Exhibit 10.6
EXECUTION VERSION
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Security Agreement"), dated as of March 30, 2007, is made by DYNAMIC DETAILS,
INCORPORATED, a California corporation ("Details"), DYNAMIC DETAILS
INCORPORATED, VIRGINIA, a Delaware corporation ("Virginia"), DYNAMIC DETAILS
INCORPORATED, SILICON VALLEY, a Delaware corporation ("Valley"), DDi SALES
CORP., a Delaware corporation ("Sales"), SOVEREIGN CIRCUITS, INC., an Ohio
corporation ("Sovereign Inc."), SOVEREIGN FLEX PRODUCTS LLC, an Ohio limited
liability company ("Sovereign Flex" and together with Sovereign Inc., Details,
Virginia, Valley and Sales are collectively referred to herein as "Borrowers"
and individually as a "Borrower"), LAMINATE TECHNOLOGY CORP., a Delaware
corporation ("Laminate" and together with Details, Virginia and Valley are
sometimes collectively referred to herein as, "Original Borrowers"), DYNAMIC
DETAILS INCORPORATED, COLORADO SPRINGS, a Colorado corporation ("Colorado"),
DYNAMIC DETAILS TEXAS, LLC, a Delaware limited liability company ("Texas"),
DDI-TEXAS INTERMEDIATE PARTNERS II, L.L.C., a Delaware limited liability company
("DTIP"), DDI-TEXAS INTERMEDIATE HOLDINGS II, L.L.C., a Delaware limited
liability company ("DTIH"), DYNAMIC DETAILS, L.P., a Delaware limited
partnership ("DDLP" and together with, Laminate, Colorado, Texas, DTIP and DTIH
are sometimes collectively referred to herein as "Guarantors" and individually
as a "Guarantor") (Borrowers and Guarantors are sometimes collectively referred
to herein as "Grantors" and individually as a "Grantor"), in favor of GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as agent (in such
capacity, "Agent") for the lenders ("Lenders") from time to time party to the
Credit Agreement (as defined below).
RECITALS
A. Borrowers, Guarantors, and certain affiliates, Agent and Lenders
are parties to that certain Amended and Restated Credit Agreement (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
including all annexes, exhibits and schedules thereto, the "Credit Agreement")
of even date herewith, which Credit Agreement amends and restates in its
entirety the Credit Agreement (as amended) (the "Original Credit Agreement")
dated as of March 30, 2004 and entered into by and among the Original Borrowers,
Guarantors, Agent and Lenders (the "Loan Parties").
B. Pursuant to the Credit Agreement, Lenders have agreed to extend
certain additional financial accommodations to or for the direct or indirect
benefit of Grantors and to maintain and make Loans under the Original Credit
Agreement.
C. In order to induce Agent and Lenders to enter into the Credit
Agreement and to secure the Obligations of Grantors, Grantors have agreed to
grant a continuing Lien on the Collateral (as defined below) in favor of Agent,
for the benefit of Agent and Lenders, in accordance with the terms hereof and
pursuant thereto to amend and restate in its entirety and continue the
effectiveness of the Security Agreement (as amended) (the "Original Security
Agreement") dated as of March 30, 2004 and entered into by and among the Loan
Parties in favor of Agent, for the benefit of Agents and Lenders, to secure the
Obligations (as defined in the Original Security Agreement). These recitals
shall be construed as part of this Security Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Grantors and Agent
agree as follows:
1. DEFINED TERMS.
(a) Unless otherwise defined herein, capitalized terms or matters of
construction defined or established in ANNEX A to the Credit Agreement shall be
applied herein as defined or established therein. All other undefined terms
contained in this Security Agreement, unless the context indicates otherwise,
shall have the meanings provided for by the Code to the extent the same are used
or defined therein.
(b) "Uniform Commercial Code jurisdiction" means any jurisdiction that
has adopted all or substantially all of Article 9 as contained in the 2000
Official Text of the Uniform Commercial Code, as recommended by the National
Conference of Commissioners on Uniform State Laws and the American Law
Institute, together with any subsequent amendments or modifications to the
Official Text.
2. GRANT OF LIEN.
(a) To secure the prompt and complete payment, performance and
observance of all of the Obligations (specifically including, without
limitation, each Borrower's Obligations arising under the cross-guaranty
provisions of Section 12 of the Credit Agreement and each Guarantor's
obligations arising under the Guaranties), each Grantor hereby grants, assigns,
conveys, mortgages, pledges, hypothecates and transfers to Agent, for the
benefit of Agent and Lenders, and each Grantor hereby confirms the existing and
continuing grant, conveyance, mortgage, pledge, hypothecation, and transfer to
Agent, for the benefit of Agent and Lenders of, a Lien upon all of its right,
title and interest in, to and under the following personal property of such
Grantor, whether now owned by or owing to, or hereafter acquired by or arising
in favor of, such Grantor (including under any trade names, styles or
derivations thereof), and whether owned by or consigned by or to, or leased from
or to, such Grantor, and regardless of where located (all of which being
hereinafter collectively referred to as the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Deposit Accounts, including all Blocked Accounts,
Concentration Accounts, Disbursement Accounts, and all other
bank accounts and all funds on deposit therein;
(v) all Documents;
AMENDED AND RESTATED SECURITY AGREEMENT
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(vi) all General Intangibles (including payment intangibles and
Software);
(vii) all Goods (including Fixtures and Inventory but excluding
Equipment,);
(viii) all Instruments;
(ix) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all money, cash or cash equivalents;
(xii) all Supporting Obligations;
(xiii) the commercial tort claims set forth on Annex A hereto;
and
(xiv) to the extent not otherwise included in the foregoing, all
Proceeds, products, tort claims, insurance claims and other
rights to payment and all accessions to, substitutions and
replacements for, and rents and profits of, each of the
foregoing.
Notwithstanding the generality of the foregoing, the "Collateral" shall not
include (1) any intent-to-use Trademark applications until a verified statement
of use is filed with the United States Patent and Trademark Office, or (2) any
Excluded Assets, but will include any Accounts arising thereunder.
(b) In addition, to secure the prompt and complete payment,
performance and observance of the Obligations and in order to induce Agent and
Lenders as aforesaid, each Grantor hereby grants to Agent, for the benefit of
Agent and Lenders, a right of setoff against the property of such Grantor held
by Agent or any Lender in accordance with the Credit Agreement, including all
property described above in SECTION 2(A) now or hereafter in the possession or
custody of, or in transit to, Agent or any Lender, for any purpose (including
safekeeping, collection or pledge), for the account of such Grantor, or as to
which such Grantor may have any right or power.
3. AGENT'S AND LENDERS' RIGHTS; LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS. (a) It is expressly agreed by each Grantor that, anything herein to
the contrary notwithstanding, such Grantor shall remain liable under any and all
Contracts and Licenses to which it is a party to observe and perform all the
conditions and obligations to be observed and performed by it thereunder.
Neither Agent nor any Lender shall have any obligation or liability under any
such Contract or License by reason of or arising out of this Security Agreement
or the granting herein of a Lien thereon or the receipt by Agent or any Lender
of any payment relating to any such Contract or License pursuant hereto. Neither
Agent nor any Lender shall be required or obligated in any manner to perform or
fulfill any of the obligations of any Grantor under or pursuant to any such
Contract or License, or to make any payment, or to make any inquiry as to the
nature or the sufficiency of any payment received by it
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or the sufficiency of any performance by any party under any such Contract or
License, or to present or file any claims, or to take any action to collect or
enforce any performance or the payment of any amounts that may have been
assigned to it or to which it may be entitled at any time or times.
