ASSUMPTION AGREEMENT

EX-10.6 13 d388117dex106.htm EX-10.6 EX-10.6

Exhibit 10.6

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 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/ 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:

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Note Collateral Agent

By:  

/s/ Jane Schweiger

  Name: Jane Schweiger
  Title: Vice President

 

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Annex 1-A to

Assumption Agreement

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

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)  ###-###-####

 

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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