EXHIBIT 4.4
EXECUTION COPY
SUPPLEMENT NO. 1 TO SECURITY AGREEMENT
This SUPPLEMENT NO. 1, dated as of July 24, 2003 (this "Supplement"),
to the Security Agreement, dated as of October 15, 2002 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Security Agreement"), among the initial signatories thereto and each other
Person which from time to time thereafter became a party thereto pursuant to
Section 7.5 thereof (each, individually, a "Grantor", and, collectively, the
"Grantors"), in favor of U.S. BANK TRUST NATIONAL ASSOCIATION, as collateral
agent (together with any successor(s) thereto in such capacity, the "Collateral
Agent") for each of the Secured Parties (such and other capitalized terms being
used herein with the meanings provided, or incorporated by reference, in the
Security Agreement), is made by the undersigned.
WITNESSETH:
WHEREAS, Golfsmith International, Inc., a Delaware corporation (the
"Company"), the Subsidiaries of the Company and the Collateral Agent, as
trustee, have entered into an Indenture, dated as of October 15, 2002 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Indenture"), and in connection therewith, the Company has issued (the
"Notes Issuance") its Senior Secured Notes due 2009 (and its Senior Secured
Notes due 2009, Series B to be issued in exchange therefor) (collectively, the
"Notes");
WHEREAS, various financial institutions, as lenders (the "Lenders"),
General Electric Capital Corporation, a Delaware corporation, as agent on behalf
of the Lenders (in such capacity, the "Lender Agent"), and the Grantor and
certain of its Affiliates have entered into that certain Credit Agreement, dated
as of October 15, 2002 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement"), pursuant to which
the Lenders have agreed to make certain loans and other financial accommodations
from time to time to the Borrowers (as defined therein) and the Grantor and such
Affiliates have entered into Collateral Agreements (as defined therein) with the
Lender Agent as well;
WHEREAS, the Collateral Agent, the Lender Agent and the Grantors have
entered into that certain Intercreditor Agreement, dated as of October 15, 2002
(such intercreditor agreement is the Intercreditor Agreement referred to and
defined in the Indenture, and as used herein, the term "Intercreditor Agreement"
has the meaning ascribed thereto in the Indenture), pursuant to which, among
other things, (a) the Lender Agent is recognized as having a first priority
interest in all of the Collateral (as defined in the Collateral Agreements)
(other than real property, Equipment and proceeds thereof) for the benefit of
itself and the Lenders and (b) the Collateral Agent is recognized as having (i)
a second priority interest in all of the Collateral (as defined in the
Collateral Agreements) (other than real property, Equipment and proceeds
thereof) for the benefit of itself, the Trustee and the Holders and (ii) a first
priority interest in all of the Collateral (as defined in the Collateral
Agreements) constituting real property, Equipment and proceeds thereof for the
benefit of itself, the Trustee and the Holders;
WHEREAS, as a condition to the Notes Issuance, the undersigned is
required to execute and deliver this Supplement;
WHEREAS, the undersigned has duly authorized the execution, delivery
and performance of this Supplement and the Security Agreement;
WHEREAS, the Security Agreement provides that additional parties may
become Grantors under the Security Agreement by execution and delivery of an
instrument in the form of this Supplement;
WHEREAS, pursuant to the provisions of Section 7.5 of the Security
Agreement, the undersigned is becoming an Additional Grantor under the Security
Agreement; and
WHEREAS, the undersigned desires to become a Grantor under the Security
Agreement in order to induce the Holders to acquire the Notes and maintain the
Indebtedness evidenced thereby as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each Secured
Party, as follows:
SECTION 1. In accordance with the Security Agreement, the undersigned
by its signature below becomes a Grantor under the Security Agreement with the
same force and effect as if it were an original signatory thereto as a Grantor
and the undersigned hereby
(a) agrees to all the terms and provisions of the Security
Agreement applicable to it as a Grantor thereunder;
(b) assigns and pledges to the Collateral Agent for its benefit
and the ratable benefit of each other Secured Party, and grants to the
Collateral Agent for its benefit and the ratable benefit of each other
Secured Party, a security interest in all of the following, whether now
or hereafter existing or acquired by the undersigned (its
"Collateral"):
(i) all Intercompany Notes in which the undersigned
has an interest (including each Intercompany Note described in
Item A of Schedule I hereto);
(ii) all interest and other payments and rights with
respect to each Intercompany Note in which the undersigned has
an interest;
(iii) (A) all investment property in which the
undersigned has an interest (including the Capital Securities
of each issuer of such Capital Securities described in
Schedule I hereto) and (B) all other Capital Securities which
are interests in limited liability companies or partnerships
in which the undersigned has an interest (including the
Capital Securities of each issuer of such Capital Securities
described in Schedule I hereto), in each case together with
Dividends and Distributions payable in respect of the
Collateral described in the foregoing clauses (iii)(A) and
(iii)(B) (provided, however, that not more than 65% of all of