(b) Agent may, at any time after an Event of Default shall have
occurred and be continuing, without prior notice to any Grantor, notify Account
Debtors obligated under Accounts of any Grantor and other Persons obligated on
Collateral that Agent has a Lien thereon and that payments thereunder shall be
made directly to Agent, for the benefit of Agent and Lenders, while such Event
of Default is continuing. Furthermore, if Agent determines that Account Debtor's
contra accounts or set off rights may cause Borrowing Availability to be less
than zero, Agent may notify Account Debtors that Agent has a Lien thereon, and
that payments shall be made directly to Agent, for the benefit of Agent and
Lenders. Upon the request of Agent after an Event of Default has occurred and is
continuing, each Grantor shall so notify any such Account Debtor or other
Persons obligated on the Collateral, and once any such notice has been given by
any Grantor, no Grantor shall give any contrary instructions to such Account
Debtor or other Person without Agent's prior written consent.
(c) Agent may, at any time, in Agent's own name, in the name of a
nominee of Agent, in the name of any Grantor or in the name of a nominee of any
Grantor, communicate (by mail, telephone, facsimile or otherwise) with Account
Debtors obligated under Accounts of such Grantor and other Persons obligated on
Collateral to verify with such Persons, to Agent's satisfaction, the existence,
amount and terms of, and any other matter relating to, any such Accounts or
other Collateral. If a Default or Event of Default shall have occurred and be
continuing, each Grantor, at its own expense, shall cause the independent
certified public accountants then engaged by such Grantor to prepare and deliver
to Agent and each Lender at any time and from time to time promptly upon Agent's
request the following reports with respect to each Grantor: (i) a reconciliation
of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a
test verification of such Accounts as Agent may request. Each Grantor, at its
own expense, shall deliver to Agent upon request the results of each physical
verification, if any, which such Grantor may in its discretion have made, or
caused any other Person to have made on its behalf, of all or any portion of its
Inventory.
(d) If, notwithstanding the giving of any notice hereunder directing
that payments be made directly to Agent, any Account Debtor of such Grantor or
any other Person obligated on Collateral shall make payments to such Grantor,
such Grantor shall hold all such payments it receives in trust for Agent, for
the benefit of Agent and Lenders, without commingling the same with other funds
or property of, or held by, such Grantor and shall deliver the same to Agent in
the manner set forth in Annex C to the Credit Agreement, in the identical form
received, together with any necessary endorsements.
(e) Agent may, at any time after an Event of Default shall have
occurred and be continuing, without prior notice to any Grantor and without
demand or other process, and without payment of any rent or any other charge,
(i) enter the premises of any Grantor and, without breach of the peace, until
Agent completes the enforcement of its rights in the Collateral, take possession
of such premises or place custodians in exclusive control thereof, remain on
such premises and use the same and any Grantor's Equipment for the purpose of
collecting any of the Collateral and (ii) exercise any and all of its rights
under any and all of the Collateral Documents.
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4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants
that:
(a) Rights in the Collateral. Such Grantor has rights in and the power
to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx
hereunder and such Collateral is free and clear of any and all Liens other than
Permitted Encumbrances.
(b) Filings. No effective security agreement, financing statement,
equivalent security or Lien instrument, continuation statement, or financing
statement amendment or assignment covering all or any part of the Collateral is
on file or of record in any public office, except such as may have been filed
(i) by any Grantor in favor of Agent pursuant to this Security Agreement or the
other Loan Documents, or (ii) in connection with any other Permitted
Encumbrance.
(c) Liens. This Security Agreement is effective to create or maintain,
as the case may be a valid and continuing Lien upon the Collateral. Upon filing
of appropriate financing statements in the jurisdictions listed in SCHEDULE I
hereto, Agent, for the benefit of Agent and Lenders, shall have a perfected Lien
on the Collateral with respect to which a Lien may be perfected by filing
pursuant to the Code, which Lien (i) shall be prior to all other Liens, except
Permitted Encumbrances that would be prior to Liens in favor of Agent, for the
benefit of Agent and Lenders, as a matter of law, and (ii) is enforceable as
such as against any and all creditors of, and purchasers from, such Grantor
(other than purchasers and lessees of Inventory in the ordinary course of
business). All action by such Grantor necessary or desirable to protect and
perfect such Lien on each item of the Collateral has been duly taken.
(d) Instruments, Letter-of-Credit Rights and Chattel Paper. SCHEDULE
II hereto lists all Instruments, Letter-of-Credit Rights and Chattel Paper of
each Grantor. All action by such Grantor necessary or desirable to protect and
perfect the Lien in favor of Agent on each item of Collateral set forth in
SCHEDULE II (including the delivery of all originals thereof to Agent and the
legending of all such Chattel Paper as required by SECTION 5(B) hereof) has been
duly taken. The Lien in favor of Agent, for the benefit of Agent and Lenders, on
the Collateral listed in SCHEDULE II hereto is prior to all other Liens, except
Permitted Encumbrances that would be prior to the Liens in favor of Agent as a
matter of law, and is enforceable as such against any and all creditors of and
purchasers from such Grantor. Such Grantor shall, upon obtaining ownership of
any additional Instruments (other than checks received in the ordinary course of
business), letters of credit or Chattel Paper, promptly (and in any event within
five Business Days) deliver to Agent, for the benefit of Agent and Lenders, all
such additional Instruments or Chattel Paper duly endorsed and all letters of
credit.
(e) Grantor Information; Locations of Collateral and Records. Each
Grantor's name as it appears in official filings in its jurisdiction of
organization, the type of entity of such Grantor (including corporation,
partnership, limited partnership or limited liability company), organizational
identification number issued by each Grantor's jurisdiction of organization or a
statement that no such number has been issued, each Grantor's jurisdiction of
organization, the
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location of each Grantor's chief executive office, principal place of business,
corporate or other offices, all warehouses and premises where any item of
tangible Collateral is stored or located, and the locations of its books and
records concerning the Collateral are set forth in SCHEDULE III hereto. Each
Grantor has only one jurisdiction of organization.
(f) Accounts. With respect to any Account of such Grantor, except as
specifically disclosed in the most recent Collateral Report delivered to Agent
and as of the date of such Collateral Report: (i) such Account represents a bona
fide sale of Inventory or rendering of services to the applicable Account Debtor
in the ordinary course of such Grantor's business and is not evidenced by a
judgment, Instrument or Chattel Paper; (ii) there are no setoffs, claims or
disputes existing or asserted with respect thereto and such Grantor has made no
agreement with the applicable Account Debtor for any extension of time for the
payment thereof, any compromise or settlement for less than the full amount
thereof, any release of such Account Debtor from liability therefor, or any
deduction therefrom except a discount or allowance allowed by such Grantor in
the ordinary course of its business for prompt payment and disclosed to Agent;
(iii) to such Grantor's knowledge, there are no facts, events or occurrences
that in any way impair the validity or enforceability thereof or could
reasonably be expected to reduce the amount payable thereunder as shown on such
Grantor's books and records and any invoices, statements and Collateral Reports
delivered to Agent and Lenders with respect thereto; (iv) such Grantor has
received no notice of proceedings or actions that are threatened or pending
against the applicable Account Debtor that might result in any material adverse
change in such Account Debtor's financial condition; and (v) such Grantor has no
knowledge that the applicable Account Debtor is unable generally to pay its
debts as they become due. In addition, with respect to any Account of any
Grantor: (A) the amounts reflected on all records, invoices, statements and
Collateral Reports that may be delivered to Agent with respect thereto are
actually and absolutely owing to such Grantor as indicated thereon and are not,
unless otherwise indicated in a Collateral Report, in any way contingent; (B) no
payments have been or shall be made thereon except payments made in accordance
with the requirements of ANNEX C to the Credit Agreement; and (C) to such
Grantor's knowledge, the applicable Account Debtor has the capacity to contract.
