EXHIBIT 10.2
GUARANTEE AND COLLATERAL AGREEMENT
made by
XXXXX XXXXX HOLDINGS, INC.,
XXXXX XXXXX, 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
TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS................................................. 1
1.1 Definitions.............................................. 1
1.2 Other Definitional Provisions............................ 4
SECTION 2. GUARANTEE..................................................... 5
2.1 Guarantee................................................ 5
2.2 Right of Contribution.................................... 5
2.3 No Subrogation........................................... 5
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........................... 8
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.............................................. 9
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............................................ 11
5.5 Changes in Name, etc..................................... 12
5.6 Notices.................................................. 12
5.7 Investment Property...................................... 12
5.8 Receivables.............................................. 13
5.9 Contracts................................................ 13
5.10 Intellectual Property.................................... 13
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..... 15
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
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6.7 Deficiency............................................... 18
SECTION 7. THE ADMINISTRATIVE AGENT...................................... 18
7.1 Administrative Agent's Appointment as Attorney-in-Fact,
etc...................................................... 18
7.2 Duty of Administrative Agent............................. 20
7.3 Execution of Financing Statements........................ 20
7.4 Authority of Administrative Agent........................ 20
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................................... 21
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............................................ 22
8.12 Submission To Jurisdiction; Waivers...................... 22
8.13 Acknowledgements......................................... 23
8.14 Additional Grantors...................................... 23
8.15 Releases................................................. 23
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
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GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of June 21, 2005 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 (as amended, supplemented or otherwise modified from time to time,
the "Loan Agreement"), among Xxxxx Xxxxx Holdings, Inc. ("Holdings"), Xxxxx
Xxxxx, Inc. (the "Borrower"), the Lenders and the Administrative Agent.
WITNESSETH:
WHEREAS, pursuant to the Loan Agreement, the Lenders have severally
agreed to make 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 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 with the Administrative
Agent, for the ratable benefit of the Lenders, as follows:
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.
(b) The following terms shall have the following meanings:
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"Agreement": this 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.
"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.
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"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 xxx 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.
"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.
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"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.
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.
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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.
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
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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 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
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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;
(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;
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(n) all Commercial Tort Claims with respect to Brookstone Company, Inc., et
al., Plaintiffs (Xxxxx Xxxxx, Inc.) v. Pyramid Company of Xxxxxx, 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 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
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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.
(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
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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.
(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.
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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) 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
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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, 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
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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.
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
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and legends required by applicable Requirements of Law, (iii) not adopt or use
any xxxx 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 xxxx 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 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.
15
(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, xxx 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 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.
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(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 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.
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(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 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;
18
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
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
19
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 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.
20
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 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
21
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 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.
22
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.
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
23
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 xxx 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.
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
24
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.
[NAME OF GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Guarantee and
Collateral Agreement dated as of June 21, 2005 (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 ________________, 200_, 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.
WITNESSETH:
WHEREAS, Xxxxx Xxxxx Holdings, Inc. ("Holdings"), Xxxxx Xxxxx, Inc.
(the "Borrower"), the Lenders and the Administrative Agent have entered into a
Loan Agreement, dated as of June 21, 2005 (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 (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:
---------------------------------
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
Supplement to Schedule 7
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
GUARANTORS NOTICE ADDRESS
---------- -----------------------
Distribution Fulfillment Services, Inc. (DFS) 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx Services, LLC 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx Information Technology, LLC 000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Xxxxx Xxxxx Holdings, Inc. 00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
SCHEDULE 2
DESCRIPTION OF INVESTMENT PROPERTY
PLEDGED STOCK:
STOCK/MEMBERSHIP NO. OF SHARES/
ISSUER CLASS OF STOCK INTEREST CERTIFICATE NO. MEMBERSHIP INTERESTS
------ ---------------- ------------------------ --------------------
Xxxxx Xxxxx, Inc. Common par value 3 5,000
$100 per share
Distribution Fulfillment Services, Common par value 3 1,000
Inc. (DFS) $1 per share
Xxxxx Xxxxx Services, LLC N/A 1 1
Xxxxx Xxxxx Information Technology, N/A 1 1
LLC
PLEDGED NOTES:
NONE.
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
IN TERM LENDER PRIORITY COLLATERAL
Uniform Commercial Code Filings
GRANTOR UCC-1 FILING OFFICES
------- --------------------
Xxxxx Xxxxx, Inc. Delaware Secretary of State
Xxxxx Xxxxx Holdings, Inc. Delaware Secretary of State
Distribution Fulfillment Services, Inc. Delaware Secretary of State
Xxxxx Xxxxx Services, LLC Ohio Secretary of State
Xxxxx Xxxxx Information Technology, LLC Delaware Secretary of State
Patent and Trademark Filings
GRANTOR FILING OFFICE
------- -------------
Xxxxx Xxxxx, Inc. United States Patent and Trademark Office
Copyright Filings
GRANTOR FILING OFFICE
------- -------------
Xxxxx Xxxxx, Inc. United States Copyright Office
Actions with respect to Pledged Stock
1. Xxxxx Xxxxx, Inc. shall deliver to the Administrative Agent stock certificate
no. 3 issued by Xxxxx Xxxxx, Inc. to Xxxxx Xxxxx Holdings, Inc. and provide a
stock powers to such stock certificate.
2. Distribution Fulfillment Services, Inc. (DFS) shall deliver to the
Administrative Agent stock certificate no. 2 issued by Distribution Fulfillment
Services, Inc. (DFS) to Xxxxx Xxxxx, Inc. and provide a stock power to such
stock certificate.
3. Xxxxx Xxxxx Services, LLC shall deliver to the Administrative Agent certified
membership interest no. 1 issued by Xxxxx Xxxxx Services, LLC to Xxxxx Xxxxx,
Inc. and provide a power to such membership interest.
4. Xxxxx Xxxxx Information Technology, LLC shall deliver to the Administrative
Agent certified membership interest no. 1 issued by Xxxxx Xxxxx Information
Technology, LLC to Xxxxx Xxxxx, Inc. and provide a power to such membership
interest.
Other Actions To Be Taken
1. Xxxxx Xxxxx, Inc., Distribution Fulfillment Services, Inc. (DFS), Xxxxx Xxxxx
Services, LLC and Xxxxx Xxxxx Information Technology, LLC shall enter into the
Intercreditor Agreement.
2. Upon termination of the ABL Facility Agreement, each of Xxxxx Xxxxx,Inc.,
Distribution Fulfillment Services, Inc. (DFS), Xxxxx Xxxxx Services, LLC and
Xxxxx Xxxxx Information Technology, LLC shall have established a payment account
and a related lock-box service for collection of its accounts at Wachovia,
BankOne, KeyBank and Xxxxx Fargo and, in each case, subject to a Block Account
Agreement and other documentation acceptable to the Administrative Agent and
shall have instructed each account debtor to make all payments directly to such
payment account or to the address established for such lock-box service and
shall provide evidence to the Administrative Agent, satisfactory to the
Administrative Agent, that such instructions have been given.
SCHEDULE 4
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
IN REVOLVING LENDER PRIORITY COLLATERAL
Uniform Commercial Code Filings
The filings listed below will occur after the Uniform Commercial Code filings
referred to in Schedule 3 are filed in the relevant Secretary of State offices.
