EXHIBIT 10.6
CANADIAN SECURITY AGREEMENT
SECURITY AGREEMENT (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Security Agreement"),
dated as of June 30, 2004, is made by DYNAMIC DETAILS CANADA, CORP., a Nova
Scotia unlimited liability company ("Dynamic"), and DDI CANADA ACQUISITION
CORP., an Ontario corporation ("DDi Canada"; Dynamic and DDi Canada are
sometimes collectively referred to herein as "Canadian Grantors" and
individually as a "Canadian Grantor"), in favour of GE CANADA FINANCE HOLDING
COMPANY, a Nova Scotia unlimited liability company (in its individual capacity,
"GE Capital Canada"), as agent (in such capacity, "Canadian Agent") for the
lenders ("Canadian Lenders") from time to time party to the Credit Agreement (as
defined below).
RECITALS
A. Pursuant to that certain Credit Agreement of even date
herewith by and among Canadian Grantors, the other Credit Parties party thereto,
Canadian Agent and Canadian Lenders (including all annexes, exhibits and
schedules thereto, as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), Canadian Lenders
have agreed to extend certain financial accommodations to or for the direct or
indirect benefit of Canadian Grantors.
B. In order to induce Canadian Agent and Canadian Lenders to
enter into the Credit Agreement and the other Loan Documents and to induce
Canadian Lenders to make the Loans and to incur Letter of Credit Obligations as
provided for in the Credit Agreement, Canadian Grantors have agreed to grant a
continuing Lien on the Collateral (as defined below) to secure the Obligations.
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, Canadian Grantors and
Canadian Agent agree as follows:
1. DEFINED TERMS.
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 Personal Property Security Act
(Ontario) (the "PPSA") to the extent the same are used or defined therein.
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2. GRANT OF LIEN.
(a) To secure the prompt and complete payment, performance
and observance of all of the Obligations of each Canadian Grantor
(specifically including each Borrower's Obligations arising under the
cross-guaranty provisions of Section 12 of the Credit Agreement, each
Canadian Grantor hereby grants, conveys, mortgages, pledges, hypothecates
and transfers to Canadian Agent, for the benefit of Canadian Agent and
Canadian Lenders, a Lien upon all of its right, title and interest in, to
and under the following personal property of such Canadian Grantor,
whether now owned by or owing to, or hereafter acquired by or arising in
favour of, each such Canadian Grantor (including under any trade names,
styles or derivations thereof), and whether owned by or consigned by or
to, or leased from or to, each such Canadian 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;
(vi) all General Intangibles (including payment intangibles
and Software);
(vii) all Goods (including Equipment, Fixtures and
Inventory,);
(viii) all Instruments;
(ix) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all money, cash or cash equivalents;
(xii) all Supporting Obligations; and
(xiii) 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.
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Notwithstanding the generality of the foregoing, "Collateral" that includes any
Trademarks, Trademark applications or Trademark registrations will not be
subject to a "mortgage" as provided above in this SECTION 2(a) but will remain
subject to the grant, conveyance, pledge, hypothecation and transfer as also
provided above in this SECTION 2(a). Furthermore, the "Collateral" shall not
include 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
Canadian Agent and Canadian Lenders as aforesaid, each Canadian Grantor
hereby grants to Canadian Agent, for the benefit of Canadian Agent and
Canadian Lenders, a right of set-off against the property of such Canadian
Grantor held by Canadian Agent or any Canadian 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,
Canadian Agent or any Canadian Lender, for any purpose (including
safekeeping, collection or pledge), for the account of such Canadian
Grantor, or as to which such Canadian 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 Canadian Grantor that, anything
herein to the contrary notwithstanding, such Canadian 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 Canadian Agent nor any Canadian 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 Canadian Agent or any Canadian
Lender of any payment relating to any such Contract or License pursuant
hereto. Neither Canadian Agent nor any Canadian Lender shall be required
or obligated in any manner to perform or fulfill any of the obligations of
any Canadian 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 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) Canadian Agent may, at any time after an Event of Default
shall have occurred and be continuing, without prior notice to any
Canadian Grantor, notify Account Debtors obligated under Accounts of any
Canadian Grantor and other Persons obligated on Collateral that Canadian
Agent has a Lien thereon and that payments thereunder shall be made
directly to Canadian Agent, for the benefit of Canadian Agent and Canadian
Lenders, while such Event of Default is continuing. Furthermore, if
Canadian Agent determines that Account Debtor's contra accounts or set-off
rights may cause Borrowing Availability to be less than zero, Canadian
Agent may notify Account Debtors that Canadian Agent has a Lien thereon,
and that payments shall be made directly to Canadian
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Agent, for the benefit of Canadian Agent and Canadian Lenders. Upon the
request of Canadian Agent after an Event of Default has occurred and is
continuing, each Canadian 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 Canadian Grantor, no Canadian Grantor shall give any
contrary instructions to such Account Debtor or other Person without
Canadian Agent's prior written consent.
