15.12
Final Agreement
115
15.13
Counterparts
115
15.14
Captions
116
15.15
Right of Setoff
116
15.16
Joint and Several Liability
116
15.17
Confidentiality
117
15.18
Conflicts with Other Loan Documents
118
15.19
Appraisals and Commercial Finance Examinations
118
15.20
Patriot Act
119
15.21
Foreign Asset Control Regulations
119
15.22
Relationship to DIP Orders
119
ARTICLE 16 GUARANTEES
120
(v)
EXHIBITS
EXHIBIT A - FORM OF BORROWING BASE CERTIFICATE
EXHIBIT B - FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT C - FORM OF NOTICE OF BORROWING
EXHIBIT D - FORM OF INTERIM BORROWING ORDER
SCHEDULES
Schedule 1.1(a)
COMMITMENTS Schedule 1.1(b)
MAJOR CREDIT CARD PROGRAM
AGREEMENTS Schedule 1.2
INITIAL BUDGET Schedule 2.3
EXISTING LETTERS OF
CREDIT Schedule 6.1(a)(xiv)
COMMERCIAL TORT CLAIMS Schedule 6.3
LOAN
PARTIES' CHIEF EXECUTIVE OFFICE, THE LOCATION OF ITS BOOKS AND RECORDS, THE
LOCATIONS OF THE COLLATERAL Schedule 6.15
INTELLECTUAL PROPERTY Schedule 8.4
CORPORATE NAME; PRIOR TRANSACTIONS Schedule 8.5
SUBSIDIARIES AND
AFFILIATES Schedule 8.7
CAPITALIZATION OF LOAN PARTIES Schedule 8.8
DEBT
Schedule 8.10
OWNED REAL PROPERTY Schedule 8.11
LEASES Schedule 8.12
PROPRIETARY RIGHTS Schedule 8.13
TRADE NAMES Schedule 8.14
LITIGATION
Schedule 8.16
LABOR DISPUTES Schedule 8.17
ENVIRONMENTAL ISSUES Schedule
8.18
VIOLATIONS OF LAW Schedule 8.20
ERISA ISSUES Schedule 8.27
MATERIAL AGREEMENTS Schedule 8.28
BANK ACCOUNTS Schedule 9.3
COMPLIANCE
WITH LAWS Schedule 9.10
EXISTING GUARANTIES Schedule 9.13
TRANSACTIONS
WITH AFFILIATES Schedule 9.16
EXISTING LIENS Schedule 10.1(h)
GOOD
STANDING CERTIFICATES
(vi)
SENIOR SECURED, SUPER-PRIORITY DEBTOR-IN-POSSESSION LOAN AND SECURITY AGREEMENT
Senior Secured, Super-Priority Debtor-in-Possession Loan and Security Agreement,
dated as of June 18, 2009, among the financial institutions listed on the
signature pages hereof (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders"), Bank of America, N.A., with an
office at 100 Federal Street, Boston, Massachusetts 02110, as agent for the
Lenders (in its capacity as agent, together with any successor in such capacity,
the "Agent"), Banc of America Securities LLC, as sole lead arranger and book
manager (in such capacity, the "Arranger"), Bank of America, N.A. and The CIT
Group/Business Credit, Inc., as co-syndication agents (in such capacity, the
"Co-Syndication Agents"), General Electric Capital Corporation and The CIT
Group/Business Credit, Inc., as co-collateral agents (in such capacity, the
"Co-Collateral Agents"), General Electric Capital Corporation, as documentation
agent (in such capacity, the "Documentation Agent") Eddie Bauer, Inc., as a
debtor and debtor-in-possession, a Delaware corporation ("Borrower", and in its
capacity as authorized representative of the Loan Parties, the "Authorized
Representative"), and each of its direct and indirect domestic Subsidiaries that
is a signatory hereto as a Guarantor, each as a debtor and debtor-in-possession,
and Eddie Bauer Holdings, Inc., as a debtor and debtor-in-possession, a Delaware
corporation ("Holdings") as a Guarantor (each a "Guarantor" and collectively,
the "Guarantors").
WITNESSETH:
WHEREAS, on June 17, 2009 the Borrower, Holdings and the domestic Guarantors
filed in the Bankruptcy Court (as hereinafter defined) separate voluntary
petitions for relief under Chapter 11 of the Bankruptcy Code (as hereinafter
defined) and have