Exhibit 4.9
GOLFSMITH INTERNATIONAL HOLDINGS, INC., GOLFSMITH INTERNATIONAL,
INC., GOLFSMITH HOLDINGS, L.P. AND GOLFSMITH DELAWARE, L.L.C.,
(referred to herein individually as "PLEDGOR" and collectively as "PLEDGORS")
AND
GENERAL ELECTRIC CAPITAL CORPORATION, AS AGENT
AS SECURED PARTY
PLEDGE AGREEMENT
CONTENTS
CLAUSE PAGE
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Section 1. Definitions....................................................................................1
Section 2. Pledge.........................................................................................2
Section 3. Representations and Warranties of Pledgor......................................................4
Section 4. Covenants of Pledgor...........................................................................5
Section 5. Voting Rights and Certain Payments Prior to Event of Default...................................6
Section 6. All Payments in Trust..........................................................................7
Section 7. Expenses.......................................................................................7
Section 8. Remedies.......................................................................................7
Section 9. Suretyship Waivers by Pledgor; Obligations Absolute...........................................11
Section 10. Marshalling...................................................................................11
Section 11. Proceeds of Dispositions......................................................................12
Section 12. Reinstatement.................................................................................12
Section 13. Miscellaneous.................................................................................12
(i)
PLEDGE AGREEMENT (this "PLEDGE AGREEMENT"), dated as of October 15, 2002,
between golfsmith international holdings, inc., GOLFSMITH INTERNATIONAL, INC.,
GOLFSMITH HOLDINGS, L.P. and GOLFSMITH DELAWARE, L.L.C., (referred to herein
individually as "PLEDGOR" and collectively as "PLEDGORS"), and GENERAL ELECTRIC
CAPITAL CORPORATION ("SECURED PARTY").
WHEREAS, each Pledgor has entered into a Credit Agreement dated as of the
date hereof by and among Golfsmith International, Inc., 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"), with
Secured Party, pursuant to which, among other things, Secured Party has agreed
to make loans to Pledgor upon the terms and subject to the conditions specified
in the Credit Agreement;
Whereas, each Pledgor (other than Borrowers) has entered into a Guaranty
Agreement dated as of the date hereof (as amended, supplemented, restated or
otherwise modified and in effect from time to time, the "GUARANTY"), in favor of
Secured Party, pursuant to which, among other things, Pledgor has guaranteed all
obligations of the Borrowers pursuant to the Credit Agreement; and
WHEREAS, in order to secure all Secured Obligations (as defined below),
each Pledgor has agreed to execute and deliver to Secured Party a pledge
agreement in substantially the form hereof.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS.
1.01. Definition of Terms Used Herein Generally. All capitalized
terms used but not defined herein shall have the meanings set forth in the
Credit Agreement and Annex A thereto. All terms used herein and defined in the
NYUCC shall have the same definitions herein as specified therein; provided,
however, that if a term is defined in Article 9 of the NYUCC differently than in
another Article of the NYUCC, the term has the meaning specified in Article 9 of
the NYUCC.
1.02. Definition of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
"EVENT" shall have the meaning assigned to such term in Section
8.03(a).
"EXTRAORDINARY PAYMENTS" shall have the meaning assigned to such
term in Section 5.01(b).
"INDEMNIFIED PARTY" shall have the meaning assigned to such term in
Section 8.04.
"LIEN" shall mean any security interest, mortgage, lien, encumbrance
or adverse claim, and any financing statement or similar document filed in
respect of same.
"PLEDGED COLLATERAL" shall have the meaning assigned to such term in
Section 2.01.
"PLEDGED SECURITIES" shall have the meaning assigned to such term in
Section 2.02(b).
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"NYUCC" shall mean the Uniform Commercial Code as in effect in the
State of New York from time to time.
"SECURED OBLIGATIONS" means the Obligations and all liabilities,
obligations, covenants, duties, and indebtedness owing by Pledgors to Secured
Party under this Agreement. The term includes, without limitation, (interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding.
"SECURITIES ACT" shall have the meaning assigned to such term in
Section 8.01(d).
"SECURITY INTERESTS" shall have the meaning assigned to such term in
Section 7.
"UCC" means the Uniform Commercial Code as in effect in any
jurisdiction (except as otherwise contemplated in Section ). References to
particular sections of Article 9 of the UCC shall be, unless otherwise
indicated, references to Revised Article 9 of the UCC adopted and effective in
certain jurisdictions on or after July 1, 2001.
"CREDIT AGREEMENT" shall have the meaning assigned to such term in
the preliminary statement of this Pledge Agreement.
1.03. Rules of Interpretation. The rules of interpretation specified
in Annex A of the Credit Agreement shall be applicable to this Pledge Agreement.
References to "Sections," "Exhibits" and "Schedules" shall be to Sections,
Exhibits and Schedules, respectively, of this Pledge Agreement unless otherwise
specifically provided. Any of the terms defined in this Pledge Agreement may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference. All references to statutes and related regulations
shall include (unless otherwise specifically provided herein) any amendments of
same and any successor statutes and regulations.
Section 2. PLEDGE.
2.01. Grant of Security Interest. To secure the payment or
performance, as the case may be, in full of the Secured Obligations, whether at
stated maturity, by acceleration or otherwise, each Pledgor hereby pledges to
Secured Party, and grant to Secured Party a first priority Security Interest in,
all right, title and interest of such Pledgor in, to and under the collateral
described in Section 2.02 (collectively, the "PLEDGED COLLATERAL").