(c) Canadian Agent may, at any time, in Canadian Agent's own name,
in the name of a nominee of Canadian Agent, in the name of any Canadian
Grantor or in the name of a nominee of any Canadian Grantor, communicate
(by mail, telephone, facsimile or otherwise) with Account Debtors
obligated under Accounts of such Canadian Grantor and other Persons
obligated on Collateral to verify with such Persons, to Canadian 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 Canadian Grantor,
at its own expense, shall cause the independent certified public
accountants then engaged by such Canadian Grantor to prepare and deliver
to Canadian Agent and each Canadian Lender at any time and from time to
time promptly upon Canadian Agent's request the following reports with
respect to each Canadian 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 Canadian Agent may request. Each Canadian
Grantor, at its own expense, shall deliver to Canadian Agent upon request
the results of each physical verification, if any, which such Canadian
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 Canadian Agent, any Account
Debtor of such Canadian Grantor or any other Person obligated on
Collateral shall make payments to such Canadian Grantor, such Canadian
Grantor shall hold all such payments it receives in trust for Canadian
Agent, for the benefit of Canadian Agent and Canadian Lenders, without
commingling the same with other funds or property of, or held by, such
Canadian Grantor and shall deliver the same to Canadian Agent in the
manner set forth in Annex C to the Credit Agreement, in the identical form
received, together with any necessary endorsements.
4. REPRESENTATIONS AND WARRANTIES. Each Canadian Grantor
represents and warrants that:
(a) Rights in the Collateral. Such Canadian Grantor has rights in
and the power to transfer each item of the Collateral upon which it
purports to grant a Lien 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 or financing change statement
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
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(i) by any Canadian Grantor in favour of Canadian 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 a valid
and continuing Lien upon the Collateral. Upon filing of appropriate
financing statements in accordance with the PPSA or other applicable
statute, in the jurisdictions listed in SCHEDULE I hereto, Canadian Agent,
for the benefit of Canadian Agent and Canadian Lenders, shall have a
perfected Lien on the Collateral, which Lien (i) shall be prior to all
other Liens, except Permitted Encumbrances that would be prior to Liens in
favour of Canadian Agent, for the benefit of Canadian Agent and Canadian
Lenders, as a matter of law, and (ii) is enforceable as such as against
any and all creditors of, and purchasers from, such Canadian Grantor
(other than purchasers and lessees of Inventory in the ordinary course of
business). All action by such Canadian 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 Canadian Grantor. All action by such Canadian
Grantor necessary or desirable to protect and perfect the Lien in favour
of Canadian Agent on each item of Collateral set forth in SCHEDULE II
(including the delivery of all originals thereof to Canadian Agent and the
legending of all such Chattel Paper as required by SECTION 5(b) hereof)
has been duly taken. The Lien in favour of Canadian Agent, for the benefit
of Canadian Agent and Canadian 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 favour of Canadian Agent
as a matter of law, and is enforceable as such against any and all
creditors of and purchasers from such Canadian Grantor. Such Canadian
Grantor shall, upon obtaining ownership of any additional Instruments
(other than cheques received in the ordinary course of business), letters
of credit or Chattel Paper, promptly (and in any event within five
Business Days) deliver to Canadian Agent, for the benefit of Canadian
Agent and Canadian Lenders, all such additional Instruments or Chattel
Paper duly endorsed and all letters of credit.
(e) Canadian Grantor Information; Locations of Collateral and
Records. Each Canadian Grantor's name as it appears in official filings in
its jurisdiction of organization, the type of entity of such Canadian
Grantor (including corporation, partnership, limited partnership or
limited liability company), organizational identification number issued by
each Canadian Grantor's jurisdiction of organization or a statement that
no such number has been issued, each Canadian Grantor's jurisdiction of
organization, the location of each Canadian 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 Canadian Grantor has
only one jurisdiction of organization.
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(f) Accounts. With respect to any Account of such Canadian
Grantor, except as specifically disclosed in the most recent Collateral
Report delivered to Canadian 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 Canadian Grantor's business and is not evidenced by a
judgment, Instrument or Chattel Paper; (ii) there are no set-offs, claims
or disputes existing or asserted with respect thereto and such Canadian
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 Canadian Grantor in the ordinary course of its
business for prompt payment and disclosed to Canadian Agent; (iii) to such
Canadian 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 Canadian Grantor's books and records and any invoices, statements and
Collateral Reports delivered to Canadian Agent and Canadian Lenders with
respect thereto; (iv) such Canadian 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 Canadian
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 Canadian Grantor: (A) the amounts reflected on all
records, invoices, statements and Collateral Reports that may be delivered
to Canadian Agent with respect thereto are actually and absolutely owing
to such Canadian 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 Canadian Grantor's knowledge, the applicable Account Debtor
has the capacity to contract.
(g) Inventory. With respect to any Inventory of such Canadian
Grantor scheduled or listed in the most recent Collateral Report delivered
to Canadian Agent pursuant to the terms of this Security Agreement or the
Credit Agreement, (i) such Inventory is located at one of such Canadian
Grantor's locations set forth in SCHEDULE III hereto, (ii) such Inventory
is not now stored, nor shall at any time or times hereafter be stored, at
any other location without Canadian Agent's prior written consent, and if
Canadian Agent provides such consent, each applicable Canadian Grantor
will concurrently therewith obtain, to the extent required by the Credit
Agreement, bailee, landlord or mortgagee agreements, as applicable, (iii)
such Canadian Grantor has good and merchantable title to such Inventory
and such Inventory is not subject to any Lien or security interest
whatsoever except for the Lien granted to Canadian Agent hereunder, for
the benefit of Canadian Agent and Canadian 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
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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 Canadian 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 Canadian Grantor is
a party or to which such Inventory is subject.