GRANTOR UCC-1 FILING OFFICES
------- --------------------
Xxxxx Xxxxx, Inc. Delaware Secretary of State
Xxxxx Xxxxx Holdings, Inc. Delaware Secretary of State
Distribution Fulfillment Services, Inc. Delaware Secretary of State
Xxxxx Xxxxx Services, LLC Ohio Secretary of State
Xxxxx Xxxxx Information Technology, LLC Delaware Secretary of State
Patent and Trademark Filings
The filing listed below will be made after the patent and trademark filing
referred to in Schedule 3 has been made.
GRANTOR FILING OFFICE
------- -------------
Xxxxx Xxxxx, Inc. United States Patent and Trademark Office
Copyright Filings
The filing listed below will be made after the copyright filing referred to in
Schedule 3 has been made.
GRANTOR FILING OFFICE
------- -------------
Xxxxx Xxxxx, Inc. United States Copyright Office
Actions with respect to Pledged Stock
The following actions will be taken with respect to Pledged Stock after all
Obligations have been paid in full:
1. Xxxxx Xxxxx, Inc. shall deliver to the Administrative Agent stock certificate
no. 3 issued by Xxxxx Xxxxx, Inc. to Xxxxx Xxxxx Holdings, Inc. and provide a
stock powers to such stock certificate.
2. Distribution Fulfillment Services, Inc. (DFS) shall deliver to the
Administrative Agent stock certificate no. 2 issued by Distribution Fulfillment
Services, Inc. (DFS) to Xxxxx Xxxxx, Inc. and provide a stock power to such
stock certificate.
3. Xxxxx Xxxxx Services, LLC shall deliver to the Administrative Agent certified
membership interest no. 1 issued by Xxxxx Xxxxx Services, LLC to Xxxxx Xxxxx,
Inc. and provide a power to such membership interest.
4. Xxxxx Xxxxx Information Technology, LLC shall deliver to the Administrative
Agent certified membership interest no. 1 issued by Xxxxx Xxxxx Information
Technology, LLC to Xxxxx Xxxxx, Inc. and provide a power to such membership
interest.
Other Actions
1. Xxxxx Xxxxx, Inc., Distribution Fulfillment Services, Inc. (DFS), Xxxxx Xxxxx
Services, LLC and Xxxxx Xxxxx Information Technology, LLC shall enter into the
Intercreditor Agreement.
2. Within 90 days of the Closing Date, each of Xxxxx Xxxxx,Inc., Distribution
Fulfillment Services, Inc. (DFS), Xxxxx Xxxxx Services, LLC and Xxxxx Xxxxx
Information Technology, LLC shall have established a payment account and a
related lock-box service for collection of its accounts at Wachovia, BankOne,
KeyBank and Xxxxx Fargo and, in each case, subject to a Block Account Agreement
and other documentation acceptable to Bank of America, N.A. and shall have
instructed each account debtor to make all payments directly to such payment
account or to the address established for such lock-box service and shall
provide evidence to Bank of America, N.A., satisfactory to Bank of America,
N.A., that such instructions have been given.
SCHEDULE 5
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
JURISDICTION LOCATION OF
GRANTOR OF ORGANIZATION CHIEF EXECUTIVE OFFICE
------- --------------- ----------------------
Xxxxx Xxxxx, Inc. Delaware 00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxx Services, LLC Ohio 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX
Xxxxx Xxxxx Information Technology, LLC Delaware 000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX
Xxxxx Xxxxx Holdings, Inc. Delaware 00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Distribution Fulfillment Services, Inc. (DFS) Delaware 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
SCHEDULE 6
SCHEDULE 6
INTELLECTUAL PROPERTY
1. XXXXX XXXXX, INC. U.S. TRADEMARK REGISTRATIONS
TRADEMARK NUMBER DATE
--------- ------ ----
"Our creed. To give you such outstanding quality, value
service and guarantee that we may be worthy of your
high esteem" 2327855 03/14/00
Activator 2483723 08/28/01
All Week Long 1482049 03/22/88
Chehalis Sweater 2409309 11/28/00
Crosswinds 2284107 10/05/99
Xxxx Xxx 0000000 06/05/01
Downlight 2474273 07/31/01
Ebtek 1990423 07/30/96
Ebtek 2082388 07/22/97
Ebtek 2172875 07/14/98
Ebtek 2498168 10/16/01
Xxxxx Xxxxx 880279 11/11/69
Xxxxx Xxxxx 994152 09/24/74
Xxxxx Xxxxx 2199981 10/27/98
Xxxxx Xxxxx 2237509 04/06/99
Xxxxx Xxxxx 2251500 06/08/99
Xxxxx Xxxxx 2265464 07/27/99
Xxxxx Xxxxx 2308646 01/18/00
Xxxxx Xxxxx 2325813 03/07/00
Xxxxx Xxxxx 2331757 03/21/00
Xxxxx Xxxxx 2364451 07/04/00
Xxxxx Xxxxx 2368565 07/18/00
Xxxxx Xxxxx 2430268 02/20/01
Xxxxx Xxxxx 2447116 04/24/01
Xxxxx Xxxxx 2469401 07/17/01
Xxxxx Xxxxx 2473338 07/31/01
Xxxxx Xxxxx 2483518 08/28/01
Xxxxx Xxxxx 2482728 08/28/01
Xxxxx Xxxxx 2490354 09/18/01
Xxxxx Xxxxx 2534952 01/29/02
Xxxxx Xxxxx 2564655 04/23/02
Xxxxx Xxxxx 2580307 06/11/02
Xxxxx Xxxxx 2589917 07/02/02
Xxxxx Xxxxx 2892465 10/12/04
Xxxxx Xxxxx 2722529 06/03/03
8
TRADEMARK NUMBER DATE
--------- ------ ----
Xxxxx Xxxxx 2722528 06/03/03
Xxxxx Xxxxx 2942552 04/19/05
Xxxxx Xxxxx Adventurer 2260794 07/13/99
Xxxxx Xxxxx Balance 2133309 01/27/98
Xxxxx Xxxxx Coffee And Shop 2162220 06/02/98
Xxxxx Xxxxx Coffee and Shop 2215435 12/29/98
Xxxxx Xxxxx Est. 1920 Stencil Goose (Design) 2307185 01/11/00
Xxxxx Xxxxx Experience Based 2464677 06/26/01
Xxxxx Xxxxx Goose Logo 2249685 06/01/99
Xxxxx Xxxxx Goose Logo 2272158 08/24/99
Xxxxx Xxxxx Home 2323764 02/29/00
Xxxxx Xxxxx Legend for Four Generations and Design 2421176 01/16/01
Xxxxx Xxxxx Legends 2010623 10/22/96
Xxxxx Xxxxx Lifestyles 2363600 07/04/00
Xxxxx Xxxxx Outdoor Outfitter Since 1920 (And Design) 1580777 01/30/99
Xxxxx Xxxxx S.E.E.D. Fund 2178649 08/04/98
Xxxxx Xxxxx Signature Design 880280 11/11/69
Xxxxx Xxxxx Signature Design 1447361 07/14/87
Xxxxx Xxxxx Signature Design 2331753 03/21/00
Xxxxx Xxxxx Signature Design 2257761 06/29/99
Xxxxx Xxxxx Signature Design 2942551 04/19/05
Xxxxx Xxxxx Signature Design 2249698 06/01/99
Xxxxx Xxxxx Signature Design 2274112 08/31/99
Xxxxx Xxxxx Signature Design 2892466 10/12/04
Xxxxx Xxxxx Since 1920 Goose Clock Design 2331904 03/21/00
Elkhorn 2801167 12/30/03
Experience Based 2464678 06/26/01
Guide Bag 2503096 10/30/01
Journeyman Bomber 2369427 06/18/00
Xxxx Xxxxx 798431 11/02/65
Laconner 2392157 10/03/00
More Bedding, More Bath, More At Home 2626680 09/24/02
North Cascade 2418414 01/02/01
Northwind 2001876 09/17/96
Our Guarantee. Every Item We Sell Will Give You Complete
Satisfaction Or You May Return It For a Full Refund 2327854 03/14/00
Outdoor Gear for Life's Adventures 2724007 06/10/03
Peel & Go (And Design) 2509561 11/20/01
Polar Parka 1023494 10/21/75
Ridgeline(1) 1861863 11/8/94
Snapjac 846314 03/19/68
----------
(1) Xxxxx Xxxxx, Inc. believes that this trademark is to be abandoned.