2.02. Description of Pledged Collateral.
(a) The Pledged Collateral is described as follows and on any
separate schedules at any time furnished by Pledgors to Secured Party (which
schedules are hereby deemed part of this Pledge Agreement):
(i) all right, title and interest of Pledgors as holders
(whether now or in the future) in (x) shares or other equity interests in any
corporations, limited liability companies or limited partnerships (including,
without limitation, those corporations limited liability companies and limited
partnerships described on Schedule 1 hereto), or any warrants to purchase or
depositary shares or other rights in respect of any such interests, and (y) all
shares of stock, certificates, instruments or other documents evidencing or
representing the same;
(ii) all right, title and interest of such Pledgor in
and to all present and future payments, proceeds, dividends, distributions,
instruments, compensation, property, assets,
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interests and rights in connection with or related to the collateral listed in
clause (i) above, and all monies due or to become due and payable to such
Pledgor in connection with or related to such collateral or otherwise paid,
issued or distributed from time to time in respect of or in exchange therefor,
and any certificate, instrument or other document evidencing or representing the
same (including, without limitation, all proceeds of dissolution or
liquidation); and
(iii) all proceeds of all of the foregoing, of every
kind, and all proceeds of such proceeds.
(b) The shares of stock, certificates, instruments or other
documents evidencing or representing the foregoing shall be collectively
referred to herein as the "PLEDGED SECURITIES".
2.03. Delivery of Certificates, Instruments, Etc.
(a) Each Pledgor shall deliver to Secured Party:
(i) all original shares of stock, certificates,
instruments and other documents evidencing or representing the Pledged
Collateral concurrently with the execution and delivery of this Pledge
Agreement,
(ii) the original shares of stock, certificates,
instruments or other documents evidencing or representing all Pledged Collateral
(other than Pledged Collateral that this Pledge Agreement specifically permits
Pledgors to retain) within ten (10) days after Pledgor's receipt thereof;
(iii) for each uncertificated security existing on the
date hereof and included in the Pledged Collateral, an agreement (a "CONTROL
LETTER") of the issuer thereof in which the issuer agrees that it will comply
with instructions originated by the Secured Party with respect to the
uncertificated securities; and
(iv) for each uncertificated security created after the
date hereof, within 10 days following the issuance thereof, a Control Letter;
and
(b) All Pledged Securities that are certificated securities
shall be in bearer form or, if in registered form, shall be issued in the name
of Secured Party or endorsed to Secured Party or in blank.
2.04. Registration. At any time and from time to time, Secured Party
may cause all or any of the Pledged Securities to be transferred to or
registered in its name or the name of its nominee or nominees.
2.05. Authorization to File Financing Statements. Each Pledgor
hereby irrevocably authorizes Secured Party at any time and from time to time to
file in any jurisdiction in which the UCC has been adopted any initial financing
statements and amendments thereto that (a) describe the Pledged Collateral, and
(b) contain any other information required by part 5 of Article 9 of the UCC for
the sufficiency or filing office acceptance of any initial financing statement
or amendment, including (i) whether such Pledgor is an organization, the type of
organization and any organization identification number issued to such Pledgor.
Each Pledgor agrees to furnish any such information to Secured Party promptly
upon request. Each Pledgor also ratifies its authorization for Secured Party to
have filed in any
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UCC jurisdiction any like initial financing statements or amendments thereto if
filed prior to the date hereof.
Section 3. REPRESENTATIONS AND WARRANTIES OF PLEDGOR.
Each Pledgor hereby represents and warrants to Secured Party that:
3.01. Pledgor's Legal Status. (a) Such Pledgor is an organization,
as set forth in Schedule 1 hereto; (b) such organization is of the type, and is
organized in the jurisdiction, set forth in Schedule 1 hereto; and (c) Schedule
1 hereto sets forth such Pledgor's organizational identification number.
3.02. Pledgor's Legal Name. Such Pledgor's exact legal name is that
set forth in Schedule 1 hereto and on the signature page hereof.
3.03. Pledgor's Locations. Schedule 1 hereto sets forth such
Pledgor's place of business, and that such Pledgor's place of business is
located in a jurisdiction that has adopted the UCC or whose laws generally
require that the information concerning the existence of nonpossessory security
interests be made generally available in a filing, recording or registration
system as a condition or result of the security interest obtaining priority over
the rights of a lien creditor with respect to the collateral.
3.04. Authority; Binding Obligation; No Conflict. Such Pledgor has
full power and authority to execute, deliver and perform its obligations in
accordance with the terms of this Pledge Agreement and to grant to Secured Party
the Security Interest in the Pledged Collateral pursuant hereto, without the
consent or approval of any other person or entity other than any consent or
approval which has been obtained and is in full force and effect. This Pledge
Agreement has been duly authorized, executed and delivered by Pledgor and is the
legally valid and binding obligation of such Pledgor, enforceable against such
Pledgor in accordance with its terms , except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable
principles relating to or limiting creditor's rights generally. The granting to
Secured Party of the Security Interest in the Pledged Collateral hereunder, the
execution by Pledgor of this Pledge Agreement and the performance by such
Pledgor of its obligations hereunder do not and will not (a) result in the
existence or imposition of any Lien nor obligate such Pledgor to create any Lien
(other than such Security Interest) in favor of any person or entity over all or
any of its assets; (b) conflict with any agreement, mortgage, bond or other
instrument to which such Pledgor is a party or which is binding upon such
Pledgor or any of its assets; (c) conflict with such Pledgor's certificate of
incorporation, operating agreement, partnership agreement, by-laws, or other
organizational or charter documents; or (d) conflict with any law, regulation or
judicial order binding on such Pledgor or any of the Pledged Collateral of such
Pledgor.
3.05. Title to Collateral. The Pledged Collateral is owned by such
Pledgor free and clear of any Lien, except for Liens expressly permitted by the
Credit Agreement. Such Pledgor has not filed or consented to the filing of (a)
any financing statement or analogous document under the UCC or any other
applicable laws covering any Pledged Collateral, (b) any assignment in which
such Pledgor assigns any Pledged Collateral or any security agreement or similar
instrument covering any Pledged Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous document,
assignment, security agreement or similar instrument is still in effect, except,
in each case, for Liens expressly permitted pursuant to the Credit Agreement.
3.06. Pledged Collateral. Set forth on Schedule 1 hereto is a
complete and accurate list and description of all the Pledged Collateral of such
Pledgor.
3.07. Percentage Ownership. The Pledged Securities of each issuer
specifically identified on Schedule 1 hereto constitute, and until this Pledge
Agreement terminates shall continue to constitute, the percentage of the
outstanding equity of each such issuer as indicated on Schedule 1 hereto.
