Exhibit 10.7
EXECUTION VERSION
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY ("Guaranty"), dated as of March 30,
2007, is made by DDI CORP., a Delaware corporation ("DDi"), DDI INTERMEDIATE
HOLDINGS CORP., a California corporation ("Intermediate"), DDI CAPITAL CORP., a
California corporation ("Capital"), LAMINATE TECHNOLOGY CORP., a Delaware
Corporation ("Laminate"), 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"), and DYNAMIC DETAILS,
L.P., a Delaware limited partnership ("DDLP" and together with Laminate, DDi,
Intermediate, Capital, Colorado, Texas, DTIP, DTIH and Sales (as defined below),
are sometimes collectively referred to herein as, "Original Guarantors" and
Original Guarantors together with Laminate, Sovereign Inc. and Sovereign Flex
are sometimes collectively referred to as, "Guarantors" and individually as a
"Guarantor"), in favor of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as agent (in such capacity, "Agent") for the benefit of Agent and
lenders ("Lenders") from time to time party to the Credit Agreement (as defined
below).
RECITALS
A. Dynamic Details, Incorporated, a California corporation ("Details"),
Dynamic Details Incorporated, Virginia, a Delaware corporation ("Virginia"),
Dynamic Details Incorporated, Silicon Valley, a Delaware corporation ("Valley"
and together with Details, Virginia and Laminate are sometimes collectively
referred to herein as, "Original Borrowers"), 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, Valley, Virginia
and Sales are collectively referred to herein as, "Borrowers"), Guarantors,
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") which 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 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
Borrowers and Guarantors and to maintain and make Loans under the Original
Credit Agreement.
C. Guarantors, directly or indirectly, are either the record and beneficial
owners of all the shares of Stock of Borrowers, or the wholly-owned subsidiaries
of Borrowers.
D. Guarantors will derive substantial direct and indirect economic benefit
if Lenders and Agent enter into the Credit Agreement and agree to make the
financial accommodations provided for therein.
AMENDED AND RESTATED GUARANTY
E. Lenders are willing to enter into the Credit Agreement and to make the
financial accommodations to Borrowers and Guarantors as provided in the Credit
Agreement, but only upon the condition, among others, that each Guarantor shall
have executed and delivered this Guaranty. This Guaranty amends and restates in
its entirety the Guaranty (the "Original Guaranty") dated as of March 30, 2004
and entered into by the Loan Parties in favor of Agent and Lenders to secure the
Obligations (as defined in the Original Guaranty). These recitals shall be
construed as part of this Guaranty.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the receipt and sufficiency of which is hereby
acknowledged, and to induce Agent and Lenders to enter into the Credit
Agreement, it is agreed as follows:
1. DEFINITIONS.
Capitalized terms used herein shall have the meanings assigned to them in
the Credit Agreement, unless otherwise defined herein.
References to this "Guaranty" shall mean this Guaranty, including all
amendments, modifications and supplements and any annexes, exhibits and
schedules to any of the foregoing, and shall refer to this Guaranty as the same
may be in effect at the time such reference becomes operative.
2. THE GUARANTY.
2.1. Guaranty of Guaranteed Obligations of Borrowers. Each Guarantor hereby
jointly and severally unconditionally guarantees to Agent and Lenders, and their
respective successors, endorsees, transferees and assigns, the prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of
the Obligations of Borrowers (hereinafter the "Guaranteed Obligations").
Guarantors agree that this Guaranty is a guaranty of payment and performance and
not of collection, and that their obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in this Guaranty, any other Loan Document or
any other agreement, document or instrument to which any Credit Party
and/or Guarantors are or may become a party;
(b) the absence of any action to enforce this Guaranty or any other
Loan Document or the waiver or consent by Agent and/or Lenders with respect
to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its
Lien against, any Collateral for the Guaranteed Obligations or any action,
or the absence of any action, by Agent in respect thereof (including,
without limitation, the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances which might otherwise constitute
a legal or equitable discharge or defense of a surety or guarantor;
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it being agreed by each Guarantor that its obligations under this Guaranty shall
not be discharged until the Termination Date. Each Guarantor shall be regarded,
and shall be in the same position, as principal debtor with respect to the
Guaranteed Obligations.