9
TRADEMARK NUMBER DATE
--------- ------ ----
Snowline(2) 1000773 12/31/74
Snohomish 2700812 03/25/03
Snohomish 2500760 10/23/01
Stormcheck 1488590 05/17/88
Stormcheck 2632241 10/08/02
Tapestry Vine(3) 2204237 11/17/98
Thermolene 1715903 09/15/92
Weatheredge 2375777 08/08/00
Windfoil 1483617 04/05/88
xxx.xxxxxxxxxx.xxx 2429474 02/20/01
2. XXXXX XXXXX, INC. U.S. TRADEMARK APPLICATIONS
TRADEMARK NUMBER DATE
--------- ------ ----
Xxxxx Xxxxx Sport Shop Seattle 76/475072 12/13/02
Finespun 78/281909 08/01/03
Journeyman 76/027015 04/17/00
Lodge Collection 78/608317 04/13/05
Lodge Collection 78/608319 04/13/05
Lodge Collection 78/608320 04/13/05
Lodge Collection 78/608321 04/13/05
Lodge Collection 78/608323 04/13/05
Windcutter 78/488759 09/23/04
3. XXXXX XXXXX, INC. FOREIGN APPLICATIONS
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx 12 Philippines 42004 0011047 11/23/04
Xxxxx Xxxxx Signature Design 12 Philippines 42004 0011048 11/23/04
Xxxxx Xxxxx 00 Xxxxxxxxx 00000-00 11/24/94
Xxxxx Xxxxx 00, 00, 00, 00, 00 Xxxxx Xxxxxxxx 178214 3/25/02
Xxxxx Xxxxx Signature 25, 35 Uruguay 324.254 7/5/00
Xxxxx Xxxxx 00 Xxx Xxxxx N/A 2/10/05
Xxxxx Xxxxx 25 Singapore N/A 1/25/05
Xxxxx Xxxxx 00 Xxxxx 000000 10/5/99
Xxxxx Xxxxx 25 Mauritius N/A 2/11/05
4. XXXXX XXXXX, INC. FOREIGN REGISTRATIONS
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Crosswinds 18 Canada TMA520019 11/30/99
----------
(2) Xxxxx Xxxxx, Inc. believes that this trademark is to be abandoned.
(3) Xxxxx Xxxxx, Inc. believes that this trademark is to be abandoned.
10
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Crosswinds 18 Germany 39824635 5/31/98
Xxxxxxxxxx 00 Xxxxx 0000000 0/00/00
Xxxxxxxxxx 00 Xxxxxx Xxxxxxx 2168453 11/20/98
Desert Cloth 25 Canada 210946 1/6/76
Downlight 25 Canada 550308 8/30/01
Ebfleece 25 Canada 570492 11/8/02
Ebtek 18,25,28 Germany 39640125 9/30/96
Ebtek 18,25,28 UK & N. Ireland 2,113,271 10/18/96
Ebtek 14,18,25, Canada TMA544259 4/30/01
Ebtek 3 Canada TMA559776 3/27/02
Xxxxx Xxxxx 25 Argentina 1915147 2/26/03
Xxxxx Xxxxx 24 Japan 1,357,258 11/28/78
Xxxxx Xxxxx 18,25 Indonesia 260691 6/29/90
Xxxxx Xxxxx 00 Xxxxxx 000000 8/26/92
Xxxxx Xxxxx 00 Xxxxxx 000000 8/26/92
Xxxxx Xxxxx 16,20,24,25 Germany 2074047 12/22/92
Xxxxx Xxxxx 00 XX & X. Xxxxxxx B1,522,621 12/23/92
Xxxxx Xxxxx 24 UK & N. Ireland B1,522,623 12/23/92
Xxxxx Xxxxx 20 UK & N. Ireland B1,522,622 12/23/92
Xxxxx Xxxxx 16,20,24,25,42 Switzerland 409,690 4/1/93
Xxxxx Xxxxx 20 Mexico 504,655 4/12/93
Xxxxx Xxxxx 24 Mexico 475,793 4/12/93
Xxxxx Xxxxx 42 Mexico 486,135 2/3/94
Xxxxx Xxxxx 00 Xxxxxx 000000 3/4/94
Xxxxx Xxxxx 00 Xxxxxx 000000 8/26/92
Xxxxx Xxxxx 00 Xxxxxx 000000 4/12/93
Xxxxx Xxxxx 00 Xxxxxx 000000 3/3/94
Xxxxx Xxxxx 0 Xxxxxx 000000 3/3/94
Xxxxx Xxxxx 00 Xxxxxx 000000 3/3/94
Xxxxx Xxxxx 00 Xxxxxx 000000 3/3/94
Xxxxx Xxxxx 00 Xxxxxx 000000 4/7/94
Xxxxx Xxxxx 16,18,20,24,25,35 France 94535788 9/13/94
Xxxxx Xxxxx 16,18,20,24,25,35 Benelux 562322 12/22/94
Xxxxx Xxxxx 16,18,20,24,25,42 Italy 722859 1/17/95
Xxxxx Xxxxx 16,18,20,24,25,35 Austria 158118 5/22/95
Xxxxx Xxxxx 16,18 UK & N. Ireland 2,023,636 6/10/95
Xxxxx Xxxxx 25 Indonesia 359000 6/15/95
Xxxxx Xxxxx 18 Switzerland 431,504 6/15/95
Xxxxx Xxxxx 00 XX & X. Xxxxxxx 2,024,571 6/21/95
Xxxxx Xxxxx 14,18,35 Germany 39524347 6/30/95
Xxxxx Xxxxx 20 Ireland 166958 7/13/95
Xxxxx Xxxxx 24 Ireland 166949 7/13/95
Xxxxx Xxxxx 25 Ireland 166950 7/13/95
Xxxxx Xxxxx 16 Ireland 166946 7/13/95
Xxxxx Xxxxx 18 Ireland 166947 7/13/95
Xxxxx Xxxxx 24 Spain 1,977,402 7/19/95
Xxxxx Xxxxx 20 Spain 1,977,401 7/19/95
Xxxxx Xxxxx 16 Spain 1,977,399 7/19/95
11
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/29/95
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/29/95
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/29/95
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/29/95
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/29/95
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/29/95
Xxxxx Xxxxx 00 Xxxxxxxxx Xxxxxxxx 000000 10/30/98
Xxxxx Xxxxx 00 Xxxxxxxxx Xxxxxxxx 000000 10/30/98
Xxxxx Xxxxx 16,18,20,24,25,35 Portugal 311,579 6/3/96
Xxxxx Xxxxx 35,42 Ireland 219537 7/1/96
Xxxxx Xxxxx 0 Xxxxx 0000000 10/31/96
Xxxxx Xxxxx 00 Xxxxx 0000000 9/30/96
Xxxxx Xxxxx 00 Xxxxx 0000000 3/12/97
Xxxxx Xxxxx 00 Xxxxx 0000000 9/30/06
Xxxxx Xxxxx 00 Xxxxx 0000000 9/30/96
Xxxxx Xxxxx 00 Xxxxx 0000000 10/31/96
Xxxxx Xxxxx 00 Xxxxx 0000000 9/30/96
Xxxxx Xxxxx 0 Xxxxx 0000000 9/30/96
Xxxxx Xxxxx 00 Xxxxx 320-9622 10/31/96
Xxxxx Xxxxx 00 Xxxxx 0000000 10/31/96
Xxxxx Xxxxx 00 Xxxxx 0000000 10/31/96
Xxxxx Xxxxx 00 Xxxxx 0000000 10/31/96
Xxxxx Xxxxx 00 Xxxxx 0000000 10/31/96
Xxxxx Xxxxx 18 Bolivia 62420-C 11/1/96
Xxxxx Xxxxx 16 Bolivia 62421-C 11/1/96
Xxxxx Xxxxx 20 Bolivia 62418-C 11/1/96
Xxxxx Xxxxx 24 Bolivia 62419-C 11/1/96
Xxxxx Xxxxx 25 Bolivia 62414-C 11/1/96
Xxxxx Xxxxx 42 Bolivia 62433-C 11/1/96
Xxxxx Xxxxx 00 Xxxxxxx 0000-00 11/13/96
Xxxxx Xxxxx 00 Xxxxxxx 000000 11/13/96
Xxxxx Xxxxx 00 Xxxxxxx 000000 11/13/96
Xxxxx Xxxxx 00 Xxxxxxx 000000 11/13/96
Xxxxx Xxxxx 00 Xxxxxxx 000000 11/13/96
Xxxxx Xxxxx 00 Xxxxx 0000000 11/29/96
Xxxxx Xxxxx 00 Xxxxx 000000 12/14/96
Xxxxx Xxxxx 16,18,20,24,25,42 Hong Kong (merged renewal) 19980140AA 12/20/96
Xxxxx Xxxxx 00 Xxxxx 0000000 12/25/96
Xxxxx Xxxxx 00 Xxxxx 000000 1/7/97
Xxxxx Xxxxx 00 Xxxxx 000000 1/14/97
Xxxxx Xxxxx 00 Xxxxx 000000 1/21/97
Xxxxx Xxxxx 00 Xxxxx 000000 1/21/97