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3.08. All of Pledgor's Interests. As of the date hereof, the Pledged
Collateral set forth on Schedule 1 hereto constitutes all of the equity
interests of such Pledgor in any corporations (including, without limitation,
each of the corporate entities constituting a Subsidiary of Pledgor), limited
liability companies, partnerships and other entities (other than any general
partnership interest in any limited partnership).
3.09. Due Authorization, Etc., of Stock; Not Margin Stock. The
Pledged Securities listed on Schedule 1 hereto have been duly authorized and
validly issued and are fully paid and non-assessable and are not subject to any
options to purchase or similar rights of any person, and none of the Pledged
Securities constitutes Margin Stock.
3.10. Required Consents. Except as may be required in connection
with any disposition of any portion of the Pledged Securities by laws affecting
the offering and sale of securities generally, no consent of any person
(including, without limitation, partners, members, shareholders or creditors of
Pledgor or of any subsidiary of Pledgor or of any issuer of Pledged Securities)
and no license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
instrumentality is required in connection with (i) the execution, delivery,
performance, validity or enforceability of this Pledge Agreement by such
Pledgor, (ii) the perfection or maintenance of the Security Interest created
hereby (including the first priority nature of such Security Interest), or (iii)
the exercise by Secured Party of the rights provided for in this Pledge
Agreement.
3.11. Nature of Security Interest. Upon the delivery of the Pledged
Securities or, in the case of uncertificated securities included as Pledged
Securities, a Control Letter signed by the issuer thereof, to Secured Party, the
pledge of the Pledged Collateral pursuant to this Pledge Agreement creates a
valid and perfected first priority Security Interest in the Pledged Collateral,
securing the prompt and complete payment, performance and observance of the
Secured Obligations.
Section 4. COVENANTS OF PLEDGOR.
4.01. Pledgor's Legal Status. No Pledgor shall change its type of
organization, jurisdiction of organization or other legal structure. No Pledgor
shall enter into, or consent to the entering into of, any amendment of any
limited partnership agreement or limited liability operating agreement of any
issuer of any Pledged Securities that could have an adverse effect on the
Security Interest therein or the rights and remedies of the Secured Party
hereunder. Each Pledgor, as a limited partner, general partner, member, manager
or managing member of any issuer of Pledged Securities hereby consents to the
execution and delivery of this Pledge Agreement, the performance by the
applicable Pledgor of its obligations hereunder and the exercise by the Secured
Party of its rights and remedies hereunder. Except for the Liens granted
hereunder to the Secured Party and except for the Liens granted to the
Collateral Agent under the security agreements securing obligations arising
under the Indenture and Senior Notes, no Pledgor shall suffer or permit any
issuer of Pledged Securities to enter into a Control Letter in favor of any
Person.
4.02. Pledgor's Name. Without providing at least 30 days prior
written notice to Secured Party, no Pledgor shall change its name.
4.03. Pledgor's Organizational Number. Without providing at least 30
days prior written notice to Secured Party, no Pledgor shall change its
organizational identification number if it has one. If any Pledgor does not have
an organizational identification number and later obtains one, such Pledgor
shall forthwith notify Secured Party of such organizational identification
number.
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4.04. Locations. Without providing at least 30 days prior written
notice to Secured Party, no Pledgor shall change its principal residence, its
place of business or (if it has more than one place of business) its chief
executive office or its mailing address.
4.05. Title to Collateral. (a) Except for the Security Interest
herein granted and Liens permitted by the Credit Agreement, each Pledgor shall
be the owner of the Pledge Collateral pledged by it free from any Lien, and such
Pledgor, at its sole cost and expense, shall defend the same against all claims
and demands of all persons at any time claiming the same or any interests
therein adverse to Secured Party; and (b) no Pledgor shall sell or otherwise
dispose of, or pledge, mortgage or create, or suffer to exist a Lien on, the
Pledged Collateral in favor of any person other than Secured Party except for
Liens permitted by the Credit Agreement and the inclusion of "proceeds" of the
Pledged Collateral under the Security Interest granted herein shall not be
deemed a consent by Secured Party to any sale or other disposition of any
Pledged Collateral.
4.06. Taxes. Each Pledgor shall pay promptly when due all taxes,
assessments, governmental charges and levies upon the Pledged Collateral or
incurred in connection with the Pledged Collateral or incurred in connection
with this Pledge Agreement.
4.07. Further Assurances. Each Pledgor will, from time to time, at
its expense, promptly execute and deliver all further instruments and documents
and take all further action that may be necessary, or that Secured Party may
reasonably request, in order to perfect and protect any Security Interest
granted or purported to be granted hereby or to enable Secured Party to exercise
and enforce its rights and remedies hereunder with respect to any Pledged
Collateral.
Section 5. VOTING RIGHTS AND CERTAIN PAYMENTS PRIOR TO EVENT OF DEFAULT.
5.01. Voting Rights and Ordinary Payments Prior to an Event of
Default. So long as no Event of Default shall have occurred and be continuing,
each Pledgor shall be entitled:
(a) to exercise, as it shall think fit, but in a manner not
inconsistent with the terms hereof, the voting and consent power and other
incidental rights of ownership with respect to the Pledged Collateral of such
Pledgor, and for that purpose Secured Party shall (if any Pledged Securities
shall be registered in the name of Secured Party or its nominee) execute or
cause to be executed from time to time, at the expense of such Pledgor, such
proxies or other instruments in favor of such Pledgor or its nominee, in such
form and for such purposes as shall be reasonably required by such Pledgor and
shall be specified in a written request therefor, to enable it to exercise such
voting power with respect to the Pledged Securities; and
(b) except as otherwise provided in Sections 5.02 and 5.03
hereof, to receive and retain for its own account any and all payments,
proceeds, dividends, distributions, monies, compensation, property, assets,
instruments or rights to the extent such are permitted pursuant to the terms of
the Credit Agreement, other than (i) stock or liquidating dividends or (ii)
extraordinary dividends and dividends or other amounts payable under or in
connection with any recapitalization, restructuring, or other non-ordinary
course event (the dividends and amounts in this clause (ii) being "EXTRAORDINARY
PAYMENTS"), paid, issued or distributed from time to time in respect of the
Pledged Collateral pledged by such Pledgor.
