ASSUMPTION AGREEMENT
Exhibit 10.6
ASSUMPTION AGREEMENT, dated as of July 27, 2012, made by VARSITY AP HOLDING CORPORATION, a Georgia corporation, GCP AMERIFILE COINVEST INC., a Delaware corporation, VARSITY AP HOLDINGS LLC, a Delaware limited liability company, AMERIFILE, LLC, a Delaware limited liability company, PEACHTREE BUSINESS PRODUCTS, LLC, a Delaware limited liability company, and AP RE LLC, a Georgia limited liability company (each, an “Additional Grantor”), in favor of WILMINGTON TRUST, NATIONAL ASSOCIATION, as collateral agent (in such capacity, the “Note Collateral Agent”) for the Secured Parties (as defined in the Collateral Agreement referred to below). All capitalized terms not defined herein shall have the meaning ascribed to them in the Collateral Agreement referred to below.
W I T N E S S E T H :
WHEREAS, HD Supply, Inc., a Delaware corporation (“the “Company”), the Subsidiary Guarantors from time to time party thereto, and Wilmington Trust, National Association, as indenture trustee (in such capacity, and together with any successors and assigns in such capacity, the “Trustee”) on behalf of the Holders (as defined in the Indenture) and as Note Collateral Agent, are parties to an Indenture, dated as of April 12, 2012 (as amended by that First Supplemental Indenture, dated as of April 12, 2012, and as the same may be further amended, amended and restated, waived, supplemented or otherwise, modified from time to time, the “Indenture”);
WHEREAS, in connection with the Indenture, the Company and certain of its Subsidiaries are, or are to become, parties to the Collateral Agreement, dated as of April 12, 2012 (as amended, supplemented, waived or otherwise modified from time to time, the “Collateral Agreement”), in favor of the Note Collateral Agent, for the benefit of the Secured Parties;
WHEREAS, each Additional Grantor is a member of an affiliated group of companies that includes the Company and each other Grantor;
WHEREAS, the Indenture requires each Additional Grantor to become a party to the Collateral Agreement; and
WHEREAS, each Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Collateral Agreement. By executing and delivering this Assumption Agreement, each Additional Grantor, as provided in subsection 9.15 of the Collateral Agreement, hereby becomes a party to the Collateral Agreement as a Grantor and, except for AP RE LLC, Pledgor thereunder with the same force and effect as if originally named therein as a Grantor and, except for AP RE LLC, Pledgor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of Grantor and, except for AP RE LLC, Pledgor thereunder. The information set forth in Annex 1-A hereto is hereby added to the information set forth in Schedules 1, 2, 3, 4 and 5 to the Collateral Agreement, and such Schedules are hereby amended and modified to include such information. Each Additional Grantor hereby represents and warrants that each of the representations and warranties of such Additional Grantor, in its capacities as a Grantor and, except for AP RE LLC, Pledgor, contained in Section 4 of the Collateral Agreement is true and correct in all material respects on and as the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date. Each Additional Granting Party hereby
grants, as and to the same extent as provided in the Collateral Agreement, to the Note Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in the Collateral (as such term is defined in Section 3.1 of the Collateral Agreement) and, except for AP RE LLC, the Pledged Collateral (as such term is defined in the Collateral Agreement) of such Additional Granting Party, except as provided in subsection 3.3 of the Collateral Agreement.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
2
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
| VARSITY AP HOLDING CORPORATION | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
| GCP AMERIFILE COINVEST INC. | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
| VARSITY AP HOLDINGS LLC | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
| AMERIFILE, LLC | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
| PEACHTREE BUSINESS PRODUCTS, LLC | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
| AP RE LLC | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
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| Acknowledged and Agreed to as of the date hereof by:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Note Collateral Agent | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: Xxxx Xxxxxxxxx | ||
| Title: Vice President | ||
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Annex 1-A to
Supplement to
Collateral Agreement
Schedule 1
Notices, requests or demands to or upon any Grantor under the Collateral Agreement shall be made to such Grantor as follows:
Any of:
Varsity AP Holding Corporation
GCP Amerifile Coinvest Inc.
