ASSUMPTION AGREEMENT
Exhibit 10.4
ASSUMPTION AGREEMENT
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 BANK OF AMERICA, NA., as collateral agent and administrative agent (in such capacity, the Collateral Agent) for the banks and other financial institutions (the Lenders) from time to time parties to the Credit Agreement referred to below and the other Secured Parties (as defined below). All capitalized terms not defined herein shall have the meaning ascribed to them in such the Guarantee and Collateral Agreement referred to below, or if not defined therein, in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, HD Supply, Inc., a Delaware corporation (the Borrower), Bank of America, N.A., as administrative agent and collateral agent, and the Lenders are parties to a Credit Agreement, dated as of April 12, 2012 (as amended, supplemented, waived or otherwise modified from time to time, the Credit Agreement);
WHEREAS, in connection with the Credit Agreement, the Borrower and certain of its Subsidiaries are, or are to become, parties to the Guarantee and Collateral Agreement, dated as of April 12, 2012 (as amended, supplemented, waived or otherwise modified from time to time, the Guarantee and Collateral Agreement), in favor of the Collateral Agent, for the benefit of the Secured Parties (as defined in the Guarantee and Collateral Agreement);
WHEREAS, each Additional Grantor is a member of an affiliated group of companies that includes the Borrower and each other Grantor; the proceeds of the extensions of credit under the Credit Agreement will be used in part to enable the Borrower to make valuable transfers to one or more of the other Grantors (including each Additional Grantor) in connection with the operation of their respective businesses; and the Borrower and the other Grantors (including each Additional Grantor) are engaged in related businesses, and each such Grantor (including each Additional Grantor) will derive substantial direct and indirect benefit from the making of the extensions of credit under the Credit Agreement;
WHEREAS, the Credit Agreement requires each Additional Grantor to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, each 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, each Additional Grantor, as provided in subsection 9.15 of the Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Guarantor, Grantor and, except for AP RE LLC, Pledgor thereunder with the same force and effect as if originally named therein as a Guarantor, Grantor and, except for AP RE LLC, Pledgor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Guarantor, 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 Guarantee and 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 Guarantor, Grantor and, except for AP RE LLC, Pledgor, contained in Section 4 of the Guarantee and 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 Guarantee and Collateral Agreement, to the 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 Guarantee and Collateral Agreement) and, except for AP RE LLC, the Pledged Collateral (as such term is defined in the Guarantee and Collateral Agreement) of such Additional Granting Party, except as provided in Section 3.3 of the Guarantee and 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.
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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/ Katherine A. Boelte | |
Name: Katherine Boelte | ||
Title: Treasurer | ||
GCP AMERIFILE COINVEST INC. | ||
By: | /s/ Katherine A. Boelte | |
Name: Katherine Boelte | ||
Title: Treasurer | ||
VARSITY AP HOLDINGS LLC | ||
By: | /s/ Katherine A. Boelte | |
Name: Katherine Boelte | ||
Title: Treasurer | ||
AMERIFILE, LLC | ||
By: | /s/ Katherine A. Boelte | |
Name: Katherine Boelte | ||
Title: Treasurer | ||
PEACHTREE BUSINESS PRODUCTS, LLC | ||
By: | /s/ Katherine A. Boelte | |
Name: Katherine Boelte | ||
Title: Treasurer | ||
AP RE LLC | ||
By: | /s/ Katherine A. Boelte | |
Name: Katherine Boelte | ||
Title: Treasurer |
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Acknowledged and Agreed to as of the date hereof by:
BANK OF AMERICA, N.A., as Collateral Agent and Administrative Agent | ||
By: | /s/ Darleen R Parmelee | |
Name: Darleen R Parmelee | ||
Title: Assistant Vice President |
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Annex 1-A to
Assumption Agreement
Supplement to
Guarantee and Collateral Agreement
Schedule 1
Notices, requests or demands to or upon any Grantor under the Guarantee and 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
3100 Cumberland Boulevard,
Suite 1700
Atlanta, GA, 30339
Attention: Ricardo Nunez
Telephone: (770) 852-9321
HDS IP Holding, LLC
101 Convention Center Drive, Suite 850
Las Vegas, NV 89109
Attention: Ricardo Nunez
Telephone: (770) 852-9321
with copies to
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Paul Brusiloff, Esq.
Facsimile: (212)  ###-###-####
Telephone: (212)  ###-###-####
A-1
Supplement to
Guarantee and 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
Guarantee and 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 Bank of America, N.A., as administrative agent and 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 Bank of America, N.A., as administrative agent and 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 |
A-2
Supplement to
Guarantee and 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
Guarantee and 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 |
A-3
Supplement to
Guarantee and Collateral Agreement
Schedule 6
None.
A-4