2.2. Demand by Agent or Lenders. In addition to the terms of the Guaranty
set forth in SECTION 2.1 hereof, and in no manner imposing any limitation on
such terms, it is expressly understood and agreed that, if, at any time, the
outstanding principal amount of the Guaranteed Obligations under the Credit
Agreement (including all accrued interest thereon) is declared to be immediately
due and payable, then Guarantors shall, without demand, pay to the holders of
the Guaranteed Obligations the entire outstanding Guaranteed Obligations due and
owing to such holders. Payment by Guarantors shall be made to Agent in
immediately available Federal funds to an account designated by Agent or at the
address set forth herein for the giving of notice to Agent or at any other
address that may be specified in writing from time to time by Agent, and shall
be credited and applied to the Guaranteed Obligations.
2.3. Enforcement of Guaranty. In no event shall Agent have any obligation
(although it is entitled, at its option) to proceed against any Borrower or any
other Credit Party or any Collateral pledged to secure Guaranteed Obligations
before seeking satisfaction from any or all of the Guarantors, and Agent may
proceed, prior or subsequent to, or simultaneously with, the enforcement of
Agent's rights hereunder, to exercise any right or remedy which it may have
against any Collateral, as a result of any Lien it may have as security for all
or any portion of the Guaranteed Obligations.
2.4. Waiver. In addition to the waivers contained in SECTION 2.1 hereof,
Guarantors waive, and agree that they shall not at any time insist upon, plead
or in any manner whatever claim or take the benefit or advantage of, any
appraisal, valuation, stay, extension, marshaling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by Guarantors of their Guaranteed
Obligations under, or the enforcement by Agent or Lenders of, this Guaranty.
Guarantors hereby waive diligence, presentment and demand (whether for
non-payment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Guaranteed Obligations, acceptance of further security,
release of further security, composition or agreement arrived at as to the
amount of, or the terms of, the Guaranteed Obligations, notice of adverse change
in any Borrower's financial condition or any other fact which might increase the
risk to Guarantors) with respect to any of the Guaranteed Obligations or all
other demands whatsoever and waive the benefit of all provisions of law which
are or might be in conflict with the terms of this Guaranty. Guarantors
represent, warrant and jointly and severally agree that, as of the date of this
Guaranty, their obligations under this Guaranty are not subject to any offsets
or defenses against Agent or Lenders or any Credit Party of any kind. Guarantors
further jointly and severally agree that their obligations under this Guaranty
shall not be subject to any counterclaims, offsets or defenses (other than the
prior termination of this Guaranty in accordance with SECTION 6.7 hereof)
against Agent or any Lender or against any Credit Party of any kind which may
arise in the future.
2.5. Benefit of Guaranty. The provisions of this Guaranty are for the
benefit of Agent and Lenders and their respective successors, transferees,
endorsees and assigns, and nothing herein contained shall impair, as between any
Credit Party and Agent or Lenders, the obligations of any Credit Party under the
Loan Documents. In the event all or any part of the Guaranteed Obligations are
transferred, indorsed or assigned by Agent or any Lender to any Person or
Persons in accordance with the terms of the Credit Agreement, any reference to
"Agent" or "Lender" herein shall be deemed to refer equally to such Person or
Persons.
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2.6. Modification of Guaranteed Obligations, Etc. Each Guarantor hereby
acknowledges and agrees that Agent and Lenders may at any time or from time to
time, with or without the consent of, or notice to, Guarantors or any of them,
in accordance with the terms of the Loan Documents:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available
to it at law, equity or otherwise, or waive or refrain from exercising any
such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Documents;
(d) extend or waive the time for any Credit Party's performance of, or
compliance with, any term, covenant or agreement on its part to be
performed or observed under the Loan Documents, or waive such performance
or compliance or consent to a failure of, or departure from, such
performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which Agent or Lenders have been granted a Lien, to secure any Obligations;
(f) release anyone who may be liable in any manner for the payment of
any amounts owed by Guarantors or any Credit Party to Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of any
Guarantor or any Credit Party are subordinated to the claims of Agent and
Lenders; and/or
(h) apply any sums by whomever paid or however realized to any amounts
owing by any Guarantor or any Credit Party to Agent or any Lender in such
manner as Agent or any Lender shall determine in its discretion;
and Agent and Lenders shall not incur any liability to Guarantors as a result
thereof, and no such action shall impair or release the Guaranteed Obligations
of Guarantors or any of them under this Guaranty.
