral free and clear of any and all Liens or claims of others. No effective financing
statement or other public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the Administrative Agent,
for the ratable benefit of the Secured Parties, pursuant to









 



9

this Agreement or as are permitted by
the Loan Agreement (including the Liens granted to secure the obligations under the ABL Facility
Agreement). For the avoidance of doubt, it is understood and agreed that any Grantor may, as part
of its business, grant licenses to third parties to use Intellectual Property owned or developed by
a Grantor. For purposes of this Agreement and the other Loan Documents, such licensing activity
shall not constitute a “Lien” on such Intellectual Property. Each Secured Party understands that
any such licenses may be exclusive to the applicable licensees, and such exclusivity provisions may
limit the ability of the Administrative Agent to utilize, sell, lease or transfer the related
Intellectual Property or otherwise realize value from such Intellectual Property pursuant hereto.




     4.2 Perfected First Priority Liens. The security interests in the Term Lender
Priority Collateral granted pursuant to this Agreement (a) upon completion of the filings and other
actions specified on Schedule 3 (which, in the case of all filings and other documents
referred to on such Schedule 3, have been delivered to the Administrative Agent in completed and
duly executed form) will constitute valid perfected security interests in all of the Term Lender
Priority Collateral in favor of the Administrative Agent, for the ratable benefit of the Secured
Parties, as collateral security for such Grantor’s Obligations, enforceable in accordance with the
terms hereof and the Intercreditor Agreement against all creditors of such Grantor and any Persons
purporting to purchase any Term Lender Priority Collateral from such Grantor and (b) are prior to
all other Liens on the Term Lender Priority Collateral in existence on the date hereof except for
Liens permitted by the Loan Agreement which have priority over the Liens on the Term Lender
Priority Collateral.



     4.3 Perfected Second Priority Liens. The security interests in the Revolving Lender
Priority Collateral granted pursuant to this Agreement (a) upon completion of the filings and other
actions specified on Schedule 4 (which, in the case of all filings and other documents
referred to on such Schedule 4, have been delivered to the Administrative Agent in completed and
duly executed form) will constitute valid perfected security interests in all of the Revolving
Lender Priority Collateral in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, as collateral security for such Grantor’s Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase
any Revolving Lender Priority Collateral from such Grantor and (b) are prior to all other Liens on
the Revolving Lender Priority Collateral in existence on the date hereof except for (x) Liens
securing the ABL Facility and (y) Liens permitted by the Loan Agreement which have priority over
the Liens on the Revolving Lender Priority Collateral.



     4.4 Jurisdiction of Organization; Chief Executive Office. On the date hereof, such
Grantor’s jurisdiction of organization, identification number from the jurisdiction of organization
(if any), and the location of such Grantor’s chief executive office or sole place of business or
principal residence, as the case may be, are specified on Schedule 5. Such Grantor has
furnished to the Administrative Agent a certified charter, certificate of incorporation or other
organizational document, as applicable, and long-form good standing certificate as of a date which
is recent to the date hereof.



     4.5 Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm
Products.



     4.6 Investment Property. (a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes of the Capital Stock of
each Issuer owned by such Grantor or, in the case of Foreign Subsidiary Voting Stock, if less, 66%
of the outstanding Foreign Subsidiary Voting Stock of each relevant Issuer.



     (b) All the shares of the Pledged Stock have been duly and validly issued and are fully paid
and nonassessable.









 



10


     (c) Each of the Pledged Notes constitutes the legal, valid and binding obligation of the
obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.



     (d) Such Grantor is the record and beneficial owner of, and has good and marketable title to,
the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of,
or claims of, any other Person, except the security interest created by this Agreement and the
Liens granted to secure the obligations under the ABL Facility Agreement.



     4.7 Receivables. (a) To the best of each Grantor’s knowledge, no amount payable to
such Grantor under or in connection with any Receivable is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Administrative Agent, except, at any time when the ABL
Facility remains outstanding, any such Instrument or Chattel Paper which evidences Receivables in
respect of Revolving Lender Priority Collateral which have been delivered to the ABL Facility
Agent.



     (b) To the best of each Grantor’s knowledge, none of the obligors on any Receivables is a
Governmental Authority.



     4.8 Contracts. (a) Except as could not reasonably be expected to have a Material
Adverse Effect, each Contract is in full force and effect and constitutes a valid and legally
enforceable obligation of the parties thereto, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.



     (b) Neither such Grantor nor (to the best of such Grantor’s knowledge) any of the other
parties to the Contracts is in default in the performance or observance of any of the terms thereof
in any manner that, in the aggregate, could reasonably be expected to have a Material Adverse
Effect.



