Exibit 10.16
EXECUTION COPY
FIFTH AMENDMENT, dated as of December 31, 2001 (this "Fifth Amendment") to
---------------
the Credit Agreement, dated as of July 23, 1998 and as Amended and Restated as
of August 28, 1998 (as amended by the First Amendment, dated as of March 10,
1999, the Second Amendment, dated as of March 22, 2000, the Third Amendment,
dated as of October 10, 2000, the Fourth Amendment, dated as of February 13,
2001, and as may be further amended, modified or supplemented from time to time,
the "Credit Agreement"), among (i) DDI Capital Corp., formerly known as Details
----------------
Capital Corp. (the "Company"); (ii) Dynamic Details, Incorporated, formerly
-------
known as Details, Inc. ("Details"); (iii) Dynamic Details Incorporated, Silicon
-------
Valley, formerly known as Dynamic Circuits, Inc. ("DCI", and collectively with
---
Details, the "Borrowers"); (iv) the several banks and other financial
---------
institutions from time to time parties thereto, (individually, a "Lender," and
------
collectively, the "Lenders"); (v) BANKERS TRUST COMPANY, as documentation and
-------
co-syndication agent; and (vi) JPMorgan Chase Bank, as collateral,
co-syndication and administrative agent (in such capacity, the "Administrative
--------------
Agent"). Terms defined in the Credit Agreement shall be used in this Fifth
- -----
Amendment with their defined meanings unless otherwise defined herein.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement the Lenders have agreed to make,
and have made, certain Loans to the Borrowers;
WHEREAS, the Company and the Borrowers have requested that the Lenders
amend, and the Lenders have agreed to amend, certain of the provisions of the
Credit Agreement upon the terms and subject to the conditions set forth below;
WHEREAS, the Lenders are willing to effect such amendments to the Credit
Agreement, but only upon the terms and subject to the conditions set forth
below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendment to Section 1.1. Section 1.1 of the Credit Agreement is hereby
------------------------
amended as follows:
(a) by amending and restating the following definitions in their
entireties:
"Applicable Margin": for the Tranche B Term Loans, the rate per annum set
-----------------
forth under the relevant column heading below:
ABR Loans Eurodollar Loans
--------- ----------------
3.00% 4.00%
; provided: that the Applicable Margin with respect to Revolving Credit
--------
Loans, the Swing Line Loans, and Tranche A Term Loans will be determined
pursuant to the Pricing Grid.
2
"ECF Percentage": 75%; provided, that, with respect to each fiscal year of
--------------
Details ending on or after December 31, 2000, the ECF Percentage shall be
reduced to 50% if the Consolidated Leverage Ratio as of the last day of such
fiscal year is not greater than 2.0 to 1.0.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each month
---------------------
to occur while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, (c) as to any Eurodollar Loan having
an Interest Period longer than three months, each day which is three months, or
a whole multiple thereof, after the first day of such Interest Period and the
last day of such Interest Period and (d) as to any Loan (other than any
Revolving Credit Loan that is an ABR Loan and any Swing Line Loan), the date of
any repayment or prepayment made in respect thereof.
(b) by adding the following new definition in the proper alphabetical
order:
"Fifth Amendment Effective Date": the Fifth Amendment Effective Date under
------------------------------
the Fifth Amendment to this Agreement (which date is as of December 31, 2001).
"Permitted Investments": (i) direct obligations of the U.S. Treasury
---------------------
including treasury bills, notes and bonds; (i) federal agency securities which
carry the direct or implied guarantee of the U.S. Government including
Government National Mortgage Association, Federal Home Loan Bank, Federal Farm
Credit Bank, Federal National Mortgage Association, Student Loan Marketing
Association, World Bank, and Tennessee Valley Authority, including notes,
discount notes, medium term notes and floating rate notes; (iii) bank
certificates of deposit and bankers' acceptances including Eurodollar
denominated and Yankee issues, provided that such investments are limited to
those institutions with total assets in excess of $2 billion and which carry a
Moody's and Standard and Poor's rating of A1/P1 or better or a Keefe Bruyette
and Woods rating of at least A/B; (iv) commercial paper rated A1/P1 or better;
(v) short-term tax exempt securities including municipal notes, commercial
paper, auction rate floaters, and floating rate notes rated A1/P1 or better,
municipal notes rated SP-1/MIG-2 or better, and bonds rated AA or better; (vi)
pre-funded municipal bonds escrowed to maturity and backed by U.S. Treasury
securities; (vii) auction rate preferred stock or bonds issued with a rate-reset
mechanism and a maximum term of 180 days, provided that such investments are
limited to those issuers who have a Moody's rating of AA or better; and (viii)
money market mutual funds, which offer daily purchase and redemption and
maintain a constant share price, provided that such funds are "no-load" funds
which have a constant $1.00 NAV.
