Exhibit 10.4


 


PATENT
COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT


 


THIS AGREEMENT
(“Agreement”), dated March 31, 2003, is by and between MACKIE DESIGNS INC., a
Washington corporation (“Debtor”) and CONGRESS FINANCIAL CORPORATION (FLORIDA),
a Florida corporation, in its capacity as agent (“Secured Party”), pursuant to
the Loan Agreement (as hereinafter defined) acting for and on behalf of the
financial institutions which are parties thereto as lenders (each individually,
a “Lender” and collectively, “Lenders”).


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, Debtor has adopted,
used and is using, and is the owner of the entire right, title, and interest in
and to the patents and applications therefor described in Exhibit A hereto and
made a part hereof; and


 


WHEREAS, Debtor, certain
affiliates of Debtor, Secured Party and Lenders have entered or are about to
enter into financing arrangements pursuant to which Secured Party and Lenders
may make loans and advances and provide other financial accommodations to
Debtor and certain of its affiliates as set forth in the Loan and Security
Agreement, dated of even date herewith, by and among Debtor, certain affiliates
of Debtor, Secured Party and Lenders (as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced,
the “Loan Agreement”) and the other agreements, documents and instruments
referred to therein or at any time executed and/or delivered in connection
therewith or related thereto, including, but not limited to, this Agreement
(all of the foregoing, together with the Loan Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, being collectively referred to herein as the “Financing
Agreements”); and


 


WHEREAS, in order to induce
Secured Party and Lenders to enter into the Loan Agreement and the other
Financing Agreements and to make loans and advances and provide other financial
accommodations to Debtor and certain of its affiliates pursuant thereto, Debtor
has agreed to grant to Secured Party certain collateral security as set forth
herein;


 


NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Debtor hereby
agrees as follows:


 

















 


1.  GRANT OF SECURITY INTEREST


 


As collateral security for
the prompt performance, observance and indefeasible payment in full of all of
the Obligations (as hereinafter defined), Debtor hereby grants to Secured Party
a continuing security interest in and a general lien upon, and a conditional
assignment of, the following (being collectively referred to herein as the
“Collateral”):  (a) all of Debtor’s now
existing or hereafter acquired right, title and interest in and to all of Debtor’s
interest in any patents and all applications for registration, registrations
and recordings relating to the foregoing as may at any time be filed in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof, any political subdivision thereof or in
any other country, including, without limitation, those patents, applications,
registrations and recordings described in Exhibit A hereto, together with all
rights and privileges arising under applicable law with respect to Debtor’s use
of any patents and all reissues, divisions, continuations, extensions and
renewals thereof (all of the foregoing being collectively referred to herein as
the “Patents”); (b) all present and future inventions and improvements
described and claimed therein; (c) all present and future license and
distribution agreements (subject to the rights of the Licensors therein)
pertaining to the Patents; (d) all income, fees, royalties and other payments
at any time due or payable with respect thereto, including, without limitation,
payments under all licenses at any time entered into in connection therewith;
(e) the right to sue for past, present and future infringements thereof; (f)
all rights corresponding thereto throughout the world; and (g) any and all
other proceeds of any of the foregoing, including, without limitation, all
damages and payments or claims by Debtor against third parties for past or
future infringement of the Patents. 
Notwithstanding anything to the contrary contained in this Section 1,
the Collateral shall not include any rights or interest in any contract,
license or license agreement covering personal property of Debtor, so long as
under the terms of such contract, license or license agreement, or applicable
law with respect thereto, the grant of a security interest or lien therein to
Secured Party is prohibited and such prohibition has not been or is not waived
or the consent of the other party to such contract, license or license
agreement has not been or is not otherwise obtained; provided, that, the
foregoing exclusion shall in no way be construed (i) to apply if any such
prohibition is unenforceable under the Uniform Commercial Code or other
applicable law or (ii) so as to limit, impair or otherwise affect Secured
Party’s unconditional continuing security interests in and liens upon any
rights or interests of such Debtor in or to monies due or to become due under
any such contract, license or license agreement.


 


2.  OBLIGATIONS SECURED


 


The security interest, lien
and other interests granted to Secured Party pursuant to this Agreement shall
secure the prompt performance, observance and payment in full of any and all
obligations, liabilities and indebtedness of every kind, nature and description
owing by Debtor to Secured Party, any Lender and/or their respective
affiliates, including principal, interest, charges, fees, costs and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether arising under this Agreement, the Loan Agreement, the other
Financing Agreements or otherwise, whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal term of the
Loan Agreement or after the commencement of any case with respect to Debtor
under the United States Bankruptcy Code or any similar statute (including,
without limitation, the payment of interest and other amounts which would
accrue and become due but for the


 


2

















 


commencement of such case), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, liquidated
or unliquidated, secured or unsecured, and however acquired by Secured Party or
any Lender (all of the foregoing being collectively referred to herein as the
“Obligations”).


 


3.  REPRESENTATIONS, WARRANTIES AND COVENANTS


 


Debtor hereby represents,
warrants and covenants with and to Secured Party the following (all of such
representations, warranties and covenants being continuing so long as any of
the Obligations are outstanding):


 


(a)  Debtor shall pay and perform all of the
Obligations according to their terms.


 


(b)  To the Debtor’s knowledge, all of the
existing Patents are valid and subsisting in full force and effect.  Debtor owns the sole, full and clear title
to the Collateral, and the right and power to grant the security interest and
conditional assignment granted hereunder. 
Debtor shall, at Debtor’s expense, perform all acts and execute all
documents necessary to maintain the existence of the Patents, including,
without limitation, the filing of any renewal affidavits and applications.  The Collateral is not subject to any liens,
claims, mortgages, assignments, licenses, security interests or encumbrances of
any nature whatsoever, except (i) the security interests granted hereunder and
pursuant to the Loan Agreement, (ii) the security interests permitted under the
Loan Agreement and (iii) the licenses permitted under Section 3(e) below.


 


(c)  Debtor shall not assign, sell, mortgage,
lease, transfer, pledge, hypothecate, grant a security interest in or lien
upon, encumber, grant an exclusive license relating to the Collateral, or
otherwise dispose of any of the Collateral, in each case without the prior
written consent of Secured Party, except as otherwise permitted herein or in
the Loan Agreement.  Nothing in this
Agreement shall be deemed a consent by Secured Party to any such action, except
as such action is expressly permitted hereunder.


 


(d)  Debtor shall, at Debtor’s expense, promptly
perform all acts and execute all documents requested at any time by Secured
Party in writing to evidence, perfect, maintain, record or enforce the security
interest in and conditional assignment of the Collateral granted hereunder or
to otherwise further the provisions of this Agreement.  Debtor hereby authorizes Secured Party to
execute and file one or more financing statements (or similar documents) with
respect to the Collateral signed only by Secured Party or as otherwise determined
by Secured Party.  Debtor further
authorizes Secured Party to have this Agreement or any other similar security
agreement filed with the Commissioner of Patents and Trademarks or any other
appropriate federal, state or government office.


 


(e)  As of the date hereof, Debtor, to its
knowledge, does not have any Patents registered, or subject to pending
applications, in the United States Patent and Trademark Office or any similar
office or agency in the United States, any State thereof, any political subdivision
thereof or in any other


 


3

















 


country, other than those described in Exhibit A hereto and has not
granted any licenses with respect thereto other than as set forth in Exhibit B
hereto.


 


(f)  Debtor shall, concurrently with the
execution and delivery of this Agreement, execute and deliver to Secured Party
five (5) originals of a Special Power of Attorney in the form of Exhibit C
annexed hereto for the implementation of the assignment, sale or other disposition
of the Collateral pursuant to Secured Party’s exercise of the rights and
remedies granted to Secured Party hereunder.


 


(g)  Secured Party may, in its discretion, pay
any amount or do any act which Debtor fails to pay or do as required hereunder or
as requested by Secured Party to preserve, defend, protect, maintain, record or
enforce the Obligations, the Collateral or the security interest and
conditional assignment granted hereunder, including, but not limited to, all
filing or recording fees, court costs, collection charges, reasonable
attorneys’ fees and legal expenses. 
Debtor shall be liable to Secured Party for any such payment, which
payment shall be deemed an advance by Secured Party to Debtor, shall be payable
on demand together with interest at the rate then applicable to the Obligations
set forth in the Loan Agreement and shall be part of the Obligations secured
hereby.


 


(h)  In the event Debtor shall file any
application for the registration of a Patent with the United States Patent and
Trademark Office or any similar office or agency in the United States, any
State thereof, any political subdivision thereof or in any other country,
Debtor shall provide Secured Party with written notice of such action as soon
as practicable but in no event later than 30 days after such action.  If, after the date hereof, Debtor shall (i)
obtain any patent, including any reissue, division, continuation,
continuation-in-part, or extension of any patent, file any patent application,
including any application for reissue or extension of any patent, or any
divisional, continuation, or continuation-in-part application in the United
States Patent and Trademark Office or in any similar office or agency in the
United States, any State thereof, any political subdivision thereof or in any
other country, or (ii) become the owner of any patent or new patentable
inventions used in the United States, any State thereof, any political
subdivision thereof or in any other country, the provisions of Section 1 hereof
shall automatically apply thereto.  Upon
the request of Secured Party, Debtor shall promptly execute and deliver to
Secured Party any and all assignments, agreements, instruments, documents and
such other papers as may be requested by Secured Party to evidence the security
interest in and conditional assignment of such Patent in favor of Secured
Party.


 


(i)  Debtor has not abandoned any of the Patents
and Debtor will not do any act, nor omit to do any act, whereby the Patents may
become abandoned, invalidated, unenforceable, avoided or avoidable; provided,
that, Debtor may, after written notice to Secured Party, abandon, cancel, not
renew or otherwise not maintain a Patent so long as (i) such Patent is no
longer used or useful in the business of Debtor or any of its affiliates or
subsidiaries, (ii) such Patent has not been used in the business of Debtor or
any of its affiliates or subsidiaries for a period of six (6) consecutive
months, (iii) such Patent is not otherwise material to the business of Debtor
or any of its affiliates or subsidiaries in any respect, (iv) such Patent has
little or no value, and (v) no Default (as defined in the Loan Agreement) or
Event of Default (as hereinafter defined) shall exist or have occurred as of
such time.


 


4

















 


Debtor shall notify Secured Party promptly if it knows or has reason to
know of any reason why any application, registration, or recording with respect
to the Patents may become abandoned, canceled, invalidated, avoided or avoidable.


 


(j)  Debtor shall render any assistance, as
Secured Party shall determine is necessary, to Secured Party in any proceeding
before the United States Patent and Trademark Office, any federal or state
court, or any similar office or agency in the United States, any State thereof,
any political subdivision thereof or in any other country, to maintain such
application and registration of the Patents as Debtor’s exclusive property and
to protect Secured Party’s interest therein, including, without limitation,
filing of renewals, affidavits of use, affidavits of incontestability and
opposition, interference, and cancellation proceedings.


 


(k)  To Debtor’s knowledge, no material
infringement or unauthorized use presently is being made of any of the Patents
that would adversely affect in any material respect the fair market value of
the Patents or the benefits of this Agreement granted to Secured Party,
including, without limitation, the remedies of Secured Party hereunder.  To Debtor’s knowledge, there has been no
judgment holding any of the Patents invalid or unenforceable, in whole or part
nor is the validity or enforceability of any of the Patents presently being
questioned in any litigation or proceeding to which Debtor is a party. Debtor
shall promptly notify Secured Party if Debtor (or any affiliate or subsidiary
thereof) learns of any use by any person of any other process or product which
infringes upon any Patent.  If requested
by Secured Party in writing, Debtor, at Debtor’s expense, shall join with Secured
Party in such action as Secured Party, in Secured Party’s discretion, may deem
advisable for the protection of Secured Party’s interest in and to the Patents.


 


(l)  Debtor assumes all responsibility and
liability arising from the use of the Patents and Debtor hereby indemnifies and
holds Secured Party and Lenders harmless from and against any claim, suit,
loss, damage, or expense (including reasonable attorneys’ fees and legal
expenses) arising out of any alleged defect in any product manufactured, promoted,
or sold by Debtor (or any affiliate or subsidiary thereof) in connection with
any Patent or out of the manufacture, promotion, labeling, sale or
advertisement of any such product by Debtor (or any affiliate or subsidiary
thereof).  The foregoing indemnity shall
survive the payment of the Obligations, the termination of this Agreement and
the termination or non-renewal of the Loan Agreement.


 


(m)  Debtor shall promptly pay Secured Party and
Lenders for any and all expenditures made by Secured Party or any Lender
pursuant to the provisions of this Agreement or for the defense, protection or
enforcement of the Obligations, the Collateral, or the security interests and
conditional assignment granted hereunder, including, but not limited to, all
filing or recording fees, court costs, collection charges, travel expenses, and
reasonable attorneys’ fees and legal expenses. 
Such expenditures shall be payable on demand, together with interest at
the rate then applicable to the Obligations set forth in the Loan Agreement and
shall be part of the Obligations secured hereby.


 


5

















 


4.  EVENTS OF DEFAULT


 


The occurrence or existence
of any Event of Default under the Loan Agreement is referred to herein
individually as an “Event of Default” and collectively as “Events of Default”.


 


5.  RIGHTS AND REMEDIES


 


At any time an Event of
Default exists or has occurred and is continuing, in addition to all other
rights and remedies of Secured Party, whether provided under this Agreement,
the Loan Agreement, the other Financing Agreements, applicable law or
otherwise, Secured Party shall have the following rights and remedies which may
be exercised without notice to, or consent by, Debtor except as such notice or
consent is expressly provided for hereunder:


 


(a)  Secured Party may require that neither
Debtor nor any affiliate or subsidiary of Debtor make any use of the Patents
for any purpose whatsoever.  Secured
Party may make use of any Patents for the sale of goods, completion of work-in-process
or rendering of services or otherwise in connection with enforcing any other
security interest granted to Secured Party by Debtor or any subsidiary or
affiliate of Debtor or for such other reason as Secured Party may determine.


 


(b)  Secured Party may grant such license or
licenses relating to the Collateral for such term or terms, on such conditions,
and in such manner, as Secured Party shall in its discretion deem
appropriate.  Such license or licenses
may be general, special or otherwise, and may be granted on an exclusive or
non-exclusive basis throughout all or any part of the United States of America,
its territories and possessions, and all foreign countries.


 


(c)  Secured Party may assign, sell or otherwise
dispose of the Collateral or any part thereof, either with or without special
conditions or stipulations except that if notice to Debtor of intended
disposition of Collateral is required by law, the giving of ten (10) days prior
written notice to Debtor of any proposed disposition shall be deemed reasonable
notice thereof and Debtor waives any other notice with respect thereto.  Secured Party shall have the power to buy
the Collateral or any part thereof, and Secured Party shall also have the power
to execute  assurances and perform all
other acts which Secured Party may, in its discretion, deem appropriate or
proper to complete such assignment, sale, or disposition.  In any such event, Debtor shall be liable
for any deficiency.


 


(d)  In addition to the foregoing, in order to
implement the assignment, sale or other disposition of any of the Collateral
pursuant to the terms hereof, upon the occurrence and during the continuance of
an Event of Default, Secured Party may at any time execute and deliver on
behalf of Debtor, pursuant to the authority granted in the Powers of Attorney
described in Section 3(f) hereof, one or more instruments of assignment of the
Patents (or any application for registration, registration, or recording
relating thereto), in form suitable for filing, recording, or
registration.  Debtor agrees to pay
Secured Party on demand all costs incurred in any such transfer of the
Collateral, including, but not limited to, any taxes, fees, and reasonable
attorneys’ fees and legal expenses. 
Debtor agrees that Secured Party and Lenders have no obligation to
preserve rights to the Patents against any other parties.


 


6

















 


(e)  Secured Party may first apply the proceeds
actually received from any such license, assignment, sale or other disposition
of any of the Collateral to the costs and expenses thereof, including, without
limitation, reasonable attorneys’ fees and all legal, travel and other expenses
which may be incurred by Secured Party. 
Thereafter, Secured Party may apply any remaining proceeds to such of
the Obligations as Secured Party may in its discretion determine.  Debtor shall remain liable to Secured Party
for any of the Obligations remaining unpaid after the application of such proceeds,
and Debtor shall pay Secured Party on demand any such unpaid amount, together
with interest at the rate then applicable to the Obligations set forth in the
Loan Agreement.


 


(f)  Debtor shall supply to Secured Party or to
Secured Party’s designee, Debtor’s knowledge and expertise relating to the
manufacture, sale and distribution of the products and services to which the
Patents relate and Debtor’s customer lists and other records relating to the
Patents and the distribution thereof.


 


(g)  Nothing contained herein shall be construed
as requiring Secured Party or any Lender to take any such action at any
time.  All of Secured Party’s and
Lender’s rights and remedies, whether provided under, this Agreement, the other
Financing Agreements, applicable law or otherwise, shall be cumulative and none
is exclusive.  Such rights and remedies
may be enforced alternatively, successively, or concurrently.


 


6.  JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW


 


(a)  The validity, interpretation and enforcement
of this Agreement and the other Financing Agreements and any dispute arising
out of the relationship between the parties hereto, whether in contract, tort,
equity or otherwise, shall be governed by the internal laws of the State of
Florida without regard to principles of conflicts of laws, but excluding any
rule of law that would cause the application of the law of any jurisdiction
other than the laws of the State of Florida


 


(b)  Debtor and Secured Party irrevocably consent
and submit to the non-exclusive jurisdiction of the Circuit Court of Dade
County, Florida and the United States District Court for the Southern District
of Florida and waive any objection based on venue or forum  non  conveniens
with respect to any action instituted therein arising under this Agreement or
any of the other Financing Agreements or in any way connected or related or
incidental to the dealings of Debtor and Secured Party or any Lender in respect
of this Agreement or the other Financing Agreements or the transactions related
hereto or thereto, in each case whether now existing or thereafter arising, and
whether in contract, tort, equity or otherwise, and agree that any dispute with
respect to any such matters shall be heard only in the courts described above
(except that Secured Party shall have the right to bring any action or
proceeding against Debtor or its property in the courts of any other
jurisdiction which Secured Party deems necessary or appropriate in order to
realize on the Collateral or to otherwise enforce its rights against Debtor or
its property).


 


7

















 


(c)  Debtor hereby waives personal service of any
and all process upon it and consents that all such service of process may be
made by certified mail (return receipt requested) directed to its address set
forth herein and service so made shall be deemed to be completed five (5) days
after the same shall have been so deposited in the U.S. mails, or, at Secured
Party’s option, by service upon Debtor in any other manner provided under the
rules of any such courts.


 


(d)  DEBTOR AND SECURED PARTY EACH HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i)
ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF DEBTOR
AND SECURED PARTY OR ANY LENDER IN RESPECT OF THIS AGREEMENT OR ANY OF THE
OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE.  DEBTOR AND
SECURED PARTY EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT DEBTOR OR SECURED PARTY MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF DEBTOR AND
SECURED PARTY TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


(e)  Notwithstanding any other provision
contained herein, Secured Party and Lenders shall not have any liability to
Debtor (whether in tort, contract, equity or otherwise) for losses suffered by
Debtor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Agreement, or any act,
omission or event occurring in connection herewith, unless it is determined by
a final and non-appealable judgment or court order binding on Secured Party or
such Lender that the losses were the result of acts or omissions constituting
gross negligence or willful misconduct. 
In any such litigation, Secured Party and Lenders shall be entitled to
the benefit of the rebuttable presumption that it acted in good faith and with
the exercise of ordinary care in the performance by it of the terms of this
Agreement and the other Financing Agreements.


 


7.  MISCELLANEOUS


 


(a)  All notices, requests and demands hereunder
shall be in writing and deemed to have been given or made:  if delivered in person, immediately upon
delivery; if by facsimile transmission, immediately upon sending and upon
confirmation of receipt; if by nationally recognized overnight courier service
with instructions to deliver the next business day, one (1) business day after
sending; and if by certified mail, return receipt requested, five (5) days
after mailing.  All notices, requests
and demands upon the parties are to be given to the following addresses (or to
such other address as any party may designate by notice in accordance with this
Section):


 


	
  If to Debtor:

  	
  Mackie Designs Inc.

  



 


8

















 


	
   

  	
  16220 Woodinville-Redmond Rd., N.E.

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telephone No.: 425-487-4335

  
	
   

  	
  Telecopy No.: 425-483-6595

  
	
   

  	
   

  
	
  with a copy to: Sun Capital Partners Management, LLC

  
	
   

  	
  5355 Town Center Road, Suite 802

  
	
   

  	
  Boca Raton, Florida 33486

  
	
   

  	
  Attention: Marc J. Leder,

  
	
   

  	
  Rodger R. Krouse and

  
	
   

  	
  C. Deryl Couch, Esq.

  
	
   

  	
  Telephone No.: 561-394-0550

  
	
   

  	
  Telecopier No.: 561-394-0540

  
	
   

  	
   

  
	
  with a copy to: Kirkland & Ellis

  
	
   

  	
  200 East Randolph Drive

  
	
   

  	
  Chicago, Illinois

  
	
   

  	
  Attention: Francesco Penati, Esq.

  
	
   

  	
  Telephone No.: 312-861-2000

  
	
   

  	
  Telecopier No.: 312-861-2200

  
	
   

  	
   

  
	
  If to Secured Party:

  	
  Congress Financial Corporation

  (Florida)

  
	
   

  	
  777 Brickell Avenue

  
	
   

  	
  Miami, Florida 33131

  
	
   

  	
  Attention: Portfolio Manager

  
	
   

  	
  Telephone No.:305-371-6671

  
	
   

  	
  Telecopy No.:305-371-9456

  



 


(b)  All references to the plural herein shall
also mean the singular and to the singular shall also mean the plural.  All references to Debtor, Secured Party and
any Lender pursuant to the definitions set forth in the recitals hereto, or to
any other person herein, shall include their respective successors and
assigns.  The words “hereof,” “herein,”
“hereunder,” “this Agreement” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement and as this Agreement now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or
replaced.  An Event of Default shall
exist or continue or be continuing until such Event of Default is waived in
accordance with Section 7(e) hereof. 
All references to the term “Person” or “person” herein shall mean any
individual, sole proprietorship, partnership, corporation (including, without
limitation, any corporation which elects subchapter S status under the Internal
Revenue Code of 1986, as amended), limited liability company, limited liability
partnership, business trust, unincorporated association, joint stock company,
trust, joint venture or other entity or any government or any agency or
instrumentality or political subdivision thereof.


 


9

















 


(c)  This Agreement, the other Financing
Agreements and any other document referred to herein or therein shall be
binding upon Debtor and its successors and assigns and inure to the benefit of
and be enforceable by Secured Party and Lenders and their respective successors
and assigns.


 


(d)  If any provision of this Agreement is held
to be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Agreement as a whole, but this Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.


 


(e)  Neither this Agreement nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Secured Party.  Secured Party and
Lenders shall not, by any act, delay, omission or otherwise be deemed to have
expressly or impliedly waived any of its rights, powers and/or remedies unless
such waiver shall be in writing and signed by an authorized officer of Secured
Party.  Any such waiver shall be
enforceable only to the extent specifically set forth therein.  A waiver by Secured Party or any Lender of
any right, power and/or remedy on any one occasion shall not be construed as a
bar to or waiver of any such right, power and/or remedy which Secured Party or
such Lender would otherwise have on any future occasion, whether similar in
kind or otherwise.


 


(f)  This Agreement (i) may be executed in
separate counterparts, each of which taken together shall constitute one and
the same instrument and (ii) may be executed and delivered by telecopier with
the same force and effect as if it were as a manually executed and delivered
counterpart.


 


(g)  Upon payment and satisfaction in full of the
Obligations and the termination of the Financing Agreements and upon Debtor’s
written request and at Borrowers’ and Debtor’s expense, Secured Party shall
promptly deliver the Collateral to Debtor which has not been used or applied
towards payment of the Obligations and shall execute such documents and
instruments necessary to release the Secured Party’s lien on the Collateral.


 


10

















 


IN WITNESS WHEREOF, Debtor
and Secured Party have executed this Agreement as of the day and year first
above written.


 


	
   

  	
  MACKIE DESIGNS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  James T. Engen

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  President & CEO

  	
   

  
	
   

  	
   

  
	
   

  	
  CONGRESS FINANCIAL CORPORATION

  (FLORIDA), as Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Daniel Cott

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Sr. Vice President

  	
   

  
					



 


 

















 


	
  STATE OF WASHINGTON

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY OF KING

  	
  )

  



 


 


On this 21st day of March,
2003, before me personally came Jamie Engen, to me known, who being duly sworn,
did depose and say, that he is the CEO of Mackie Designs Inc., the corporation
described in and which executed the foregoing instrument; and that he signed
his name thereto by order of the Board of Directors of said corporation.


 


	
   

  	
  Nancy L. Keller

  
	
   

  	
  Notary Public

  



 


	
  STATE OF NEW YORK

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  



 


On this 28th day of March,
2003, before me personally came Daniel Cott, to me known, who, being duly
sworn, did depose and say, that he is the Senior Vice-President of CONGRESS
FINANCIAL CORPORATION (FLORIDA), the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of said corporation.


 


	
   

  	
   

  
	
   

  	
  Notary Public

  



 


 

















 


EXHIBIT A


TO


PATENT COLLATERAL ASSIGNMENT

AND SECURITY AGREEMENT


 


List of Patents and Patent
Applications


 


See Exhibit A Attached
Hereto


 


 

















 


EXHIBIT B


TO


PATENT COLLATERAL ASSIGNMENT

AND SECURITY AGREEMENT


 


Licenses


 


None


 


 

















 


EXHIBIT C


TO


PATENT COLLATERAL ASSIGNMENT

AND SECURITY AGREEMENT


 


SPECIAL POWER OF ATTORNEY


 


	
  STATE OF

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY OF

  	
  )

  



 


KNOW ALL MEN BY THESE
PRESENTS, that MACKIE DESIGNS INC. (“Debtor”), having an office at 16220
Woodinville-Redmond Rd., N.E., Woodinville, Washington 98072 hereby appoints
and constitutes CONGRESS FINANCIAL CORPORATION (FLORIDA), as Agent (“Secured
Party”), and each officer thereof, its true and lawful attorney, with full
power of substitution and with full power and authority to perform the
following acts on behalf of Debtor:


 


1.  Execution and delivery of any and all agreements, documents,
instrument of assignment, or other papers which Secured Party, in its
discretion, deems necessary or advisable for the purpose of assigning, selling,
or otherwise disposing of all right, title, and interest of Debtor in and to
any patents and all registrations, recordings, reissues, extensions, and
renewals thereof, or for the purpose of recording, registering and filing of,
or accomplishing any other formality with respect to the foregoing.


 


2.  Execution and delivery of any and all documents, statements,
certificates or other papers which Secured Party, in its discretion, deems
necessary or advisable to further the purposes described in Subparagraph 1
hereof.


 


This Power of Attorney is
made pursuant to a Patent Collateral Assignment and Security Agreement, dated
of even date herewith, between Debtor and Secured Party (the “Security
Agreement”) and is subject to the terms and provisions thereof.  This Power of Attorney being coupled with an
interest, is irrevocable until all “Obligations,” as such term is defined in
the Security Agreement, are paid in full and the Security Agreement is
terminated in writing by Secured Party.


 


Dated:   March
   , 2003


 


	
   

  	
  MACKIE DESIGNS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


 

















 


	
  STATE OF 

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY OF 

  	
  )

  



 


On this
         day of
              ,
2003, before me personally came
                                      ,
to me known, who being duly sworn, did depose and say, that he is the
                  
of Mackie Designs Inc., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said corporation.


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary Public