ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
Exhibit 10.23
ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
THIS ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS (this “Agreement”), dated as of August 30, 2007, is made by each of the signatories hereto (each, a “Grantor”) in favor of XXXXXXX XXXXX CAPITAL, a division of XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. (“Xxxxxxx Xxxxx”), as administrative agent and collateral agent for the banks and other financial institutions (the “Lenders”) that are parties to the ABL Credit Agreement (in such capacities, respectively, the “Administrative Agent” and the “U.S ABL Collateral Agent”), dated as of August 30, 2007 (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, together with any agreement extending the maturity of, or restructuring, refunding, refinancing or increasing the Indebtedness under such agreement or successor agreements, the “ABL Credit Agreement”), among HDS ACQUISITION SUBSIDIARY, INC., to be merged with and into HD SUPPLY, INC., a Texas corporation (the “Borrower”), XXXXXXX XXXXX CAPITAL, a division of XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC., as administrative agent, collateral agent and Issuing Lender (as such term is defined in the ABL Credit Agreement), and the other parties thereto.
WHEREAS, pursuant to the ABL Credit Agreement, the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, in connection with the ABL Credit Agreement, the Borrower, the Grantors, and certain other Domestic Subsidiaries of Borrower executed and delivered a U.S. Guarantee and Collateral Agreement, dated as of August 30, 2007, in favor of the U.S. ABL Collateral Agent (as the same may be amended, restated, supplemented, waived or otherwise modified from time to time, the “U.S. Guarantee and Collateral Agreement”);
WHEREAS, pursuant to the U.S. Guarantee and Collateral Agreement, each Grantor granted to the U.S. ABL Collateral Agent a security interest in its Intellectual Property, including Copyrights; and
WHEREAS, each Grantor has duly authorized the execution, delivery and performance of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, and in order to induce the Lenders to make extensions of credit to the Grantors on the terms and subject to the conditions of the ABL Credit Agreement, each Grantor agrees, for the benefit of the U.S. ABL Collateral Agent, as follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context other-wise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided or provided by reference in the ABL Credit Agreement and the U.S. Guarantee and Collateral Agreement.
SECTION 2. Confirmation of Security Interest. Each Grantor hereby grants, subject to existing licenses to use the Copyrights granted by such Grantor in the ordinary course of its business, to the U.S. ABL Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in all of the Copyrights of such Grantor (including, without limitation, those items listed on Schedule A hereto under such Grantor’s name) and to the extent not otherwise included, all Proceeds and products of any and all of the Copyrights, as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of such Grantor, except that no security interest is or will be granted pursuant hereto in any right, title or interest of such Grantor under or in any Copyright Licenses with Persons other than Holding, Borrower, a Restricted Subsidiary or an Affiliate thereof for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Copyright Licenses.
SECTION 3. Purpose. This Agreement has been executed and delivered by the Grantors for the purpose of recording the security interest granted pursuant to the U.S. Guarantee and Collateral Agreement with the United States Copyright Office. This Agreement is expressly subject to the terms and conditions of the U.S. Guarantee and Collateral Agreement. The U.S. Guarantee and Collateral Agreement (and all rights and remedies of the Lenders thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4. Acknowledgment. Each Grantor does hereby further acknowledge and affirm that the rights and remedies of the Lenders with respect to the security interest in the Copyrights are fully set forth in the ABL Credit Agreement and the U.S. Guarantee and Collateral Agreement, the terms and provisions of which (including the remedies provided for therein) are incorporated by reference herein as if fully set forth herein.
SECTION 5. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together constitute one and the same original.
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2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the day and year first above written.
