Exhibit 4.37
COLLATERAL ASSIGNMENT OF LESSEE’S INTEREST
IN LEASE
Plaza 200 Leasing Co.,
Inc., a New York
corporation having a mailing address at 179 Westbury Avenue, Carle
Place, New York 11514 (the “ Lessor ”) has
leased to Golfsmith, NU, L.L.C., a Delaware limited
liability company having a mailing address at 11000 North IH 35,
Austin, Texas 78753-3195 (the “ Lessee ”),
certain premises known as Plaza 200 Shopping Centre in Carle Place,
New York, more fully described in Schedule A annexed
hereto and made a part hereof (the “ Premises
”), under lease dated December 30, 2004 (the
“Lease”).
U.S. Bank Trust National
Association, a national
banking association having a mailing address at 100 Wall Street,
16 th
Floor, New York, New York 10005 (the
“Collateral Agent”) has made a loan to the
Lessee in the original principal amount of $93,750,000, (the
“Loan”). As additional security for the Loan,
the Collateral Agent has required a collateral assignment of the
interest of the Lessee in the Lease.
Collateral Assignment of
Lease
1 . The Lessee hereby assigns,
transfers and sets over unto the Collateral Agent, its successors
and assigns, all interest of the Lessee under the Lease of the
Premises and under any renewal, extension or modification of the
Lease; provided, however, that so long as the Lessee shall not be
in default of any of its obligations to the Collateral Agent under
the Loan, the Lessee shall continue to enjoy all the rights and
privileges of lessee under the Lease.
2. In the event of any default by
the Lessee in the payment or performance of any of its obligations
to the Collateral Agent under the Loan, beyond the expiration of
any applicable grace or cure period, and in addition to any other
rights the Collateral Agent may have at law or in equity, the
Collateral Agent shall have the immediate right to enter upon the
Premises and take possession thereof. The Collateral Agent shall
further have the option, whether or not the Collateral Agent has
exercised its right to take possession of the Premises, to make
this assignment absolute, and thereby to become lessee under the
Lease. Upon the exercise by the Collateral Agent of the option to
make this assignment absolute, the Collateral Agent may thereafter,
at its option, sell, assign or otherwise dispose of the
lessee’s interest under the Lease, as collateral, in
accordance with the provisions of Article 9 of the New York
Uniform Commercial Code (the “Code”), and shall,
with respect thereto, have all rights and remedies of a secured
party under the Code. Upon the exercise of this option to make this
assignment absolute, the Lessee shall have no further interest in
or claim to possession of the Premises, and shall have no further
interest in the Lease. Neither the taking of possession of the
Premises, nor the exercise of the option to make this assignment
absolute shall relieve the Lessee of any of its obligations of
performance or payment under the terms of the Lease.
3. In addition to the foregoing,
the Collateral Agent may, whether or not it has exercised its right
to take possession of the Premises, or its right to make this
assignment absolute, in its sole and absolute discretion, and
without notice to the Lessee, make payment of any defaulted
obligation to the Lessor. Any amount so paid by the Collateral
Agent shall constitute a demand obligation from the Lessee to the
Collateral Agent. Nothing herein contained shall obligate the
Collateral Agent to make such payment, nor shall the making of one
or more such payments constitute an agreement on the Collateral
Agent’s part to take any further or similar
action.
4. The Lessee agrees that it will
not alter, assign or transfer any interest in or modify the Lease
or terminate the terms thereof or surrender its right of possession
to the Premises without the prior written consent of the Collateral
Agent. The Lessee will fulfill or perform each and every condition
and covenant of the Lease by the Lessee to be fulfilled or
performed, give prompt notice to the Collateral Agent of any notice
of default by the Lessee under the Lease received by the Lessee,
together with a complete copy of any such notice, and, at the sole
cost and expense of the Lessee, cure such default as required by
the Lease. Any subsequent leases or agreements for use and
occupancy of the Premises or any part thereof shall be and are
hereby made subject to all the terms of this Collateral Assignment
and the Lessee shall
