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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
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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 an