2.7. Reinstatement. This Guaranty shall remain in full force and effect and
continue to be effective should any petition be filed by or against any Credit
Party or any Guarantor for liquidation or reorganization, should any Credit
Party or any Guarantor become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of such Credit Party's or such Guarantor'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 Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by Agent or any Lender, whether as a "voidable preference",
"fraudulent conveyance", 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 Guaranteed Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
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2.8. Waivers Under Statutes. Each Guarantor expressly acknowledges that:
(a) If any Borrower defaults in the payment or performance of the
Obligations and such Guarantor pays to Agent or any Lender all or part of
the Obligations, such Guarantor would have a right to proceed against such
Borrower to the extent of the Obligations so paid by such Guarantor and to
have the benefit of any Lien held by Agent or such Lender for the
Obligations to the extent of the Obligations so paid by such Guarantor.
Such right is commonly known as the "right of subrogation";
(b) If an Event of Default occurs, Agent or any Lender, among other
things, may enforce any Lien upon any interest in real property (any such
Lien, a "Real Property Lien"), by means of judicial action or by
nonjudicial action commonly known as a "nonjudicial foreclosure,"
"trustee's sale" or "power of sale foreclosure";
(c) If an Event of Default occurs and Agent or any Lender enforces any
Real Property Lien by means of a nonjudicial foreclosure, trustee's sale or
power of sale foreclosure, such Guarantor's right of subrogation to proceed
against such Borrower would be extinguished by the operation of California
Code of Civil Procedure ("CCP") Section 580d or any other comparable
provisions of any other state, and, in such case, such Guarantor might have
a defense against payment under this Guaranty; and
(d) If any Borrower so defaults and Agent or any Lender enforces any
Real Property Lien by means of judicial action, such Guarantor's right to
proceed against such Borrower might be limited by the operation of CCP
Section 580a or any other comparable provisions of any other state, in
which case such Guarantor might have a complete or partial defense against
payment under this Guaranty.
Nevertheless, each Guarantor expressly, knowingly and intentionally waives
any and all rights and defenses (to the extent not prohibited under applicable
law) arising out of an election of remedies by Agent, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for the
Guaranteed Obligations, has destroyed such Guarantor's rights of subrogation and
reimbursement against any Borrower by the operation of Section 580d of the CCP
or otherwise, or any other comparable provisions of any other state.
2.9. Waiver of Subrogation, Etc. Notwithstanding anything to the contrary
in this Guaranty, or in any other Loan Document, each Guarantor hereby:
(a) expressly and irrevocably waives to the extent not prohibited
under applicable law, on behalf of itself and its successors and assigns
(including any surety), any and all rights at law or in equity to
subrogation, to reimbursement, to exoneration, to contribution, to
indemnification, to set off or to any other rights that could accrue to a
surety against a principal, to a guarantor against a principal, to a
guarantor against a maker or obligor, to an accommodation party against the
party accommodated, to a holder or transferee against a maker, or to the
holder of any claim against any Person, and which such Guarantor may have
or hereafter acquire against any Credit Party in connection with or as a
result of such Guarantor's execution, delivery and/or performance of this
Guaranty, or any other documents to which such Guarantor is a party or
otherwise; and
(b) acknowledges and agrees (i) that this waiver is intended to
benefit Agent and Lenders and shall not limit or otherwise effect any
Guarantor's liability hereunder or the enforceability of this Guaranty, and
(ii) that Agent, Lenders and their respective successors and assigns are
intended third party beneficiaries of the waivers and agreements set forth
in this SECTION 2.9 and the benefit afforded them under this SECTION 2.9
shall survive payment in full of the Guaranteed Obligations.
