EXHIBIT 4.25
EXECUTION COPY
ASSUMPTION AND JOINDER AGREEMENT
ASSUMPTION AND JOINDER AGREEMENT dated as of July 24, 2003 (this
"Assumption Agreement") made by [XXX XXXXXXXX GOLF SHOP, a California
corporation], (the "New Subsidiary") in favor of GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation ("GE Capital"), in connection with that
certain Intercreditor Agreement dated as of October 15, 2002 (as the same may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time, the "Intercreditor Agreement"), by and among GE
Capital, as Senior Agent, U.S. Bank Trust National Association, as Trustee and
under the Indenture; U.S. Bank Trust National Association, as Collateral Agent
under the Noteholder Security Agreement, and the parties whose names are set
forth below "Credit Parties" on the signature pages thereto (each such party
being referred to as an "Obligor", and collectively, the "Obligors").
Capitalized terms used herein but not otherwise defined shall have the meanings
given to such terms in the Intercreditor Agreement (as defined below).
WITNESSETH
WHEREAS, Golfsmith International, Inc. wishes to purchase all of the
issued and outstanding stock of the New Subsidiary;
WHEREAS, the New Subsidiary is a California corporation that will be
wholly-owned by Golfsmith International, Inc.; and
WHEREAS, the New Subsidiary is executing this document pursuant to
Section 2.8(b) of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary hereby agrees as follows:
1. Assumption and Joinder.
(a) The New Subsidiary hereby expressly confirms that it
has assumed, and hereby agrees to perform and observe and be bound by, each and
every one of the covenants, promises, agreements, terms, obligations, duties and
liabilities of an Obligor under the Intercreditor Agreement. By virtue of the
foregoing, the New Subsidiary hereby accepts and assumes any liability of an
Obligor related to each representation, warranty, covenant or obligation made by
an Obligor in the Intercreditor Agreement and hereby expressly affirms, as of
the date hereof, each of such representations, warranties, covenants and
obligations, and hereby expressly affirms, as of the date hereof, each of such
covenants and obligations.
(b) All references to the term "Obligor" in the
Intercreditor Agreement or in any document or instrument executed and delivered
or furnished, or to be executed and delivered or furnished, in connection
therewith shall be deemed to be a reference to, and shall include, the New
Subsidiary.
2. Representations and Warranties. The New Subsidiary hereby represents
and warrants to the Lenders as follows:
(a) The New Subsidiary has the requisite corporate power
and authority to enter into this Assumption Agreement and to perform its
obligations hereunder and under the Intercreditor Agreement. The execution,
delivery and performance of this Assumption Agreement by the New Subsidiary and
the performance of its obligations under the Intercreditor Agreement, have been
duly authorized by all necessary corporate action of the New Subsidiary and no
other corporate action or proceedings on the part of the New Subsidiary are
necessary to authorize the execution, delivery or performance of this Assumption
Agreement, the transactions contemplated hereby or the performance of its
obligations under the Intercreditor Agreement. This Assumption Agreement has
been duly executed and delivered by the New Subsidiary. This Assumption
Agreement and the Intercreditor Agreement, each constitutes the legal, valid and
binding obligation of the New Subsidiary enforceable against it in accordance
with its respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by general principles of equity, whether such
enforceability is considered in a proceeding at law or in equity.
(b) The representations and warranties applicable to New
Subsidiary set forth in the Intercreditor Agreement are true and correct on and
as of the date hereof (except to the extent that such representations and
warranties expressly relate to an earlier date) with the same effect as if made
on and as of the date hereof.
(c) The authorized capitalization of the New Subsidiary,
the number of shares of its capital stock outstanding on the date hereof, and
the ownership of such stock are set forth on Schedule 1 hereto.
3. Further Assurances. At any time and from time to time, upon the
Agent's request and at the sole expense of the New Subsidiary, the New
Subsidiary will promptly and duly execute and deliver any and all further
instruments and documents and take such further action as the Agent reasonably
deems necessary to effect the purposes of this Assumption Agreement.
4. Binding Effect. This Assumption Agreement shall be binding upon the
New Subsidiary and shall inure to the benefit of the Lenders and their
respective successors and assigns.
5. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
6. Miscellaneous. Delivery of an executed signature page to this
Assumption Agreement by facsimile shall be effective as delivery of a manually
executed copy of this Assumption Agreement. This Assumption Agreement and all
other instruments, agreements or documents provided for herein or delivered or
to be delivered hereunder or in connection herewith may be executed in any
number of counterparts, and by the parties hereto on the same or separate
counterparts, and each such counterpart, when executed and delivered, shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same agreement, instrument or document. This Assumption
Agreement shall constitute a "Loan Document" pursuant to, and as defined in, the
Senior Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered by its duly authorized officer as of
the date first above written.
[XXX XXXXXXXX GOLF SHOP]
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Senior Agent
By: /s/ Laurent Paris
------------------------
Name: Laurent Paris, SVP
Title: Duly Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention:
Telecopy no.: (000) 000-0000
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention:
Telecopy no.: (000) 000-0000
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SCHEDULE 1
To Assumption Agreement
Authorized Capitalization
200,000 shares of common stock authorized - par value $1.00
1,158 shares of common stock issued to Golfsmith International, Inc.