(g) Inventory. With respect to any Inventory of such Grantor scheduled
or listed in the most recent Collateral Report delivered to Agent pursuant to
the terms of this Security Agreement or the Credit Agreement, (i) such Inventory
is located at one of such Grantor's locations set forth in SCHEDULE III-A -
SCHEDULE III -L hereto, as applicable, (ii) such Inventory is not now stored,
nor shall at any time or times hereafter be stored, at any other location
without Agent's prior written consent, and if Agent provides such consent, each
applicable Grantor will concurrently therewith obtain, to the extent required by
the Credit Agreement, bailee, landlord or mortgagee agreements, as applicable,
(iii) such Grantor has good and merchantable title to such Inventory and such
Inventory is not subject to any Lien or document whatsoever except for the Lien
granted to Agent hereunder, for the benefit of Agent and Lenders, and except for
Permitted Encumbrances, (iv) such Inventory is not subject to any licensing,
patent, royalty, trademark, trade name or copyright agreements with any third
parties that would require any consent of any third party upon sale or
disposition of such Inventory or the payment of any monies to any third party
upon such sale or other disposition, and (v) the completion of manufacture, sale
or other disposition of such Inventory by Agent following an Event of Default
shall not require the consent of any Person and shall not constitute a breach or
default under any Contract or agreement to which such Grantor is a party or to
which such Inventory is subject.
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(h) Intellectual Property Collateral. Such Grantor has no ownership
interest in, or title to, any Intellectual Property except as set forth in
SCHEDULE IV hereto ("Intellectual Property Collateral"). This Security Agreement
is effective to create a valid and continuing Lien upon the Intellectual
Property Collateral of each Grantor. Upon the filing of the Intellectual
Property Security Agreement with each of the United States Copyright Office and
the United States Patent and Trademark Office, and the filing of appropriate
financing statements in the jurisdictions listed in SCHEDULE I hereto: (i) Agent
shall have perfected Liens upon each Grantor's Intellectual Property Collateral;
(ii) such perfected Liens shall be enforceable as such as against any and all
creditors of and purchasers from such Grantor; and (iii) all action necessary or
desirable to protect and perfect Agent's Lien on such Grantor's Intellectual
Property Collateral shall have been duly taken.
(i) Survival. The representations and warranties set forth in this
SECTION 4 shall survive the execution and delivery of this Security Agreement,
except those that are specifically limited to the date hereof.
5. COVENANTS. Each Grantor covenants and agrees with Agent, for the benefit
of Agent and Lenders, that from and after the date of this Security Agreement
and until the Termination Date:
(a) Further Assurances; Pledge of Instruments; Chattel Paper.
(i) At any time and from time to time, upon the written request
of Agent and at the sole expense of such Grantors, such
Grantor shall promptly and duly execute and deliver any and
all such further instruments and documents and take such
further actions as Agent may deem desirable to obtain the
full benefits of this Security Agreement and of the rights
and powers herein granted, including (A) using its
commercially reasonable efforts to secure all consents and
approvals necessary or appropriate for the assignment to or
for the benefit of Agent of any License or Contract held by
such Grantor and to enforce the Liens granted hereunder and
(B) filing any financing or continuation statements under
the Code with respect to the Liens granted hereunder or
under any other Loan Document as to those jurisdictions
relevant (in Agent's sole judgment) to the attachment or
perfection of Agent's Lien on the Collateral that are not
Uniform Commercial Code jurisdictions.
(ii) Unless Agent shall otherwise consent in writing (which
consent may be revoked by Agent at any time in its sole
discretion upon prior written notice), each Grantor shall
deliver to Agent all Collateral consisting of negotiable
Documents, certificated securities, Chattel Paper and
Instruments (in each case, accompanied by stock powers,
allonges or other instruments of transfer executed in blank)
promptly after such Grantor receives the same.
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(iii) Each Grantor shall, in accordance with the terms of the
Credit Agreement, obtain or use its commercially reasonable
efforts to obtain waivers or subordinations of Liens from
landlords and mortgagees, and such Grantor shall in all
instances obtain signed acknowledgements of Agent's Liens
from bailees having possession of such Grantor's Goods that
such bailees hold for the benefit of Agent.
(iv) If required by the terms of the Credit Agreement and not
waived by Agent in writing (which waiver may be revoked by
Agent at any time in its sole discretion), each Grantor
shall obtain authenticated Control Letters from each issuer
of uncertificated securities, securities intermediary, or
commodities intermediary issuing or holding any financial
assets or commodities to or for such Grantor.
(v) In accordance with ANNEX C to the Credit Agreement, each
Grantor shall obtain a blocked account, lockbox or similar
agreement with each bank or financial institution at which
such Grantor has established a Deposit Account.
(vi) If any Grantor is or becomes the beneficiary of a letter of
credit, then such Grantor shall promptly, and in any event
within five Business Days after becoming such a beneficiary,
notify Agent thereof and enter into a tri-party agreement
with Agent and the issuer or confirmation bank within a
reasonable time period after such Grantor provides such
notice with respect all to Letter-of-Credit Rights in
connection with such letter of credit assigning such
Letter-of-Credit Rights to Agent and directing all payments
thereunder to the Collection Account or another bank account
designated by Agent, which tri-party agreement shall be in
form and substance reasonably satisfactory to Agent.
(vii) Each Grantor shall take all commercially reasonable steps
necessary to grant Agent control of all electronic chattel
paper in accordance with the Code and all "transferable
records" as defined in each of the Uniform Electronic
Transactions Act and the Electronic Signatures in Global and
National Commerce Act.
(viii) Each Grantor hereby irrevocably authorizes Agent at any
time and from time to time to file in any filing office in
any Uniform Commercial Code jurisdiction any initial
financing statement and any amendment thereto that (A)
describes the Collateral (I) as all assets of such Grantor
or words of similar effect, regardless of whether any
particular asset included in the Collateral falls within the
scope of Article 9 of the Code in such jurisdiction, or (II)
as being of an equal or lesser scope or with greater detail,
and (B)
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contains any other information required by part 5 of Article
9 of the Code for the sufficiency or filing office
acceptance of any financing statement or amendment,
including (I) whether such Grantor is an organization, the
type of organization of such Grantor and any organization
identification number issued to such Grantor, and (II) in
the case of a financing statement filed as a fixture filing
or indicating Collateral as as-extracted collateral or
timber to be cut, a sufficient description of real property
to which the Collateral relates. Each Grantor agrees to
furnish any such information to Agent promptly upon Agent's
request therefor. Each Grantor also ratifies its
authorization for Agent to have filed in any Uniform
Commercial Code jurisdiction any initial statement or
amendment thereto if filed prior to the date hereof.
(ix) Each Grantor shall promptly, and in any event within five
Business Days after the same is acquired by it, notify Agent
of any commercial tort claim (as defined in the Code)
acquired by it and unless otherwise consented to by Agent in
its permitted discretion, such Grantor shall enter into a
supplement to this Security Agreement, granting to Agent a
Lien in such commercial tort claim.
(b) Maintenance of Books and Records. Such Grantor shall keep and
maintain, at its own cost and expense, satisfactory and complete records of each
item of Collateral to which it purports to xxxxx x Xxxx hereunder, including a
record of any and all payments received and any and all credits granted with
respect to each such item of Collateral and all other dealings with respect to
each such item of Collateral. Such Grantor shall xxxx its books and records
pertaining to each such item of Collateral to evidence this Security Agreement
and the Liens granted hereby. If any Grantor retains possession of any Chattel
Paper or Instruments with Agent's consent, such Chattel Paper or Instruments
shall be marked with the following legend: "This writing and the obligations
evidenced or secured hereby are subject to the security interest of General
Electric Capital Corporation, as Agent, for the benefit of Agent and certain
Lenders."