     (c) The right, title and interest of such Grantor in, to and under the Contracts are not
subject to any defenses, offsets, counterclaims or claims that, in the aggregate, could reasonably
be expected to have a Material Adverse Effect.



     (d) To the best of each Grantor’s knowledge, no amount payable to such Grantor under or in
connection with any Contract is evidenced by any Instrument or Chattel Paper which has not been
delivered to the Administrative Agent.



     (e) To the best of each Grantor’s knowledge, none of the parties to any Contract is a
Governmental Authority.



     4.9 Intellectual Property. (a) Schedule 6 lists all registered Intellectual
Property and all Material Intellectual Property subject to pending applications owned by such
Grantor in its own name on the date hereof.



     (b) On the date hereof, all Material Intellectual Property is valid, subsisting, unexpired and
enforceable, has not been abandoned and does not infringe the intellectual property rights of any
other Person.









 



11


     (c) Except as set forth in Schedule 6, on the date hereof, none of the Intellectual
Property is the subject of any exclusive licensing or franchise agreement pursuant to which such
Grantor is the licensor or franchisor.



     (d) No holding, decision or judgment has been rendered by any Governmental Authority which
limits, cancels or questions the validity of, or such Grantor’s rights in, any Intellectual
Property owned or licensed by such Grantor in any respect that could reasonably be expected to have
a Material Adverse Effect.



     (e) Except as described in Schedule 3.9 to the Loan Agreement, no material action or
proceeding is pending, or, to the knowledge of such Grantor, threatened, on the date hereof (i)
seeking to limit, cancel or question the validity of any Intellectual Property owned or licensed by
such Grantor or such Grantor’s ownership interest therein, or (ii) which, if adversely determined,
would materially adversely affect the value of any Intellectual Property owned or licensed by such
Grantor.



     4.10 Commercial Tort Claims. On the date hereof, except to the extent listed in
Section 3 above, no Grantor has rights in any Commercial Tort Claim with potential value in excess
of $100,000.



SECTION 5. COVENANTS




          Each Grantor covenants and agrees with the Secured Parties that, from and after the date of
this Agreement until the Obligations shall have been paid in full:




     5.1 Delivery of Instruments, Certificated Securities and Chattel Paper. If any amount
payable under or in connection with any of the Collateral shall be or become evidenced by any
Instrument, Certificated Security or Chattel Paper in excess of $5,000,000, such Instrument,
Certificated Security or Chattel Paper shall be delivered to the Administrative Agent within five
Business Days after receipt thereof in the case of Collateral, and in the case of Revolving Lender
Priority Collateral, at any time when the ABL Facility remains outstanding, to the ABL Facility
Agent, in each case duly indorsed in a manner reasonably satisfactory to the Administrative Agent,
to be held as Collateral pursuant to this Agreement.



     5.2 Maintenance of Insurance. (a) Such Grantor will maintain, with financially sound
and reputable companies, insurance policies (i) insuring the Inventory and Equipment against
casualties as may be reasonably satisfactory to the Administrative Agent and (ii) insuring such
Grantor and the Administrative Agent for the benefit of the Secured Parties against liability for
personal injury and property damage relating to such Inventory and Equipment, such policies to be
in such form and amounts and having such coverage as may be reasonably satisfactory to the
Administrative Agent.



     (b) All such insurance shall (i) name the Administrative Agent as insured party or loss payee
and (ii) be reasonably satisfactory in all other respects to the Administrative Agent.



     (c) The Borrower shall deliver to the Administrative Agent on behalf of the Lenders a report
of a reputable insurance broker with respect to such insurance substantially concurrently with each
delivery of the Borrower’s audited annual financial statements and such supplemental reports with
respect thereto as the Administrative Agent may from time to time reasonably request.



     5.3 Payment of Obligations. Such Grantor will pay and discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all taxes, assessments
and governmental charges or levies imposed upon the Collateral or in respect of income or profits
therefrom, as well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies)









 



12

against or with respect to the Collateral, except that no such charge need
be paid if the amount or validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books
of such Grantor and such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest therein.




     5.4 Maintenance of Perfected Security Interest; Further Documentation. (a) Such
Grantor shall maintain the security interest created by this Agreement as a perfected security
interest having at least the priority described in Sections 4.2 and 4.3 and at the request of the
Administrative Agent shall defend such security interest against the claims and demands of all
Persons whomsoever, subject to the rights of such Grantor and the ABL Facility Agent under the Loan
Documents and the Intercreditor Agreement to dispose of the Collateral.



     (b) Such Grantor will furnish to the Administrative Agent on behalf of the Lenders from time
to time statements and schedules further identifying and describing the assets and property of such
Grantor and such other reports in connection therewith, in each case as the Administrative Agent
may reasonably request, all in reasonable detail.