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2.10. Election of Remedies. If Agent may, under applicable law, proceed to
realize benefits under any of the Loan Documents giving Agent and Lenders a Lien
upon any Collateral owned by any Credit Party, either by judicial foreclosure or
by non-judicial sale or enforcement, Agent may, at its sole option, determine
which of such remedies or rights it may pursue without affecting any of such
rights and remedies under this Guaranty. If, in the exercise of any of its
rights and remedies, Agent shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Credit Party,
whether because of any applicable laws pertaining to "election of remedies" or
the like, Guarantors hereby consent to such action by Agent and waive any claim
based upon such action, even if such action by Agent shall result in a full or
partial loss of any rights of subrogation which Guarantors might otherwise have
had but for such action by Agent. Any election of remedies which results in the
denial or impairment of the right of Agent to seek a deficiency judgment against
any Credit Party shall not impair each Guarantor's obligation to pay the full
amount of the Guaranteed Obligations. In the event Agent shall bid at any
foreclosure or trustee's sale or at any private sale permitted by law or the
Loan Documents, Agent may bid all or less than the amount of the Guaranteed
Obligations and the amount of such bid need not be paid by Agent but shall be
credited against the Guaranteed Obligations. The amount of the successful bid at
any such sale shall be conclusively deemed to be the fair market value of the
collateral and the difference between such bid amount and the remaining balance
of the Guaranteed Obligations shall be conclusively deemed to be the amount of
the Guaranteed Obligations guaranteed under this Guaranty, notwithstanding that
any present or future law or court decision or ruling may have the effect of
reducing the amount of any deficiency claim to which Agent and Lenders might
otherwise be entitled but for such bidding at any such sale.
2.11. Cross-Collateralization. Each Guarantor's obligations and liabilities
to Agent, for the benefit of Agent and Lenders, under this Guaranty shall be
secured by any and all Collateral or in which Agent or any Lender is now or
hereafter granted a Lien pursuant to any Collateral Documents from any Guarantor
to Agent or any Lender.
2.12. Funds Transfers. If any Guarantor shall engage in any transaction as
a result of which any Borrower is required to make a mandatory prepayment with
respect to the Guaranteed Obligations under the terms of the Credit Agreement
(including (a) any issuance or sale of such Guarantor's Stock or (b) any sale of
its assets, in each case as permitted thereunder), such Guarantor shall
distribute to, or make a contribution to the capital of, one or more of the
Borrowers an amount equal to the mandatory prepayment required under the terms
of the Credit Agreement.
3. DELIVERIES.
In a form satisfactory to Agent, Guarantors shall deliver to Agent,
concurrently with the execution of this Guaranty and the Credit Agreement, the
Loan Documents and other instruments, certificates and documents as are required
to be delivered by Guarantors to Agent under the Credit Agreement.
4. FURTHER ASSURANCES.
Each Guarantor agrees, upon the written request of Agent or any Lender, to
execute and deliver to Agent or such Lender, from time to time, any additional
instruments or documents reasonably considered necessary by Agent or such Lender
to cause this Guaranty to be, become or remain valid and effective in accordance
with its terms.
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5. PAYMENTS FREE AND CLEAR OF TAXES.
All payments required to be made by each Guarantor hereunder shall be made
to Agent and Lenders free and clear of, and without deduction for, any and all
present and future Taxes. If any Guarantor shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder, (a) the sum payable
shall be increased as much as shall be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this SECTION 5) Agent or Lenders, as applicable, receive an amount equal
to the sum they would have received had no such deductions been made, (b) such
Guarantor shall make such deductions, and (c) such Guarantor shall pay the full
amount deducted to the relevant taxing or other authority in accordance with
applicable law. Within thirty (30) days after the date of any payment of Taxes,
each applicable Guarantor shall furnish to Agent the original or a certified
copy of a receipt evidencing payment thereof. Each Guarantor shall jointly and
severally indemnify and, within ten (10) days of demand therefor, pay Agent and
each Lender for the full amount of Taxes (including any Taxes imposed by any
jurisdiction on amounts payable under this SECTION 5) paid by Agent or such
Lender, as appropriate, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted.