(h) Intellectual Property Collateral. Such Canadian 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 Canadian Grantor. Upon the
filing of the Intellectual Property Security Agreement with the Canadian
Intellectual Property Office and the filing of appropriate financing
statements pursuant to the PPSA or other applicable statute in the
jurisdictions listed in SCHEDULE I hereto: (i) Canadian Agent shall have
perfected Liens upon each Canadian 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 Canadian
Grantor; and (iii) all action necessary or desirable to protect and
perfect Canadian Agent's Lien on such Canadian 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 Canadian Grantor covenants and agrees with
Canadian Agent, for the benefit of Canadian Agent and Canadian 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 Canadian Agent and at the sole expense of such Canadian Grantors,
such Canadian Grantor shall promptly and duly execute and deliver any and all
such further instruments and documents and take such further actions as Canadian
Agent may deem desirable to obtain the full benefits of this Security Agreement
and of the rights and powers herein granted, including (A) using commercially
reasonable efforts to secure all consents and approvals necessary or appropriate
for the assignment to or for the benefit of Canadian Agent of any License or
Contract held by such Canadian Grantor and to enforce the Liens, granted
hereunder and (B) filing any financing statements or financing change statements
under the PPSA or other applicable statute with respect to the Liens granted
hereunder or under any other Loan Document.
(ii) Unless Canadian Agent shall otherwise consent in writing
(which consent may be revoked by Canadian Agent at any time in its sole
discretion upon prior written notice), each Canadian Grantor shall deliver to
Canadian 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 Canadian Grantor receives the same.
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(iii) Each Canadian 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 Canadian Grantor shall in all instances obtain signed acknowledgements of
Canadian Agent's Liens from bailees having possession of such Canadian Grantor's
Goods that such bailees hold for the benefit of Canadian Agent.
(iv) If required by the terms of the Credit Agreement and not
waived by Canadian Agent in writing (which waiver may be revoked by Canadian
Agent at any time in its sole discretion), each Canadian 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 Canadian Grantor.
(v) In accordance with ANNEX C to the Credit Agreement, each
Canadian Grantor shall obtain a blocked account, lockbox or similar agreement
with each bank or financial institution at which such Canadian Grantor has
established a Deposit Account.
(vi) If any Canadian Grantor is or becomes the beneficiary of
a letter of credit, then such Canadian Grantor shall promptly, and in any event
within five Business Days after becoming such a beneficiary, notify Canadian
Agent thereof and enter into a tri-party agreement with Canadian Agent and the
issuer or confirmation bank within a reasonable time period after such Canadian
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
Canadian Agent and directing all payments thereunder to the Collection Account
or another bank account designated by Canadian Agent, which tri-party agreement
shall be in form and substance reasonably satisfactory to Canadian Agent.
(vii) Each Canadian Grantor shall take all commercially
reasonable steps necessary to grant Canadian Agent control of all electronic
chattel paper.
(viii) Each Canadian Grantor shall promptly, and in any event
within five Business Days after the same is acquired by it, notify Canadian
Agent of any commercial tort claim (as defined in the Code) acquired by it and
unless otherwise consented to by Canadian Agent in its permitted discretion,
such Canadian Grantor shall enter into a supplement to this Security Agreement,
granting to Canadian Agent a Lien in such commercial tort claim.
(b) Maintenance of Books and Records. Such Canadian 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 grant a Lien
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 Canadian
Grantor shall mark its books and records pertaining to each such item of
Collateral to evidence this Security Agreement and the Liens granted
hereby. If any Canadian Grantor retains possession of any Chattel Paper or
Instruments with Canadian
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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 GE Canada Finance
Holding Company, as Canadian Agent, for the benefit of Canadian Agent and
certain Canadian Lenders."
(c) Covenants Regarding Intellectual Property.
(i) Such Canadian Grantor shall notify Canadian 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 Canadian Intellectual Property Office or
any court) regarding such Canadian Grantor's ownership of any such License,
Patent, Trademark or Copyright, its right to register the same, or to keep and
maintain the same.
(ii) In the event that such Canadian 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 Canadian Intellectual Property Office or any similar office or agency,
such Canadian Grantor shall give Canadian Agent written notice within five
Business Days following such filing, and, upon request of Canadian Agent, such
Canadian Grantor shall execute and deliver any and all security documents as
Canadian Agent may request, including the Intellectual Property Security
Agreement, to evidence Canadian Agent's Lien on such Patent, Trademark or
Copyright, and the General Intangibles of such Canadian Grantor relating thereto
or represented thereby.
(iii) Such Canadian Grantor shall take all actions
deemed necessary by such Canadian Grantor or requested by Canadian 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 Canadian Grantor shall
determine that such Patent, Trademark or Copyright is not material to the
conduct of its business or operations.