     (c) At any time and from time to time, upon the written request of the Administrative Agent,
and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver,
and have recorded, such further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted, including, without
limitation, (i) filing any financing or continuation statements under the Uniform Commercial Code
(or other similar laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Deposit Accounts (other than Deposit
Accounts that typically have a zero balance at the end of each Business Day), Letter-of-Credit
Rights and any other relevant Collateral, taking any actions necessary to enable the Administrative
Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with
respect thereto.



     5.5 Changes in Name, etc. Such Grantor will not, except upon 10 days’ prior written
notice to the Administrative Agent and delivery to the Administrative Agent of all additional
executed financing statements and other documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the security interests provided for herein,
(i) change its jurisdiction of organization from that referred to in Section 4.4 or (ii) change its
name.



     5.6 Notices. Such Grantor will advise the Administrative Agent on behalf of the
Lenders promptly, in reasonable detail, of:



     (a) any Lien (other than security interests created hereby or Liens permitted under the Loan
Agreement, including the Liens granted to secure the obligations under the ABL Facility Agreement)
on any of the Collateral which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and



     (b) of the occurrence of any other event which could reasonably be expected to materially
adversely affect the aggregate value of the Collateral or on the security interests created hereby.



     5.7 Investment Property. (a) If such Grantor shall become entitled to receive or
shall receive any certificate (including, without limitation, any certificate representing a
dividend or a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer,









 



13

whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in
trust for the Secured Parties and deliver the same forthwith to the Administrative Agent in the
exact form received, duly indorsed by such Grantor to the Administrative Agent, if required,
together with an undated stock power covering such certificate duly executed in blank by such
Grantor and with, if the Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Investment Property upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent to be held by it hereunder
as additional collateral security for the Obligations, and in case any distribution of capital
shall be made on or in respect of the Investment Property or any property shall be distributed upon
or with respect to the Investment Property pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security interest in
favor of the Administrative Agent, be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations. If any sums of money or property
so paid or distributed in respect of the Investment Property shall be received by such Grantor,
such Grantor shall, until such money or property is paid or delivered to the Administrative Agent,
hold such money or property in trust for the Secured Parties, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.




     (b) Without the prior written consent of the Administrative Agent, such Grantor will not (i)
vote to enable, or take any other action to permit, any Issuer to issue any Capital Stock of any
nature or to issue any other securities convertible into or granting the right to purchase or
exchange for any Capital Stock of any nature of any Issuer, (ii) sell, assign, transfer, exchange,
or otherwise dispose of, or grant any option with respect to, the Investment Property or Proceeds
thereof (except pursuant to a transaction expressly permitted by the Loan Agreement), (iii) create,
incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the
security interests created by this Agreement and Liens granted to secure the obligations under the
ABL Facility Agreement or (iv) enter into any agreement or undertaking restricting the right or
ability of such Grantor or the Administrative Agent to sell, assign or transfer any of the
Investment Property or Proceeds thereof.



     (c) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property issued by it and will
comply with such terms insofar as such terms are applicable to it, (ii) it will notify the
Administrative Agent promptly in writing of the occurrence of any of the events described in
Section 5.7(a) with respect to the Investment Property issued by it and (iii) the terms of Sections
6.3(c) shall apply to it, mutatis mutandis, with respect to all actions that may be
required of it pursuant to Section 6.3(c) with respect to the Investment Property issued by it.



     5.8 Receivables. (a) Other than in the ordinary course of business consistent with
its past practice, such Grantor will not (i) grant any extension of the time of payment of any
Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii)
release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable
in any manner that could adversely affect the value thereof.



     (b) Such Grantor will deliver to the Administrative Agent a copy of each material demand,
notice or document received by it that contests the validity or enforceability of more than 10% of
the aggregate amount of the then outstanding Receivables.









 



14


     5.9 Contracts. (a) Such Grantor will perform and comply in all respects with all its
obligations under the Contracts except as could not reasonably be expected to have a Material
Adverse Effect.



     (b) Other than in the ordinary course of business consistent with its past practice, such
Grantor will not amend, modify, terminate or waive any provision of any Contract in any manner
which could reasonably be expected to materially adversely affect the value of such Contract as
Collateral.



     (c) At the request of the Administrative Agent, such Grantor will deliver to the
Administrative Agent a copy of each Contract and any demand, notice or document received by it
relating in any way to any Contract that questions the validity or enforceability of such Contract.



     5.10 Intellectual Property. (a) Such Grantor (either itself or through licensees)
will (i) maintain as in the past the quality of products and services offered under each material
Trademark owned by such Grantor, (ii) use such Trademark with the appropriate notice of
registration and all other notices and legends required by applicable Requirements of Law, (iii)
not adopt or use any mark which is confusingly similar or a colorable imitation of such Trademark
unless the Administrative Agent, for the ratable benefit of the Lenders, shall obtain a perfected
security interest in such mark pursuant to this Agreement, and (iv) not (and not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such
Trademark may become invalidated, impaired or abandoned in any way, unless such Grantor shall have
reasonably determined that the use or maintenance of such Intellectual Property is no longer
desirable in the conduct of such Grantor’s business.



