Exhibit 10.9
EXECUTION VERSION
AMENDED AND RESTATED PATENT,
TRADEMARK AND COPYRIGHT SECURITY AGREEMENT
THIS AMENDED AND RESTATED PATENT, TRADEMARK AND COPYRIGHT SECURITY
AGREEMENT (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "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.") and SOVEREIGN FLEX PRODUCTS LLC, an Ohio
limited liability company ("Sovereign Flex" and together with Sovereign Inc.,
Details, Virginia, Valley and Sales are sometimes collectively referred to
herein as "Borrowers"), 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")
dated as 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 each Grantor, Grantors have agreed to
execute and deliver to Agent, for the benefit of Agent and Lenders, that certain
Amended and Restated Security Agreement of even date herewith made by Grantors
in favor of Agent (as amended, restated, supplemented or otherwise modified from
time to time, the "Security Agreement").
D. Pursuant to the Security Agreement, Grantors are required to
execute and deliver to Agent, for the benefit of Agent and Lenders, this
Agreement and pursuant thereto to amend and restate in its entirety and continue
the effectiveness of the Patent, Trademark and Copyright Security Agreement
dated as of March 30, 2004 (the "Original IP Security Agreement") and entered
into by the Loan Parties to secure the Obligations (as defined in the Original
Credit Agreement). These recitals shall be construed as part of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor and Agent hereby
agree as follows:
1. Definitions. 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 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.
2. Grant of Security Interest in Intellectual Property Collateral. To
secure the prompt and complete payment, performance and observance of all of the
Obligations, 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 its right, title and interest in, to and under
the following property, 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 divisions of such Grantor), and regardless of where located (collectively,
the "Intellectual Property Collateral"):
(a) all of such Grantor's Patents and Patent Licenses to which it
is a party, including those referred to in Part A to Schedule I hereto;
(b) all of such Grantor's Trademarks and Trademark Licenses to
which it is a party, including those referred to in Part B to Schedule I
hereto;
(c) all of such Grantor's Copyrights and Copyright Licenses to
which it is a party, including those referred to in Part C to Schedule I
hereto;
(d) all reissues, continuations or extensions of the foregoing;
(e) all goodwill, trade secrets, proprietary or confidential
information, technical information, procedures, formulae, quality control
standards, designs, operating and training manuals, customer lists, and
other General Intangibles with respect to the foregoing; and
(f) all Proceeds of the foregoing, including (i) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to any
Person from time to time with respect to any of the foregoing, (ii) any and
all payments (in any form whatsoever) made or due and payable to any Person
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the foregoing by
any Governmental Authority (or any Person acting under color of
Governmental Authority), (iii) any claim of any Person against third
parties for (A) past, present or future infringement of any Patent or
Patent License, (B) past, present or future infringement of any Copyright
or Copyright License, (C) past, present or future infringement or dilution
of any Trademark or Trademark License, or (D) injury to the
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goodwill associated with any Trademark or Trademark License, (iv) any
recoveries by any Person against third parties with respect to any
litigation or dispute concerning any of the foregoing, and (v) any and all
other amounts from time to time paid or payable under or in connection with
any of the foregoing, upon disposition or otherwise.
3. Security Agreement. The Lien granted pursuant to this Agreement is
granted in conjunction with the Liens granted to Agent, for the benefit of Agent
and Lenders, pursuant to the Security Agreement. Each Grantor hereby
acknowledges and affirms that the rights and remedies of Agent with respect to
the Liens granted under this Agreement are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
4. Amendment And Restatement; Reaffirmation.
(a) Effective as of the date of this Agreement (the "Restatement
Date"), the Original IP Security Agreement is hereby amended, restated and
superseded in its entirety. The parties hereto acknowledge and agree that
(i) this 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 IP
Security Agreement) under the Original IP 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 IP 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 Agreement, all "Obligations"
referred to in the Original IP 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 IP 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 Agreement
of the representations, warranties and covenants of any Grantor contained
in the Original IP 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 IP Security Agreement or any other Loan Document executed in
connection therewith shall survive the execution and delivery of this
Agreement.
(c) All indemnification obligations of the Grantors arising under
the Original IP Security Agreement (including any arising from a breach of
the representations thereunder) shall survive the amendment and restatement
of the Original IP Security Agreement.
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IN WITNESS WHEREOF, the parties have executed this Patent, Trademark
and Copyright Security Agreement as of the date first set forth above.
"GRANTORS"
DYNAMIC DETAILS, INCORPORATED DYNAMIC DETAILS, INCORPORATED, VIRGINIA
By: /S/ SALLY L. GOFF By: /S/ SALLY L. GOFF
--------------------------------- ------------------------------------
Name: Sally L. Goff Name: Sally L. Goff
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
DYNAMIC DETAILS INCORPORATED, SILICON DDi SALES CORP.