Xxxxx Xxxxx 00 Xxxxx 000000 2/7/97
Xxxxx Xxxxx 00 Xxxxx 0000000 7/4/97
Xxxxx Xxxxx 35 Spain 2111150 10/5/98
Xxxxx Xxxxx 16 South Korea 449807 6/23/99
Xxxxx Xxxxx 24,25 Chile 550597 10/21/99
Xxxxx Xxxxx 00 Xxxxx 000000 1/12/00
Xxxxx Xxxxx 25 Honduras 76583 2/2/00
Xxxxx Xxxxx 00 Xxxxxx 000000 8/16/00
12
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx 00 Xxxxxxxx 000000 11/13/00
Xxxxx Xxxxx 3,4 Canada XXX000000 6/20/01
Xxxxx Xxxxx 25 China 1751950 4/21/02
Xxxxx Xxxxx 9 New Zealand 670887 6/23/03
Xxxxx Xxxxx 6 New Zealand 669972 5/10/04
Xxxxx Xxxxx Adventurer 3 Canada TMA519505 11/17/99
Xxxxx Xxxxx Adventurer 3 Japan 4318497 9/24/99
Xxxxx Xxxxx Balance 3,4 Canada TMA544234 4/30/01
Xxxxx Xxxxx Balance 3,4 Germany 39655067 12/31/96
Xxxxx Xxxxx Balance 3,4 United Kingdom 2118186 8/1/97
Xxxxx Xxxxx Design 25 Canada 156448 4/19/68
Xxxxx Xxxxx Experienced
Based 3,4 United Kingdom 2225138 9/6/02
Xxxxx Xxxxx Goose Logo 25 Mexico 459796 3/3/94
Xxxxx Xxxxx Goose Logo 22 Mexico 459800 3/3/94
Xxxxx Xxxxx Goose Logo 9 Mexico 517017 4/7/94
Xxxxx Xxxxx Goose Logo 8 Mexico 520325 3/3/94
Xxxxx Xxxxx Goose Logo 11 Mexico 520323 3/3/94
Xxxxx Xxxxx Goose Logo 25 Mexico 459796 3/3/94
Xxxxx Xxxxx Goose Logo 28 Mexico 472637 4/7/94
Xxxxx Xxxxx Goose Logo 3 Mexico 467,858 3/3/94
Xxxxx Xxxxx Goose Logo 21 Mexico 459798 3/3/94
Xxxxx Xxxxx Goose Logo 12 Mexico 462324 3/3/94
Xxxxx Xxxxx Goose Logo 14 Mexico 467,860 3/3/94
Xxxxx Xxxxx Goose Logo 16 Mexico 459797 3/3/94
Xxxxx Xxxxx Goose Logo 24 Mexico 462322 3/3/94
Xxxxx Xxxxx Goose Logo 20 Mexico 462323 3/3/94
Xxxxx Xxxxx Goose Logo 18 Mexico 467,863 3/3/94
Xxxxx Xxxxx Goose Logo 42 Mexico 475,814 3/3/94
Xxxxx Xxxxx Goose Logo 16,25,35 European CTM 001 395 284 11/24/02
Xxxxx Xxxxx Goose Logo 25 France 94/535790 9/13/94
Xxxxx Xxxxx Goose Logo 18,24,25 Benelux 562324 12/22/94
13
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx Goose Logo 25 Italy 722971 1/17/95
Xxxxx Xxxxx Goose Logo 25 Austria 157848 5/3/95
Xxxxx Xxxxx Goose Logo 25 Switzerland 431,450 6/15/95
Xxxxx Xxxxx Goose Logo 00 XX & X. Xxxxxxx 2,024,572 6/21/95
Xxxxx Xxxxx Goose Logo 18,24,25 Germany 39524753 6/30/95
Xxxxx Xxxxx Goose Logo 25 Ireland 167087 7/13/95
Xxxxx Xxxxx Goose Logo 25 Spain 1,977,406 7/19/95
Xxxxx Xxxxx Goose Logo 25 Portugal 311,581 6/3/96
Xxxxx Xxxxx Goose Logo 25 Brazil 817934634 10/1/96
Xxxxx Xxxxx Goose Logo 25 Bolivia 62415-C 11/1/96
Xxxxx Xxxxx Goose Logo 25 Colombia 287986 4/23/03
Xxxxx Xxxxx Goose Logo 13 Japan 3277696 4/11/97
Xxxxx Xxxxx Goose Logo 00 Xxxxxxx 208296 11/13/96
Xxxxx Xxxxx Goose Logo 25 Hong Kong 01925 of 1999 12/20/96
Xxxxx Xxxxx Goose Logo 18 Japan 3242033 12/25/96
Xxxxx Xxxxx Goose Logo 14 Japan 3242183 12/25/96
Xxxxx Xxxxx Goose Logo 25 China 943415 1/21/97
Xxxxx Xxxxx Goose Logo 29 Japan 3244945 1/31/97
Xxxxx Xxxxx Goose Logo 30 Japan 3244946 4/31/97
Xxxxx Xxxxx Goose Logo 28 Japan 3236092 12/25/96
Xxxxx Xxxxx Goose Logo 25 Japan 3250459 1/31/97
Xxxxx Xxxxx Goose Logo 20 Japan 3259909 2/24/97
Xxxxx Xxxxx Goose Logo 24 Japan 3264779 2/24/97
Xxxxx Xxxxx Goose Logo 12 Japan 3277695 4/11/97
Xxxxx Xxxxx Goose Logo 16 Japan 3283561 4/18/97
Xxxxx Xxxxx Goose Logo 22 Japan 3282490 4/18/97
14
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx Goose Logo 21 Japan 3289260 4/25/97
Xxxxx Xxxxx Goose Logo 11 Japan 3284821 4/18/97
Xxxxx Xxxxx Goose Logo 9 Japan 3270243 3/12/97
Xxxxx Xxxxx Goose Logo 8 Japan 3284820 4/18/97
Xxxxx Xxxxx Goose Logo 31 Japan 3239629 12/25/96
Xxxxx Xxxxx Goose Logo 16 South Korea 449809 6/23/99
Xxxxx Xxxxx Goose Logo 25 Taiwan 917864 12/1/00
Xxxxx Xxxxx Home 42 Mexico 500235 5/16/94
Xxxxx Xxxxx Home 28 Mexico 461385 3/22/94
Xxxxx Xxxxx Home 21 Mexico 461357 3/3/94
Xxxxx Xxxxx Home 24 Mexico 459373 3/3/94
Xxxxx Xxxxx Home 3 Mexico 459371 3/3/94
Xxxxx Xxxxx Home 27 Mexico 459372 3/3/94
Xxxxx Xxxxx Home 20 Mexico 459375 3/3/94
Xxxxx Xxxxx Home 16 Mexico 459369 3/3/94
Xxxxx Xxxxx Home 16 Japan 3179794 7/31/96
Xxxxx Xxxxx Outdoor
Outfitter Since 1920
And Design 35 Canada TMA558217 2/20/02
Xxxxx Xxxxx Rewards (and
Design) 35 Canada TMA527813 5/16/00
Xxxxx Xxxxx Signature 25,35 Canada 156446 4/19/68
Xxxxx Xxxxx Signature 35 Canada 225694 1/27/78
Xxxxx Xxxxx Signature 20,21,22,25,27,28 Japan 1,453,370 1/30/81
Xxxxx Xxxxx Signature 12 Canada 383729 5/3/91
Xxxxx Xxxxx Signature 25 UK & N. Ireland 1,522,624 12/23/92
Xxxxx Xxxxx Signature 24 Mexico 459382 3/3/94
Xxxxx Xxxxx Signature 14 Mexico 459380 3/3/94
Xxxxx Xxxxx Signature 25 Mexico 500,236 3/3/94
Xxxxx Xxxxx Signature 3 Mexico 459377 3/3/94
Xxxxx Xxxxx Signature 21 Mexico 459376 3/3/94
Xxxxx Xxxxx Signature 18 Mexico 520324 3/3/94
15
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx Signature 16 Mexico 459381 3/3/94
Xxxxx Xxxxx Signature 20 Mexico 459383 3/3/94
Xxxxx Xxxxx Signature 12 Mexico 459385 3/3/94
Xxxxx Xxxxx Signature 22 Mexico 459,390 3/3/94
Xxxxx Xxxxx Signature 42 Mexico 471,740 3/22/94
Xxxxx Xxxxx Signature 28 Mexico 5203727 4/7/94
Xxxxx Xxxxx Signature 25 France 94/535789 9/13/94
Xxxxx Xxxxx Signature 25 Austria 155082 10/31/94
Xxxxx Xxxxx Signature 18,24,25 Benelux 562323 12/22/94
Xxxxx Xxxxx Signature 25 Italy 734591 1/20/95
Xxxxx Xxxxx Signature 25 UK & N. Ireland 2,023,643 6/10/95
Xxxxx Xxxxx Signature 25 Switzerland 431,434 6/15/95
Xxxxx Xxxxx Signature 18,24,25 Germany 39524754 6/30/95
Xxxxx Xxxxx Signature 25 Ireland 167741 7/13/95
Xxxxx Xxxxx Signature 25 Colombia 181988 12/13/95