     (b) Such Grantor will not (and will not permit any licensee or sublicensee thereof to) do any
act, or omit to do any act, whereby any material Patent may become forfeited, abandoned or
dedicated to the public.



     (c) Such Grantor will not (and will not permit any licensee or sublicensee thereof to) do any
act or knowingly omit to do any act whereby any material portion of the Copyrights may become
invalidated or otherwise impaired. Such Grantor will not (and will not permit any licensee or
sublicensee thereof to) do any act whereby any material portion of the Copyrights may fall into the
public domain.



     (d) Such Grantor will not (and will not permit any licensee or sublicensee thereof to) do any
act that knowingly uses any Material Intellectual Property to infringe the intellectual property
rights of any other Person.



     (e) Such Grantor will notify the Administrative Agent and the Lenders within fifteen Business
Days after the last day of any fiscal quarter during which it became aware that any application or
registration relating to any Material Intellectual Property has become forfeited, abandoned or
dedicated to the public, or which such application or registration such Grantor reasonably expects
may become forfeited, abandoned or dedicated to the public, or of any adverse determination
(including, without limitation, the institution of, or any such determination in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright Office or any court or
tribunal in any country) regarding such Grantor’s ownership of, or the validity of, any Material
Intellectual Property or such Grantor’s right to register the same or to own and maintain the same,
except for non-final prosecution correspondence with the United States Patent and Trademark Office
or the United States Copyright Office.



     (f) Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property with the
United States Patent and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, such Grantor shall report such
filing to the









 



15

Administrative Agent within fifteen Business Days after the last day of the fiscal
quarter in which such filing occurs. Upon request of the Administrative Agent, such Grantor shall
execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers
as the Administrative Agent may reasonably request to evidence the Secured Parties’ security
interest in any Copyright, Patent or Trademark and any goodwill and general intangibles of such
Grantor relating thereto or represented thereby.




     (g) Such Grantor will take all reasonable steps, including, without limitation, in any
proceeding before the United States Patent and Trademark Office, the United States Copyright Office
or any similar office or agency in any other country or any political subdivision thereof, that are
necessary to maintain and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the Material Intellectual Property, including, without limitation,
filing of applications for renewal, affidavits of use and affidavits of incontestability.



     (h) In the event that such Grantor becomes aware that any Material Intellectual Property is
infringed, misappropriated or diluted by a third party, such Grantor shall (i) take such actions as
such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual
Property and (ii) if such Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and, if consistent with such Grantor’s reasonable
business judgment, sue for infringement, misappropriation or dilution, to seek injunctive relief
where appropriate and to recover any and all damages for such infringement, misappropriation or
dilution.



     5.11 Commercial Tort Claims. If such Grantor shall obtain an interest in any
Commercial Tort Claim with a potential value in excess of $100,000, such Grantor shall within 30
days of obtaining such interest sign and deliver documentation reasonably requested by the
Administrative Agent granting a security interest under the terms and provisions of this Agreement
in and to such Commercial Tort Claim.



SECTION 6. REMEDIAL PROVISIONS




     6.1 Certain Matters Relating to Receivables. (a) Subject to the Intercreditor
Agreement, (i) the Administrative Agent shall have the right to make test verifications of the
Receivables in any manner and through any medium that it reasonably considers advisable and no more
frequently than once per fiscal year (unless an Event of Default shall have occurred and be
continuing, in which case there shall not be any limits), and each Grantor shall furnish all such
assistance and information as the Administrative Agent may require in connection with such test
verifications and (ii) at any time but no more frequently than once per fiscal year (unless an
Event of Default shall have occurred and be continuing, in which case there shall not be any
limits), upon the Administrative Agent’s request and at the expense of the relevant Grantor, such
Grantor shall cause independent public accountants or others satisfactory to the Administrative
Agent to furnish to the Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.



     (b) Subject to the Intercreditor Agreement, (i) the Administrative Agent hereby authorizes
each Grantor to collect such Grantor’s Receivables, subject to the Administrative Agent’s direction
and control, and the Administrative Agent may curtail or terminate said authority at any time after
the occurrence and during the continuance of an Event of Default and (ii) if required by the
Administrative Agent at any time after the occurrence and during the continuance of an Event of
Default, any payments of Receivables, when collected by any Grantor, (A) shall be forthwith (and,
in any event, within two Business Days) deposited by such Grantor in
the exact form received, duly
indorsed by such Grantor to the Administrative Agent if required, in a Collateral Account
maintained under the sole dominion and control of the Administrative Agent, subject to withdrawal
by the Administrative Agent for the account of the Lenders only as provided in Section 6.5, and (B)
until so turned over, shall be held by such Grantor in









 



16

trust for the Administrative Agent for the
benefit of the Secured Parties, segregated from other funds of such Grantor. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the
nature and source of the payments included in the deposit.