5.02. Extraordinary Payments and Distributions.
(a) In case, upon the dissolution or liquidation (in whole or
in part) of any issuer of any Pledged Collateral pledged by any Pledgor, any sum
shall be paid or payable as a liquidating
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dividend or otherwise upon or with respect to any of the Pledged Securities
pledged by such Pledgor or, in the event any other Extraordinary Payment is paid
or payable, then and in any such event, such sum shall be paid by such Pledgor
over to Secured Party promptly, and in any event within ten (10) days after
receipt thereof, to be held by Secured Party as additional collateral hereunder.
(b) In case any stock dividend shall be declared with respect
to any of the Pledged Collateral pledged by any Pledgor, or any shares of stock
or fractions thereof shall be issued pursuant to any stock split involving any
of the Pledged Collateral pledged by such Pledgor, or any distribution of
capital shall be made on any of the Pledged Collateral pledged by such Pledgor,
or any shares, obligations or other property shall be distributed upon or with
respect to the Pledged Collateral pledged by such Pledgor, in each case pursuant
to a recapitalization or reclassification of the capital of the issuer thereof,
or pursuant to the dissolution, liquidation (in whole or in part), bankruptcy or
reorganization of such issuer, or to the merger or consolidation of such issuer
with or into another corporation, the shares, partnership interests, membership
interests, obligations or other property so distributed shall be delivered by
such Pledgor to Secured Party promptly, and in any event within ten (10) days
after receipt thereof, to be held by Secured Party as additional collateral
hereunder subject to the terms of this Pledge Agreement, and all of the same
shall constitute Pledged Collateral for all purposes hereof.
5.03. Voting Rights and Ordinary Payments After an Event of Default.
Upon the occurrence and during the continuance of any Event of Default, all
rights of each Pledgor to exercise or refrain from exercising the voting and
consent rights and other incidental rights of ownership that it would otherwise
be entitled to exercise pursuant to Section 5.01(a) hereof and to receive the
payments, proceeds, dividends, distributions, monies, compensation, property,
assets, instruments or rights that such Pledgor would otherwise be authorized to
receive and retain pursuant to Section 5.01(b) hereof shall cease, and thereupon
Secured Party shall be entitled to exercise all voting power and consent and
other incidental rights of ownership with respect to the Pledged Securities and
to receive and retain, as additional collateral hereunder, any and all payments,
proceeds, dividends, distributions, monies, compensation, property, assets,
instruments or rights at any time declared or paid upon any of the Pledged
Collateral during such an Event of Default and otherwise to act with respect to
the Pledged Collateral as outright owner thereof.
Section 6. ALL PAYMENTS IN TRUST. All payments, proceeds, dividends,
distributions, monies, compensation, property, assets, instruments or rights
that are received by any Pledgor contrary to the provisions of Section 5 hereof
shall be received and held in trust for the benefit of Secured Party, shall be
segregated by such Pledgor from other funds of such Pledgor and shall be
forthwith paid over to Secured Party as Pledged Collateral in the same form as
so received (with any necessary endorsement).
Section 7. EXPENSES. Each Pledgor shall, jointly and severally, pay all
reasonable expenses incurred by Secured Party in connection with the
negotiation, execution, delivery, amendment, waiver, renegotiation, enforcement
or collection of this Pledge Agreement or the exercise of remedies hereunder,
including, without limitation, reasonable attorney's fees, advertising costs,
fees and expenses of advisors and investment bankers and other experts. If any
Pledgor fails promptly to pay any portion of the above expenses when due or to
perform any other obligation of such Pledgor under this Pledge Agreement,
Secured Party may, at its option, but shall not be required to, pay or perform
the same and charge such Pledgor for all costs and expenses incurred therefor,
and such Pledgor agrees to reimburse Secured Party therefor on demand. All sums
so paid or incurred by Secured Party for any of the foregoing, any and all other
sums for which any Pledgor may become liable hereunder and all such costs and
expenses incurred by Secured Party in enforcing or protecting the Security
Interests created under this Pledge Agreement (the "SECURITY INTERESTS") or any
of its rights or remedies under this Pledge Agreement shall be payable
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by such Pledgor on demand, shall constitute Secured Obligations and shall bear
interest at the same rate of interest applicable to Revolving Advances interest
on which is based on the Index Rate at such time.
Section 8. REMEDIES.
8.01. Disposition Upon Default and Related Provisions.
(a) Upon the occurrence and during the continuance of any
Event of Default, Secured Party may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all rights of voting, consent, exercise, conversion
and other incidental rights of ownership with respect to the Pledged Collateral,
including, without limitation, all rights and powers of any Pledgor as a
managing member or manager of any limited liability company that is an issuer of
Pledged Securities pledged by such Pledgor, and all of the rights and remedies
of a secured party on default under the NYUCC at that time (whether or not
applicable to the affected Pledged Collateral) and may also, without obligation
to resort to other security, at any time and from time to time sell, resell,
assign and deliver, in its sole discretion, all or any of the Pledged
Collateral, in one or more parcels at the same or different times, and all
right, title and interest, claim and demand therein and right of redemption
thereof, on any securities exchange on which any Pledged Collateral may be
listed, or at public or private sale, for cash, upon credit or for future
delivery, and in connection therewith Secured Party may grant options.
(b) If any of the Pledged Collateral is sold by Secured Party
upon credit or for future delivery, Secured Party shall not be liable for the
failure of the purchaser to purchase or pay for the same and, in the event of
any such failure, Secured Party may resell such Pledged Collateral. In no event
shall Pledgor be credited with any part of the proceeds of sale of any Pledged
Collateral until cash payment therefor has actually been received by Secured
Party.
