EXHIBIT 4.6
EXECUTION COPY
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (this "Agreement"), dated as of July
24, 2003, is made between XXX XXXXXXXX GOLF SHOP, a California corporation (the
"Grantor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as collateral agent
(together with its successor(s) thereto in such capacity, the "Collateral
Agent") for each of the Secured Parties.
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 (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, in connection with the Indenture, the Grantor has executed and
delivered a Security Agreement, dated as of October 15, 2002 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Security Agreement");
WHEREAS, as a condition precedent to the Notes Issuance, the Grantor is
required to execute and deliver this Agreement and to grant to the Collateral
Agent a continuing security interest in all of the Trademark Collateral (as
defined below) to secure all Secured Obligations;
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Agreement; and
WHEREAS, it is in the best interests of each Grantor to execute this
Agreement inasmuch as such Grantor will derive substantial direct and indirect
benefits from proceeds of the Notes issued by the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Holders to acquire the
Notes and maintain the Indebtedness evidenced thereby, the Grantor agrees, for
the benefit of each Secured Party, as follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Secured Obligations, the Grantor does hereby mortgage, pledge
and hypothecate to the Collateral Agent, and grant to the Collateral Agent a
security interest in, for its benefit and the benefit of each Secured Party, all
of the following property (the "Trademark Collateral"), whether now owned or
hereafter acquired or existing by it:
(a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service
marks, certification marks, collective marks, logos, other source of
business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of a like
nature (all of the foregoing items in this clause (a) being
collectively called a "Trademark"), now existing anywhere in the world
or hereafter adopted or acquired, whether currently in use or not, all
registrations and recordings thereof and all applications in connection
therewith, whether pending or in preparation for filing, including
registrations, recordings and applications in the United States Patent
and Trademark Office or in any office or agency of the United States of
America or any State thereof or any foreign country, including those
referred to in Item A of Schedule IV attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Schedule IV attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in clause (a) and (b);
(d) all of the goodwill of the business connected with the use
of, and symbolized by the items described in, clauses (a) and (b); and
(e) all proceeds of, and rights associated with, the
foregoing, including any claim by the Grantor against third parties for
past, present or future infringement or dilution of any Trademark,
Trademark registration or Trademark license, including any Trademark,
Trademark registration or Trademark license referred to in Item A and
Item B of Schedule IV attached hereto, or for any injury to the
goodwill associated with the use of any such Trademark or for breach or
enforcement of any Trademark license.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Collateral Agent in the Trademark Collateral with the United States Patent
and Trademark Office and corresponding offices in other countries of the world.
The security interest granted hereby has been granted as a supplement to, and
not in limitation of, the security interest granted to the Collateral Agent for
its benefit and the benefit of each Secured Party under the Security Agreement.
The Security Agreement (and all rights and remedies of the Collateral Agent and
each Secured Party thereunder) shall remain in full force and effect in
accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash
of all Secured Obligations, the Collateral Agent shall, at the Grantor's
expense, execute and deliver to the Grantor all instruments and other documents
as may be necessary or proper to release the lien on and security interest in
the Trademark Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge
and affirm that the rights and remedies of the Collateral Agent with respect to
the security interest in the Trademark Collateral granted hereby are more fully
set forth in the Security Agreement, the terms and provisions of which
(including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein.
SECTION 6. Related Document, etc. This Agreement is a Related Document
executed pursuant to the Indenture and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions of the Indenture.
SECTION 7. Counterparts. This Agreement 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 8. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
XXX XXXXXXXX GOLF SHOP
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ACKNOWLEDGMENT OF GRANTOR
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On this 24th day of July, 2003 before me personally appeared Xxxxx Xxxxxx,
proved to me on the basis of satisfactory evidence to be the person who executed
the foregoing instrument on behalf of Xxx Xxxxxxxx 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/ Xxxxxxx X. Xxxxxx
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Notary Public
XXXXXXX X. XXXXXX
Notary Public, State Of New York
No. 01MA6079999
Qualified in New York County
Commission Expires September 3, 2006
SCHEDULE IV
to Trademark Security Agreement
Item A. Trademarks
Registration
Trademark Country Number Registration Date
----------------------------------------------------- ------- ------------ -----------------
Xxx Xxxxxxxx Golf & Tennis World (and stylized design) USA 1,795,392 September 28, 1993
Item B. Trademark Licenses
None.