Xxxxx Xxxxx Signature Logo 6 New Zealand 669971 5/10/04
Xxxxx Xxxxx Signature 9 New Zealand 670888 6/26/03
Xxxxx Xxxxx Signature 25 Peru 22749 1/22/96
Xxxxx Xxxxx Signature 25 Portugal 311,580 6/3/96
Xxxxx Xxxxx Signature 25 Panama 076095 6/26/95
Xxxxx Xxxxx Signature 16 Japan 3201735 9/30/96
Xxxxx Xxxxx Signature 24 Japan 3209633 10/31/96
Xxxxx Xxxxx Signature Design 25 Japan 1672356 3/22/84
Xxxxx Xxxxx Signature Design 21 Japan 1710871 8/28/84
Xxxxx Xxxxx Signature Design 19 Japan 1691416 6/21/84
Xxxxx Xxxxx Signature 20 Japan 3217067 10/31/96
16
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Xxxxx Xxxxx Signature 25 Bolivia 62416-C 11/1/96
Xxxxx Xxxxx Signature 00 Xxxxxxx 208196 11/13/96
Xxxxx Xxxxx Signature 22 Japan 3223118 11/29/96
Xxxxx Xxxxx Signature 25 Hong Kong 1403/1998 12/20/96
Xxxxx Xxxxx Signature 14 Japan 3242185 12/25/96
Xxxxx Bauer Signature 25 China 925486 1/7/97
Eddie Bauer Signature 16 South Korea 449808 6/23/99
Eddie Bauer Signature &
Design 22 Japan 1,672,363 3/22/84
Eddie Bauer Signature Design 11 Japan 3343547 9/5/97
Eddie Bauer Signature &
Design 12 Japan 1,700,231 7/25/84
Eddie Bauer Signature Design 13 Japan 3270241 3/12/97
Eddie Bauer Signature Design 13 Japan 1691415 6/21/84
Eddie Bauer Signature Design 9 Japan 3236084 12/25/96
Eddie Bauer Signature &
Design 24 Japan 1700228 7/25/84
Eddie Bauer Signature &
Design 21 Japan 1,710,871 8/28/84
Eddie Bauer Signature &
Design 20 Japan 1,666,279 3/22/84
Eddie Bauer Signature Design 31 Japan 3209635 10/31/96
Eddie Bauer Signature Design 30 Japan 3201768 9/30/96
Eddie Bauer Signature Design 29 Japan 3200892 9/30/96
Eddie Bauer Signature &
Design 25,35 Canada 307215 9/20/85
Eddie Bauer Weatheredge
(Old) Design 18,24,25 Germany 398 23 848 4/30/98
Eddie Bauer Weatheredge
Design 18,24,25 Germany 39900675 1/31/99
Elkhorn 25 Canada TMA555061 12/5/01
Experience Based 35 Canada 1050874 7/31/02
Experience Based 25 Japan 4447820 1/19/01
Guide Bag 18 Canada 1049199 7/31/02
Jet Commuter 25 Canada 208450 7/25/75
Kara Koram 25 Canada 209152 8/29/75
Laconner 25 Canada TMA570497 11/8/02
17
TRADEMARK CLASS COUNTRY NUMBER DATE
--------- ----- ------- ------ ----
Legend For Four Generations 18,24,25 Japan 4442555 12/22/00
Mite Lite 11 Canada 285072 11/18/83
Mountain Range Design 18 Japan 4460365 3/16/01
North Cascade 25 Canada 571812 12/5/02
Polar Light 20,25 Canada 210240 10/24/75
Polar Parka 25 Canada TMA555034 12/5/01
Snapjac 25 Japan 3239757 12/25/96
Snap-Jac 25 Canada 207639 6/20/75
Snohomish 25 Canada 571243 11/25/02
Snowline 25 Canada 214625 7/2/76
Sport Shop & Design 28 Japan 3236093 12/25/96
Sport Shop & Design 18 Japan 3242034 12/25/96
Sport Shop & Design 25 Japan 3250460 1/31/97
Sport Shop & Design 20 Japan 3259910 2/24/97
Sport Shop & Design 16 Japan 3289264 4/25/97
Sport Shop & Design 9 Japan 3283562 4/18/97
Sport Shop And Design 20 Mexico 462321 3/3/94
Sport Shop And Design 25 Mexico 464161 3/3/94
Sport Shop & Design 28 Mexico 467873 4/7/94
Sport Shop And Design 14 Mexico 467,859 3/3/94
Sport Shop & Design 9 Mexico 462320 3/3/94
Sport Shop And Design 16 Mexico 459794 3/3/94
Sport Shop And Design 18 Mexico 472,634 3/22/94
Sport Shop & Design 42 Mexico 477340 3/22/94
Thermolene 25 Canada TMA570498 11/8/02
Weatheredge 18,24,25 UK & N. Ireland 2158689 2/19/98
Weatheredge 18,24,25 Japan 4250842 3/12/99
Weatheredge 24,25 Canada TMA520639 12/18/99
Windcutter 25 Canada TMA570499 11/8/02
Windfoil 25 Canada TMA559886 4/4/02
5. EDDIE BAUER, INC. AUSTRALIAN TRADEMARK REPORT
18
SERIAL
TRADEMARK CLASS FILE NUMBER NUMBER STATUS
--------- ----------------------------------------------------------- ------------- ------- -------------------------------
EDDIE BAUER Class 16: Catalogues 00632.00.0447 645,509 Registered 6/24/03.
Class 18: Luggage including briefcases, carry bags, field
bags, duffel bags, backpacks, day packs, pouches; umbrellas
Class 20: Tables, beds, chairs, pillows, cushions
Class 24: Bedding and bed linen, quilts, quilt covers,
towels, blankets
Class 42: Retail store services and mail order services
relating to luggage, tables, beds, chairs, pillows,
cushions, bedding and bed linen, quilts, quilt covers,
towels, blankets and articles of clothing including
footwear and headgear
EDDIE BAUER Class 6: Luggage locks 00632.00.0448 938,843 Registered 10/7/04.
Class 9: Voltage converters
Class 14: Travel alarm clocks
Class 18: Cargo duffel bags, travel duffel bags, rolling
duffel bags, backpacks, sport duffel bags, rolling gear
bags, rolling backpacks, cargo cases, packing cases,
overseas cases, attache cases, brief cases, business cases,
toiletries bags, cosmetic bags, vanity cases, garment bags,
organizer totes, luggage tabs, money belts, passport cases,
wallets, garment covers, belly bags, shoe bags, wet
pouches, luggage carts
EDDIE BAUER Class 25: Articles of clothing, including headgear and 00632.00.0449 937,199 This is a divisional
footwear application directed to
clothing products. This
application will remain
suspended pending completion of
the cancellation against the
Bauer Nike Hockey Class 25
registration.
EDDIE BAUER Class 9: Eyewear, including eyeglasses and eyeglass frames 00632.00.0459 938,740 Registered 2/11/04.
EDDIE BAUER Class 4: Candles 724,732 Registered 2/10/99.
BALANCE
GOOSE LOGO Class 25: Articles of clothing, including headgear and 00364.01.0831 645,506 Suspended pending completion of