(c) Secured Party may purchase any Pledged Collateral at any
public sale and, if any Pledged Collateral is of a type customarily sold in a
recognized market or is of the type that is the subject of widely distributed
standard price quotations, Secured Party may purchase such Pledged Collateral at
private sale, and in each case may make payment therefor by any means,
including, without limitation, by release or discharge of Secured Obligations in
lieu of cash payment.
(d) Each Pledgor recognizes that Secured Party may be unable
to effect a public sale of all or part of the Pledged Collateral consisting of
securities by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "SECURITIES ACT"), or in applicable Blue Sky or other
state securities laws, as now or hereafter in effect, but may be compelled to
resort to one or more private sales to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire such securities for their
own account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor agrees that any such Pledged Collateral sold at any such
private sale may be sold at a price and upon other terms less favorable to the
seller than if sold at public sale and that each such private sale shall be
deemed to have been made in a commercially reasonable manner. Secured Party
shall have no obligation to delay the sale of any such securities for the period
of time necessary to permit the issuer of such securities, even if such issuer
would agree, to register such securities for public sale under the Securities
Act. Each Pledgor agrees that private sales made under the foregoing
circumstances shall be deemed to have been made in a commercially reasonable
manner.
(e) No demand, advertisement or notice, all of which are
hereby expressly waived, shall be required in connection with any sale or other
disposition of any part of the Pledged Collateral that threatens to decline
speedily in value or that is of a type customarily sold on a recognized market;
otherwise Secured Party shall give the applicable Pledgor at least ten days'
prior notice of the
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time and place of any public sale and of the time after which any private sale
or other disposition is to be made, which notice each Pledgor agrees is
commercially reasonable.
(f) Secured Party shall not be obligated to make any sale of
Pledged Collateral if it shall determine not to do so, regardless of the fact
that notice of sale may have been given. Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned.
(g) The remedies provided herein in favor of Secured Party
shall not be deemed exclusive, but shall be cumulative, and shall be in addition
to all other remedies in favor of Secured Party existing at law or in equity.
(h) To the extent that applicable law imposes duties on
Secured Party to exercise remedies in a commercially reasonable manner, each
Pledgor acknowledges and agrees that it is not commercially unreasonable for
Secured Party (i) to advertise dispositions of Pledged Collateral through
publications or media of general circulation; (ii) to contact other persons,
whether or not in the same business as such Pledgor, for expressions of interest
in acquiring all or any portion of the Pledged Collateral; (iii) to hire one or
more professional auctioneers to assist in the disposition of Pledged
Collateral; (iv) to dispose of Pledged Collateral by utilizing Internet sites
that provide for the auction of assets of the types included in the Pledged
Collateral or that have the reasonable capability of doing so, or that match
buyers and sellers of assets; (v) to disclaim disposition warranties, or (vi) to
the extent deemed appropriate by Secured Party, to obtain the services of
brokers, investment bankers, consultants and other professionals to assist
Secured Party in the disposition of any of the Pledged Collateral. Each Pledgor
acknowledges that the purpose of this clause (h) is to provide non-exhaustive
indications of what actions or omissions by Secured Party would not be
commercially unreasonable in Secured Party's exercise of remedies against the
Pledged Collateral and that other actions or omissions by Secured Party shall
not be deemed commercially unreasonable solely on account of not being indicated
in this clause (h). Without limiting the foregoing, nothing contained in this
clause (h) shall be construed to grant any rights to any Pledgor or to impose
any duties on Secured Party that would not have been granted or imposed by this
Pledge Agreement or by applicable law in the absence of this clause (h).
8.02. Secured Party Appointed Attorney-in-Fact
(a) To effectuate the terms and provisions hereof, each
Pledgor hereby appoints Secured Party as such Pledgor's attorney-in-fact for the
purpose, from and after the occurrence and during the continuance of an Event of
Default, of carrying out the provisions of this Pledge Agreement and taking any
action and executing any instrument that Secured Party from time to time in
Secured Party's reasonable discretion may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement. Without limiting the
generality of the foregoing, Secured Party shall, from and after the occurrence
and during the continuance of an Event of Default, have the right and power to:
(i) receive, endorse and collect all checks and other
orders for the payment of money made payable to such Pledgor representing any
interest or dividend or other distribution or amount payable in respect of the
Pledged Collateral or any part thereof and to give full discharge for the same;
(ii) execute endorsements, assignments or other
instruments of conveyance or transfer with respect to all or any of the Pledged
Collateral;
-9-
(iii) exercise all rights of such Pledgor as owner of
the Pledged Collateral including, without limitation, the right to sign any and
all amendments, instruments, certificates, proxies, and other writings necessary
or advisable to exercise all rights and privileges of (or on behalf of) the
owner of the Pledged Collateral, including, without limitation, all voting,
consent and other incidental rights of ownership rights with respect to the
Pledged Securities;
(iv) ask, demand, collect, xxx for, recover, compound,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Pledged Collateral;
(v) file any claims or take any action or institute any
proceedings that Secured Party may deem necessary or desirable for the
collection of any of the Pledged Collateral or otherwise to enforce the rights
of Secured Party with respect to any of the Pledged Collateral; and
(vi) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Pledged Collateral
as fully and completely as though Secured Party were the absolute owner thereof
for all purposes, and to do, at Secured Party's option and such Pledgor's
expense, at any time or from time to time, all acts and things that Secured
Party deems reasonably necessary to protect, preserve or realize upon the
Pledged Collateral.
(b) Each Pledgor hereby ratifies and approves all acts of
Secured Party made or taken pursuant to this Section 8.02 (provided, that no
Pledgor by virtue of such ratification, releases any claim that Pledgor may
otherwise have against Secured Party for any such acts made or taken by Secured
Party through gross negligence or willful misconduct). Neither Secured Party nor
any person designated by Secured Party shall be liable for any acts or omissions
or for any error of judgment or mistake of fact or law, except such as may
result from Secured Party's gross negligence or willful misconduct. This power,
being coupled with an interest, is irrevocable so long as this Pledge Agreement
shall remain in force.
