EXHIBIT 10.2
GUARANTY
GUARANTY ("Guaranty"), dated as of June 30, 2004, is made by DDI
CORP., a Delaware corporation ("DDi"), DDI INTERMEDIATE HOLDINGS CORP., a
California corporation ("Intermediate"), DDI CAPITAL CORP., a California
corporation ("Capital"), DYNAMIC DETAILS, INCORPORATED, a California corporation
("Details"), DYNAMIC DETAILS INCORPORATED, VIRGINIA, a Delaware corporation
("Virginia"), DYNAMIC DETAILS INCORPORATED, SILICON VALLEY, a Delaware
corporation ("Valley"), LAMINATE TECHNOLOGY CORP., a Delaware corporation
("Laminate"), DYNAMIC DETAILS INCORPORATED, COLORADO SPRINGS, a Colorado
corporation ("Colorado"), DDI SALES CORP., a Delaware corporation ("Sales"),
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"; DDLP, DDi, Intermediate, Capital, Details, Virginia,
Valley, Laminate, Colorado, Sales, Texas, DTIP and DTIH are sometimes
collectively referred to herein as "Guarantors" and individually as a
"Guarantor"), in favor of GE CANADA FINANCE HOLDING COMPANY, a Nova Scotia
unlimited liability company, as agent (in such capacity, "Agent") for the
lenders ("Lenders") from time to time party to the Credit Agreement (as defined
below).
RECITALS
A. Pursuant to that certain Credit Agreement dated as of the date
hereof by and among Dynamic Details Canada, Corp., a Nova Scotia unlimited
liability company ("Canada"), DDI Canada Acquisition Corp., an Ontario
corporation ("DDi Canada"; DDi Canada and Canada are sometimes collectively
referred to herein as "Borrowers" and individually as a "Borrower"), Guarantors,
the other Credit Parties party thereto, Agent and 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"),
Lenders have agreed to extend certain financial accommodations to or for the
direct or indirect benefit of Borrowers and Guarantors.
B. Guarantors' and Borrowers' business is a mutual and collective
enterprise and each Guarantor will receive substantial direct and indirect
benefits by reason of the making of loans and other financial accommodations to
Borrowers under the Credit Agreement.
C. Lenders are willing to enter into the Credit Agreement and to
make the financial accommodations to Borrowers as provided in the Credit
Agreement, but only upon the condition, among others, that each Guarantor shall
have executed and delivered this Guaranty. These Recitals shall be construed as
part of this Agreement.
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:
GUARANTY
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;
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.
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GUARANTY
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.
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;
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GUARANTY
(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.
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";
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GUARANTY
(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.
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
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GUARANTY
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.
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
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GUARANTY
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. OTHER TERMS.
6.1. 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.
6.2. Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.
6.3. 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.
6.4. 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.
6.5. 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
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GUARANTY
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.
6.6. 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 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.
6.7. 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.
6.8. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one and
the same agreement.
6.9. 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.
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GUARANTY
6.10. 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.
(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.
6.11. In all respects, including all matters of construction, validity and
performance, this Guaranty and the obligations arising hereunder shall be
governed by, construed and enforced in accordance with, the laws of the State of
California applicable to contracts made and performed in such State.
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GUARANTY
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/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary Title: Vice President and Secretary
DDI CAPITAL CORP. DYNAMIC DETAILS, INCORPORATED
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary Title: Vice President and Secretary
DYNAMIC DETAILS, INCORPORATED, DYNAMIC DETAILS INCORPORATED,
VIRGINIA SILICON VALLEY
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary Title: Vice President and Secretary
LAMINATE TECHNOLOGY CORP. DDI SALES CORP.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary Title: Vice President and Secretary
DYNAMIC DETAILS TEXAS, LLC DDI-TEXAS INTERMEDIATE HOLDINGS
II, L.L.C.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary Title: Vice President and Secretary
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[Signatures Continued]
DDI-TEXAS INTERMEDIATE PARTNERS DYNAMIC DETAILS, X.X.
XX, L.L.C.
By: DDi-TEXAS INTERMEDIATE
PARTNERS II, L.L.C., its General
Partner
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary Title: Vice President and Secretary
DYNAMIC DETAILS INCORPORATED,
COLORADO SPRINGS
By: /s/ XXXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Secretary
Accepted as of June 30, 2004:
"AGENT"
GE CANADA FINANCE HOLDING COMPANY
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
President
Title: Duly Authorized Signatory
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GUARANTY
