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Exhibit
10.2
EXECUTION COPY
ASSUMPTION
AGREEMENT
T HIS A
SSUMPTION A GREEMENT
(“Agreement”) dated as of this 30th day of November,
2007 is made by Harry and David, an Oregon corporation (the
“New Borrower”), pursuant to the Credit Agreement dated
as of March 20, 2006 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit
Agreement”) among Harry and David Operations Corp., a
Delaware corporation (the “Old Borrower”),
Harry & David Holdings, Inc., a Delaware corporation, the
other Guarantors party thereto, the Lenders party thereto, UBS
Securities LLC, as Arranger, UBS Loan Finance LLC, as a Lender and
Swingline Lender, UBS AG, Stamford Branch, as Issuing Bank,
Administrative Collateral Agent and Administrative Agent, and GMAC
Commercial Finance LLC, as Collateral Agent. Capitalized terms used
herein without definition shall have the meanings ascribed thereto
in the Credit Agreement.
W I T N E S S E T
H:
W HEREAS ,
pursuant to the Credit Agreement the Lenders have (i) made and
committed to make Revolving Loans and Swingline Loans to the Old
Borrower and (ii) provided credit support for the issuance of
Letters of Credit for the account of the Old Borrower;
W HEREAS , as
of the date of this Agreement, the aggregate outstanding principal
balance of the Revolving Loans is $40,000,000.00, the aggregate
outstanding principal balance of the Swingline Loans is $0.00 and
the outstanding Letter of Credit obligations are
$1,200,000.00;
W HEREAS , the
Old Borrower has adopted a plan of corporate reorganization (the
“Reorganization”), whereby:
1. Bear Creek Stores, Inc.,
will merge with and into the New Borrower with the New Borrower as
the surviving corporation;
2. Bear Creek Direct
Marketing, Inc. will merge with and into the New Borrower with the
New Borrower as the surviving corporation; and
3. the Old Borrower will
merge with and into the New Borrower with the New Borrower as the
surviving corporation.
N OW T
HEREFORE , for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the New
Borrower, the New Borrower hereby agrees with the Lenders as
hereinafter set forth:
1. Assumption of
Obligations . The New Borrower hereby assumes, as its direct
and primary obligation, payment of all of the Obligations of the
Old Borrower owing to the Lenders and the Agents on the date
hereof, and agrees to make all payments required under the Credit
Agreement and/or any of the other Loan Documents to discharge such
Obligations as they become due or are declared due. The New
Borrower also elects to be the “Borrower” for purposes
of the Credit Agreement and each of the other Loan Documents,
effective from the date hereof, and agrees to assume, perform and
discharge all of the Obligations of the Borrower under the Credit
Agreement, to perform and observe all of the covenants and
conditions of the Credit Agreement and each of the other Loan
Documents to be performed or observed by the Borrower thereunder,
and to be bound in all respects by the terms of the Credit
Agreement and each of the other Loan Documents, as if the New
Borrower were originally signatory thereto as the
Borrower.
2. Acknowledgment of
Liens . The New Borrower hereby acknowledges and agrees that
all property, whether real or personal, tangible or intangible,
which the New Borrower receives or acquires an interest in as a
result of the Reorganization shall be received or acquired subject
to any and all Liens granted to the Collateral Agent for the
benefit of the Lenders.
3. Reaffirmation, Grant of
Security Interest. The New Borrower hereby ratifies and affirms
its obligations under each of the Loan Documents executed by the
New Borrower and its grant of liens on or security interests in its
property, whether real or personal, tangible or intangible,
pursuant to such Loan Documents, and acknowledges and agrees that
each such Loan Document shall remain in full force and effect in
accordance with its terms after the Reorganization. Further, the
New Borrower hereby pledges and grants to the Collateral Agent, for
its benefit and for the benefit of the Secured Parties, a lien on
and security interest in all of the Pledged Collateral of the New
Borrower as collateral security for the payment and performance in
full of all of the Secured Obligations and Intercompany
Obligations, including any such Secured Obligations and
Intercompany Obligations of New Borrower as the
“Borrower”.
4. Representations and
Warranties. The New Borrower hereby represents and warrants to
each Lender and the Agents as of the date hereof that:
(a) It is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation; it is duly qualified and in
good standing (to the extent such concept is applicable to the
applicable jurisdiction) to do business in every jurisdiction where
such qualification is required, except in such jurisdictions where
failure to so qualify or be in good standing (other than in the
jurisdiction of its incorporation), individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect; and i
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