TRADEMARK AND PATENT SECURITY AGREEMENT
Exhibit 10.3
TRADEMARK AND PATENT SECURITY AGREEMENT
This Trademark and Patent Security Agreement (this “Trademark and Patent Security Agreement”), dated July 16, 2013, by MALIBU BOATS, LLC, a Delaware limited liability company (the “Debtor”), entered into in favor of SUNTRUST BANK, a Georgia state banking corporation (together with its successors and assigns, the “Secured Party”) as Administrative Agent for the Lenders, pursuant to the agreement titled Security Agreement and dated as of the date hereof (the “Security Agreement”).
W I T N E S S E T H:
WHEREAS, the Debtor is party to the Security Agreement in favor of the Secured Party, for the benefit of the holders of Indebtedness, pursuant to which the Debtor is required to execute and deliver this Trademark and Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Lenders to extend certain credit described in the Security Agreement, the Debtor hereby agrees with the Secured Party as follows:
Section 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.
Section 2. Grant of Security Interest in Trademark and Patent Collateral. The Debtor hereby pledges and grants to the Secured Party, for the benefit of the holders of the Indebtedness, a lien on and security interest in and to all of its right, title and interest in, to and under all the following Collateral of the Debtor (collectively, the “Trademark and Patent Collateral”):
(a) Presently existing and hereafter arising trademarks and patents of the Debtor, including, without limitation, those listed on Schedule 1 attached hereto;
(b) all goodwill associated with the business conducted by Debtor in connection with and symbolized by the trademarks owned by Debtor; and
(c) all proceeds, license rights, royalties, rights to payment, accounts receivable, payment intangibles, proceeds from any litigation, indemnity or warranty with respect to any and all of the foregoing.
Section 3. Security Agreement. The security interest granted pursuant to this Trademark and Patent Security Agreement is granted in conjunction with the security interest granted to the Secured Party, for the benefit of the holders of the Indebtedness, pursuant to the Security Agreement, and the Debtor hereby acknowledges and affirms that the rights and remedies of the Secured Party with respect to the security interest in the Trademark and Patent Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark and Patent Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Secured Party shall otherwise determine.
Section 4. Termination. Upon the full payment and performance of the Indebtedness (other than unmatured indemnification obligations), upon written request of the Debtor, the Secured Party shall execute, acknowledge, and deliver to the Debtor an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Trademarks and Patents under this Trademark and Patent Security Agreement.
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THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
-SIGNATURE PAGE FOLLOWS-
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IN WITNESS WHEREOF, the Debtor has caused this Trademark and Patent Security Agreement to be executed and delivered by its duly authorized offer as of the date first set forth above.
| DEBTOR: | ||
| MALIBU BOATS, LLC | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Secretary | |
| Accepted and Agreed: | ||
| SECURED PARTY: | ||
| SUNTRUST BANK | ||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III | |
| Title: | Director | |
SCHEDULE I
U.S. Patents
Issued Patents
| Title |
Patent No. |
Issue Date | ||
| WAKE TOWER | D678168 | 03/19/13 | ||
| WAKE TOWER | D666135 | 08/28/12 | ||
| WAKE TOWERS AND METHODS OF USE AND MANUFACTURE THEREOF | 8171874 | 05/08/12 | ||
| METHOD AND APPARATUS FOR DAMPENING RUDDER VIBRATION | 8171870 | 05/08/12 | ||
| METHOD AND APPARATUS FOR MODIFYING WAKE | 7140318 | 11/28/06 | ||
| WINDSHIELD EDGE ASSEMBLY AND METHOD | 6647915 | 11/18/03 |
Pending Application
| Title |
Appl. No. |
Filing Date | ||
| WAKE TOWERS AND METHODS OF USE AND MANUFACTURE THEREOF | 13463613 20120279432 |
02/26/10 |
U.S. Trademarks
Registered ▇▇▇▇▇
| ▇▇▇▇ |
Reg. No. |
Reg. Date | ||
| SURF GATE and Design | 4284081 | 01/29/13 | ||
| M and Design | 4332860 | 05/07/13 | ||
| MALIBU BOATS and Design | 4329376 | 04/30/13 | ||
| TXI | 4186116 | 08/07/12 | ||
| MXZ | 4256428 | 12/11/12 | ||
| AXIS and Design | 3928212 | 03/08/11 | ||
| AXIS | 3928211 | 03/08/11 | ||
| RESPONSE | 3106853 | 06/20/06 | ||
| WAKESETTER | 3109324 | 06/27/06 | ||
| MALIBU | 2976242 | 07/26/05 | ||
| AXIS WAKE RESEARCH | 3782040 | 04/27/10 | ||
| SUNSCAPE | 2464630 | 06/26/01 | ||
| Design only | 1941229 | 12/12/95 | ||
| FLIGHTCRAFT | 1636091 | 02/26/91 | ||
| MALIBU | 1603623 | 06/26/90 |
Pending Application
| ▇▇▇▇ |
Appl. No. |
Filing Date | ||
| MONSOON | 85905379 | 04/16/13 |