"Purchase Money Indebtedness": as defined as in Section 7.2(c).
---------------------------
"Qualified Account": as defined in Section 7.17.
-----------------
"Sale-Leaseback Transaction": as defined in Section 7.11.
--------------------------
"Second Quarter 2003 Compliance Date": the date on which the Company and
-----------------------------------
Borrowers shall have delivered financial statements for the fiscal quarter ended
June 30, 2003 in compliance with Section 6.1 (together with the relevant items
required to be delivered concurrently pursuant to Section 6.2).
3
(c) by deleting the following definitions, added to the Credit Agreement
pursuant to the Third Amendment: "Incremental Lenders", "Incremental Maturity
Date", "Incremental Revolving Lenders", "Incremental Revolving Loan Activation
Date", "Incremental Revolving Loan Activation Notice", "Incremental Revolving
Loan Amount", "Incremental Revolving Loan Closing Date", "Incremental Term
Lenders", "Incremental Term Loan Activation Date", "Incremental Term Loan
Activation Notice", "Incremental Term Loan Amount", "Incremental Term Loan
Closing Date", "Incremental Term Loan Facility", "Incremental Term Loan
Percentage", "Incremental Term Loans", "Incremental Term Loan Incurrence Pro
Forma Compliance", "Incremental Term Loan Termination Date", and "Incremental
Term Note".
2. Amendment to Section 2.1. Section 2.1 of the Credit Agreement is hereby
------------------------
amended by deleting such section in its entirety and substituting in lieu
thereof the following new section:
(a) "Term Loan Commitments. Subject to the terms and conditions hereof, (a)
---------------------
each Tranche A Term Loan Lender severally agrees to make term loans to the
Borrowers on the Closing Date and to DCI on the Second Closing Date (the
"Tranche A Term Loans") in an aggregate amount not to exceed the amount of the
Tranche A Term Loan Commitment of such Lender and (b) each Tranche B Term Loan
Lender severally agrees to make term loans (the "Tranche B Term Loans") to the
Borrowers on the Closing Date and on the Second Closing Date in an aggregate
amount not to exceed the amount of the Tranche B Term Loan Commitment of such
Lender. The Term Loans may from time to time be Eurodollar Loans or ABR Loans,
as determined by the relevant Borrower and notified to the Administrative Agent
in accordance with Sections 2.2 and 2.12."
3. Amendment to Section 2.4. Section 2.4 of the Credit Agreement is hereby
------------------------
amended by deleting such section in its entirety and substituting in lieu
thereof the following new section:
"(a) Revolving Credit Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Credit Lender severally agrees to make revolving credit
loans ("Revolving Credit Loans") to the Borrowers from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Revolving Credit Percentage
of the sum of (i) the aggregate principal amount of the Swing Line Loans then
outstanding and (ii) the aggregate amount of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrowers may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrowers and notified to
the Administrative Agent in accordance with Sections 2.5 and 2.12, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that
is one month prior to the Scheduled Revolving Credit Termination Date."
(b) The Borrowers shall repay all outstanding Revolving Credit Loans on the
Scheduled Revolving Credit Termination Date (or such earlier date as all amounts
owing hereunder shall become due and payable).
4
(c) Notwithstanding anything to the contrary in this Agreement, the sum of
all Revolving Extensions of Credit shall not at any time exceed $37,500,000. The
requirements set forth in the preceding sentence shall cease to apply from and
after the Second Quarter 2003 Compliance Date, provided, that on such date, no
--------
Default or Event of Default shall have occurred and be continuing (including,
without limitation, pursuant to Section 7.1 for the second calendar quarter of
2003)."
4. Amendment to Section 2.11(b). Section 2.11(b) of the Credit Agreement is
----------------------------
hereby amended by deleting the reference to "$4,000,000" in proviso (i) and
substituting in lieu thereof "$1,000,000".
5. Addition of Section 2.11(g). Section 2.11(g) is hereby added to the
---------------------------
Credit Agreement, such Section to read as follows:
"(g) An amount equal to 50% of the Net Cash Proceeds received with respect
to any convertible Indebtedness issued by DDi Corp. in accordance with Section
7.2(o)."