     (c) Subject to the Intercreditor Agreement, at the Administrative Agent’s request, each
Grantor shall deliver to the Administrative Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the Receivables, including, without
limitation, all original orders, invoices and shipping receipts.



     6.2 Communications with Obligors; Grantors Remain Liable. (a) Subject to the
Intercreditor Agreement, upon reasonable notice to the Grantors the Administrative Agent in its own
name or in the name of others may at any time after the occurrence and during the continuance of an
Event of Default communicate with obligors under the Receivables and parties to the Contracts to
verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of any
Receivables or Contracts.



     (b) Subject to the Intercreditor Agreement, upon the request of the Administrative Agent at
any time after the occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables and parties to the Contracts that the Receivables and the
Contracts have been assigned to the Administrative Agent for the ratable benefit of the Secured
Parties and that payments in respect thereof shall be made directly to the Administrative Agent.



     (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables and Contracts to observe and perform all the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms of any agreement
giving rise thereto. No Secured Party shall have any obligation or liability under any Receivable
(or any agreement giving rise thereto) or Contract by reason of or arising out of this Agreement or
the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be
obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any
Receivable (or any agreement giving rise thereto) or Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party thereunder, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may have been assigned to it
or to which it may be entitled at any time or times.



     6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the relevant Grantor of the
Administrative Agent’s intent to exercise its corresponding rights pursuant to Section 6.3(b), each
Grantor shall be permitted to receive all cash dividends paid in respect of the Pledged Stock and
all payments made in respect of the Pledged Notes, in each case paid in the normal course of
business of the relevant Issuer and consistent with past practice, to the extent permitted in the
Loan Agreement, and to exercise all voting and corporate or other organizational rights with
respect to the Investment Property; provided, however, that no vote shall be cast
or corporate or other organizational right exercised or other action taken which, in the
Administrative Agent’s reasonable judgment, which would be inconsistent with or result in any
violation of any provision of the Loan Agreement, this Agreement or any other Loan Document.



     (b) If an Event of Default shall occur and be continuing and the Administrative Agent shall
give written notice of its intent to exercise such rights to the relevant Grantor or Grantors, (i)
the Administrative Agent shall have the right to receive any and all cash dividends, payments or
other Proceeds paid in respect of the Investment Property and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii) any or all of the
Investment Property shall be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its









 



17

nominee may thereafter exercise (x) all voting, corporate and other rights pertaining to such
Investment Property at any meeting of shareholders of the relevant Issuer or Issuers or otherwise
and (y) any and all rights of conversion, exchange and subscription and any other rights,
privileges or options pertaining to such Investment Property as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate or other organizational structure of any Issuer, or upon the
exercise by any Grantor or the Administrative Agent of any right, privilege or option pertaining to
such Investment Property, and in connection therewith, the right to deposit and deliver any and all
of the Investment Property with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing.




     (c) Each Grantor hereby authorizes and instructs each Issuer of any Investment Property
pledged by such Grantor hereunder to (i) comply with any instruction received by it from the
Administrative Agent in writing that (x) states that an Event of Default has occurred and is
continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other
or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully
protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends
or other payments with respect to the Investment Property directly to the Administrative Agent.



     (d) Each Grantor recognizes that upon the occurrence and during the continuance of an Event of
Default the Administrative Agent may be unable to effect a public sale of any or all of the Pledged
Stock, by reason of certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view to the distribution or
resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public sale and, notwithstanding
such circumstances, agrees to the extent permitted by law that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative Agent shall be
under no obligation to delay a sale of any of the Pledged Stock for the period of time necessary to
permit the Issuer thereof to register such securities for public sale under the Securities Act, or
under applicable state securities laws, even if such Issuer would agree to do so.



     6.4 Proceeds to be Turned Over To Administrative Agent. Subject to the Intercreditor
Agreement, in addition to the rights of the Administrative Agent and the Lenders specified in
Section 6.1 with respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by any Grantor consisting of cash, checks and other near-cash
items shall be held by such Grantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Administrative Agent in the exact form received by such Grantor (duly indorsed
by such Grantor to the Administrative Agent, if required) to be applied to the Obligations. All
Proceeds received by the Administrative Agent hereunder shall be held by the Administrative Agent
in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by
the Administrative Agent in a Collateral Account (or by such Grantor in trust for the
Administrative Agent and the Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided in Section 6.5.