| FLOORWORKS, INC. | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxxx Xxxxx | ||||
| Title: Vice President and Secretary | ||||
| STATE OF NEW YORK | ) | |||
| ) ss.: | ||||
| COUNTY OF NEW YORK | ) |
On this 30th day of August , 2007, before me personally appeared Xxxxxxx Xxxxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
| /s/ Xxxxx X. Xxxx | ||||||
| Notary Public | ||||||
| (Affix Seal Below) | [SEAL] | |||||
SIGNATURE PAGE – ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
| HD SUPPLY, INC. | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxxx Xxxxx | ||||
| Title: Vice President and Secretary | ||||
| STATE OF NEW YORK | ) | |||
| ) ss.: | ||||
| COUNTY OF NEW YORK | ) |
On this 30th day of August , 2007, before me personally appeared Xxxxxxx Xxxxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
| /s/ Xxxxx X. Xxxx | ||||||
| Notary Public | ||||||
| (Affix Seal Below) | [SEAL] | |||||
SIGNATURE PAGE – ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
| UTILITY SUPPLY OF AMERICA, INC. | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxxx Xxxxx | ||||
| Title: Vice President and Secretary | ||||
| STATE OF NEW YORK | ) | |||
| ) ss.: | ||||
| COUNTY OF NEW YORK | ) |
On this 30th day of August , 2007, before me personally appeared Xxxxxxx Xxxxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
| /s/ Xxxxx X. Xxxx | ||||||
| Notary Public | ||||||
| (Affix Seal Below) | [SEAL] | |||||
SIGNATURE PAGE – ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
| XXXXXXXX BROS. LUMBER COMPANY, LLC | ||||
| By: | HD Supply GP & Management, Inc., | |||
| its manager | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President and Secretary | |||
| STATE OF NEW YORK | ) | |||
| ) ss.: | ||||
| COUNTY OF NEW YORK | ) |
On this 30th day of August , 2007, before me personally appeared Xxxxxxx Xxxxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
| /s/ Xxxxx X. Xxxx | ||||||
| Notary Public | ||||||
| (Affix Seal Below) | [SEAL] | |||||
SIGNATURE PAGE – ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
| XXXXXXX XXXXX CAPITAL, a division of XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. | ||||
| By: | /s/ Xxxxx XxXxxxxx | |||
| Name: Xxxxx XxXxxxxx | ||||
| Title: Director | ||||
| STATE OF NEW YORK | ) | |||
| ) ss.: | ||||
| COUNTY OF NEW YORK | ) |
On this 29th day of August , 2007, before me personally appeared Xxxxx XxXxxxxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
| /s/ Xxxxx X. Xxx | ||
| Notary Public | ||
| (Affix Seal Below) | [SEAL] | |
SIGNATURE PAGE – ABL GRANT OF SECURITY INTEREST IN COPYRIGHTS
Schedule A
Copyrights
Floorworks, Inc.
| Title | Registration No. | Registration Date | ||
| NL-16 |
VA 0-000-000 | 3/27/2000 |
HD Supply, Inc.
| Title | Registration No. | Registration Date | ||
| Maintenance Warehouse wholesale catalog; Maintenance Warehouse catalog | TX 0-000-000 | 8/10/1993 | ||
| Maintenance Warehouse Kenmore appliance program | TX 0-000-000 | 1/1/1992 | ||
| Maintenance Warehouse plumbing repair parts order guide: vol. one | TX 0-000-000 | 12/6/1991 | ||
| Hospitality lodging catalog: plumbing, electrical, hardware / Maintenance Warehouse – No. 1 May 1992/July 1992 | TX 0-000-000 | 5/14/1992 | ||
| Commercial institutional catalog: plumbing, electrical, hardware / Maintenance Warehouse | TX 0-000-000 | 8/3/1992 | ||
| Commercial institutional catalog: plumbing, electrical, hardware / Maintenance Warehouse | TX 0-000-000 | 5/14/1992 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 2/4/1992 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 8/5/1992 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 2/5/1992 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 8/5/1991 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 1/28/1991 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 7/16/1990 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 1/31/1990 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 8/14/1989 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 2/2/1989 | ||
| Paint, plumbing, electrical, hardware wholesale catalog / Maintenance Warehouse | TX 0-000-000 | 4/7/1988 | ||