6. AMENDMENT AND RESTATEMENT.
(a) Effective as of the date of this Guaranty (the "Restatement
Date"), the Original Guaranty is hereby amended, restated and superseded in
its entirety. The parties hereto acknowledge and agree that (i) this
Guaranty executed and delivered in connection with the Credit Agreement and
the other Loan Documents does not constitute a novation, payment or
termination of the "Guaranteed Obligations" (as defined in the Original
Guaranty) under the Original Guaranty as in effect prior to the Restatement
Date; (ii) such "Guaranteed 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 "Guaranteed Obligations" is in all respects continuing and
in full force and the Collateral secures the payment of the Guaranteed
Obligations (as defined in this Guaranty) and such grant is hereby fully
ratified and affirmed; and (iv) upon the effectiveness of this Guaranty,
all "Obligations" referred to in the Original Guaranty immediately before
the effectiveness of this Guaranty will be part of the Guaranteed
Obligations (as defined in this Guaranty) on the terms and conditions set
forth in this Guaranty.
(b) Notwithstanding the modifications effected by this Guaranty of the
representations, warranties and covenants of any Guarantor contained in the
Original Guaranty, such Guarantor 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, warranties and
covenants of such Guarantor contained in or delivered in connection with
the Original Guaranty or any other Loan Document executed in connection
therewith shall survive the execution and delivery of this Guaranty.
(c) All indemnification obligations of the Original Guarantors arising
under the Original Guaranty (including any arising from a breach of the
representations thereunder) shall survive the amendment and restatement of
the Original Guaranty.
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7. OTHER TERMS.
7.1. Entire Agreement. This Guaranty, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements relating to a
guaranty of the loans and advances under the Loan Documents and/or the
Guaranteed Obligations.
7.2. Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.
7.3. Severability. Whenever possible, each provision of this Guaranty shall
be interpreted in such a manner to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Guaranty.
7.4. Notices. 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 another any such communication with
respect to this Guaranty, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be addressed to
the party to be notified at the addresses set forth on Annex I to the Credit
Agreement, or at such other address as may be substituted by notice given as
herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice, demand,
request, consent, approval, declaration or other communication hereunder shall
be deemed to have been validly served, given or delivered (i) upon the earlier
of actual receipt and three days after the same shall have been deposited with
the United States mail, registered or certified mail, return receipt requested,
with proper postage prepaid, (ii) upon transmission, when sent by telecopy or
other similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States mail as
otherwise provided in this SECTION 6.4), (iii) one Business Day after deposit
with a reputable overnight carrier with all charges prepaid, or (iv) when
delivered, if hand-delivered by messenger.
7.5. Successors and Assigns. This Guaranty and all obligations of
Guarantors hereunder shall be binding upon the successors and assigns of each
Guarantor (including a debtor-in-possession on behalf of such Guarantor) and
shall, together with the rights and remedies of Agent, for itself and for the
benefit of 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 permitted under the Credit
Agreement of any agreement governing or instrument evidencing the Obligations or
any portion thereof or interest therein shall in any manner affect the rights of
Agent and Lenders hereunder. Guarantors may not assign, sell, hypothecate or
otherwise transfer any interest in or obligation under this Guaranty, except as
otherwise expressly permitted by the Credit Agreement.
7.6. No Waiver; Cumulative Remedies; Amendments. 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, signed by Agent and then only to the extent therein set forth. A waiver
by Agent, for itself and the ratable benefit of Lenders, of any right or remedy
hereunder on any one occasion shall not be construed as a bar to
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any right or remedy which Agent would otherwise have had on any future occasion.
No failure to exercise nor any delay in exercising on the part of Agent or any
Lender, 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
hereunder provided 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 Guaranty may be waived, altered, modified,
supplemented or amended except by an instrument in writing, duly executed by
Agent and Guarantors.