     6.5 Application of Proceeds. Subject to the Intercreditor Agreement and the second
proviso in Section 2.6(c) of the Loan Agreement, at such intervals as may be agreed upon by the
Borrower and









 



18

the Administrative Agent, or, if an Event of Default shall have occurred and be
continuing, at any time at the Administrative Agent’s election, the Administrative Agent may apply
all or any part of Proceeds constituting Collateral, whether or not held in any Collateral Account,
and any proceeds of the guarantee set forth in Section 2, in payment of the Obligations in the
following order:





     First, to pay incurred and unpaid fees and expenses of the Administrative Agent
under the Loan Documents;




     Second, to the Administrative Agent, for application by it towards payment of
amounts then due and owing and remaining unpaid in respect of the Obligations, pro
rata among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;




     Third, to the Administrative Agent, for application by it towards prepayment of
the Obligations, pro rata among the Secured Parties according to the amounts
of the Obligations then held by the Secured Parties; and




     Fourth, any balance remaining after the Obligations shall have been paid in
full shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive
the same.



     6.6 Code and Other Remedies. Subject to the Intercreditor Agreement, if an Event of
Default shall occur and be continuing, the Administrative Agent, on behalf of the Secured Parties,
may exercise, in addition to all other rights and remedies granted to them in this Agreement and in
any other instrument or agreement securing, evidencing or relating to the Obligations, all rights
and remedies of a secured party under the New York UCC or any other applicable law. Without
limiting the generality of the foregoing, the Administrative Agent, without demand of performance
or other demand, presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose
of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker’s board or office of
any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without assumption of any
credit risk. Any Secured Party shall have the right upon any such public sale or sales, and, to
the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or
equity is hereby waived and released. Each Grantor further agrees, at the Administrative Agent’s
reasonable request, to assemble the Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select, whether at such Grantor’s premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral
or in any way relating to the Collateral or the rights of the Administrative Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the
payment in whole or in part of the Obligations, in such order as the Administrative Agent may
elect,
and only after such application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to any Grantor. To
the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may
acquire against any Secured Party arising out of the exercise by them of any rights hereunder. If
any notice of a proposed









 



19

sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before such sale or other
disposition.




          6.7 Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the
fees and disbursements of any attorneys employed by the Administrative Agent or any Lender to
collect such deficiency.




SECTION 7. THE ADMINISTRATIVE AGENT




          7.1 Administrative Agent’s Appointment as Attorney-in-Fact, etc. (a) Subject to the
Intercreditor Agreement, each Grantor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of
such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the purposes of this
Agreement. At any time when an Event of Default has occurred and is continuing and without
limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the
power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any
or all of the following:





     (i) in the name of such Grantor or its own name, or otherwise, take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment
of moneys due under any Receivable or Contract or with respect to any other Collateral and file
any claim or take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of collecting any and all such
moneys due under any Receivable or Contract or with respect to any other Collateral whenever
payable;




     (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any
and all agreements, instruments, documents and papers as the Administrative Agent may request to
evidence the Secured Parties’ security interest in such Intellectual Property and the goodwill
and general intangibles of such Grantor relating thereto or represented thereby;




     (iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement and
pay all or any part of the premiums therefor and the costs thereof;




     (iv) execute, in connection with any sale provided for in Section 6.6, any indorsements,
assignments or other instruments of conveyance or transfer with respect to the Collateral; and




     (v) (1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (2) ask or demand for, collect, and receive
payment of and receipt for, any and all moneys, claims and other amounts due or to become due at
any time in respect of or
arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the Collateral; (4)
commence and prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other
right in respect of any Collateral; (5) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such discharges or









 



20



releases as the
Administrative Agent may deem appropriate; (7) to the extent permitted by applicable law, assign
any Copyright, Patent or Trademark (along with the goodwill of the business to which any such
Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such
conditions, and in such manner, as the Administrative Agent shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and do, at the Administrative Agent’s
option and such Grantor’s expense, at any time, or from time to time, all acts and things which
the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and
the Administrative Agent’s and the Lenders’ security interests therein and to effect the intent
of this Agreement, all as fully and effectively as such Grantor might do.



     Anything in this Section 7.1(a) to the contrary notwithstanding, the Administrative Agent
agrees that it will not exercise any rights under the power of attorney provided for in this
Section 7.1(a) unless an Event of Default shall have occurred and be continuing.



          (b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.




          (c) The expenses of the Administrative Agent incurred in connection with actions undertaken as
provided in this Section 7.1, together with interest thereon at a rate per annum equal to the
highest rate per annum at which interest would then be payable on any category of past due ABR
Loans under Section 2.9 of the Loan Agreement, from the date of payment by the Administrative Agent
to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Administrative Agent on demand.