(iv) In the event that any Canadian Grantor's
Intellectual Property is infringed upon, or misappropriated or diluted by a
third party, such Canadian Grantor shall comply with SECTION 5(a)(viii) of this
Security Agreement. Such Canadian Grantor shall, unless such Canadian Grantor
shall reasonably determine that such Intellectual Property is not material to
the conduct of its business or operations, promptly sue for infringement,
misappropriation or depreciation of goodwill, and seek recovery of any and all
damages resulting from, such infringement, misappropriation or depreciation of
goodwill, and shall take such other actions as Canadian Agent shall deem
appropriate under the circumstances to protect such Intellectual Property.
(d) Indemnification. In any suit, proceeding or action brought by
Canadian Agent or any Canadian Lender relating to any Collateral for any
sum owing with respect thereto or to enforce any rights or claims with
respect thereto, each Canadian Grantor
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shall save, indemnify and hold Canadian Agent and Canadian Lenders
harmless from and against all expense (including reasonable attorneys'
fees and expenses), loss or damage suffered by reason of any defense, set
off, counterclaim, recoupment or reduction of liability whatsoever of any
Person obligated on the Collateral, arising out of a breach by such
Canadian Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to, or in favour
of, such obligor or its successors by such Canadian Grantor, except in the
case of Canadian Agent or any Canadian Lender, to the extent such expense,
loss, or damage is attributable solely to the gross negligence or willful
misconduct of Canadian Agent or any Canadian Lender as determined by a
court of competent jurisdiction. All such obligations of such Canadian
Grantor shall be and remain enforceable against and only against such
Canadian Grantor and shall not be enforceable against Canadian Agent or
any Canadian Lender.
(e) Compliance with Terms of Accounts and Agreements. In all
material respects, such Canadian 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 Canadian Grantor shall
not create, incur, assume or permit to exist, and such Canadian 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 Canadian
Agent and Canadian Lenders in and to such Canadian Grantor's rights under
the Collateral against the claims and demands of all Persons.
(g) Limitations on Disposition. Such Canadian 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 Canadian Grantor
shall, if so requested by Canadian Agent, furnish to Canadian Agent, as
often as Canadian Agent requests, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as Canadian Agent may reasonably request,
all in such detail as Canadian Agent may specify.
(i) Notices. Such Canadian Grantor shall advise Canadian 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. Not less frequently than once
during each calendar quarter, each Canadian Grantor shall, unless Canadian
Agent shall otherwise consent, provide to Canadian Agent a certificate of
good standing, certificate of compliance, certificate of status or
analogous certificate from its jurisdiction of organization.
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(k) No Reorganization. Without limiting the prohibitions on
mergers involving Canadian Grantors contained in the Credit Agreement, no
Canadian Grantor shall continue, 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
Canadian Agent.
(l) Terminations; Amendments Not Authorized. Each Canadian Grantor
acknowledges that it is not authorized to file any financing statement or
financing change statement or termination and release with respect to any
financing statement without the prior written consent of Canadian Agent
and agrees that it will not do so without the prior written consent of
Canadian Agent, subject to such Canadian Grantor's rights under the PPSA.
(m) Authorized Terminations. Canadian Agent will promptly deliver
to each Canadian Grantor for filing or authorize each Canadian Grantor to
prepare and file discharges and releases in accordance with Section
11.2(e) of the Credit Agreement.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
On the Closing Date each Canadian Grantor shall execute and deliver
to Canadian 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 Canadian Agent,
for the benefit of Canadian Agent and Canadian Lenders, under each Power of
Attorney are solely to protect Canadian Agent's Liens upon and interests (for
the benefit of Canadian Agent and Canadian Lenders) in the Collateral and shall
not impose any duty upon Canadian Agent or any Canadian Lender to exercise any
such powers. Canadian Agent agrees that (a) except for the powers granted in
CLAUSE (i) of 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) Canadian Agent shall account for any moneys
received by Canadian 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 Canadian Agent nor any Canadian Lender shall
have any duty as to any Collateral, and Canadian Agent and Canadian 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 OR ANY OTHER PERSON 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.
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7. REMEDIES; RIGHTS UPON DEFAULT.
(a) 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, if any Event of Default shall have
occurred and be continuing, Canadian Agent may exercise all rights and
remedies of a secured party under the PPSA or other applicable statute.
Without limiting the generality of the foregoing, each Canadian Grantor
expressly agrees that in any such event Canadian Agent, without demand of
performance or other demand, advertisement, process or notice of any kind
(except the notice specified in SECTION 7(b) below of the time and place
of any public or private sale) to or upon such Canadian 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 PPSA
and other applicable law), may:
(i) immediately enter upon the premises of such Canadian
Grantor where any Collateral is located through self-help, without
judicial process, without first obtaining a final judgment or giving
such Canadian Grantor or any other Person notice and an opportunity
for a hearing on Canadian Agent's claim or action and may demand or
take possession of, disable, remove, 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 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.