7.7. Termination. This Guaranty is a continuing guaranty and shall remain
in full force and effect until the Termination Date. Upon payment in full in
cash and performance in full of the Guaranteed Obligations (other than
indemnification obligations), Agent shall deliver to Guarantors such documents
as Guarantors may reasonably request to evidence such termination.
7.8. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one and
the same agreement.
7.9. 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 GUARANTY 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
GUARANTOR 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
GUARANTORS, AGENT AND LENDERS PERTAINING TO THIS GUARANTY OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS GUARANTY OR
ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND GUARANTORS
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
GUARANTY 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 GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH GUARANTOR 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 GUARANTOR 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
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ADDRESSED TO SUCH GUARANTOR 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 GUARANTOR'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE
UNITED STATES MAIL, PROPER POSTAGE PREPAID.
7.10. 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, LENDERS
AND GUARANTORS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO
7.11. Limitation on Guaranteed Obligations. Notwithstanding any provision
herein contained to the contrary, each Guarantor's liability hereunder shall be
limited to an amount not to exceed as of any date of determination the greater
of:
(a) the net amount of all Loans and other extensions of credit
(including Letters of Credit) advanced under the Credit Agreement and
directly or indirectly re-loaned or otherwise transferred to, or incurred
for the benefit of, such Guarantor, plus interest thereon at the applicable
rate specified in the Credit Agreement; or
(b) the amount which could be claimed by the Agent and Lenders from
such Guarantor under this Guaranty without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law after taking into account,
among other things, such Guarantor's right of contribution and
indemnification from each other Guarantor under SECTION 6.10.
7.12. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty of all or any of the Guaranteed Obligations (a "Guarantor
Payment") which, taking into account all other Guarantor Payments then
previously or concurrently made by the other Guarantors, exceeds the amount
which such Guarantor would otherwise have paid if each Guarantor had paid
the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in
the same proportion that such Guarantor's "Allocable Amount" (as defined
below) (in effect immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of all of Guarantors in effect immediately
prior to the making of such Guarantor Payment, then, following indefeasible
payment in full in cash of the Obligations and termination of the
Commitments, such Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each of the other
Guarantors for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor
Payment.
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(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could
then be recovered from such Guarantor under this Guaranty without rendering
such claim voidable or avoidable under Section 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(c) This SECTION 6.10 is intended only to define the relative rights
of Guarantors and nothing set forth in this SECTION 6.10 is intended to or
shall impair the obligations of Guarantors, jointly and severally, to pay
any amounts as and when the same shall become due and payable in accordance
with the terms of this Guaranty.
(d) The rights of the parties under this SECTION 6.10 shall be
exercisable upon the full and indefeasible payment in full in cash of the
Guaranteed Obligations (other than indemnification obligations) and the
termination of the Credit Agreement and the other Loan Documents.
(e) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of any Guarantor to which
such contribution and indemnification is owing.
[Remained of Page Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guaranty as of the date first above written.
"GUARANTORS"
DDi CORP. DDi INTERMEDIATE HOLDINGS 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 Officer Financial Officer
DDi CAPITAL CORP. LAMINATE TECHNOLOGY 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 Officer Financial Officer
DYNAMIC DETAILS TEXAS, LLC DDi-TEXAS INTERMEDIATE HOLDINGS II,
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 Officer Financial Officer
DDi-TEXAS INTERMEDIATE PARTNERS II, DYNAMIC DETAILS, L.P.
L.L.C.
By: DDi-TEXAS INTERMEDIATE PARTNERS II,
L.L.C., its General Partner
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 Officer Financial Officer
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DYNAMIC DETAILS INCORPORATED,
COLORADO SPRINGS
By: /S/ XXXXX X. XXXX
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Chief
Financial Officer
Accepted as of March 30, 2007:
"AGENT"
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ XXXXXX XXXXXXX
---------------------------------
Xxxxxx Xxxxxxx
Duly Authorized Signatory
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