| Paint, plumbing, electrical, hardware wholesale catalog / Maintenance Warehouse | TX 0-000-000 | 12/11/1987 | ||
| Paint, plumbing, electrical, hardware wholesale catalog / Maintenance Warehouse | TX 0-000-000 | 3/13/1986 | ||
| Paint, plumbing, electrical, hardware wholesale catalog / Maintenance Warehouse | TX 0-000-000 | 10/21/1985 | ||
| Maintenance Warehouse hospitality catalog | TX 0-000-000 | 8/04/1992 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 2/14/1996 | ||
| Maintenance Warehouse | TX 0-000-000 | 9/20/1996 | ||
| Maintenance Warehouse catalog | TX 0-000-000 | 10/30/1998 | ||
| Maintenance Warehouse catalog | TXu-282-175 | 3/20/87 | ||
| Paint, plumbing, electrical, hardware wholesale catalog | TX 0-000-000 | 3/13/86; 3/20/86 | ||
| Paint, plumbing, electrical, hardware wholesale catalog | TX 1 901-887 | 9/10/86; 7/21/86 |
A-1
| Paint, plumbing, electrical, hardware wholesale catalog | TX 0-000-000 | 2/18/1987 | ||
| Paint, plumbing, electrical, hardware wholesale catalog | TX 0-000-000 | 3/4/1987 | ||
| Paint, plumbing, electrical, hardware wholesale catalog | TX 0-000-000 | 12/11/1987 | ||
| Paint, plumbing, electrical, hardware wholesale catalog | TX 0-000-000 | 9/06/88; 7/27/88 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 9/16/1994 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 9/16/1994 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 3/30/95; 2-7/95 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 8/4/1995 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 4/14/1997 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 10/30/98; 8/97-1/98 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 01/30/98; 2-7/98 | ||
| Maintenance Warehouse wholesale catalog | TX 0-000-000 | 10/30/98; 8/98-1/99 |
Utility Supply of America, Inc.
| Title | Registration No. | Registration Date | ||
| USA BlueBook: operator’s companion | TX 0-000-000 | 12/13/1996 | ||
| Wastewater & water supply superstore | TX 0-000-000 | 7/14/1997 | ||
| Wastewater & water buying guide | TX 0-000-000 | 7/14/1997 | ||
| USA BlueBook: operator’s companion | TX 0-000-000 | 11/21/1997 | ||
| USA BlueBook on CD-ROM : Windows/Mac compatible : version 2.1 | TX 0-000-000 | 6/1/1999 | ||
| USA BlueBook: operator’s companion. | TX 0-000-000 | 6/1/1999 | ||
| USA BlueBook | TX 0-000-000 | 6/21/2000 | ||
| PlantPro | TX 0-000-000 | 5/30/2000 | ||
| Operator’s Companion : tables, formulas, and other handy stuff | TX 0-000-000 | 10/9/2001 | ||
| USA BlueBook: operator’s companion / Xxxxx XxxXxxxx, editor | TX 0-000-000 | 3/19/2003 | ||
| USA BlueBook: version 113 | TX 0-000-000 | 3/19/2003 | ||
| USA BlueBook: operator’s companion] / Xxxxx XxxXxxxx, editor | TX 0-000-000 | 9/23/2004 | ||
| USA BlueBook CD-Rom : [version] 116 | TX 0-000-000 | 7/22/2005 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 11/23/1994 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 |
A-2
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 12/13/1996 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 7/14/1997 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 6/1/1999 | ||
| Utility Supply of America bluebook: your complete source for water and wastewater supplies | TX 0-000-000 | 6/1/1999 | ||
| USA BlueBook on CD-ROM | TX 0-000-000 | 6/21/2000 | ||
| USA BlueBook on CD-ROM | TX 0-000-000 | 10/9/2001 | ||
| USA BlueBook on CD-ROM | TX 0-000-000 | 10/24/2003 | ||
| USA BlueBook on CD-ROM | TX 0-000-000 | 6/1/2004 | ||
| USA BlueBook: water & wastewater supplies warehouse | TX 0-000-000 | 10/9/2001 | ||
| USA BlueBook: water & wastewater supplies warehouse | TX 0-000-000 | 3/19/2003 | ||
| USA BlueBook: water & wastewater supplies warehouse | TX 0-000-000 | 10/24/2003 | ||
| USA BlueBook: water & wastewater supplies warehouse | TX 0-000-000 | 6/2/2004 | ||
| USA BlueBook: water & wastewater supplies warehouse | TX 0-000-000 | 4/6/2005 |
Xxxxxxxx Bros. Lumber Company, LLC
| Title | Registration No. | Registration Date | ||
| Architectural millwork sales catalog | TX 0-000-000 | 3/5/1991 |
A-3