8.03. Secured Party's Duties of Reasonable Care
(a) Secured Party shall have the duty to exercise reasonable
care in the custody and preservation of any Pledged Collateral in its
possession, which duty shall be fully satisfied if such Pledged Collateral is
accorded treatment substantially equal to that which Secured Party accords its
own property and, with respect to any calls, conversions, exchanges,
redemptions, offers, tenders or similar matters relating to any such Pledged
Collateral (herein called "EVENTS"),
(i) Secured Party exercises reasonable care to ascertain
the occurrence and to give reasonable notice to Pledgor of any events applicable
to any Pledged Securities that are registered and held in the name of Secured
Party or its nominee,
(ii) Secured Party gives the applicable Pledgor
reasonable notice of the occurrence of any events of which Secured Party has
received actual knowledge, which events are applicable to any securities that
are in bearer form or are not registered and held in the name of Secured Party
or its nominee (each Pledgor agreeing to give Secured Party reasonable notice of
the occurrence of any events of which such Pledgor has knowledge, which events
are applicable to any securities in the possession of Secured Party), and
(iii) Secured Party endeavors to take such action with
respect to any of the events as any Pledgor may reasonably and specifically
request in writing in sufficient time for such action to be evaluated and taken
or, if Secured Party reasonably believes that the action requested would
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adversely affect the value of the Pledged Collateral as collateral or the
collection of the Secured Obligations, or would otherwise prejudice the
interests of Secured Party, Secured Party gives reasonable notice to such
Pledgor that any such requested action will not be taken and, if Secured Party
makes such determination or if such Pledgor fails to make such timely request,
Secured Party takes such other action as it deems advisable in the
circumstances.
(iv) Except as hereinabove specifically set forth,
Secured Party shall have no further obligation to ascertain the occurrence of,
or to notify any Pledgor with respect to, any events and shall not be deemed to
assume any such further obligation as a result of the establishment by Secured
Party of any internal procedures with respect to any securities in its
possession, nor shall Secured Party be deemed to assume any other responsibility
for, or obligation or duty with respect to, any Pledged Collateral or its use of
any nature or kind, or any matter or proceedings arising out of or relating
thereto, including, without limitation, any obligation or duty to take any
action to collect, preserve or protect its or any Pledgor's rights in the
Pledged Collateral or against any prior parties thereto, but the same shall be
at each Pledgor's sole risk and responsibility at all times.
(v) Each Pledgor waives any restriction or obligation
imposed on Secured Party under Sections 9-207(c)(1) and 9-207(c)(2) of the
NYUCC.
8.04. Indemnification. Each Pledgor hereby releases Secured Party,
each Lender and the respective officers, shareholders, directors, employees and
agents of each thereof (each, an "INDEMNIFIED PARTY") from any claims, causes of
action and demands at any time arising out of or with respect to this Pledge
Agreement, the Secured Obligations, the Pledged Collateral and its use and/or
any actions taken or omitted to be taken by such Indemnified Party with respect
thereto (except such claims, causes of action and demands arising from the bad
faith, gross negligence or willful misconduct of such Indemnified Party) and
each Pledgor hereby agrees, jointly and severally, to hold each Indemnified
Party harmless from and with respect to any and all such claims, causes of
action and demands (except such claims, causes of action and demands arising
from the gross negligence or willful misconduct of such Indemnified Party).
8.05. Prior Recourse. Secured Party's prior recourse to any Pledged
Collateral shall not constitute a condition of any demand, suit or proceeding
for payment or collection of the Secured Obligations.
8.06. Secured Party May Perform. If any Pledgor fails to perform any
agreement contained herein, Secured Party may itself perform or cause
performance of such agreement, and the expenses of Secured Party incurred in
connection therewith shall be treated as provided in Section 7 hereof.
Section 9. SURETYSHIP WAIVERS BY PLEDGOR; OBLIGATIONS ABSOLUTE.
(a) Each Pledgor waives demand, notice, protest, notice of
acceptance of this Pledge Agreement, notice of loans made, credit extended,
collateral received or delivered or other action taken in reliance hereon and
all other demands and notices of any description thereof, all in such manner and
at such time or times as the Secured Party may deem advisable. The Secured Party
shall have no duty as to the collection or protection of the Pledged Collateral
or any income thereon, nor as to the preservation of rights against prior
parties, nor as to the preservation of any rights pertaining thereto beyond the
safe custody thereof as set forth in Section 8.03.
(b) All rights of the Secured Party hereunder, the Security
Interests and all obligations of each Pledgor hereunder shall be absolute and
unconditional irrespective of (a) any lack of
-11-
validity or enforceability of the Credit Agreement, any other Loan Document, any
agreement with respect to any of the Secured Obligations or any other agreement
or instrument relating to any of the foregoing, (b) any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Secured Obligations, or any other amendment or waiver of or any consent to any
departure from the Credit Agreement, any other Loan Document, or any other
agreement or instrument, (c) any exchange, release or non-perfection of any Lien
on other collateral, or any release or amendment or waiver of or consent under
or departure from or any acceptance of partial payment thereon and or
settlement, compromise or adjustment of any Secured Obligation or of any
guarantee, securing or guaranteeing all or any of the Secured Obligations, or
(d) any other circumstance that might otherwise constitute a defense available
to, or a discharge of, such Pledgor in respect of the Secured Obligations or
this Pledge Agreement.
Section 10. MARSHALLING. Secured Party shall not be required to marshal
any present or future collateral security (including but not limited to this
Pledge Agreement and the Pledged Collateral) for, or other assurances of payment
of, the Secured Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order, and all of its
rights hereunder and in respect of such collateral security and other assurances
of payment shall be cumulative and in addition to all other rights, however
existing or arising. To the extent that it lawfully may, each Pledgor hereby
agrees that it shall not invoke any law relating to the marshalling of
collateral which might cause delay in or impede the enforcement of Secured
Party's rights under this Pledge Agreement or under any other instrument
creating or evidencing any of the Secured Obligations or under which any of the
Secured Obligations is outstanding or by which any of the Secured Obligations is
secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, Pledgor hereby irrevocably waives the benefits of all such laws.
