Exhibit 10.35
EXECUTION VERSION
FIRST LIEN SECURED NOTE GRANT OF SECURITY INTEREST IN COPYRIGHTS
THIS FIRST LIEN SECURED NOTE GRANT OF SECURITY INTEREST IN COPYRIGHTS (this “Agreement”), dated as of December [4], 2012, is made by each of the signatories hereto (each, a “Grantor”) in favor of WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as note collateral agent (in such capacity, the “Note Collateral Agent”) with respect to the 5.25% Senior Secured First Priority Notes due 2021 (the “Notes”) issued by HD SUPPLY, Inc., a Delaware corporation (the “Company”) pursuant to the Indenture, dated as of the date hereof (as amended pursuant to that First Supplemental Indenture, dated as of the date hereof, and as further amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Indenture”), among the Company, the Subsidiary Guarantors from time to time parties thereto, and Wilmington Trust.
WHEREAS, pursuant to the Collateral Agreement, dated as of the date hereof (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Collateral Agreement”), among the Company, the Subsidiary Guarantors party thereto from time to time and the Note Collateral Agent, each Grantor granted to the Note 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, subject to the conditions of the Indenture, each Grantor agrees, for the benefit of the Note 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 Indenture and the Collateral Agreement.
SECTION 2. Grant 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 Note Collateral Agent, for the 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 thereto or any other Note Security Document in any right, title or interest of such Grantor under or in any
Copyright Licenses with Persons other than the Company, 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 Collateral Agreement with the United States Copyright Office. This Agreement is expressly subject to the terms and conditions of the Collateral Agreement. The Collateral Agreement (and all rights and remedies of the Note Collateral Agent 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 Note Collateral Agent with respect to the security interest in the Copyrights are fully set forth in the Indenture and the 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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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.
| CREATIVE TOUCH INTERIORS, INC. |
| |
| |
| By: | /s/ Ricardo Nuñez |
| | Name: | Ricardo Nuñez |
| | Title: | Vice President and Secretary |
| |
| |
| HDS IP HOLDING, LLC |
| |
| |
| By: | /s/ Ricardo Nuñez |
| | Name: | Ricardo Nuñez |
| | Title: | Vice President and Secretary |
| |
| |
| HSI IP, INC. |
| |
| |
| By: | /s/ Ricardo Nuñez |
| | Name: | Ricardo Nuñez |
| | Title: | Vice President and Secretary |
[Signature Page to First Lien Secured Note Notice Grant of Security Interest in Copyrights]
| WHITE CAP CONSTRUCTION SUPPLY, INC. |
| |
| |
| By: | /s/ Ricardo Nuñez |
| | Name: | Ricardo Nuñez |
| | Title: | Vice President and Secretary |
| | |
| | |
| HD SUPPLY FACILITIES MAINTENANCE INC, LTD. |
| By: | HD Supply GP & Management, Inc., |
| | its general partner |
| | |
| | |
| By: | /s/ Ricardo Nuñez |
| | Name: | Ricardo Nuñez |
| | Title: | Vice President and Secretary |
[Signature Page to First Lien Secured Note Notice Grant of Security Interest in Copyrights]
| HD SUPPLY, INC. |
| |
| |
| By: | /s/ Ricardo Nuñez |
| | Name: | Ricardo Nuñez |
| | Title: | Senior Vice President, General Counsel and Secretary |
[Signature Page to First Lien Secured Note Notice Grant of Security Interest in Copyrights]
| WILMINGTON TRUST, NATIONAL ASSOCIATION |
| As Note Collateral Agent |
| |
| |
| By: | /s/ Lynn M. Steiner |
| | Name: | Lynn M. Steiner |
| | Title: | Vice President |
[Signature Page to First Lien Secured Note Notice Grant of Security Interest in Copyrights]
Schedule A
Copyrights
Creative Touch Interiors, Inc.