Varsity AP Holdings LLC
Amerifile LLC
Peachtree Business Products, LLC
AP RE LLC
0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 0000
Xxxxxxx, XX, 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
HDS IP Holding, LLC
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
with copies to
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
1
Supplement to
Collateral Agreement
Schedule 2
Pledged Stock:
| Pledgor |
Issuer |
Class of Stock or Interests |
Par Value |
Certificate No(s). |
Number of Shares or Interests Pledged |
% of
All Issued Capital or Other Equity Interests of Issuer Pledged |
||||||||||||||
| Varsity AP Holding Corporation |
Varsity AP Holdings LLC |
Membership Interests |
n/a | n/a | 36,383,200 | 71.2 | % | |||||||||||||
| GCP Amerifile Coinvest Inc. |
Varsity AP Holdings LLC |
Membership Interests |
n/a | n/a | 919,800 | 1.8 | % | |||||||||||||
| Varsity AP Holdings LLC |
Amerifile LLC |
Membership Interests |
n/a | n/a | n/a | 100 | % | |||||||||||||
| Amerifile LLC |
Peachtree Business Products, LLC |
Membership Interests |
n/a | n/a | n/a | 100 | % | |||||||||||||
| Peachtree Business Products, LLC |
AP RE LLC |
Membership Interests |
n/a | n/a | n/a | 100 | % | |||||||||||||
Supplement to
Collateral Agreement
Schedule 3
Intellectual Property Filings
United States Patent and Trademark Office (“USPTO”)
Notice and Confirmation of Grant of Security Interest in Trademarks, dated as of July 27, 2012, made by the signatories thereto in favor of Wilmington Trust, National Association, as trustee and note collateral agent, to be filed with the Trademark Division of the United States Patent and Trademark Office.
United States Copyright Office (“USCO”)
Grant of Security Interest in Copyrights, dated as of July 27, 2012, made by the signatories thereto in favor of Wilmington Trust, National Association, as trustee and note collateral agent, to be filed with the United States Copyright Office.
Existing Security Interests
UCC Filings
| Granting Party |
State |
Filing Office |
Document Filed | |||
| Varsity AP Holding Corporation | Georgia | Cooperative Authority | UCC-1 Financial Statement | |||
| GCP Amerifile Coinvest Inc. | Delaware | Delaware Secretary of State | UCC-1 Financial Statement | |||
| Varsity AP Holdings LLC | Delaware | Delaware Secretary of State | UCC-1 Financial Statement | |||
| Amerifile LLC | Delaware | Delaware Secretary of State | UCC-1 Financial Statement | |||
| Peachtree Business Products, LLC | Delaware | Delaware Secretary of State | UCC-1 Financial Statement | |||
| AP RE LLC | Georgia | Cooperative Authority | UCC-1 Financial Statement |
2
Supplement to
Collateral Agreement
Schedule 4
| Legal Name |
Jurisdiction of Organization | |
| Varsity AP Holding Corporation | Georgia | |
| GCP Amerifile Coinvest Inc. | Delaware | |
| Varsity AP Holdings LLC | Delaware | |
| Amerifile LLC | Delaware | |
| Peachtree Business Products, LLC | Delaware | |
| AP RE LLC | Georgia |
Supplement to
Collateral Agreement
Schedule 5
Patents
None.
Copyrights
Amerifile, LLC
| Title |
Registration No. | Registration Date | ||
| AmeriFile Spring/Summer Catalog U |
TX0006838826 | May 2, 2008 |
Trademarks
Peachtree Business Products, LLC
| TRADEMARK |
Status |
Reg. No. / App. No. |
Reg. Date / App. Date | |||
| FIDO HOUSE (and design) | Registered | 2736417 | July 15, 2003 | |||
| FIDO FRESHHANDS | Pending | 85312225 | May 4, 2011 |
Amerifile, LLC
| TRADEMARK |
Status |
Reg. No. |
Reg. Date | |||
| AMERIFILE | Registered | 3688792 | September 29, 2009 | |||
| ESSENTIAL PRODUCTS FOR AN EFFICIENT PRACTICE | Registered | 3683191 | September 15, 2009 | |||
| AMERIFILE | Registered | 3371018 | January 15, 2008 | |||
| WALLSTRETCHER | Registered | 2311197 | January 25, 2000 | |||
| AMERILFE (and design) | Registered | 2231634 | March 16, 1999 |
3
Supplement to
Collateral Agreement
Schedule 6
None.
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