the Capital Securities that are voting Capital Securities of
any Foreign Subsidiary of the undersigned shall be so pledged
by the undersigned);
(iv) all equipment in all of its forms of the
undersigned (including all Motor Vehicles), wherever located,
including all parts thereof and all accessions,
-2-
additions, attachments, improvements, substitutions and
replacements thereto and therefor and all accessories related
thereto (any and all of the foregoing being the "Equipment");
(A) all inventory in all of its forms of the
undersigned, wherever located, including
(B) all raw materials and work in process
therefor, finished goods thereof, and materials used
or consumed in the manufacture or production thereof,
(C) all goods in which the undersigned has
an interest in mass or a joint or other interest or
right of any kind (including goods in which the
undersigned has an interest or right as consignee),
and
(D) all goods which are returned to or
repossessed by the undersigned,
and all accessions thereto, products thereof and documents
therefor (any and all such inventory, materials, goods,
accessions, products and documents being the "Inventory");
(v) all accounts, contracts, contract rights, chattel
paper, documents, instruments, promissory notes and general
intangibles (including tax refunds and payment intangibles) of
the undersigned, whether or not arising out of or in
connection with the sale or lease of goods or the rendering of
services, and all rights of the undersigned now or hereafter
existing in and to all security agreements, guaranties, leases
and other contracts securing or otherwise relating to any such
accounts, contracts, contract rights, chattel paper,
documents, instruments, promissory notes, general intangibles
and payment intangibles (all of the foregoing being the
"Receivables", and any and all such security agreements,
guaranties, leases and other contracts being the "Related
Contracts");
(vi) all deposit accounts of the undersigned and all
cash, checks, drafts, notes, bills of exchange, money orders
and other like instruments, if any, now owned or hereafter
acquired, held therein (or in sub-accounts thereof) and all
certificates and instruments, if any, from time to time
representing or evidencing such investments, and all interest,
earnings and proceeds in respect thereof;
(vii) all Intellectual Property Collateral of the
undersigned;
(viii) all of the undersigned's letter of credit
rights;
(ix) all commercial tort claims in which the
undersigned has rights (including as a plaintiff);
-3-
(x) all books, records, writings, data bases,
information and other property relating to, used or useful in
connection with, evidencing, embodying, incorporating or
referring to, any of the foregoing in this Section;
(xi) all of the undersigned's other property and
rights of every kind and description and interests therein;
and
(xii) all products, offspring, rents, issues,
profits, returns, income, supporting obligations and proceeds
of and from any and all of the foregoing Collateral (including
proceeds which constitute property of the types described in
clauses (i) through (xi), proceeds deposited from time to time
in any lock box or deposit account of the undersigned, and, to
the extent not otherwise included, all payments under
insurance (whether or not the Collateral Agent is the loss
payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Collateral);
provided, however, that "Collateral" shall not include any general
intangibles or other rights described in clause (v) above arising under
any contracts, instruments, licenses or other documents described in
such clause as to which the grant of a security interest would
constitute a violation of a valid and enforceable restriction in favor
of a third party on such grant, unless and until any required consents
shall have been obtained (and in connection therewith, the undersigned
agrees to use its best efforts to obtain any such required consent);
(c) agrees that each of the Schedules attached hereto shall be
deemed to be a Schedule thereto; and
(d) represents and warrants that the representations and
warranties made by it as a Grantor thereunder are true and correct on
and as of the date hereof.
In furtherance of the foregoing, each reference to a "Grantor" or "Additional
Grantor" in the Security Agreement shall be deemed to include the undersigned.
SECTION 2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
SECTION 3. Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect in accordance with its terms.
SECTION 4. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired.
SECTION 5. Without limiting the provisions of the Indenture (or any
other Related Document, including the Security Agreement), the undersigned
agrees to reimburse the
-4-
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including reasonable attorneys' fees and expenses of the
Collateral Agent.
SECTION 6. THIS SUPPLEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THIS SUPPLEMENT, THE SECURITY
AGREEMENT AND THE OTHER RELATED DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING
AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 7. This Supplement hereby incorporates by reference the
provisions of the Security Agreement, which provisions are deemed to be a part
hereof, and this Supplement shall be deemed to be a part of the Security
Agreement. Unless otherwise defined herein or the context otherwise requires,
terms used in this Supplement, including its preamble and recitals, have the
meanings provided (or incorporated by reference) in the Security Agreement.