Title | | Registration
No. | | Registration
Date |
FW-08 | | VA 1-048-833 | | 3/27/2000 |
HDS IP Holding, LLC
Title | | Registration
No. | | Registration
Date |
Powerscope | | TX7-364-190 | | 3/5/2009 |
WaterCity | | VA1-708-882 | | 8/5/2008 |
HSI IP, Inc.
Title | | Registration
No. | | Registration
Date |
Tools and industrial supplies: product catalog | | TX6-012-472 | | 7/15/2004 |
One vision, one company, one direction. | | TX6-020-162 | | 8/30/2004 |
White Cap Construction Supply, Inc.
Title | | Registration
No. | | Registration
Date |
White Cap Construction Supply: the contractor trader. | | TX6-205-672 | | 3/23/2005 |
White Cap Construction Supply: the contractor trader. | | TX6-151-123 | | 3/28/2005 |
HD Supply Facilities Maintenance, Ltd.
Title | | Registration
No. | | Registration
Date |
AmeriFile Spring/Summer Catalog U | | TX0006838826 | | 5/2/2008 |
A-1
HD Supply, Inc.
Title | | Registration
No. | | Registration
Date |
Maintenance warehouse catalog : maintenance warehouse catalog | | TX0003628770 | | 8/10/1993 |
Maintenance warehouse Kenmore appliance program | | TX0003242540 | | 2/5/1992 |
Maintenance warehouse plumbing repair parts order guide: vol. one. | | TX0003209107 | | 12/6/1991 |
Hospitality lodging catalog: plumbing, electrical, hardware—no. 1 May 1992/July 1992 | | TX0003318988 | | 5/14/1992 |
Commercial institutional catalog: plumbing, electrical, hardware | | TX0003374930 | | 8/3/1992 |
Commercial institutional catalog: plumbing, electrical, hardware | | TX0003317708 | | 5/14/1992 |
Maintenance warehouse wholesale catalog | | TX0003485093 | | 2/4/1993 |
Maintenance warehouse wholesale catalog | | TX0003364590 | | 8/5/1992 |
Maintenance warehouse wholesale catalog | | TX0003259113 | | 2/5/1992 |
Maintenance warehouse wholesale catalog | | TX0003122004 | | 8/5/1991 |
Maintenance warehouse wholesale catalog | | TX0003010475 | | 1/28/1991 |
Maintenance warehouse wholesale catalog | | TX0002920868 | | 7/16/1990 |
Maintenance warehouse wholesale catalog | | TX0002742030 | | 1/31/1990 |
Maintenance warehouse wholesale catalog | | TX0002633358 | | 8/14/1989 |
Maintenance warehouse wholesale catalog | | TX0002567867 | | 2/2/1989 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0002427460 | | 4/7/1988 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0002397162 | | 9/6/1988 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0001682101 | | 10/21/1985 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0001636878 | | 7/19/1985 |
Maintenance warehouse hospitality catalog | | TX0003374944 | | 8/4/1992 |
Maintenance warehouse hospitality catalog | | TX0004225062 | | 2/14/1996 |
Maintenance warehouse hospitality catalog | | TX0004877685 | | 10/30/1998 |
Maintenance warehouse catalog | | TXu000282175 | | 3/20/1987 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0001859414 | | 3/13/1986 |
A-2
Title | | Registration
No. | | Registration
Date |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0001901887 | | 9/10/1986 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0002002558 | | 2/13/1987 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0002024492 | | 3/4/1987 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0002233221 | | 12/11/1987 |
Paint, plumbing, electrical, hardware wholesale catalog | | TX0002139758 | | 8/3/1987 |
Maintenance warehouse wholesale catalog | | TX0003926430 | | 9/16/1994 |
Maintenance warehouse wholesale catalog | | TX0003926428 | | 9/16/1994 |
Maintenance warehouse wholesale catalog | | TX0004036245 | | 3/30/1995 |
Maintenance warehouse wholesale catalog | | TX0004110761 | | 8/4/1995 |
Maintenance warehouse wholesale catalog | | TX0004523515 | | 4/14/1997 |
Maintenance warehouse wholesale catalog | | TX0004792730 | | 10/30/1998 |
A-3