          (d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the security interests
created hereby are released.




          7.2 Duty of Administrative Agent. The Administrative Agent’s sole duty with respect
to the custody, safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account. Neither any Secured Party
nor any of their respective officers, directors, employees or agents shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor
or any other Person or to take any other action whatsoever with regard to the Collateral or any
part thereof. The powers conferred on the Secured Parties hereunder are solely to protect the
Secured Parties’ interests in the Collateral and shall not impose any duty upon any Secured Party
to exercise any such powers. The Secured Parties shall be accountable only for amounts that they
actually receive as a result of the exercise of such powers, and neither they nor any of their
officers,
directors, employees or agents shall be responsible to any Grantor for any act or failure to
act hereunder, except for their own gross negligence or willful misconduct.




     7.3 Execution of Financing Statements. Pursuant to any applicable law, each Grantor
authorizes the Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the signature of such
Grantor in such form and in such offices as the Administrative Agent determines appropriate to
perfect the security interests of the Administrative Agent under this Agreement. Each Grantor
authorizes the Administrative Agent to use the collateral description “all personal property” in
any such financing statements. Each









 



21

Grantor hereby ratifies and authorizes the filing by the
Administrative Agent of any financing statement with respect to the Collateral made prior to the
date hereof.




     7.4 Authority of Administrative Agent. Each Grantor acknowledges that the rights and
responsibilities of the Administrative Agent under this Agreement with respect to any action taken
by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for herein or resulting
or arising out of this Agreement shall, as between the Administrative Agent and the Lenders, be
governed by the Loan Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the Grantors, the
Administrative Agent shall be conclusively presumed to be acting as agent for the Secured Parties
with full and valid authority so to act or refrain from acting, and no Grantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.



SECTION 8. MISCELLANEOUS




     8.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 9.1 of the
Loan Agreement.



     8.2 Notices. All notices, requests and demands to or upon the Administrative Agent or
any Grantor hereunder shall be effected in the manner provided for in Section 9.2 of the Loan
Agreement; provided that any such notice, request or demand to or upon any Guarantor shall
be addressed to such Guarantor at its notice address set forth on Schedule 1.



     8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative
Agent nor any Lender shall by any act (except by a written instrument pursuant to Section 8.1),
delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Administrative Agent or any Lender of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy
which the Administrative Agent or such Lender would otherwise have on any future occasion. The
rights and
remedies herein provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.



     8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to pay or
reimburse each Lender and the Administrative Agent for all its costs and expenses incurred in
collecting against such Guarantor under the guarantee contained in Section 2 or otherwise enforcing
or preserving any rights under this Agreement and the other Loan Documents to which such Guarantor
is a party, including, without limitation, the fees and disbursements of financial advisors and
counsel to each Lender and the Administrative Agent.



     (b) Each Guarantor agrees to pay, and to save the Secured Parties harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by this Agreement.



     (c) Each Guarantor agrees to pay, and to save the Secured Parties harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or









 



22

disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the Borrower would be
required to do so pursuant to Section 9.5 of the Loan Agreement.




     (d) The agreements in this Section 8.4 shall survive repayment of the Obligations and all
other amounts payable under the Loan Agreement and the other Loan Documents.



     8.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Secured Parties and their successors
and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the Administrative Agent.



     8.6 Set-Off. Each Grantor hereby irrevocably authorizes the Administrative Agent and
each Lender at any time and from time to time, without notice to such Grantor or any other Grantor,
any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any
and all deposits (general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or owing by the
Administrative Agent or such Lender to or for the credit or the account of such Grantor, or any
part thereof in such amounts as the Administrative Agent or such Lender may elect, against and on
account of the obligations and liabilities of such Grantor to the Administrative Agent or such
Lender hereunder and claims of every nature and description of the Administrative Agent or such
Lender against such Grantor, in any currency, whether arising hereunder, under the Loan Agreement,
any other Loan Document or otherwise, as the Administrative Agent or such Lender may elect, whether
or not the Administrative Agent or any Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The Administrative Agent and
each Lender shall notify such Grantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this Section 8.6 are in addition to other rights and
remedies
(including, without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have.



     8.7 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.



     8.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     8.9 Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.



     8.10 Integration. This Agreement and the other Loan Documents represent the agreement
of the Grantors, the Administrative Agent and the Lenders with respect to the subject matter hereof
and thereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof and thereof not expressly set
forth or referred to herein or in the other Loan Documents.









 



23


     8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably and
unconditionally:



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



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



     (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;



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



     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 8.12 any special, exemplary,
punitive or consequential damages.