Canadian Agent or any Canadian 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
Canadian Agent and Canadian Lenders, the whole or any part of said
Collateral so sold, free of any right or equity of redemption, which
equity of redemption each Canadian Grantor hereby releases. Such
sales may be adjourned or continued from time to time with or
without notice. Canadian Agent shall have the right to conduct such
sales on any Canadian Grantor's premises or elsewhere and shall have
the right to use any Canadian Grantor's premises without charge for
such sales at such time or times as Canadian Agent deems necessary
or advisable;
(ii) enter the premises of any Canadian Grantor and, without
breach of the peace, until Canadian 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 Canadian Grantor's Equipment for
the purpose of collecting any of the Collateral;
(iii) hold, store and keep idle, or operate, lease or
otherwise use or permit the use of, any or all of the Collateral for
such time and on such terms as Canadian Agent may determine, and
demand, collect and retain all earnings and
-13-
other sums due or to become due from any Person in respect of any of
the Collateral;
(iv) carry on, or concur in the carrying on of, any or all of
the business or undertaking of any Canadian Grantor and enter on,
occupy and use (without charge by Canadian Grantor) any of the
premises, buildings, plant and undertaking of, or occupied or used
by, any Canadian Grantor;
(v) seize, collect, receive, enforce or otherwise deal with
any Collateral in such manner, on such terms and conditions and at
such times as Canadian Agent deems advisable;
(vi) apply to a court of competent jurisdiction for the sale
or foreclosure of any or all of the Collateral;
(vii) at any public sale, and to the extent permitted by law,
at any private sale, bid for and purchase any or all of the
Collateral offered for sale and, upon compliance with the terms of
such sale, hold, retain and dispose of such Collateral without any
further accountability to any Canadian Grantor or any other Person
with respect to such holding, retention or disposition, except as
required by law. In any such sale to Canadian Agent, Canadian Agent
may, for the purpose of making payment for all or any part of the
Collateral so purchased, use any claim for Obligations then due and
payable to it as a credit against the purchase price;
(viii) at the expense of Canadian Grantors, enforce collection
of any such Accounts, and adjust, settle or compromise the amount or
payment of such Accounts, in such manner and to such extent as
Canadian Agent deems appropriate in the circumstances;
(ix) transfer any Stock forming part of the Collateral into
the name of Canadian Agent or its nominee, with or without
disclosing that the Stock is subject to the security interests
arising under this Security Agreement;
(x) exercise any and all rights, privileges, entitlements
and options pertaining to any Stock forming part of the Collateral
as if Canadian Agent were the absolute owner of such Stock;
(xi) pay any liability secured by any Lien against any
Collateral. Canadian Grantors will immediately on demand reimburse
Canadian Agent for all such payments;
(xii) borrow money for the maintenance, preservation or
protection of any Collateral or for carrying on any of the business
or undertaking of any Canadian Grantor and grant security interests
on any Collateral (in priority to the Liens created by this Security
Agreement or otherwise) as security for the money
-14-
so borrowed. Canadian Grantors will immediately on demand reimburse
Canadian Agent for all such borrowings;
(xiii) appoint by instrument in writing one or more receivers
or receiver-managers ("RECEIVERS") of Canadian Grantor or any or all
of the Collateral, with such rights, powers and authority (including
any or all of the rights, powers and authority of Canadian Agent
under this Security Agreement) as may be provided for in the
instrument of appointment or any supplemental instrument, and remove
and replace any such Receiver from time to time. To the extent
permitted by applicable law, any Receiver appointed by Canadian
Agent will (for purposes relating to responsibility for the
Receiver's acts or omissions) be considered to be the agent of
Canadian Grantors and not of Canadian Agent;
(xiv) apply to a court of competent jurisdiction for the
appointment of a Receiver of any Canadian Grantor or of any or all
of the Collateral; or
(xv) exercise any and all of its rights under any and all of
the Collateral Documents.
(b) If any Event of Default shall have occurred and be continuing,
each Canadian Grantor further agrees, at Canadian Agent's request, to
assemble the Collateral and make it available to Canadian Agent at a place
or places designated by Canadian Agent reasonably convenient to Canadian
Agent and such Canadian Grantor, whether at such Canadian Grantor's
premises or elsewhere. Until Canadian Agent is able to effect a sale,
lease, or other disposition of Collateral, Canadian 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 Canadian Agent other
than as set forth in SECTION 9 hereof or as otherwise set forth in the
Loan Documents. Canadian Agent shall have no obligation to any Canadian
Grantor to maintain or preserve the rights of such Canadian Grantor as
against third parties with respect to Collateral while Collateral is in
the possession of Canadian Agent. Canadian 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 Canadian Agent of any other amount required by any provision of
law, need Canadian Agent account for the surplus, if any, to any Canadian
Grantor. Each Canadian Grantor waives, to the maximum extent permitted by
applicable law, all claims, damages, and demands against Canadian Agent or
any Canadian 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 Canadian Agent or such Canadian Lender as determined
by a court of competent jurisdiction. Each Canadian Grantor agrees that
fifteen days' prior notice by Canadian 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 matters. Canadian 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
-15-
or other expenses incurred by Canadian Agent or any Canadian Lender to
collect such deficiency.
(c) Except as otherwise specifically provided herein, each
Canadian 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.