VALLEY
By: /S/ SALLY L. GOFF
By: /S/ SALLY L. GOFF ------------------------------------
--------------------------------- Name: Sally L. Goff
Name: Sally L. Goff Title: Vice President & Chief Financial
Title: Vice President & Chief Officer
Financial Officer
DYNAMIC DETAILS TEXAS, LLC DDi-TEXAS INTERMEDIATE PARTNERS II,
L.L.C.
By: /S/ SALLY L. GOFF
--------------------------------- By: /S/ SALLY L. GOFF
Name: Sally L. Goff ------------------------------------
Title: Vice President & Chief Name: Sally L. Goff
Financial Officer Title: Vice President & Chief Financial
Officer
DDi-TEXAS INTERMEDIATE HOLDINGS II, DYNAMIC DETAILS INCORPORATED, COLORADO
L.L.C. SPRINGS
By: /S/ SALLY L. GOFF By: /S/ SALLY L. GOFF
--------------------------------- ------------------------------------
Name: Sally L. Goff Name: Sally L. Goff
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
DDi CORP. DDi CAPITAL CORP.
By: /S/ SALLY L. GOFF By: /S/ SALLY L. GOFF
--------------------------------- ------------------------------------
Name: Sally L. Goff Name: Sally L. Goff
Title: Vice President & Chief Title: Vice President & Chief Financial
Financial Officer Officer
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DDi INTERMEDIATE HOLDINGS CORP. DYNAMIC DETAILS, L.P.
By: DDi-TEXAS INTERMEDIATE PARTNERS II,
By: /S/ SALLY L. GOFF L.L.C., its General Partner
---------------------------------
Name: Sally L. Goff
Title: Vice President & Chief By: /S/ SALLY L. GOFF
Financial Officer ------------------------------------
Name: Sally L. Goff
Title: Vice President & Chief Financial
Officer
LAMINATE TECHNOLOGY CORP.
By: /S/ SALLY L. GOFF
---------------------------------
Name: Sally L. Goff
Title: Vice President & Chief
Financial Officer
SOVEREIGN CIRCUITS, INC. SOVEREIGN FLEX PRODUCTS LLC
By: SOVEREIGN CIRCUITS, INC.
By: /S/ SALLY L. GOFF Its Sole Member
---------------------------------
Name: Sally L. Goff
Title: Vice President & Chief By: /S/ SALLY L. GOFF
Financial Officer ------------------------------------
Name: Sally L. Goff
Title: Vice President & Chief Financial
Officer
Agreed and Acknowledged by:
"AGENT"
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ PHILIP CARFORA
---------------------------------
Philip Carfora
Duly Authorized Signatory
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EXECUTION VERSION
SCHEDULE I
to
PATENT, TRADEMARK AND
COPYRIGHT SECURITY AGREEMENT
I. DYNAMIC DETAILS, INCORPORATED
A. Patents
Dynamic Details, Inc. has the following patent application: Printed
Circuit Board with Stacked Microvias (App. No. 60/793,370 - USPTO)
B. Trademarks
1. Service Mark "Dynamic Details" (Reg. No. 2,409,371 - USPTO).
2. Trademark "Dynamic Details" (Reg. No. 2,517,988 - USPTO).
3. Trademark "Dynamic Details" (Reg. No. 1219617 - European
Community).
4. Trademark "DDi" (Reg. No. 2,370,315 - USPTO).
5. Trademark "DDi" (and Design) (Reg. No. 1219260 - European
Community).
6. Service mark "DDi" (Reg. No. 2,409,942 - USPTO).
7. Application for "DDI" in Canada (App. No. 2370315).
8. Application for "Dynamic Details Canada" in Canada (App. No.
1119581, 1119582 CDN).
C. Copyrights. None.
II. DYNAMIC DETAILS, INCORPORATED, VIRGINIA
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
III. DYNAMIC DETAILS INCORPORATED, SILICON VALLEY
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
IV. LAMINATE TECHNOLOGY CORP.
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
V. SOVEREIGN CIRCUITS, INC.
A. Patents. None
B. Trademarks. None
C. Copyrights. None
VI. SOVEREIGN FLEX PRODUCTS LLC
A. Patents. None
B. Trademarks. None
C. Copyrights. None
VII. DYNAMIC DETAILS INCORPORATED, COLORADO SPRINGS
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
VIII. DDI SALES CORP.
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
IX. DYNAMIC DETAILS TEXAS, LLC
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
X. DDI-TEXAS INTERMEDIATE PARTNERS II, L.L.C.
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
XI. DDI-TEXAS INTERMEDIATE HOLDINGS II, L.L.C.
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
XII. DYNAMIC DETAILS, L.P.
A. Patents. None
B. Trademarks. None.
C. Copyrights. None.
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