6. Amendment to Section 2.17(b). Section 2.17(b) is hereby amended by (1)
----------------------------
deleting the language "or the Incremental Term Loans" following the language
"Tranche B Term Loans" in the first sentence thereof, (2) deleting the language
"and the Incremental Term Loans" following the language "Tranche B Term Loans"
in the second sentence thereof, (3) deleting the "," after the language "Tranche
A Term Loans" in the first sentence thereof and substituting in lieu thereof the
word "or", and (4) deleting "," after the language "Tranche A Term Loans" in the
second sentence thereof and substituting in lieu thereof the word "and".
7. Amendment to Section 6.1(c). Section 6.1(c) of the Credit Agreement is
---------------------------
hereby amended by adding the following to the end of such clause: "together with
a management discussion and analysis of such financial information."
8. Amendment to Section 7.1(a). Section 7.1(a) of the Credit Agreement is
---------------------------
hereby amended by deleting such Section in its entirety and substituting in lieu
thereof the following: "[intentionally omitted]."
9. Amendment to Section 7.1(b). Section 7.1(b) of the Credit Agreement is
---------------------------
hereby amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"(b) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio as of the last day of any period of four consecutive fiscal
quarters of Details to exceed the ratio set forth below opposite such period:
Period Consolidated Senior Leverage Ratio
------ ----------------------------------
January 1, 2002 through March 31, 2002 8.0 to 1.0
April 1, 2002 through June 30, 2002 8.0 to 1.0
July 1, 2002 through September 30, 2002 6.5 to 1.0
October 1, 2002 through December 31, 2002 3.0 to 1.0
5
January 1, 2003 through March 31, 2003 2.0 to 1.0
April 1, 2003 through June 30, 2003 1.75 to 1.0
July 1, 2003 through September 29, 2003 1.50 to 1.0
September 30, 2003 through thereafter 1.25 to 1.0"
10. Amendment to Section 7.1(c). Section 7.1(c) of the Credit Agreement is
---------------------------
deleted in its entirety and the following substituted in lieu thereof:
"Consolidated Fixed Charge Coverage Ratio. After July 1, 2003, permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of Details to be less than 1.05 to 1.0."
11. Addition of Section 7.1(d). Section 7.1 of the Credit Agreement is
--------------------------
hereby amended by adding a new Section 7.1(d) to read as follows:
"(d) Minimum EBITDA. (1) Permit Consolidated EBITDA for any period during
(i) the fiscal quarter ending December 31, 2001 to be more than $5,000,000 below
zero, (ii) the fiscal quarter ending March 31, 2002 to be less than $0, (iii)
the two consecutive fiscal quarters ending June 30, 2002 to be less than
$6,000,000, (iv) the three consecutive fiscal quarters ending September 30, 2002
to be less than $21,000,000, and (v) the four consecutive fiscal quarters ending
during any period set forth below to be less than the amount set forth opposite
such period:
Fiscal Quarter Consolidated EBITDA
- -------------- -------------------
October 1, 2002 through December 31, 2002 $40,000,000
January 1, 2003 through March 31, 2003 $50,000,000
April 1, 2003 through June 30, 2003 $58,000,000
July 1, 2003 through September 30, 2003 $63,000,000"
12. Amendment to Section 7.2(c). Section 7.2 of the Credit Agreement is
---------------------------
hereby amended by deleting paragraph (c) in its entirety and substituting in
lieu thereof the following:
"(c) Indebtedness secured by Liens permitted by Section 7.3(g) ("Purchase
--------
Money Indebtedness") existing as of the Fifth Amendment Effective Date and other
- ------------------
Purchase Money Indebtedness, which other Purchase Money Indebtedness shall not
exceed $2,000,000 at any one time outstanding."
13. Amendment to Section 7.2(d). Section 7.2 of the Credit Agreement is
---------------------------
hereby amended by deleting paragraph (d) in its entirety and substituting in
lieu thereof the following:
"(d) Capital Lease Obligations existing as of the Fifth Amendment Effective
Date and other Capital Lease Obligations, which other Capital Lease Obligations
shall not exceed $3,000,000."
6
14. Amendment to Section 7.2(m). Section 7.2 of the Credit Agreement is
---------------------------
hereby amended by deleting paragraph (m) in its entirety and substituting in
lieu thereof the following:
"(m) additional Indebtedness of Details or any of its Subsidiaries existing
as of the Fifth Amendment Effective Date and other such additional Indebtedness,
which other such additional Indebtedness shall not exceed in an aggregate
principal amount (for Details and all Subsidiaries) $5,000,000 at any one time
outstanding."