(d) To the extent that applicable law imposes duties on Canadian
Agent to exercise remedies in a commercially reasonable manner, each
Canadian Grantor acknowledges and agrees that it is not commercially
unreasonable for Canadian Agent (i) to fail to incur expenses reasonably
deemed significant by Canadian 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 Canadian 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 Canadian Agent against risks of loss,
collection or disposition of Collateral or to provide to Canadian Agent a
guaranteed return from the collection or disposition of Collateral, or
(xii) to the extent deemed appropriate by Canadian Agent, to obtain the
services of other brokers, investment bankers, consultants and other
professionals to assist Canadian Agent in the collection or disposition of
any of the Collateral. Each Canadian Grantor acknowledges that the purpose
of this SECTION 7(d) is to provide non-exhaustive indications of what
actions or omissions by Canadian Agent would not be commercially
unreasonable in Canadian Agent's exercise of remedies against the
Collateral and that other actions or omissions by Canadian Agent shall not
be deemed commercially unreasonable solely on account of not being
indicated in this SECTION 7(d). Without limiting the generality of the
foregoing, nothing contained in this SECTION 7(d) shall be construed to
grant any rights to any Canadian Grantor or to impose any duties on
Canadian Agent that would not have been granted or imposed by this
Security Agreement or by applicable law in the absence of this SECTION
7(d).
-16-
(e) Neither Canadian Agent nor any Canadian Lender shall be
required to make any demand upon, or pursue or exhaust any of its
respective rights or remedies against, any Canadian Grantor, any other
obligor, guarantor, pledgor or any other Person with respect to the
payment of the Obligations or to pursue or exhaust any of its respective
rights or remedies with respect to any Collateral therefor or any direct
or indirect guarantee thereof. Neither Canadian Agent nor any Canadian
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 Canadian Grantor absolutely and irrevocably waives and
relinquishes the benefit and advantage of, and covenants not to assert
against Canadian Agent or any Canadian 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 Canadian 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 Canadian Agent shall be lawfully entitled
to exercise such rights and remedies, each Canadian Grantor hereby grants to
Canadian Agent, for the benefit of Canadian Agent and Canadian 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 Canadian Grantor to third parties or
obtained by such Canadian Grantor in the ordinary course of business, an
irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to such Canadian Grantor) to use, license or sublicense any
Intellectual Property now owned or hereafter acquired by such Canadian 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 Canadian Agent and each Canadian Lender shall use reasonable
care with respect to the Collateral in its possession or under its control.
Neither Canadian Agent nor any Canadian 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 Canadian Agent or such Canadian Lender, or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto.
10. TAXES AND SET-OFF BY LOAN PARTIES. All payments to be made
hereunder by any Canadian Grantor hereto will be made without set-off or
counterclaim and without deduction for any Taxes of any nature whatsoever,
except as may be otherwise provided for in the Credit Agreement. If at any time
any applicable law, regulation or international
-17-
agreement requires any such Canadian Grantor to make any such deduction or
withholding from any such payment, the sum due from such Canadian Grantor with
respect to such payment will be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, the Canadian Agent
receives a net sum equal to the sum which it would have received had no
deduction or withholding been required, except as may be otherwise provided for
in the Credit Agreement.
11. AMALGAMATION. If a Canadian Grantor is a corporation, such
Canadian Grantor acknowledges that if it amalgamates with any other corporation
or corporations, then (i) the Collateral and the Lien created herein will extend
to and include all the property or assets of the amalgamated corporation and to
any property or assets of the amalgamated corporation thereafter owned or
acquired (ii) the term "Canadian Grantor" or any plural thereof, where used in
this Security Agreement, will extend to and include the amalgamated corporation
thereof and (iii) the term "Obligations", where used in this Security Agreement,
will extend to and include the Obligations of the amalgamated corporation of
such Canadian Grantor.
12. ACKNOWLEDGEMENT OF RECEIPT/WAIVER. Each Canadian Grantor
hereto acknowledges receipt of an executed copy of this Security Agreement and,
to the extent permitted by applicable law, waives the right to receive a copy of
any financing statement, financing change statement or verification statement in
respect of any registered financing statement or financing change statement
prepared, registered or issued in connection with this Agreement.
13. FURTHER DOCUMENTATION. Each Canadian Grantor acknowledges that
this Security Agreement has been prepared based on the existing laws of the
province of Ontario and that a change in such laws, or the laws of other
jurisdictions, may require the execution and delivery of different forms of
security documentation. Accordingly, each Canadian Grantor agrees that the
Canadian Agent will have the right to require, acting reasonably, that this
Security Agreement be amended, supplemented or replaced, and that each Canadian
Grantor will immediately on request by the Canadian Agent authorize, execute and
deliver any such amendment, supplement or replacement (i) to reflect any changes
in such laws, whether arising as a result of statutory amendments, court
decisions or otherwise, (ii) to facilitate the creation and registration of
appropriate security in all appropriate jurisdictions, or (iii) without limiting
the restrictions contained herein or in the other Loan Documents, if any
Canadian Grantor merges or amalgamates with any other Person or enters into any
corporate reorganization, in each case, in order to confer on the Canadian Agent
(for its own benefit and for the benefit of the Canadian Lenders) security
interests similar to, and having the same effect as, the security interests
created by this Security Agreement.
14. 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 Canadian Grantor for liquidation or reorganization, should any
Canadian 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 Canadian 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
-18-
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 "fraudulent 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. 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.
16. 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 Credit Agreement and the other Loan Documents which, taken
together, set forth the complete understanding and agreement of Canadian Agent,
Canadian Lenders and Canadian Grantors with respect to the matters referred to
herein and therein.
17. NO WAIVER; CUMULATIVE REMEDIES. Neither Canadian Agent nor any
Canadian 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 Canadian Agent, and then only to the extent
therein set forth. A waiver by Canadian Agent of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or remedy that
Canadian Agent would otherwise have on any future occasion. No failure by
Canadian Agent or any Canadian 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
precludes 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 Canadian Agent and each Canadian
Grantor.
18. 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,
-19-
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
19. TERMINATION OF THIS SECURITY AGREEMENT. Subject to SECTION 14
hereof, this Security Agreement shall terminate upon the Termination Date.
20. SUCCESSORS AND ASSIGNS. This Security Agreement and all
obligations of Canadian Grantors hereunder shall be binding upon the successors
and assigns of each Canadian Grantor and shall, together with the rights and
remedies of Canadian Agent, for the benefit of Canadian Agent and Canadian
Lenders, hereunder, inure to the benefit of Canadian Agent and Canadian 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 Canadian Agent, for the
benefit of Canadian Agent and Canadian Lenders, hereunder. No Canadian Grantor
may assign, sell, hypothecate or otherwise transfer any interest in or
obligation under this Security Agreement.
21. 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
Canadian Agent, electronic means, all of which shall be equally valid.
22. 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 PROVINCE OF ONTARIO, AND ANY APPLICABLE LAWS OF CANADA. EACH
GRANTOR HEREBY CONSENTS AND AGREES THAT THE COURTS LOCATED IN ONTARIO SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG
GRANTORS, AGENT AND LENDERS PERTAINING TO THIS SECURITY AGREEMENT OR TO ANY
MATTER ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT; PROVIDED, THAT
AGENT, LENDERS AND GRANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF ONTARIO; 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 FAVOUR 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
-20-
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 MAIL,
PROPER POSTAGE PREPAID.
23. 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
PROVINCIAL 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, 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.
24. 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.
25. 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 favouring or disfavouring any party
by virtue of the authorship of any provisions of this Security Agreement.
26. 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 22 and 23) with its counsel.
27. BENEFIT OF LENDERS. All Liens granted or contemplated hereby
shall be for the benefit of Canadian Agent, individually, and Canadian 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.
-21-
28. 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).
29. NO DELAY IN ATTACHMENT. Each Canadian Grantor confirms and
acknowledges that (i) value has been given, (ii) it has rights in its Collateral
(other than its after-acquired Collateral) and (iii) it has not agreed to
postpone the time of attachment of the security interest created by this
Security Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
-22-
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.
"CANADIAN GRANTORS"
DYNAMIC DETAILS CANADA, CORP. DDi CANADA ACQUISITION CORP.
By: /s/ TIMOTHY DONNELLY By: /s/ TIMOTHY DONNELLY
------------------------------- -------------------------------
Timothy Donnelly Timothy Donnelly
Vice President and Secretary Vice President and Secretary
"CANADIAN AGENT"
GE CANADA FINANCE HOLDING
COMPANY
By: /s/ STEPHEN B. SMITH
--------------------------------
Stephen B. Smith
President
SCHEDULE I
to
SECURITY AGREEMENT
FILING JURISDICTIONS
Name of Entity Filing Jurisdictions
- ---------------------------- --------------------------------
DYNAMIC DETAILS CANADA, CORP. Nova Scotia; Ontario; California
DDi CANADA ACQUISITION CORP. Ontario; California
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS CHATTEL PAPER AND LETTER-OF-CREDIT-RIGHTS
Intercompany Note in the principal amount of CAD $12,903,801, dated as of
February 2, 2004, issued by 3085549 Nova Scotia Limited (which subsequently
merged into Dynamic Details Canada, Corp.) in favour of DDi Canada Acquisition
Corp.
SCHEDULE III-A
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND
RECORDS CONCERNING DYNAMIC DETAILS CANADA, CORP.'S COLLATERAL
I. Canadian Grantor's official name: Dynamic Details Canada, Corp.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Unlimited liability company
III. Organizational identification number issued by Canadian Grantor's
jurisdiction of organization or a statement that no such number has been
issued: 3086718
IV. Jurisdiction or Organization of Dynamic Details Canada, Corp.: Nova Scotia
V. Chief Executive Office and principal place of business of Dynamic Details
Canada, Corp.: 1220 Simon Circle, Anaheim, California 92806; 3471 B
McNicoll Ave., Toronto, Ontario M2V 4B8; 45 Ironside Crescent, Unit 9,
Toronto, Ontario
VI. Corporate Offices of Dynamic Details Canada, Corp.: 1220 Simon Circle,
Anaheim, California 92806; 3471 B McNicoll Ave., Toronto, Ontario M2V 4B8;
45 Ironside Crescent, Unit 9, Toronto, Ontario
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral: 1220 Simon Circle, Anaheim,