SECTION 8. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
SECTION 9. Subject to Intercreditor Agreement. Notwithstanding anything
herein to the contrary, the lien and security interest granted to the Collateral
Agent pursuant to this Agreement and the exercise of any right or remedy by the
Collateral Agent hereunder, in each case in respect of any collateral
constituting Noteholder Common Collateral (as defined in the Intercreditor
Agreement described below) are subject to the provisions of the Intercreditor
Agreement, dated as of October 15, 2002 (as amended, modified or supplemented
from time to time, the "Intercreditor Agreement") among General Electric Capital
Corporation as Senior Agent, and U.S. Bank Trust National Association, as
Collateral Agent, U.S. Bank Trust National Association, as Trustee, and the
Obligors, including the Grantors hereunder named therein. In the event of any
conflict between the terms of the Intercreditor Agreement and this Agreement,
the terms of the Intercreditor Agreement shall govern.
-5-
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
XXX XXXXXXXX GOLF SHOP, a California
corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
ACKNOWLEDGED AND ACCEPTED BY:
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
-6-
SCHEDULE I
to Supplement No. 1
to Security Agreement
(Xxx Xxxxxxxx Golf Shop)
Item A. Intercompany Notes
None.
Item B. Securities
None.
Item C. Additional Subsidiaries
None.
SCHEDULE II
to Supplement No. 1
to Security Agreement
(Xxx Xxxxxxxx Golf Shop)
Item A. Locations of each Grantor
Name of Grantor: Location for purposes of U.C.C.:
Xxx Xxxxxxxx Golf Shop California
Item B. Filing locations prior to July 1, 2001
Name of Grantor: Filing locations prior to July 1, 2001:
Xxx Xxxxxxxx Golf Shop California
Item C. Trade names
Name of Grantor: Trade Names:
Xxx Xxxxxxxx Golf Shop Xxx Xxxxxxxx Golf & Tennis World
Item D. Merger or other corporate reorganization
Name of Grantor: Merger or other corporate reorganization:
Xxx Xxxxxxxx Golf Shop None
Item E. Taxpayer ID numbers
Name of Grantor: Taxpayer ID numbers:
Xxx Xxxxxxxx Golf Shop 00-0000000
Item F. Government Contracts
Name of Grantor: Description of contract:
Xxx Xxxxxxxx Golf Shop None
Item G. Deposit Accounts
Name of Grantor: Description of Deposit Account:
Store Address Bank Account Resellers Permit
-----------------------------------------------------------------------------------------------
Corporate Janus 000 Xxxxx Xxxxxx San 11-0002-09-4 X/X
Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
San Francisco 000 Xxxxx Xxxxxx San 00103753170 SY BH 21640393 0000 XX
Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Walnut Creek 1902 Mt. Diablo Blvd. 00103754970 SY BH 21640393 0000 XXX
Xxxxxx Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Dublin 0000 Xxxxxx Xxxxx Xxxx 00103955270 SY BH 21640393 0000 XXX
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
San Xxxx 0000 Xxxxxxx Xxxxx Xxxx. 00104250770 SY BH 21640393 0009 GH
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------
Fremont 0000 Xxxxx Xxxxxx Xxxxx X-0 1010053481 SRY BH 21640393 00000 XXX
Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Palo Alto 2675 El Camino Real Palo 0000000000 SRY BH 21640393 00011 GH
Xxxx, XX 00000
SCHEDULE III
to Supplement No. 1
to Security Agreement
(Xxx Xxxxxxxx Golf Shop)
Item A. Patents
None.
Item B. Patent Licenses
None.
SCHEDULE IV
to Supplement No. 1
to Security Agreement
(Xxx Xxxxxxxx Golf Shop)
Item A. Registered Trademarks
Registration Registration
Trademark Country Number Date
--------------------------------------------- ----------- ----------- -----------
Xxx Xxxxxxxx Golf & Tennis World (and Design) USA 1,795,392
Item B. Trademark Licenses
None.
SCHEDULE V
to Supplement No. 1
to Security Agreement
(Xxx Xxxxxxxx Golf Shop)
Item A. Copyrights/Mask Works
None.
Item B. Copyright/Mask Work Licenses
None.
SCHEDULE VI
to Supplement No. 1
to Security Agreement
(Xxx Xxxxxxxx Golf Shop)
Trade Secret or Know-How Licenses
None.
