EXHIBIT 4.21
EXECUTION COPY
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT, dated as of July 24, 2003 (this
"TRADEMARK SECURITY AGREEMENT") by and among ▇▇▇ ▇▇▇▇▇▇▇▇ GOLF SHOP, a
California corporation (as "GRANTOR"), and GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation, in its capacity as Agent ("AGENT") for itself and the
various Lenders ("LENDERS") from time to time party to the Credit Agreement (as
defined below).
WHEREAS:
(A) Pursuant to that certain Credit Agreement, dated as of October 15,
2002, by and among Golfsmith International, Inc. ("GOLFSMITH"),
Golfsmith International Holdings, Inc., Golfsmith GP Holdings, Inc.,
Golfsmith Holdings, L.P., Golfsmith International, L.P. ("L.P."),
Golfsmith GP, L.L.C., Golfsmith Delaware, L.L.C., Golfsmith Canada,
L.L.C., Golfsmith Europe, L.L.C., Golfsmith USA, L.L.C. ("USA"),
Golfsmith NU, L.L.C. ("NU"), and Golfsmith Licensing, L.L.C., each as
a "CREDIT PARTY" (with L.P., NU and USA as "BORROWERS"), Agent and
Lenders (including all annexes, exhibits and schedules thereto, and as
from time to time amended, restated, supplemented or otherwise
modified, the "CREDIT AGREEMENT"), the Lenders agreed to make
available to Borrowers, upon the terms and conditions thereof, the
Revolving Loans and Letters of Credit provided for in the Credit
Agreement;
(B) Agent and Borrowers intend to enter into a Waiver Letter ("WAIVER
LETTER") by which Agent (contingent upon the satisfaction of the
conditions set forth therein) will consent to the transactions
contemplated by that certain Stock Purchase Agreement ("STOCK PURCHASE
AGREEMENT"), dated July 24, 2003, by and between Golfsmith, Grantor,
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual resident in the State of California,
and will waive any default that might otherwise arise under Sections
3.3, 3.4, 3.6(d), 3.8, 3.13, 4.9(j)(2) and 4.9(j)(3) of the Credit
Agreement as a result of such transactions;
(C) Grantor intends to become a party to the Credit Agreement by executing
an Assumption and Joinder Agreement in favor of Agent;
(D) Grantor intends to become a party to that certain Security Agreement,
dated as of October 15, 2002 (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "SECURITY AGREEMENT"), by and
between the Credit Parties and Agent by executing an Assumption and
Joinder Agreement in favor of Agent;
(E) the Security Agreement requires Grantor to execute and deliver this
Trademark Security Agreement, which execution and delivery is a
condition to Agent's willingness to enter into the Waiver Letter.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS
All capitalized terms used but not otherwise defined herein
have the meanings given to them in the Credit Agreement and Annex A
thereto.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL
To secure the payment of the Obligations and all present and
future obligations of Grantor (all such Obligations and other secured
obligations, the "SECURED OBLIGATIONS"), Grantor hereby grants to
Agent, on behalf of itself and Lenders, a continuing security interest
in all of Grantor's right, title and interest in, to and under the
following, whether presently existing or hereafter created or acquired
(collectively, the "TRADEMARK COLLATERAL"):
(a) all of its Trademarks and Trademark Licenses to which Grantor
is a party including those referred to on Schedule I;
(b) all reissues, continuations or extensions of the foregoing;
(c) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark License; and
(d) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for
past, present or future (i) infringement or dilution of any
Trademark or Trademark licensed under any Trademark License or
(ii) injury to the goodwill associated with any Trademark or
any Trademark licensed under any Trademark License.
3. SECURITY AGREEMENT
The security interests granted pursuant to this Trademark
Security Agreement are granted in conjunction with the security
interests granted to Agent, on behalf of itself and Lenders, pursuant
to the Security Agreement. Grantor hereby acknowledges and affirms that
the rights and remedies of Agent with respect to the security interest
in the Trademark Collateral made and granted hereby are more fully set
forth in the Security Agreement, the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.
4. TERMINATION OF THIS TRADEMARK SECURITY AGREEMENT
This Trademark Security Agreement shall terminate upon the
payment and performance in full of the Obligations (other than
Unasserted Contingent Obligations), on the Termination Date, as defined
in the Credit Agreement.
2
IN WITNESS WHEREOF, Grantor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
▇▇▇ ▇▇▇▇▇▇▇▇ GOLF SHOP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name:
Title:
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: --------------------------------------------
Name:
Title: Authorized Signatory
Sherwood Trademark Security Agreement
IN WITNESS WHEREOF, Grantor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
▇▇▇ ▇▇▇▇▇▇▇▇ GOLF SHOP
By:
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: /s/ Laurent Paris
----------------------------------
Name: Laurent Paris, SVP
Title: Authorized Signatory
Sherwood Trademark Security Agreement
ACKNOWLEDGMENT OF GRANTOR
STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
On this ___ day of July, 2003 before me personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇, proved
to me on the basis of satisfactory evidence to be the person who executed the
foregoing instrument on behalf of ▇▇▇ ▇▇▇▇▇▇▇▇ Golf Shop, who being by me duly
sworn did depose and say that he/she is an authorized officer of said
corporation, that the said instrument was signed on behalf of said corporation
as authorized by its Board of Directors and that he/she acknowledged said
instrument to be the free act and deed of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Notary Public
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State Of New York
No. 01MA6079999
Qualified In New York County
Commission Expires September 3, 2006
SCHEDULE I
TRADEMARK REGISTRATIONS
Item A. Trademarks
Registration
Trademark Country Number Registration Date
--------- ------- ------------ -----------------
▇▇▇ ▇▇▇▇▇▇▇▇ Golf & Tennis World (and stylized design) USA 1,795,392 September 28, 1993
Item B. Trademark Licenses
None.