footwear cancellation proceeding against
Class 25 Bauer Nike Hockey
registration. We will make one
further
19
SERIAL
TRADEMARK CLASS FILE NUMBER NUMBER STATUS
--------- ----------------------------------------------------------- ------------- ------- -------------------------------
attempt to convince the Office
to allow this mark because the
expression "BAUER" is only a
part of the overall composite
logo.
SIGNATURE Class 25: Articles of clothing, including headgear and 00364.01.0832 645,507 Suspended pending completion of
LOGO footwear cancellation proceeding against
the Class 25 Bauer Nike Hockey
registration.
SIGNATURE Class 6: Luggage locks 00632.00.0446 937,046 Registered 11/11/04.
LOGO Class 9: Voltage converters
Class 14: Travel alarm clocks
Class 18: Cargo duffel bags, travel duffel bags, rolling
duffel bags, backpacks, sport duffel bags, rolling gear
bags, rolling backpacks, cargo cases, packing cases,
overseas cases, attache cases, brief cases, business cases,
toiletries bags, cosmetic bags, vanity cases, garment bags,
organizer totes, luggage tabs, money belts, passport cases,
wallets, garment covers, belly bags, shoe bags, wet
pouches, luggage carts
Class 20: Neck pillows
SIGNATURE Class 9: Eyewear, including eyeglasses and eyeglass frames 00632.00.0460 938,739 Registered 2/11/04.
LOGO
6. EDDIE BAUER, INC. COPYRIGHT REGISTRATIONS
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Sep99. TX5019038 11/17/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall resource 99 TX5019038 11/17/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct99 TX5019038 11/17/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday preview 99 TX5019038 11/17/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1Nov99 TX5046648 1/3/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 8Nov99 TX5046648 1/3/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 26Nov99 TX5046648 1/3/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 8Dec99 TX5046648 1/3/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 19Jan00 TX5096267 3/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Clearance TX5096267 3/27/00 Eddie Bauer, Inc. Registered
20
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Feb-Mar00 TX5096267 3/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring sale TX5096267 3/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Welcome TX5096267 3/22/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 10Apr00 TX5115956 6/21/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 17Apr00 TX5115956 6/21/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 8May00 TX5115956 6/21/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 30May00 TX5115956 6/21/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 19Jun00 TX5115956 6/21/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 17Jul00 TX205655 9/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 7Aug00 TX205655 9/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 28Aug00 TX205655 9/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 11Sep00 TX205655 9/27/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 4Oct00 TX5209550 12/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 23Oct00 TX5209550 12/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 30Oct00 TX5209550 12/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 24Nov00 TX5209550 12/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 6Dec00 TX5209550 12/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 2Jan01 TX5286763 3/22/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jan01 TX5286763 3/22/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 5Feb01 TX5286763 3/22/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Feb01 TX5286763 3/22/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 5Mar01 TX5286763 3/22/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Apr01 TX5286763 3/22/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Mother's Day TX5348347 6/25/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. May sale TX5348347 6/25/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. June 2001 TX5348347 6/25/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Kids sale TX5348347 6/25/01 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 78 TX55907 6/19/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 78 TX55904 6/19/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. mid-winter 78 TX141103 7/27/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 78 TX108686 9/18/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Christmas 78 TX145215 11/20/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 78 TX172413 1/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Special retail mailer TX172412 1/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. mid-winter 79 TX172416 1/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 79 TX240580 1/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 79 TX240582 1/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 80 TX460732 4/29/80 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 88 TX2491842 1/10/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
21
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Winter 88 TX2491841 1/10/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. 1988. The best time of the TX2491840 1/10/89 Spiegel, Inc. [reference: Eddie Registered
year Bauer, Inc.]