(c) Covenants Regarding Intellectual Property.
(i) Such Grantor shall notify Agent promptly if it knows or has
reason to know (A) that any application or registration
relating to any of its Licenses, Patents, Trademarks or
Copyrights may become abandoned or dedicated, or (B) of any
adverse determination or development (including the
institution of, or any such determination or development in,
any proceeding in the United States Patent and Trademark
Office, the United States Copyright Office or any court)
regarding such Grantor's ownership of any such License,
Patent, Trademark or Copyright, its right to register the
same, or to keep and maintain the same.
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(ii) In the event that such Grantor, either directly or through
any agent, employee, licensee or designee on behalf of it,
files an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and
Trademark Office, the United States Copyright Office or any
similar office or agency, such Grantor shall give Agent
written notice within five Business Days following such
filing, and, upon request of Agent, such Grantor shall
execute and deliver any and all security documents as Agent
may request, including the Intellectual Property Security
Agreement, to evidence Agent's Lien on such Patent,
Trademark or Copyright, and the General Intangibles of such
Grantor relating thereto or represented thereby.
(iii) Such Grantor shall take all actions deemed necessary by
such Grantor or requested by Agent to maintain and pursue
each application, to obtain the relevant registration and to
maintain its registration of each of the Patents, Trademarks
and Copyrights (now or hereafter existing), including the
filing of applications for renewal, affidavits of use,
affidavits of noncontestability and opposition and
interference and cancellation proceedings, unless such
Grantor shall determine that such Patent, Trademark or
Copyright is not material to the conduct of its business.
(iv) In the event that any Grantor's Intellectual Property is
infringed upon, or misappropriated or diluted by a third
party, such Grantor shall comply with SECTION 5(A)(IX) of
this Security Agreement. Such Grantor shall, unless such
Grantor shall reasonably determine that such Intellectual
Property is not material to the conduct of its business or
operations, promptly xxx for infringement, misappropriation
or dilution, and seek recovery of any and all damages
resulting from, such infringement, misappropriation or
dilution, and shall take such other actions as Agent shall
deem appropriate under the circumstances to protect such
Intellectual Property.
(d) Indemnification. In any suit, proceeding or action brought by
Agent or any Lender relating to any Collateral for any sum owing with respect
thereto or to enforce any rights or claims with respect thereto, each Grantor
shall save, indemnify and hold Agent and Lenders harmless from and against all
expense (including reasonable attorneys' fees and expenses), loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction
of liability whatsoever of any Person obligated on the Collateral, arising out
of a breach by such Grantor of any obligation thereunder or arising out of any
other agreement, indebtedness or liability at any time owing to, or in favor of,
such obligor or its successors by such Grantor, except in the case of Agent or
any Lender, to the extent such expense, loss, or damage is attributable solely
to the gross negligence or willful misconduct of Agent or any Lender as
determined by a court of competent jurisdiction. All such obligations of such
Grantor shall be and remain enforceable against and only against such Grantor
and shall not be enforceable against Agent or any Lender.
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(e) Compliance with Terms of Accounts and Agreements. In all material
respects, such Grantor shall perform and comply with all obligations in respect
of the Collateral and all other agreements to which it is a party or by which it
is bound relating to the Collateral.
(f) Limitation on Liens on Collateral. Such Grantor shall not create,
incur, assume or permit to exist, and such Grantor shall defend the Collateral
against, and take such other action as is necessary to remove, any Lien upon the
Collateral except Permitted Encumbrances, and shall defend the right, title and
interest of Agent and Lenders in and to such Grantor's rights under the
Collateral against the claims and demands of all Persons.
(g) Limitations on Disposition. Such Grantor shall not sell, lease,
license, transfer or otherwise dispose of any of the Collateral, or attempt or
contract to do so, except as permitted by the Credit Agreement.
(h) Further Identification of Collateral. Such Grantor shall, if so
requested by Agent, furnish to Agent, as often as Agent requests, statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Agent may reasonably request, all
in such detail as Agent may specify.
(i) Notices. Such Grantor shall advise Agent promptly, in reasonable
detail, (i) of any Lien (other than Permitted Encumbrances) or claim made or
asserted against any of the Collateral, and (ii) of the occurrence of any other
event that would have a Material Adverse Effect on the aggregate value of the
Collateral or on the Liens created hereunder or under any other Loan Document.
(j) Good Standing Certificates. At Agent's request, which shall not be
more than once during each calendar quarter in the absence of a Default or Event
of Default, each Borrower and Subsidiary Guarantor shall, unless Agent shall
otherwise consent, provide to Agent a certificate of good standing from its
jurisdiction of organization.
(k) No Reorganization. Without limiting the prohibitions on mergers
involving Grantors contained in the Credit Agreement, no Grantor shall
reincorporate or reorganize itself under the laws of any jurisdiction other than
the jurisdiction in which it is organized as of the Closing Date without the
prior written consent of Agent.
(l) Terminations; Amendments Not Authorized. Each Grantor acknowledges
that it is not authorized to file any financing statement or amendment or
termination statement with respect to any financing statement without the prior
written consent of Agent and agrees that it will not do so without the prior
written consent of Agent, subject to such Grantor's rights under Section
9-509(d)(2) of the Code.
(m) Authorized Terminations. Agent will promptly deliver to each
Grantor for filing or authorize each Grantor to prepare and file termination
statements and releases in accordance with Section 11.2(e) of the Credit
Agreement.
11
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT. On the Closing Date each
Grantor shall execute and deliver to Agent a power of attorney (the "Power of
Attorney") substantially in the form attached hereto as EXHIBIT A. The power of
attorney granted pursuant to each Power of Attorney is a power coupled with an
interest and shall be irrevocable until the Termination Date. The powers
conferred on Agent, for the benefit of Agent and Lenders, under each Power of
Attorney are solely to protect Agent's Liens upon and interests in the
Collateral (for the benefit of Agent and Lenders) and shall not impose any duty
upon Agent or any Lender to exercise any such powers. Agent agrees that (a)
except for the powers granted in CLAUSE (I) the Power of Attorney, it shall not
exercise any power or authority granted under the Power of Attorney unless an
Event of Default has occurred and is continuing, and (b) Agent shall account for
any moneys received by Agent in respect of any foreclosure on or disposition of
any of the Collateral pursuant to any Power of Attorney; provided, that, except
as set forth in SECTION 9, neither Agent nor any Lender shall have any duty as
to any Collateral, and Agent and Lenders shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers. NONE OF
AGENT, LENDERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE TO ANY GRANTOR FOR ANY ACT OR
FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN RESPECT OF
DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, NOR FOR ANY
PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.
7. REMEDIES; RIGHTS UPON DEFAULT.
(a) If any Event of Default shall have occurred and be continuing:
(i) In addition to all other rights and remedies granted to it
under this Security Agreement, the Credit Agreement, the
other Loan Documents and under any other instrument or
agreement securing, evidencing or relating to any of the
Obligations, Agent may exercise all rights and remedies of a
secured party under the Code. Without limiting the
generality of the foregoing, each Grantor expressly agrees
that in any such event Agent, without demand of performance
or other demand, advertisement or notice of any kind (except
the notice specified in CLAUSE (II) below of the time and
place of any public or private sale) to or upon such Grantor
or any other Person (all and each of which demands,
advertisements and notices are hereby expressly waived to
the maximum extent permitted by the Code and other
applicable law), may immediately enter upon the premises of
such Grantor where any Collateral is located through
self-help, without judicial process, without first obtaining
a final judgment or giving such Grantor or any other Person
notice and an opportunity for a hearing on Agent's claim or
action and may collect, receive, assemble, process,
appropriate and realize upon the Collateral, or any part
thereof, and may sell, lease, license, assign, give an
option or options to purchase, sell or
12
otherwise dispose of and deliver said Collateral (or
contract to do so), or any part thereof, in one or more
parcels at a public or private sale or sales, or at any
exchange, at such prices as it may deem appropriate, for
cash or on credit or for future delivery without assumption
of any credit risk. Agent or any Lender shall have the right
upon any such public sale or sales and, to the extent
permitted by law, upon any such private sale or sales, to
purchase, for the benefit of Agent and Lenders, the whole or
any part of said Collateral so sold, free of any right or
equity of redemption, which equity of redemption each
Grantor hereby releases. Such sales may be adjourned or
continued from time to time with or without notice. Agent
shall have the right to conduct such sales on any Grantor's
premises or elsewhere and shall have the right to use any
Grantor's premises without charge for such sales at such
time or times as Agent deems necessary or advisable.
(ii) Each Grantor further agrees, at Agent's request, to assemble
the Collateral and make it available to Agent at a place or
places designated by Agent reasonably convenient to Agent
and such Grantor, whether at such Grantor's premises or
elsewhere. Until Agent is able to effect a sale, lease, or
other disposition of Collateral, Agent shall have the right
to hold or use the Collateral, or any part thereof, to the
extent that it deems appropriate for the purpose of
preserving Collateral or its value or for any other purpose
deemed appropriate by Agent other than as set forth in
SECTION 9 hereof or as otherwise set forth in the Loan
Documents. Agent shall have no obligation to any Grantor to
maintain or preserve the rights of such Grantor as against
third parties with respect to Collateral while Collateral is
in the possession of Agent. Agent may, if it so elects, seek
the appointment of a receiver or keeper to take possession
of Collateral and to enforce any of Agent's remedies (for
the benefit of Agent and Lenders), without prior notice or
hearing as to such appointment. Agent shall apply the net
proceeds of any such collection, recovery, receipt,
appropriation, realization or sale to the Obligations as
provided in the Credit Agreement, and only after so paying
over such net proceeds, and after the payment by Agent of
any other amount required by any provision of law, need
Agent account for the surplus, if any, to any Grantor. Each
Grantor waives, to the maximum extent permitted by
applicable law, all claims, damages, and demands against
Agent or any Lender arising out of the repossession,
retention or sale of the Collateral except such as arise
solely out of the gross negligence or willful misconduct of
Agent or such Lender as determined by a court of competent
jurisdiction. Each Grantor agrees that ten days' prior
notice by Agent of the time and place of any public sale or
of the time after which a private sale may take place is
reasonable notification of such
13
matters. Grantors shall remain liable for any deficiency if
the proceeds of any sale or disposition of the Collateral
are insufficient to pay all Obligations, including any
reasonable attorneys' fees or other expenses incurred by
Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor
hereby waives (to the maximum extent permitted by applicable law) presentment,
demand, protest or any notice of any kind in connection with this Security
Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent to
exercise remedies in a commercially reasonable manner, each Grantor acknowledges
and agrees that it is not commercially unreasonable for Agent (i) to fail to
incur expenses reasonably deemed significant by Agent to prepare Collateral for
disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition, (ii) to fail to
obtain third party consents for access to Collateral to be disposed of, or to
obtain or, if not required by other law, to fail to obtain governmental or third
party consents for the collection or disposition of Collateral to be collected
or disposed of, (iii) to fail to exercise collection remedies against Account
Debtors or other Persons obligated on Collateral or to remove Liens on or any
adverse claims against Collateral, (iv) to exercise collection remedies against
Account Debtors and other Persons obligated on Collateral directly or through
the use of collection agencies and other collection specialists, (v) to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (vi) to
contact other Persons, whether or not in the same business as such Grantor, for
expressions of interest in acquiring all or any portion of such Collateral,
(vii) to hire one or more professional auctioneers to assist in the disposition
of Collateral, whether or not the Collateral is of a specialized nature, (viii)
to dispose of Collateral by utilizing internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets,
(ix) to dispose of assets in wholesale rather than retail markets, (x) to
disclaim disposition warranties, such as title, possession or quiet enjoyment,
(xi) to purchase insurance or credit enhancements to insure Agent against risks
of loss, collection or disposition of Collateral or to provide to Agent a
guaranteed return from the collection or disposition of Collateral, or (xii) to
the extent deemed appropriate by Agent, to obtain the services of other brokers,
investment bankers, consultants and other professionals to assist Agent in the
collection or disposition of any of the Collateral. Each Grantor acknowledges
that the purpose of this SECTION 7(C) is to provide non-exhaustive indications
of what actions or omissions by Agent would not be commercially unreasonable in
Agent's exercise of remedies against the Collateral and that other actions or
omissions by Agent shall not be deemed commercially unreasonable solely on
account of not being indicated in this SECTION 7(C). Without limiting the
generality of the foregoing, nothing contained in this SECTION 7(C) shall be
construed to grant any rights to any Grantor or to impose any duties on Agent
that would not have been granted or imposed by this Security Agreement or by
applicable law in the absence of this SECTION 7(C).
(d) Neither Agent nor any Lender shall be required to make any demand
upon, or pursue or exhaust any of its respective rights or remedies against, any
Grantor, any other obligor, guarantor, pledgor or any other Person with respect
to the payment of the Obligations or to
14
pursue or exhaust any of its respective rights or remedies with respect to any
Collateral therefor or any direct or indirect guarantee thereof. Neither Agent
nor any Lender shall be required to marshal the Collateral or any guarantee of
the Obligations or to resort to the Collateral or any such guarantee in any
particular order, and all of its respective rights hereunder or under any other
Loan Document shall be cumulative. To the extent it may lawfully do so, each
Grantor absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against Agent or any Lender, any
valuation, stay, appraisement, extension, redemption or similar laws and any and
all rights or defenses it may have as a surety now or hereafter existing that,
but for this provision, might be applicable to the sale of any Collateral made
pursuant to the judgment, order or decree of any court, or privately pursuant to
the power of sale conferred by this Security Agreement, or otherwise.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY COLLATERAL. Solely for the
purpose of enabling Agent to exercise its rights and remedies under SECTION 7
hereof (including, without limiting the terms of SECTION 7 hereof, in order to
take possession of, hold, preserve, process, assemble, prepare for sale, market
for sale, sell or otherwise dispose of Collateral) at such time or times as
Agent shall be lawfully entitled to exercise such rights and remedies, each
Grantor hereby grants to Agent, for the benefit of Agent and Lenders, to the
fullest extent not in violation of licenses that are permitted by the terms of
the Loan Documents to be granted by such Grantor to third parties or obtained by
such Grantor in the ordinary course of business, an irrevocable, non-exclusive
license (exercisable without payment of royalty or other compensation to such
Grantor) to use, license or sublicense any Intellectual Property now owned or
hereafter acquired by such Grantor, and wherever the same may be located, and
including in such license access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof.
9. LIMITATION ON AGENT'S AND LENDERS' DUTIES IN RESPECT OF COLLATERAL. Each
of Agent and each Lender shall use reasonable care with respect to the
Collateral in its possession or under its control. Neither Agent nor any Lender
shall have any other duty as to any Collateral in its possession or control or
in the possession or control of any agent or nominee of Agent or such Lender, or
any income thereon or as to the preservation of rights against prior parties or
any other rights pertaining thereto.
10. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors, or
should a receiver or trustee be appointed for all or any significant part of any
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of the Obligations,
whether as a "voidable preference," "fraudulent transfer," or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15
11. NOTICES. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desires to give or serve upon any
other party any communication with respect to this Security Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be given in the manner, and deemed received, as
provided for in the Credit Agreement.
12. AMENDMENT AND RESTATEMENT; REAFFIRMATION.
(a) Effective as of the date of this Security Agreement (the
"Restatement Date"), the Original Security Agreement is hereby amended, restated
and superseded in its entirety. The parties hereto acknowledge and agree that
(i) this Security Agreement executed and delivered in connection with the Credit
Agreement and the other Loan Documents does not constitute a novation, payment
or termination of the "Obligations" (as defined in the Original Security
Agreement) under the Original Security Agreement as in effect prior to the
Restatement Date; (ii) such "Obligations" are in all respects continuing with
only the terms thereof being modified as provided in the Credit Agreement; (iii)
the grant of security interest in and lien on the Collateral as granted under
the Original Security Agreement securing payment of such "Obligations" is in all
respects continuing and in full force and the Collateral secures the payment of
the Obligations (as defined in this Agreement) and such grant is hereby fully
ratified and affirmed; and (iv) upon the effectiveness of this Security
Agreement, all "Obligations" referred to in the Original Security Agreement
immediately before the effectiveness of this Agreement will be part of the
Obligations (as defined in this Agreement) on the terms and conditions set forth
in this Agreement. Without limitation of the foregoing, each Grantor hereby
fully and unconditionally ratifies and affirms the Original Security Agreement
and agrees that all the Collateral granted thereunder shall from and after the
date hereof secure all the Obligations (as defined in this Agreement).
(b) Notwithstanding the modifications effected by this Security
Agreement of the representations, warranties and covenants of any Grantor
contained in the Original Security Agreement, each Grantor acknowledges and
agrees that any causes of action or other rights created in favor of Agent and
Lenders and their respective successors arising out of the representations and
warranties of such Grantor contained in or delivered in connection with the
Original Security Agreement or any other Loan Document executed in connection
therewith shall survive the execution and delivery of this Security Agreement.
(c) All indemnification obligations of the Grantors arising under the
Original Security Agreement (including any arising from a breach of the
representations thereunder) shall survive the amendment and restatement of the
Original Security Agreement.
13. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement. This Security Agreement is to be read, construed and applied
together with the
16
Credit Agreement and the other Loan Documents which, taken together, set forth
the complete understanding and agreement of Agent, Lenders and Grantors with
respect to the matters referred to herein and therein.
14. NO WAIVER; CUMULATIVE REMEDIES. Neither Agent nor any Lender shall by
any act, delay, omission or otherwise be deemed to have waived any of its rights
or remedies hereunder, and no waiver shall be valid unless in writing and signed
by Agent, and then only to the extent therein set forth. A waiver by Agent of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy that Agent would otherwise have on any future
occasion. No failure by Agent or any Lender to exercise, nor any delay in
exercising, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided hereunder are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Security Agreement may be waived, altered, modified
or amended except by an instrument in writing, duly executed by Agent and each
Grantor.
15. LIMITATION BY LAW. All rights, remedies and powers provided in this
Security Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Security Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they do not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
16. TERMINATION OF THIS SECURITY AGREEMENT. Subject to SECTION 10 hereof,
this Security Agreement shall terminate upon the Termination Date.
17. SUCCESSORS AND ASSIGNS. This Security Agreement and all obligations of
Grantors hereunder shall be binding upon the successors and assigns of each
Grantor (including any debtor-in-possession on behalf of such Grantor) and
shall, together with the rights and remedies of Agent, for the benefit of Agent
and Lenders, hereunder, inure to the benefit of Agent and Lenders, all future
holders of any Instrument evidencing any of the Obligations and their respective
successors and assigns. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or Instrument
evidencing any of the Obligations or any portion thereof or interest therein
shall in any manner impair the Lien granted to Agent, for the benefit of Agent
and Lenders, hereunder. No Grantor may assign, sell, hypothecate or otherwise
transfer any interest in or obligation under this Security Agreement.
18. COUNTERPARTS. This Security Agreement may be authenticated in any
number of separate counterparts, each of which shall collectively and separately
constitute one and the same agreement. This Security Agreement may be
authenticated by manual signature, facsimile or, if approved in writing by
Agent, electronic means, all of which shall be equally valid.
17
19. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS SECURITY AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF CALIFORNIA (WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICT OF LAWS), AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH
GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN
LOS ANGELES COUNTY, CITY OF LOS ANGELES, STATE OF CALIFORNIA, SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG
GRANTORS, AGENT AND LENDERS PERTAINING TO THIS SECURITY AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT,
LENDERS AND GRANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF LOS ANGELES COUNTY; PROVIDED, FURTHER,
THAT NOTHING IN THIS SECURITY AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE
AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH GRANTOR
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH GRANTOR HEREBY WAIVES ANY OBJECTION
THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH GRANTOR HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN
ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
GRANTOR AT THE ADDRESS SET FORTH ON ANNEX I TO THE CREDIT AGREEMENT AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH GRANTOR'S
ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL,
PROPER POSTAGE PREPAID.
20. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES HERETO WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES HERETO DESIRE
THAT DISPUTES ARISING HEREUNDER OR RELATED HERETO BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT,
18
LENDERS AND GRANTORS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS SECURITY
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO
OR THERETO.
21. SECTION TITLES. The Section titles contained in this Security Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
22. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Security Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
23. ADVICE OF COUNSEL. Each of the parties hereto represents to each other
party hereto that it has discussed this Security Agreement (and, specifically,
the provisions of SECTIONS 18 and 19) with its counsel.
24. BENEFIT OF LENDERS. All Liens granted or contemplated hereby shall be
for the benefit of Agent, individually, and Lenders, and all proceeds or
payments realized from Collateral in accordance herewith shall be applied to the
Obligations in accordance with the terms of the Credit Agreement.
25. INCONSISTENCIES. To the extent of any inconsistencies between this
Security Agreement and the Pledge Agreement, the provisions of the Pledge
Agreement shall control as to all matters with respect to the Pledged Collateral
(as defined therein).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
19
IN WITNESS WHEREOF, each of the parties hereto has caused this
Security Agreement to be executed and delivered by its duly authorized officer
as of the date first set forth above.
"GRANTORS"
DYNAMIC DETAILS, INCORPORATED DYNAMIC DETAILS, INCORPORATED, VIRGINIA
By: /S/ XXXXX X. XXXX By: /S/ XXXXX X. XXXX
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
DYNAMIC DETAILS INCORPORATED, SILICON LAMINATE TECHNOLOGY CORP.
VALLEY
By: /S/ XXXXX X. XXXX
By: /S/ XXXXX X. XXXX ------------------------------------
--------------------------------- Name: Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx Title: Vice President & Chief Financial
Title: Vice President & Chief Officer
Financial Officer
DYNAMIC DETAILS TEXAS, LLC DDi SALES CORP.
By: /S/ XXXXX X. XXXX By: /S/ XXXXX X. XXXX
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
DDi-TEXAS INTERMEDIATE PARTNERS II, DDi-TEXAS INTERMEDIATE HOLDINGS II,
L.L.C. L.L.C.
By: /S/ XXXXX X. XXXX By: /S/ XXXXX X. XXXX
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
DYNAMIC DETAILS INCORPORATED, DYNAMIC DETAILS, L.P.
COLORADO SPRINGS
By: DDi-TEXAS INTERMEDIATE PARTNERS II,
L.L.C., its General Partner
By: /S/ XXXXX X. XXXX
---------------------------------
Name: Xxxxx X. Xxxx By: /S/ XXXXX X. XXXX
Title: Vice President & Chief ------------------------------------
Financial Officer Name: Xxxxx X. Xxxx
Title: Vice President & Chief Financial
Officer
20
DDi CORP. DDi CAPITAL CORP.
By: /S/ XXXXX X. XXXX By: /S/ XXXXX X. XXXX
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
DDi INTERMEDIATE HOLDINGS CORP.
By: /S/ XXXXX X. XXXX
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Chief
Financial Officer
SOVEREIGN CIRCUITS, INC. SOVEREIGN FLEX PRODUCTS LLC
By: SOVEREIGN CIRCUITS, INC.
By: /S/ XXXXX X. XXXX Its Sole Member
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Chief By: /S/ XXXXX X. XXXX
Financial Officer ------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Chief Financial
Officer
"AGENT"
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ XXXXXX XXXXXXX
---------------------------------
Xxxxxx Xxxxxxx
Duly Authorized Signatory
21
SCHEDULE I
to
SECURITY AGREEMENT
FILING JURISDICTIONS
Name of Entity Filing Jurisdictions
-------------- --------------------
DYNAMIC DETAILS, INCORPORATED CALIFORNIA
DYNAMIC DETAILS, INCORPORATED, VIRGINIA DELAWARE
DYNAMIC DETAILS INCORPORATED, SILICON VALLEY DELAWARE
DYNAMIC DETAILS INCORPORATED, COLORADO SPRINGS COLORADO
DDI SALES CORP. DELAWARE
DYNAMIC DETAILS TEXAS, LLC DELAWARE
DDI-TEXAS INTERMEDIATE PARTNERS II, L.L.C. DELAWARE
DDI-TEXAS INTERMEDIATE HOLDINGS II, L.L.C. DELAWARE
DYNAMIC DETAILS, L.P. DELAWARE
LAMINATE TECHNOLOGY CORP. DELAWARE
SOVEREIGN CIRCUITS, INC. OHIO
SOVEREIGN FLEX PRODUCTS LLC OHIO
22
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS
CHATTEL PAPER
AND
LETTER-OF-CREDIT-RIGHTS
Promissory Note in the principal amount of $150,000, dated June 26, 2002, issued
by Link World Technologies in favor of Dynamic Details, Incorporated.
Intercompany Note in the principal amount of CAD $12,903,801, dated as of
December 29, 2003, issued by DDi Canada Acquisition Corp., to the order of
Dynamic Details, Incorporated.
23
SCHEDULE III-A
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND
RECORDS CONCERNING DYNAMIC DETAILS, INCORPORATED'S COLLATERAL
I. Grantor's official name: Dynamic Details, Incorporated
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: C2059971
IV. Jurisdiction or Organization of Dynamic Details, Incorporated: California
V. Chief Executive Office and principal place of business of Dynamic Details,
Incorporated: 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Dynamic Details, Incorporated: 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx
0000 X. Xxxxxxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
IX. Locations of Records Concerning Collateral: 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx
24
SCHEDULE III-B
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND RECORDS
CONCERNING DYNAMIC DETAILS, INCORPORATED, VIRGINIA'S COLLATERAL
I. Grantor's official name: Dynamic Details, Incorporated, Xxxxxxxx
XX. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 3235133
IV. Jurisdiction or Organization of Dynamic Details, Incorporated, Virginia:
Delaware
V. Chief Executive Office and principal place of business of Dynamic Details,
Incorporated, Virginia: 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Dynamic Details, Incorporated, Virginia:
0000 Xxxxxx Xxx, Xxxxxxxx, Xxxxxxxx 00000
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xxxxxx Xxx, Xxxxxxxx, Xxxxxxxx
IX. Locations of Records Concerning Collateral:
0000 Xxxxxx Xxx, Xxxxxxxx, Xxxxxxxx
25
SCHEDULE III-C
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND RECORDS
CONCERNING DYNAMIC DETAILS INCORPORATED, SILICON VALLEY'S COLLATERAL
I. Grantor's official name: Dynamic Details Incorporated, Silicon Valley
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 2641851
IV. Jurisdiction or Organization of Dynamic Details Incorporated, Silicon
Valley: Delaware
V. Chief Executive Office and principal place of business of Dynamic Details
Incorporated, Silicon Valley:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Dynamic Details Incorporated, Silicon Valley:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
26
SCHEDULE III-D
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING LAMINATE TECHNOLOGY CORP.'S COLLATERAL
I. Grantor's official name: Laminate Technology Corp.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 3378162
IV. Jurisdiction or Organization of Laminate Technology Corp.: Delaware
V. Chief Executive Office and principal place of business of Laminate
Technology Corp.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Laminate Technology Corp.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
27
SCHEDULE III-E
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING DDI SALES CORP.'S COLLATERAL
I. Grantor's official name: DDi Sales Corp.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 3314735
IV. Jurisdiction or Organization of DDi Sales Corp.: Delaware
V. Chief Executive Office and principal place of business of DDi Sales Corp.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of DDi Sales Corp.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
28
SCHEDULE III-F
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING DYNAMIC DETAILS TEXAS, LLC'S COLLATERAL
I. Grantor's official name: Dynamic Details Texas, LLC
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Limited Liability Company
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 2136648
IV. Jurisdiction or Organization of Dynamic Details Texas, LLC: Delaware
V. Chief Executive Office and principal place of business of Dynamic Details
Texas, LLC:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Dynamic Details Texas, LLC:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
29
SCHEDULE III-G
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND RECORDS
CONCERNING DDI-TEXAS INTERMEDIATE PARTNERS II, L.L.C.'S COLLATERAL
I. Grantor's official name: DDi-Texas Intermediate Partners II, L.L.C.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Limited Liability Company
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 3324558
IV. Jurisdiction or Organization of DDi-Texas Intermediate Partners II, L.L.C.:
Delaware
V. Chief Executive Office and principal place of business of DDi-Texas
Intermediate Partners II, L.L.C.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of DDi-Texas Intermediate Partners II, L.L.C.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
30
SCHEDULE III-H
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND RECORDS
CONCERNING DDI-TEXAS INTERMEDIATE HOLDINGS II, L.L.C.'S COLLATERAL
I. Grantor's official name: DDi-Texas Intermediate Holdings II, L.L.C.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Limited Liability Company
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 3319555
IV. Jurisdiction or Organization of DDi-Texas Intermediate Holdings II, L.L.C.:
Delaware
V. Chief Executive Office and principal place of business of DDi-Texas
Intermediate Holdings II, L.L.C.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of DDi-Texas Intermediate Holdings II, L.L.C.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
31
SCHEDULE III-I
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING DYNAMIC DETAILS, L.P.'S COLLATERAL
I. Grantor's official name: Dynamic Details, X.X.
XX. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Limited Partnership
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 3320987
IV. Jurisdiction or Organization of Dynamic Details, L.P.: Delaware
V. Chief Executive Office and principal place of business of Dynamic Details,
L.P.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Dynamic Details, L.P.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
32
SCHEDULE III-J
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND RECORDS
CONCERNING DYNAMIC DETAILS INCORPORATED, COLORADO SPRINGS' COLLATERAL
I. Grantor's official name: Dynamic Details Incorporated, Colorado Springs
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued:
19911021432
IV. Jurisdiction or Organization of Dynamic Details Incorporated, Colorado
Springs: Colorado
V. Chief Executive Office and principal place of business of Dynamic Details
Incorporated, Colorado Springs:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VI. Corporate Offices of Dynamic Details Incorporated, Colorado Springs.:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
IX. Locations of Records Concerning Collateral:
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
33
SCHEDULE III-K
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND RECORDS
CONCERNING SOVEREIGN CIRCUITS, INC.