     8.13 Acknowledgements. Each Grantor hereby acknowledges that:



     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;



     (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Grantors, on the one hand, and the Administrative Agent
and Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and



     (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Grantors and the
Lenders.



     8.14 Additional Grantors. Each Subsidiary of the Borrower that is required to become
a party to this Agreement pursuant to Section 5.10 of the Loan Agreement shall become a Grantor for
all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.









 



24


     8.15 Releases. (a) At such time as the Loans and the other Obligations shall have
been paid in full, the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the Collateral shall revert to
the Grantors. At the request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.



     (b) If any of the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction permitted by the Loan Agreement, then the Administrative Agent, at the
request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or
other documents reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the
request and sole expense of the Borrower, a Subsidiary Guarantor shall be released from its
obligations hereunder in the event that all the Capital Stock of such Subsidiary Guarantor shall be
sold, transferred or otherwise disposed of in a transaction permitted by the Loan Agreement;
provided that the Borrower shall have delivered to the Administrative Agent, at least ten
Business Days prior to the date of the proposed release, a written request for release identifying
the relevant Subsidiary Guarantor and the terms of the sale or other disposition in reasonable
detail, including the price thereof and any expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in compliance with the Loan
Agreement and the other Loan Documents.



     8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.









 



25


     IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement
to be duly executed and delivered as of the date first above written.



	 	 	 	 	 
	 	EDDIE BAUER, INC.

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 
	 	EDDIE BAUER HOLDINGS, INC.

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 
	 	EDDIE BAUER FULFILLMENT SERVICES, INC.

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 
	 	EDDIE BAUER SERVICES, LLC

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 









 



26

	 	 	 	 	 
	 	EDDIE BAUER INFORMATION TECHNOLOGY, LLC

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 
	 	EDDIE BAUER DIVERSIFIED SALES, LLC

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 
	 	EDDIE BAUER INTERNATIONAL DEVELOPMENT, LLC

 	 
	 	By:  	/s/
David Taylor 	 
	 	 	Name:  	David Taylor 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 











 



 




ACKNOWLEDGEMENT AND CONSENT





     The undersigned hereby acknowledges receipt of a copy of the Guarantee and Collateral
Agreement dated as of June 21, 2005 and amended and restated as of April 4, 2007 (the
“Agreement”), made by the Grantors parties thereto for the benefit of JPMORGAN CHASE BANK,
N.A., as Administrative Agent. The undersigned agrees for the benefit of the Administrative Agent
and the Lenders as follows:



          1. The undersigned will be bound by the terms of the Agreement and will comply with such terms
insofar as such terms are applicable to the undersigned.




          2. The undersigned will notify the Administrative Agent promptly in writing of the occurrence
of any of the events described in Section 5.7(a) of the Agreement.




          3. The terms of Sections 6.3(c) of the Agreement shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c)
of the Agreement.




	 	 	 	 	 	 	 
	 	 	[NAME OF ISSUER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Fax:	 	 	 	 













 



 




Annex 1 to

Guarantee and Collateral Agreement




          ASSUMPTION AGREEMENT, dated as of                     , 20___, made by
                                         (the “Additional Grantor”), in favor of JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the banks
and other financial institutions or entities (the “Lenders”) parties to the Loan Agreement
referred to below. All capitalized terms not defined herein shall have the meaning ascribed to
them in such Loan Agreement.




W I T N E S S E T H

:




          WHEREAS, Eddie Bauer Holdings, Inc. (“Holdings”), Eddie Bauer, Inc. (the
“Borrower”), the Lenders and the Administrative Agent have entered into a Term Loan
Agreement, dated as of June 21, 2005 and amended and restated as of April 4, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Loan Agreement”);




          WHEREAS, in connection with the Loan Agreement, the Borrower and certain of its Affiliates
(other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement, dated
as of June 21, 2005 and amended and restated as of April 4, 2007 (as amended, supplemented or
otherwise modified from time to time, the “Guarantee and Collateral Agreement”) in favor of
the Administrative Agent for the benefit of the Lenders;




          WHEREAS, the Loan Agreement requires the Additional Grantor to become a party to the Guarantee
and Collateral Agreement; and




          WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Guarantee and Collateral Agreement;




          NOW, THEREFORE, IT IS AGREED:




          1. Guarantee and Collateral Agreement. By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral
Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder
with the same force and effect as if originally named therein as a Grantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby added to the
information set forth in the Schedules to the Guarantee and Collateral Agreement. The Additional
Grantor hereby represents and warrants that each of the representations and warranties contained in
Section 4 of the Guarantee and Collateral Agreement is true and correct on and as the date hereof
(after giving effect to this Assumption Agreement) as if made on and as of such date.




          2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.










 



2




          IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.




	 	 	 	 	 
	 	[ADDITIONAL GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: