TRADEMARK SECURITY AGREEMENT
Exhibit 4.1.4
This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made this 13th day of February, 2013, among the Pledgor listed on the signature pages hereof (the “Pledgor”), and Jefferies Finance LLC, in its capacity as Collateral Agent pursuant to the Second Lien Term Loan Agreement (in such capacity, together with its successors and assigns, the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, the Pledgor is party to a Second Lien Security Agreement dated as of February 13, 2013, in favor of the Collateral Agent pursuant to which the Pledgor is required to execute and deliver this Trademark Security Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Pledgor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. The Pledgor hereby unconditionally grants, assigns, and pledges to the Collateral Agent, for the benefit of the Secured Parties, to secure the Secured Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “Security Interest”) in all of the Pledgor’s right, title and interest in, to and under the following, whether presently existing or hereafter created or acquired (collectively, the “Trademark Collateral”):
(a) all of the Pledgor’s Trademarks and Trademark Intellectual Property Licenses to which it is a party including those referred to on Schedule I hereto;
(b) all goodwill, trade secrets, proprietary or confidential information, technical information, procedures, formulae, quality control standards, designs, operating and training manuals, customer lists, and other General Intangibles with respect to the foregoing;
(c) all reissues, continuations or extensions of the foregoing;
(d) all goodwill of the business connected with the use of, and symbolized by, each Trademark and each Trademark Intellectual Property License; and
(e) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by the Pledgor against third parties for past, present or future (i) infringement or dilution of any Trademark or any Trademarks exclusively licensed under any Intellectual Property License, including right to receive any damages, (ii) injury to the goodwill associated with any Trademark, or (iii) right to receive license fees, royalties, and other compensation under any Trademark Intellectual Property License.
3. SECURITY FOR OBLIGATIONS. This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of all the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Pledgor to Collateral Agent, the Secured Parties or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving the Pledgor.
4. SECURITY AGREEMENT. The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Collateral Agent, for the benefit of the Secured Parties, pursuant to the Security Agreement. The Pledgor hereby acknowledges and affirms that the rights and remedies of Collateral Agent with respect to the Security Interest in the Trademark 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. To the extent there is any inconsistency between this Trademark Security Agreement and the Security Agreement, the Security Agreement shall control.
5. AUTHORIZATION TO SUPPLEMENT. If the Pledgor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. The Pledgor shall give prompt notice in writing to Collateral Agent with respect to any such new trademarks or renewal or extension of any trademark registration. Without limiting Pledgor’s obligations under this Section, the Pledgor hereby authorizes Collateral Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of the Pledgor. Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Collateral Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.
6. COUNTERPARTS. This Trademark Security Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument. In proving this Trademark Security Agreement in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.
7. CONSTRUCTION. Unless the context of this Trademark Security Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Trademark Security Agreement refer to this Trademark Security Agreement as a whole and not to any particular provision of this Trademark Security Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Trademark Security Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements,
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substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). Any reference herein to the satisfaction or repayment in full of the Secured Obligations shall mean the repayment in full in cash of all Secured Obligations other than unasserted contingent indemnification Obligations that, at such time, are not required by the provisions of the Second Lien Term Loan Agreement to be repaid. Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record and any Record so transmitted shall constitute a representation and warranty as to the accuracy and completeness of the information contained therein.
8. CONTROLLING LAW. This Parent Security Agreement is to be governed and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Pledgor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
| PLEDGOR: | STANADYNE CORPORATION, a Delaware corporation | |||
| By: | /s/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Secretary | |||
| ACCEPTED AND ACKNOWLEDGED BY: | ||||
| JEFFERIES FINANCE LLC, | ||||
| as Collateral Agent | ||||
| By: | /s/ E. XXXXXX XXXX | |||
| Name: | E. Xxxxxx Xxxx | |||
| Title: | Managing Director | |||
SCHEDULE I
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TRADEMARK SECURITY AGREEMENT
U.S. Trademark Schedule
STANADYNE CORPORATION
REGISTERED TRADEMARKS
| Pledgor |
Xxxx |
Registration No. |
Registration | |||
| Stanadyne Corporation | FUEL MANAGER | 1699779 | 07-Jul-1992 | |||
| Stanadyne Corporation | LUBRICITY FORMULA | 2060155 | 06-May-1997 | |||
| Stanadyne Corporation | P and Design | 3256801 | 26-Jun-2007 | |||
| Stanadyne Corporation | PENCIL NOZZLE | 808434 | 17-May-1966 | |||
| Stanadyne Corporation | PERFORMANCE FORMULA | 1555387 | 12-Sep-1989 | |||
| Stanadyne Corporation | PERFORMANCE FORMULA JUNIOR | 1905211 | 18-Jul-1995 | |||
| Stanadyne Corporation | RSN | 2027064 | 31-Dec-1996 | |||
| Stanadyne Corporation | S and Design | 2331658 | 21-Mar-2000 | |||
| Stanadyne Corporation | STANADYNE | 1629975 | 01-Jan-1991 | |||
| Stanadyne Corporation | STANADYNE | 1622066 | 13-Nov-1990 | |||
| Stanadyne Corporation | WINTER 1000 | 1549700 | 01-Aug-1989 |
Foreign Trademark Schedule
STANADYNE CORPORATION
REGISTERED TRADEMARKS
| Pledgor |
Country |
Xxxx |
Registration No. |
Registration Date | ||||
| Stanadyne Corporation | Australia | STANADYNE | A455323 | 13-Jan-1989 | ||||
| Stanadyne Corporation | Australia | STANADYNE | A455321 | 13-Jan-1989 | ||||
| Stanadyne Corporation | Austria | STANADYNE | 116315 | 25-Jun-1987 | ||||
| Stanadyne Corporation | Benelux | STANADYNE | 428873 | 20-Nov-1987 | ||||
| Stanadyne Corporation | Brazil | STANADYNE | 813459150 | 05-Sep-1989 | ||||
| Stanadyne Corporation | Canada | LUBRICITY FORMULA | TMA469,987 | 28-Jan-1997 | ||||
| Stanadyne Corporation | Canada | S (Stylized) | TMA531,884 | 29-Aug-2000 | ||||
| Stanadyne Corporation | Canada | STANADYNE | 332257 | 25-Sep-1987 | ||||
| Stanadyne Corporation | China (People’s Republic) | S (Stylized) | 8824773 | 21-Nov-2011 | ||||
| Stanadyne Corporation | China (People’s Republic) | STANADYNE | 316438 | 20-Jun-1988 | ||||
| Stanadyne Corporation | China (People’s Republic) | STANADYNE | 310536 | 20-Mar-1988 | ||||
| Stanadyne Corporation | China (People’s Republic) | STANADYNE and Design | 8824770 | 14-Jan-2012 | ||||
| Stanadyne Corporation | European Community | P and Design | 4140315 | 07-Feb-2006 | ||||
| Stanadyne Corporation | European Community | P PRECISION FUEL PUMPS and Design | 4140356 | 07-Feb-2006 |
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| Stanadyne Corporation | European Community | PENCIL NOZZLE | 9652116 | 17-Jun-2011 | ||||
| Stanadyne Corporation | Finland | STANADYNE | 116273 | 20-Jan-1992 | ||||
| Stanadyne Corporation | France | FUEL MANAGER | 03 3 220 546 | 19-Sep-2003 | ||||
| Stanadyne Corporation | France | PERFORMANCE FORMULA and Design | 95576670 | 20-Jun-1995 | ||||
| Stanadyne Corporation | France | RSN | 97661438 | 11-Jul-1997 | ||||
| Stanadyne Corporation | France | S (Stylized) | 99768035 | 18-Jun-1999 | ||||
| Stanadyne Corporation | France | STANADYNE | 1384000 | 12-Dec-1986 | ||||
| Stanadyne Corporation | Germany | FUEL MANAGER | 303 19 239 | 11-Apr-2003 | ||||
| Stanadyne Corporation | Germany | PERFORMANCE FORMULA and Design | 395 24 340 | 17-Apr-1996 | ||||
| Stanadyne Corporation | Germany | RSN | 396 20 803 | 17-Jan-1997 | ||||
| Stanadyne Corporation | Germany | S (Stylized) | 399 00 686 | 02-Aug-1999 | ||||
| Stanadyne Corporation | Germany | STANADYNE | 1 118 901 | 07-Mar-1988 | ||||