I. Grantor's official name: Sovereign Circuits, Inc.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 705967
IV. Jurisdiction or Organization of Sovereign Circuits, Inc.: Ohio
V. Chief Executive Office and principal place of business of Sovereign
Circuits, Inc.:
00000 XxXxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
VI. Corporate Offices of Sovereign Circuits, Inc.
00000 XxXxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
None
IX. Locations of Records Concerning Collateral:
00000 XxXxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
34
SCHEDULE III-L
to
SECURITY AGREEMENT SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING SOVEREIGN FLEX PRODUCTS LLC
I. Grantor's official name: Sovereign Flex Products LLC
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): limited liability company
III. Organizational identification number issued by Grantor's jurisdiction of
organization or a statement that no such number has been issued: 1617989
IV. Jurisdiction or Organization of Sovereign Flex Products LLC: Ohio
V. Chief Executive Office and principal place of business of Sovereign Flex
Products LLC:
00000 XxXxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
VI. Corporate Offices of Sovereign Flex Products LLC
00000 XxXxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
None
IX. Locations of Records Concerning Collateral:
00000 XxXxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
35
SCHEDULE IV
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
Name of Entity Patents, Trademarks and Copyrights
-------------- ----------------------------------
DYNAMIC DETAILS, INCORPORATED Service Xxxx "Dynamic Details" (Reg. No.
2,409,371 - USPTO).
Trademark "Dynamic Details" (Reg. No. 2,517,988
- USPTO).
Trademark "Dynamic Details" (Reg. No. 1219617 -
European Community).
Trademark "DDi" (Reg. No. 2,370,315 - USPTO).
Trademark "DDi" (and Design) (Reg. Xx. 0000000
- Xxxxxxxx Xxxxxxxxx).
Service xxxx "DDi" (Reg. No. 2,409,942 -
USPTO).
Application for "DDI" in Canada (App. No.
2370315).
Application for "Dynamic Details Canada" in
Canada (App. No. 1119581, 1119582 CDN).
36
EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by ______________________,
a _____________________ ("Grantor"), to General Electric Capital Corporation, a
Delaware corporation (hereinafter referred to as "Attorney"), as Agent for the
benefit of Agent and Lenders, pursuant to that certain Amended and Restated
Credit Agreement dated as of March __, 2007 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), and the other Loan Documents (as defined in the Credit Agreement).
Unless otherwise defined herein, capitalized terms or matters of construction
defined or established in ANNEX A to the Credit Agreement shall be applied
herein as defined or established therein. No Person to whom this Power of
Attorney is presented, as authority for Attorney to take any action or actions
contemplated hereby, shall be required to inquire into or seek confirmation from
Grantor as to the authority of Attorney to take any action described below, or
as to the existence of or fulfillment of any condition to this Power of
Attorney, which is intended to grant to Attorney unconditionally the authority
to take and perform the actions contemplated herein, and Grantor irrevocably
waives any right to commence any suit or action, in law or equity, against any
Person that acts in reliance upon or acknowledges the authority granted under
this Power of Attorney. The power of attorney granted hereby is coupled with an
interest and may not be revoked or cancelled by Grantor without Attorney's
written consent.
Subject to the terms of the Loan Documents, Grantor hereby irrevocably
constitutes and appoints Attorney (and all officers, employees or agent
designated by Attorney), with full power of substitution, as Grantor's true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of Grantor and in the name of Grantor or in its own name, from time to
time in Attorney's discretion, to take any and all appropriate action and to
execute and deliver any and all documents and Instruments that may be necessary
or desirable to accomplish the purposes of the Loan Documents and, without
limiting the generality of the foregoing, Grantor hereby grants to Attorney the
power and right, on behalf of Grantor, without notice to or assent by Grantor,
and at any time, to do the following: (a) change the mailing address of Grantor,
open a post office box on behalf of Grantor, open mail for Grantor, and ask,
demand, collect, give acquittances and receipts for, take possession of, or
endorse and receive payment of, any checks, drafts, notes, acceptances, or other
Instruments for the payment of moneys due, and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, and notices in connection with any property
of Grantor; (b) effect any repairs to any asset of Grantor, or continue or
obtain any insurance and pay all or any part of the premiums therefor and costs
thereof, and make, settle and adjust all claims under such policies of
insurance, and make all determinations and decisions with respect to such
policies; (c) pay or discharge any Taxes, Liens or other encumbrances levied or
placed on or threatened against Grantor or its property; (d) defend any suit,
action or proceeding brought against Grantor if Grantor does not defend such
suit, action or proceeding or if Attorney believes that Grantor is not pursuing
such defense in a manner that will maximize the recovery to Attorney, and
settle, compromise or adjust any suit, action, or proceeding described above
and, in connection therewith, give such discharges or releases as Attorney may
deem
37
appropriate; (e) file or prosecute any claim, litigation, suit or proceeding in
any court of competent jurisdiction or before any arbitrator, or take any other
action otherwise deemed appropriate by Attorney for the purpose of collecting
any and all such moneys due to Grantor whenever payable and to enforce any other
right in respect of Grantor's property; (f) sell, transfer, pledge, make any
agreement with respect to, or otherwise deal with, any property of Grantor, and
execute, in connection with such sale or action, any endorsements, assignments
or other instruments of conveyance or transfer in connection therewith; (g)
cause the certified public accountants then engaged by Grantor to prepare and
deliver to Attorney at any time and from time to time, promptly upon Attorney's
request, the following reports: (i) a reconciliation of all of its Accounts,
(ii) an aging of all such Accounts; (iii) trial balances; (iv) test
verifications of such Accounts as Attorney may request; and (v) the results of
each physical verification of its Inventory; (h) communicate in its own name
with any Account Debtors of Grantor, parties to any Contracts of Grantor or
other obligors of Grantor in respect of Instruments, Chattel Paper or General
Intangibles of Grantor with regard to the assignment of the right, title and
interest of such Grantor in, to and under such Accounts, Contracts, Instruments,
Chattel Paper, General Intangibles and other matters relating thereto; (i) file
such financing statements with respect to the Security Agreement, with or
without Grantor's signature, or file a photocopy of the Security Agreement in
substitution for a financing statement, as Agent may deem appropriate and to
execute in Grantor's name such financing statements and amendments thereto and
continuation statements that may require Grantor's signature; (j) execute, in
connection with any sale provided for in any Loan Document, any endorsements,
assignments or other instruments of conveyance or transfer with respect to the
Collateral and to otherwise direct such sale or resale, all as though Attorney
were the absolute owner of the property of Grantor for all purposes; and (k) do,
at Attorney's option and Grantor's expense, at any time or from time to time,
all acts and other things that Attorney reasonably deems necessary to perfect,
preserve, or realize upon Grantor's property or assets and Attorney's Liens
thereon, all as fully and effectively as Grantor might do. Grantor hereby
ratifies, to the extent permitted by law, all that said Attorney shall lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor, and
Grantor has caused its seal to be affixed pursuant to the authority of its board
of directors this _____________ day of March, 2007.
[GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NOTARIZATION IN APPROPRIATE FORM FOR THE STATE OF EXECUTION IS REQUIRED]
38
ACKNOWLEDGMENT OF INSTRUMENTS
STATE OF SS.
COUNTY OF
On _______________ before me, the undersigned notary public in and for said
state, personally appeared __________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
----------------------------
39