Eddie Bauer: [catalog]. Holiday 88 TX2489635 1/10/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. 1988 Eddie Bauer gift express TX2489636 1/10/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Snowbreak 89 TX2503035 1/31/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Spring 89 TX2509126 2/27/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Spring 89 TX2548711 2/27/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Summer 89 TX2564576 5/18/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Winter 88 TX2615278 6/19/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Spring 89 TX2574145 6/8/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Summer 89 TX2574577 6/8/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Summer 89 TX2583277 8/6/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Fall 89 TX2625987 8/21/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Fall 89 TX2663645 10/5/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Fall 89 TX2654824 10/5/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Winter 89 TX2663646 10/5/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Holiday 89 TX2710908 12/13/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. 1989 TX2709455 12/13/89 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Winter 89 TX2814746 4/20/90 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Spring 90 TX2807181 4/20/90 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Spring 90 TX2820303 4/20/90 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Spring 90 TX2782386 4/20/90 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
Eddie Bauer: [catalog]. Summer 90 TX2816447 4/20/90 Spiegel, Inc. [reference: Eddie Registered
Bauer, Inc.]
22
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Summer 90 TX2910378 9/28/90 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Sunward 90 TX2923861 10/1/90 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 90 TX2910379 9/28/90 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 90 TX2960505 10/30/90 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 90 TX3073494 9/21/90 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1990 TX3018689 2/13/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 90 TX3007259 2/11/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1990 TX3007457 2/11/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 91 TX3060774 5/1/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 91 TX3072845 5/1/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 90 TX3099657 2/13/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter TX3081842 5/1/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 91 TX3087715 5/1/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 91 TX3078820 5/1/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. sunward 91 TX3078819 5/1/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 91 TX3164267 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1991 TX3164266 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1991 TX3164285 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 91 TX3162479 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1991 TX3156236 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1991 TX3158309 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 91 TX3156188 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 91 TX3258151 3/3/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 91 TX3258107 3/3/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct91 TX3265723 3/3/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Nov91 TX3285348 3/3/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1992 TX3420936 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Anticipating spring 92 TX3430196 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1992 TX3420935 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 92 TX3425837 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 92 TX3428193 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 92 TX3420280 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Moods of summer 92 TX3430199 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 92 TX3419786 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1992 TX3419431 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 92 TX3425888 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jun 92 TX3425839 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1992 TX3420938 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 92 TX3430202 10/23/92 Eddie Bauer, Inc. Registered
23
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Aug 92 TX3420937 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall-winter 92 TX3420934 11/4/92 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 92 TX3503980 3/26/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 92 TX3519775 3/26/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 92 TX3503981 3/26/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Gift 92 TX3519571 3/26/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 92 TX3503946 3/26/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 92 TX3503947 3/26/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jan93 TX3608943 7/28/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 93 TX3574585 7/29/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Feb93 TX3590913 7/28/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 93 TX3631638 7/30/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 93 TX3646630 8/2/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. May93 TX3607868 7/28/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jun93 TX3640967 7/30/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jun93 TX3597721 7/28/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Mar93 TX3734228 7/29/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Apr93 TX3734227 7/29/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jul93 TX3699168 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug93 TX3688990 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 93 TX3757532 12/6/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 93 TX3707651 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct93 TX3684635 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 93 TX3689930 12/6/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 93 TX3709030 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 93 TX3796154 2/28/94 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 94 TX4003278 2/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct94 TX4003279 2/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct94 TX4003276 2/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Nov94 TX4003277 2/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 1994 TX3987062 2/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jan94 TX4160889 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring preview 94 TX4160892 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Feb94 TX4135245 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Feb94 TX4160890 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 94 TX4208558 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring resource 94 TX4160894 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Mar94 TX4137433 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Apr94 TX4136930 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 94 TX4137431 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer resource 94 TX4160893 9/26/95 Eddie Bauer, Inc. Registered
24
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Jun94 TX4137432 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. July94 TX4166288 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. July94 TX4174793 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug94 TX4166249 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug94 TX4160895 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Sep94 TX4195804 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug94 TX4160950 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall resource 94 TX4160891 9/26/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 94 TX4195577 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. 15Feb94 TX4195803 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Sale ends 31Jan95 TX4202595 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 95 TX4202597 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Feb95 TX4199580 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Mar95 TX4199143 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Mar95 TX4137430 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Apr-May95 TX4137429 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. May95 TX4199575 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 95 TX4202596 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jul95 TX4166250 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 95 TX4137745 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug95 TX4199140 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug-Sep95 TX4180562 1/25/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct-Nov95 TX4205205 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct95 TX4195832 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Oct95 TX4198663 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Nov95 TX4199141 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Nov95 TX4191498 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Dec95 TX4199574 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter 96 TX4180873 1/25/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Jan-Feb96 TX4222351 1/29/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Nov94 TX4245042 1/25/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. May95 TX4296896 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring resource 96 TX4262077 4/10/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 96 TX4388595 12/3/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Home gift 96 TX4399601 12/16/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Gift sourcebook 96 TX4399584 12/16/96 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring resource 97 TX4452569 3/24/97 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer 97 TX4489673 5/28/97 Eddie Bauer, Inc. Registered
25