Section 11. PROCEEDS OF DISPOSITIONS. After deducting all expenses payable
to Secured Party, including, without limitation, pursuant to Section 7, the
residue of any proceeds of collection or sale of the Secured Obligations or
Collateral shall, to the extent actually received in cash, be applied to the
payment of the remaining Secured Obligations in such order or preference as is
provided in the Credit Agreement (or, if not provided therein, as determined by
Secured Party), proper allowance and provision being made for any Secured
Obligations not then due or held as additional Collateral. Upon the final
payment and satisfaction in full of all of the Secured Obligations and the
termination of all commitments under the Credit Agreement and after making any
payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of the NYUCC, any
excess of any Pledged Collateral of any Pledgor shall be returned to such
Pledgor, and in any event each Pledgor shall remain liable for any deficiency in
the payment of the Secured Obligations.
Section 12. REINSTATEMENT. The obligations of each Pledgor pursuant to
this Pledge Agreement shall continue to be effective or automatically be
reinstated, as the case may be, if at any time payment of any of the Secured
Obligations is rescinded or otherwise must be restored or returned by Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of such Pledgor or any other obligor or otherwise, all as though
such payment had not been made.
Section 13. MISCELLANEOUS.
13.01. Notices. Any notice or other communication required shall be
in writing addressed to the respective party as set forth below and may be
personally served, telecopied, sent by overnight courier service or U.S. mail
and shall be deemed to have been given: (a) if delivered in person, when
delivered; (b) if delivered by fax, on the date of transmission if transmitted
on a Business Day before 4:00 p.m. New York Time; (c) if delivered by overnight
courier, one (1) Business Day after delivery to the courier properly addressed;
or (d) if delivered by U.S. mail, four (4) Business Days after deposit with
postage prepaid and properly addressed.
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Notices shall be addressed as follows:
(a) If to Secured Party, at:
General Electric Capital Corporation
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Golfsmith Account Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with copies to:
General Electric Capital Corporation
Capital Funding, Inc.
000 Xxxx Xxxxx, Xxxxxxxx X, Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and:
Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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(b) If to Pledgor, at:
c/o Golfsmith International, Inc.
00000 Xxxxx XX 00
Xxxxxx, Xxxxx 00000-0000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
First Atlantic Capital, Ltd.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
13.02. GOVERNING LAW. THIS PLEDGE AGREEMENT AND EACH OF THE OTHER
LOAN DOCUMENTS WHICH DOES NOT EXPRESSLY SET FORTH APPLICABLE LAW SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
13.03. CONSENT TO JURISDICTION. EACH PLEDGOR HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK COUNTY, STATE
OF NEW YORK AND IRREVOCABLY AGREE THAT, SUBJECT TO AGENT'S ELECTION, ALL ACTIONS
OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR THE OTHER
LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. PLEDGOR EXPRESSLY SUBMITS AND
CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS. EACH PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH
PLEDGOR BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO
PLEDGOR AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE
COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED. IN ANY LITIGATION, TRIAL,
ARBITRATION OR OTHER DISPUTE RESOLUTION PROCEEDING RELATING TO THIS PLEDGE
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ALL DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS OF EACH PLEDGOR OR ANY OF ITS AFFILIATES SHALL BE DEEMED TO BE
EMPLOYEES OR MANAGING AGENTS OF SUCH PLEDGORS FOR PURPOSES OF ALL APPLICABLE LAW
OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR TESTIMONY
(WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). PLEDGOR AGREES THAT AGENT'S OR
ANY LENDER'S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY
OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY
DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN
EVIDENCE DEPOSITION. EACH PLEDGOR IN ANY EVENT WILL USE ALL COMMERCIALLY
REASONABLE EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE
TIME AND IN THE MANNER REQUESTED BY AGENT OR ANY LENDER, ALL PERSONS, DOCUMENTS
(WHETHER IN TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS
CONTROL AND RELATING TO THE DISPUTE.
13.04. WAIVER OF JURY TRIAL, ETC. EACH PLEDGOR HEREBY WAIVES ITS
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
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OF THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS. EACH PLEDGOR ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT SUCH PLEDGOR HAS RELIED ON THE WAIVER IN ENTERING INTO THIS PLEDGE
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PLEDGOR WARRANTS AND
REPRESENTS THAT SUCH PLEDGOR HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY
WAIVER WITH LEGAL COUNSEL, AND THAT SUCH PLEDGOR KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS.
13.05. Counterparts; Effectiveness. This Pledge Agreement and any
amendments, waivers, consents or supplements may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one in the same instrument.
This Pledge Agreement shall become effective upon the execution of a counterpart
hereof by each of the parties hereto.
13.06. Headings. Section and subsection headings are included herein
for convenience of reference only and shall not constitute a part of this Pledge
Agreement for any other purposes or be given substantive effect.
13.07. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Pledge Agreement. In the event
an ambiguity or question of intent or interpretation arises, this Pledge
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Pledge Agreement.
13.08. Severability. The invalidity, illegality, or unenforceability
in any jurisdiction of any provision under the Pledge Agreement shall not affect
or impair the remaining provisions in the Pledge Agreement.
13.09. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Pledgors herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Pledge Agreement shall be considered to have been relied upon
by the Secured Party and shall survive the execution and delivery of the Credit
Agreement and the advance of all extensions of credit contemplated thereby,
regardless of any investigation made by the Secured Party, and shall continue in
full force and effect until this Pledge Agreement shall terminate (or thereafter
to the extent provided herein).
13.10. Binding Effect; Several Agreement. This Pledge Agreement is
binding upon each Pledgor and the Secured Party and their respective successors
and assigns, and shall inure to the benefit of each Pledgor, the Secured Party
and their respective successors and assigns, except that no Pledgor shall have
any right to assign or transfer its rights or obligations hereunder or any
interest herein (and any such assignment or transfer shall be void) except as
expressly contemplated by this Pledge Agreement or the Credit Agreement.