California 92806; 3471 B McNicoll Ave., Toronto, Ontario M2V 4B8; 45
Tronside Crescent, Unit 9, Toronto, Ontario
SCHEDULE III-B
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL AND
RECORDS CONCERNING DDi CANADA ACQUISITION CORP.'S COLLATERAL
I. Canadian Grantor's official name: DDi Canada Acquisition Corp.
II. Type of entity (e.g., corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Canadian Grantor's
jurisdiction of organization or a statement that no such number has been
issued: 1474390
IV. Jurisdiction or Organization of DDi Canada Acquisition Corp.: Ontario
V. Chief Executive Office and principal place of business of DDi Canada
Acquisition Corp.: 1220 Simon Circle, Anaheim, California 92806; 3471
McNicoll Ave., Unit 2, Toronto, Ontario M1V 4B8
VI. Corporate Offices of DDi Canada Acquisition Corp.: 1220 Simon Circle,
Anaheim, California 92806; 3471 McNicoll Ave., Unit 2, Toronto, Ontario
M1V 4B8
VII. Warehouses: None.
VIII. Other Premises at which Collateral is Stored or Located: None.
IX. Locations of Records Concerning Collateral: 1220 Simon Circle, Anaheim,
California 92806; 3471 McNicoll Ave., Unit 2, Toronto, Ontario M1V 4B8
SCHEDULE IV
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
DDi Corp. has granted to each Canadian Grantor certain rights with respect to
the following Patents: (i) United States Patent Application No. 10104262,
"Inverted Microvias", (ii) Republic of China Patent Application No. 91113923,
"Inverted Microvias"; Patent issued July 1, 2003, (iii) Patent Cooperation
Treaty Patent Application No. 2002-156949, "Inverted Microvias", and (iv) Japan
Patent Application No. 2002-156949, "Inverted Microvias".
SCHEDULE V
to
SECURITY AGREEMENT
MOTOR VEHICLES
[NONE]
EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by ______________________, a
_____________________ ("Canadian Grantor"), to GE Canada Finance Holding
Company, a Nova Scotia unlimited liability company (hereinafter referred to as
"Attorney"), as Canadian Agent for the benefit of Canadian Agent and Canadian
Lenders, pursuant to that certain Credit Agreement dated as of June 30, 2004 (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 Canadian 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 Canadian 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 Canadian Grantor without Attorney's written consent.
Subject to the terms of the Loan Documents, Canadian Grantor hereby
irrevocably constitutes and appoints Attorney (and all officers, employees or
agent designated by Attorney), with full power of substitution, as Canadian
Grantor's true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of Canadian Grantor and in the name of Canadian
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,
Canadian Grantor hereby grants to Attorney the power and right, on behalf of
Canadian Grantor, without notice to or assent by Canadian Grantor, and at any
time, to do the following: (a) change the mailing address of Canadian Grantor,
open a post office box on behalf of Canadian Grantor, open mail for Canadian
Grantor, and ask, demand, collect, give acquittances and receipts for, take
possession of, or endorse and receive payment of, any cheques, 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 Canadian Grantor; (b) effect any repairs to any
asset of Canadian 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 Canadian Grantor
or its property; (d) defend any suit, action or proceeding brought against
Canadian Grantor if Canadian Grantor does not defend such suit, action or
proceeding or if Attorney believes that Canadian
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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 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 Canadian Grantor
whenever payable and to enforce any other right in respect of Canadian Grantor's
property; (f) sell, transfer, pledge, make any agreement with respect to, or
otherwise deal with, any property of Canadian 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 Canadian 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 Canadian Grantor, parties to any Contracts of
Canadian Grantor or other obligors of Canadian Grantor in respect of
Instruments, Chattel Paper or General Intangibles of Canadian Grantor with
regard to the assignment of the right, title and interest of such Canadian
Grantor in, to and under such Accounts, Contracts, Instruments, Chattel Paper,
General Intangibles and other matters relating thereto; (i) file such financing
statements or financing change statements with respect to the Security
Agreement, with or without Canadian Grantor's signature, or file a photocopy of
the Security Agreement in substitution for a financing statement, as Canadian
Agent may deem appropriate and to execute in Canadian Grantor's name such
financing statements and amendments thereto and continuation statements that may
require Canadian 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 Canadian Grantor for all purposes; and (k) do, at
Attorney's option and Canadian 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 Canadian Grantor's property or assets and
Attorney's Liens thereon, all as fully and effectively as Canadian Grantor might
do. Canadian Grantor hereby ratifies, to the extent permitted by law, all that
said Attorney shall lawfully do or cause to be done by virtue hereof.
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IN WITNESS WHEREOF, this Power of Attorney is executed by Canadian Grantor, and
Canadian Grantor has caused its seal to be affixed pursuant to the authority of
its board of directors this _____________ day of [-], 2004.
[ GRANTOR ]
By:_____________________________
Name:___________________________
Title:__________________________