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: [catalog]. Fall 97 TX4541693 9/12/97 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Gift resource 97 TX4634759 1/20/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring 98 TX4645350 3/20/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Apr98 TX4682568 5/6/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug98 TX4759126 9/2/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall resource 98 TX4769050 10/2/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Winter resource 98 TX4787624 10/28/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Holiday 98 TX4802075 12/2/98 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Christmas 98 TX4826275 1/15/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Spring resource 99 TX4906293 4/26/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Summer resource 1999 TX4908730 5/19/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Aug99 TX4964175 8/9/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall quarter 99 TX4964002 8/11/99 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Fall 78 TX145220 11/20/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog]. Christmas 78 TX145219 11/20/78 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog] - [Canada]. Winter 78-79 TX240583 5/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: [catalog] - [Canada]. Spring 79 TX240581 5/8/79 Eddie Bauer, Inc. Registered
Eddie Bauer: Gift Book [catalog]. 1978 TX145216 11/20/78 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 399 TX5091179 5/10/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 405 TX5091179 5/10/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 411 TX5091179 5/10/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 419 TX5091179 5/10/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 416-418 TX5115929 6/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 424-429 TX5115929 6/19/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 470 TX5164044 9/22/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 478 TX5164044 9/22/00 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 411 TX5286707 3/12/01 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 416 TX5325612 6/8/01 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 419 TX5286707 3/12/01 Eddie Bauer, Inc. Registered
26
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: home collection. - - Spring 1991, 424 TX5325612 6/8/01 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, spring 91 TX3084568 5/7/91 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, summer 91 TX3155929 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, fall 91 TX3155513 10/8/91 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, holiday 91 TX3265821 3/3/92 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Mar92 TX3425836 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, spring 92 TX3459985 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, summer 92 TX3460182 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, fall 92 TX3460181 10/23/92 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Oct92 TX3555316 5/10/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, holiday 92 TX3519588 3/22/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Nov92 TX3555347 5/10/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Jan93 TX3607867 7/28/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Mar93 TX3617912 7/29/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug93 TX3736563 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Oct93 TX3689523 12/6/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Nov93 TX3707652 12/7/93 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Jan94 TX4166247 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, spring 94 TX4142371 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, summer 94 TX4166248 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug94 TX4195791 21/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Oct94 TX4195797 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Nov94 TX4195796 12/7/95 Eddie Bauer, Inc. Registered
27
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: home collection. - - Spring 1991, Dec94 TX4195795 12/7/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, spring 95 TX4141975 9/11/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Apr95 TX4176263 12/4/95 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug95 TX4199578 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Oct95 TX4199573 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Nov95 TX4199577 1/26/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, holiday 95 TX4180871 1/25/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Jan 96 TX4180872 1/25/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Feb96 TX4320380 7/3/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug96 TX4335290 8/27/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 9Oct96 TX4348624 10/9/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, TX4383567 11/22/96 Eddie Bauer, Inc. Registered
holiday preview 96
Eddie Bauer: home collection. - - Spring 1991, Nov96 TX4390984 11/19/96 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Jan97 TX4452568 3/24/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Feb97 TX4445226 3/24/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Apr97 TX4501484 6/2/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug97 TX4529245 8/27/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Oct97 TX4563485 10/16/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, winter TX4580255 11/10/97 Eddie Bauer, Inc. Registered
resource 97
Eddie Bauer: home collection. - - Spring 1991, Nov97 TX4584355 11/10/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Dec97 TX4608514 12/15/97 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Jan98 TX4616515 2/4/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Mar98 TX4645064 3/2/98 Eddie Bauer, Inc. Registered
28
REG.
COPYRIGHT REG. NO. DATE OWNER STATUS
--------- --------- -------- ------------------------------- ----------
Eddie Bauer: home collection. - - Spring 1991, Apr98 TX4691190 5/6/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Jun98 TX4710861 6/18/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug98 TX4766106 8/13/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Sep98 TX4774845 9/23/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Oct98 TX4784913 10/28/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Nov98 TX4802076 12/2/98 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, gift TX4826276 1/15/99 Eddie Bauer, Inc. Registered
resource 98
Eddie Bauer: home collection. - - Spring 1991, Jan99 TX4826453 1/15/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Apr99 TX4906046 5/10/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 405 TX4947200 7/22/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, May99 TX4908738 5/19/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, May99 TX4935384 6/7/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, Aug99 TX4976393 8/23/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 478 TX4986785 11/16/99 Eddie Bauer, Inc. Registered
Eddie Bauer: home collection. - - Spring 1991, 482, TX4986785 11/16/99 Eddie Bauer, Inc. Registered
629, 648 & 483
Eddie Bauer: home collection. - - Spring 1991, TX4986785 11/16/99 Eddie Bauer, Inc. Registered
486,487 & 488
Eddie Bauer outfitting great outdoor adventures for TX145217 11/20/78 Eddie Bauer, Inc. Registered
over 50 years
The Eddie Bauer guide to family camping TX1263004 1/23/84 The Eddie Bauer Company, Inc. Registered
The Eddie Bauer guide to cross-country skiing TX1369100 7/2/84 Eddie Bauer Inc. Registered
The Eddie Bauer guide to backpacking TX1457032 11/26/84 Eddie Bauer, Inc. Registered
The Eddie Bauer guide to fly fishing TX1496900 1/17/85 Eddie Bauer, Inc. Registered
Eddie Bauer sampler sweater VA323561 6/20/88 Eddie Bauer, Inc. Registered
29
SCHEDULE 7
MATERIAL AGREEMENTS
Aurora Sourcing, Inc.: Buying Agency Agreement dated August 20, 2003 between
Aurora Sourcing, Inc. and Eddie Bauer, Inc.
Eddie Bauer International (Americas), Inc.: Buying Agency Agreement dated March
1, 1998 between Eddie Bauer International (Americas), Inc. and Eddie Bauer, Inc.
A new agreement is currently being negotiated; originally, this agreement was
assumed. Eddie Bauer International (Americas), Inc. Eddie Bauer, Inc. has
implicitly consented to the use by Eddie Bauer International (Americas), Inc.
("EBIA") of "Eddie Bauer" in its corporate title, and in connection with EBIA's
performance of its obligations.
Eddie Bauer International Ltd.: Buying Agency Agreement dated January 1, 1994
between Eddie Bauer, Inc. and Eddie Bauer International Ltd. Eddie Bauer
International Ltd.: Eddie Bauer, Inc. has implicitly consented to the use by
Eddie Bauer International Ltd. ("EBI") of "Eddie Bauer" in its corporate title,
and in connection with EBI's performance of its obligations under the agreement.
A new agreement is currently being negotiated; originally, this agreement was
assumed.
Fry, Inc.: Web Site Hosting Agreement dated March 1, 2005 between Fry, Inc. and
Eddie Bauer, Inc.
Otto International (Hong Kong) Limited: Vendor Payment Services Agreement dated
September 30, 2002 between Otto International (Hong Kong) Limited and Eddie
Bauer, Inc. The agreement is being negotiated; originally, this agreement was
not assumed.
R.R. Donnelly & Sons Company: Eddie Bauer Agreement for Printing and Electronic
Publishing Services dated July 7, 2004 between R.R. Donnelly & Sons Company and
Eddie Bauer, Inc.
Scan Thor UK: Buying Agency Agreement dated April 26, 2004 between Scan Thor UK
and Eddie Bauer, Inc.
Shira Trading Ltd.: Amended & Restated Buying Agency Agreement dated April 24,
2004 between Shira Trading Ltd. and Eddie Bauer, Inc.
United Parcel Service of America, Inc.: Carrier Agreement dated as of August 25,
2004.
Bank of America, N.A. Merchant Services Agreement/Fee Schedule: Agreement dated
as of September 1, 2003 between Bank of America, N.A. and Eddie Bauer, Inc.
The Chase Manhattan Bank: Agreement by and among Spiegel, Inc., Eddie Bauer,
Inc. and Newport News, Inc., The Chase Manhattan Bank (as successor to First
Financial Bank) and Chase Merchant Services L.L.C., dated June 18, 1999, as
amended on October 8, 2002. This agreement has been assumed by Eddie Bauer, Inc.
World Financial Network National Bank: Private Label Credit Card Program
Agreement dated May 2, 2003 between World Financial Network National Bank and
Spiegel, Inc. and Eddie Bauer, Inc.
Aljoy Trading Limited: First Amended and Restated Buying Agency Agreement dated
August 20, 2003 between Eddie Bauer, Inc. and Aljoy Trading Limited.
Plan of Reorganization, the Term Loan Agreement, the Guarantee and Collateral
Agreement and any and all Loan Documents and other instruments executed in
connection therewith.
1