13.11. Waivers; Amendment.
(a) No failure or delay of the Secured Party in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Secured Party hereunder and of the Secured Party and the
Lenders under the Credit Agreement are
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cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Pledge Agreement or consent
to any departure by any Pledgor therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Pledgor in any case shall entitle
such or any other Pledgor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Pledge Agreement nor any provision hereof may
be waived, amended or modified directly pertaining to any Pledged Collateral
except pursuant to an agreement or agreements in writing entered into by the
Secured Party and the Pledgor of such Pledged Collateral, and no provision of
this Pledge Agreement that does not directly pertain to any Pledged Collateral
may be waived, modified or amended except pursuant to an agreement or agreements
in writing entered into by the Secured Party and the Pledgor or Pledgors to be
charged, in each case, subject to any consent required in accordance with the
Credit Agreement.
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IN WITNESS WHEREOF, intending to be legally bound, each Pledgor has caused this
Pledge Agreement to be duly executed as of the date first above written.
GOLFSMITH INTERNATIONAL HOLDINGS, INC.
By /s/ XXXX X. XXXXXX
-----------------------------------------------
Xxxx X. Xxxxxx
Vice President
GOLFSMITH INTERNATIONAL, INC.
By /s/ XXXX X. XXXXXX
-----------------------------------------------
Xxxx X. Xxxxxx
Vice President
GOLFSMITH HOLDINGS, L.P.
By Golfsmith GP Holdings, Inc., as General Partner
By /s/ XXXX X. XXXXXX
-----------------------------------------------
Xxxx X. Xxxxxx
Vice President
GOLFSMITH DELAWARE, L.L.C.
By Golfsmith Holdings, L.P., as Sole Member
By Golfsmith GP Holdings, Inc., as General Partner
By /s/ XXXX X. XXXXXX
-----------------------------------------------
Xxxx X. Xxxxxx
Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent, Secured Party
By: /s/ LAURENT PARIS
-----------------------------------------------
Name: Laurent Paris
Title: Vice President and Duly Authorized Signatory
SIGNATURE PAGE TO GOLFSMITH PLEDGE AGREEMENT
SCHEDULE 1 TO PLEDGE AGREEMENT
Attached to and forming part of that certain
Pledge Agreement dated as of October 15, 2002 between
Golfsmith International Holdings, Inc., Golfsmith International, Inc.,
Golfsmith Holdings, L.P., and Golfsmith Delaware, L.L.C.
and General Electric Capital Corporation, as Secured Party
LIST AND DESCRIPTION OF PLEDGED SECURITIES
Description of Pledge:
Issuer Class Certificate Number Percentage of
of Stock of Stock Numbers of Shares total shares
-------- -------- ------------ --------- -------------
Golfsmith International, Inc. Common 1 100 100%
Exact Name of Pledgor: GOLFSMITH INTERNATIONAL HOLDINGS, INC.
Pledgor is (i) an individual __ or (ii) an organization X (insert "x" as
appropriate)
If Pledgor is an organization: Pledgor is a corporation
Pledgor is organized under the laws of Delaware
Pledgor's organizational identification number:
3565268
Mailing address of Pledgor: 00000 Xxxxx XX 00
Xxxxxx, Xxxxx 00000-0000
For a Pledgor that is an organization: If different from the mailing address,
Pledgor's place of business, or if it has more than one place of business,
Pledgor's chief executive office.
The chief executive office is the same address as the mailing address
above.
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Description of Pledge:
Issuer Class Certificate Number Percentage of
of Stock Of Stock Numbers of Shares total shares
-------- -------- ----------- --------- -------------
Golfsmith GP Holdings, Inc. Common 1 1000 100%
Issuer Partnership
of Stock Interest
------------------------ ------------
Golfsmith Holdings, L.P. 99% limited
partnership
interest
Exact Name of Pledgor: GOLFSMITH INTERNATIONAL, INC.
Pledgor is (i) an individual __ or (ii) an organization X (insert "x" as
appropriate)
If Pledgor is an organization: Pledgor is a corporation
Pledgor is organized under the laws of Delaware
Pledgor's organizational identification number:
2854385
Mailing address of Pledgor: 00000 Xxxxx XX 00
Xxxxxx, Xxxxx 00000-0000
For a Pledgor that is an organization: If different from the mailing address,
Pledgor's place of business, or if it has more than one place of business,
Pledgor's chief executive office.
The chief executive office is the same address as the mailing address
above.
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Description of Pledge:
Issuers of Stock Membership Interest
--------------------------------------------------------- ---------------------------
Golfsmith GP, L.L.C., Golfsmith Delaware, L.L.C., 100% (sole member) of each
Golfsmith Canada, L.L.C., Golfsmith USA, L.L.C., Issuer
Golfsmith Europe, L.L.C., Golfsmith NU, L.L.C., Golfsmith
Licensing, L.L.C.
Exact Name of Pledgor: GOLFSMITH HOLDINGS, L.P.
Pledgor is (i) an individual __ or (ii) an organization X (insert "x" as
appropriate)
If Pledgor is an organization: Pledgor is a limited partnership
Pledgor is organized under the laws of Delaware
Pledgor's organizational identification number:
2902226
Mailing address of Pledgor: 00000 Xxxxx XX 00
Xxxxxx, Xxxxx 00000-0000
For a Pledgor that is an organization: If different from the mailing address,
Pledgor's place of business, or if it has more than one place of business,
Pledgor's chief executive office.
The chief executive office is the same address as the mailing address
above.
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Description of Pledge:
Issuer Partnership Interest
of Stock
------------------------ --------------------
Golfsmith International, 99% limited
L.P. partnership interest
Exact Name of Pledgor: GOLFSMITH DELAWARE, L.L.C.
Pledgor is (i) an individual __ or (ii) an organization X (insert "x" as
appropriate)
If Pledgor is an organization: Pledgor is a limited liability company
Pledgor is organized under the laws of Delaware
Pledgor's organizational identification number:
2902118
Mailing address of Pledgor: 000 Xxxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000.
For a Pledgor that is an organization: If different from the mailing address,
Pledgor's place of business, or if it has more than one place of business,
Pledgor's chief executive office.
The chief executive office is the same address as the mailing address
above.
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