| Stanadyne Corporation | India | FUEL MANAGER | 921535 | 08-Jun-2005 | ||||
| Stanadyne Corporation | India | PENCIL NOZZLE | 921536 | 28-Apr-2000 | ||||
| Stanadyne Corporation | Xxxxx | XXX | 000000 | 09-Sep-2005 | ||||
| Stanadyne Corporation | India | S (Stylized) | 921534 | 28-Dec-2005 | ||||
| Stanadyne Corporation | India | STANADYNE | 471871 | 31-Aug-1994 | ||||
| Stanadyne Corporation | India | STANADYNE | 471873 | 13-May-1993 | ||||
| Stanadyne Corporation | Italy | FUEL MANAGER | 1056273 | 20-Jul-2007 | ||||
| Stanadyne Corporation | Italy | PERFORMANCE FORMULA and Design | 1171732 | 11-Nov-1997 | ||||
| Stanadyne Corporation | Italy | RSN | 1272654 | 29-Nov-1999 | ||||
| Stanadyne Corporation | Italy | S (Stylized) | 1257037 | 04-Jul-2002 | ||||
| Stanadyne Corporation | Italy | STANADYNE | 1222404 | 09-Jun-1987 | ||||
| Stanadyne Corporation | Japan | STANADYNE | 1584035-2 | 27-Apr-1983 | ||||
| Stanadyne Corporation | Korea, Republic of | Miscellaneous Design | 659541 | 21-Apr-2006 | ||||
| Stanadyne Corporation | Korea, Republic of | PRECISION FUEL PUMPS and Design | 651799 | 00-Xxx-0000 | ||||
| Xxxxxxxxx Xxxxxxxxxxx | Xxxxx, Xxxxxxxx of | STANADYNE | 00-0000000 | 08-Dec-1988 | ||||
| Stanadyne Corporation | Korea, Republic of | STANADYNE | 00-0000000-0 | 07-Oct-1988 | ||||
| Stanadyne Corporation | Mexico | S and Design | 650698 | 18-Apr-2000 | ||||
| Stanadyne Corporation | Norway | S (Stylized) | 202929 | 18-May-2000 | ||||
| Stanadyne Corporation | Norway | STANADYNE | 140490 | 22-Feb-1990 | ||||
| Stanadyne Corporation | Russian Federation | STANADYNE | 463733 | 06-Jun-2012 | ||||
| Stanadyne Corporation | Russian Federation | STANADYNE and Design | 463299 | 01-Jun-2012 | ||||
| Stanadyne Corporation | South Africa | STANADYNE | 86/7350 | 18-May-1988 | ||||
| Stanadyne Corporation | South Africa | STANADYNE | 86/7348 | 18-May-1988 | ||||
| Stanadyne Corporation | Spain | FUEL MANAGER | 2550900 | 18-Dec-2003 | ||||
| Stanadyne Corporation | Spain | STANADYNE | 1172558 | 18-Jun-1990 | ||||
| Stanadyne Corporation | Spain | STANADYNE | 1585349 | 05-Jul-1993 | ||||
| Stanadyne Corporation | Sweden | STANADYNE | 221325 | 01-Mar-1991 | ||||
| Stanadyne Corporation | Taiwan | STANADYNE | 398418 | 16-Apr-1988 | ||||
| Stanadyne Corporation | Taiwan | STANADYNE | 400029 | 01-May-1988 | ||||
| Stanadyne Corporation | Thailand | STANADYNE | Kor296309 | 27-Apr-2009 | ||||
| Stanadyne Corporation | Thailand | STANADYNE | Kor296308 | 27-Apr-2009 | ||||
| Stanadyne Corporation | United Kingdom | FUEL MANAGER | 2329713 | 31-Oct-2003 | ||||
| Stanadyne Corporation | United Kingdom | RSN | 2070782 | 00-Xxx-0000 | ||||
| Xxxxxxxxx Xxxxxxxxxxx | Xxxxxx Xxxxxxx | S (Stylized) | 2188085 | 05-Jan-2000 | ||||
| Stanadyne Corporation | United Kingdom | STANADYNE | 1295309 | 02-Dec-1988 |
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STANADYNE CORPORATION
PENDING TRADEMARKS
| Pledgor |
Country |
Xxxx |
Application No. |
Filing Date | ||||
| Stanadyne Corporation | China (People’s Republic) | FUEL MANAGER | 8824769 | 09-Nov-2010 | ||||
| Stanadyne Corporation | Russian Federation | S (Stylized) | 2010734439 | 27-Oct-2010 |
STANADYNE CORPORATION
TRADEMARK LICENSES
Stanadyne Corporation is a licensee under a certain Automotive Supplier Agreement, dated as of January 30, 1999, by and between the Lemelson Medical, Educational and Research Foundation (the “Lemelson Foundation”) and Stanadyne Automotive Corp. (nka Stanadyne Corporation) (the “Lemelson License Agreement”). Pursuant to the Lemelson License Agreement, Stanadyne Corporation obtained certain non-exclusive licenses and covenants not to xxx from the Lemelson Foundation. The provisions of the Lemelson License Agreement prohibit Stanadyne Corporation from disclosing the terms of the Lemelson License Agreement to third parties.
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