15. Amendment to Section 7.2(n). Section 7.2 of the Credit Agreement is
---------------------------
hereby amended by deleting paragraph (n) in its entirety and substituting in
lieu thereof the following:
"(n) [intentionally omitted]"
16. Addition of Section 7.2(o). The Credit Agreement is hereby amended by
--------------------------
adding a new Section 7.2(o) to read as follows:
"(o) convertible Indebtedness issued by DDi Corp., provided that such
Indebtedness is (i) unsecured, (ii) matures later than October 22, 2005 and
(iii) DDi Corp. deposits in a Qualified Account an amount from the Net Cash
Proceeds of such Indebtedness that is equal to two years of Consolidated Fixed
Charges with respect to such Indebtedness, which amount shall be reduced from
time to time by an amount equal to the Consolidated Fixed Charges due and
payable on such Indebtedness."
17. Amendment to Section 7.3(j). Section 7.3(j) of the Credit Agreement is
---------------------------
hereby amended by deleting the reference to the amount "$4,000,000" and
substituting in lieu thereof "$1,000,000".
18. Amendment to Section 7.5(f). Section 7.5(f) of the Credit Agreement is
---------------------------
hereby amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"(f) the sale of other assets (including pursuant to a Sale-Leaseback
Transaction) having a fair market value not to exceed $10,000,000 in the
aggregate for any fiscal year of Details."
19. Amendment to Section 7.6(d). Section 7.6(d) is hereby amended by
---------------------------
deleting said Section in its entirety and substituting in lieu thereof the
following:
"[intentionally omitted]."
20. Amendment to Section 7.6(h). Section 7.6(h) is hereby amended by
---------------------------
deleting said Section in its entirety and substituting in lieu thereof the
following:
"[intentionally omitted]."
7
21. Amendment to Section 7.7. Section 7.7, which consists solely of the
------------------------
language "[INTENTIONALLY OMITTED]", is hereby deleted in its entirety and the
following substituted in lieu thereof:
"7.7 Limitation on Capital Expenditures. Make or commit to make (by way of
the acquisition of securities of a Person or otherwise) any Capital Expenditure,
except Capital Expenditures of Details and its Subsidiaries in the ordinary
course of business not exceeding in any fiscal year of Details the amount set
forth below opposite such fiscal year (the "Base CapEx Amount"):
-----------------
Fiscal Year Base CapEx Amount
2002 $25,000,000
2003 $27,500,000
2004 $30,300,000
2005 $33,300,000"
22. Amendment to Section 7.8(i). Section 7.8(i) of the Credit Agreement is
---------------------------
hereby amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"From and after the Second Quarter 2003 Compliance Date, Details and its
Subsidiaries may acquire all or substantially all of the Capital Stock or
assets of any Person or business unit of a Person; provided that (i) no
--------
Default or Event of Default has occurred and is continuing or would result
therefrom, (ii) the Company would have been in compliance, on a pro forma
basis, with each of the financial covenants contained in Section 7.1 if
such acquisition had been made on the first day of the most recently
completed period of calculation thereof and (iii) immediately prior to
consummating such acquisition, and after giving pro forma effect thereto,
the Available Revolving Credit Commitments of all the Lenders shall be at
least $20,000,000."
23. Amendment to Section 7.8(j). Section 7.8(j) of the Credit Agreement is
---------------------------
hereby amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"From and after the Second Quarter 2003 Compliance Date, in addition to
investments otherwise expressly permitted by this Section 7.8, investments by
Details or any of its Subsidiaries in an aggregate amount (valued at cost, but
net of returns of capital from such investments) not to exceed during the term
of this Agreement the sum of $10,000,000 and the then unused Permitted
Expenditure Amount on the date upon which such investment is made."
24. Amendment to Section 7.10. Section 7.10 of the Credit Agreement is
-------------------------
hereby amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"Limitation on Transactions with Affiliates. Enter into any transaction,
------------------------------------------
including, without limitation, any purchase, sale, lease or exchange of
Property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than the Company, Details or
any Wholly Owned Subsidiary Guarantor) unless such transaction
8
is (a) not otherwise prohibited under this Agreement and (b) upon fair and
reasonable terms no less favorable to the Company, Details or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
Notwithstanding anything to the contrary contained in this Section 7.10, at
no time will the Company or any of its Subsidiaries make any payments to Bain
Capital and/or any of its Affiliates in an amount which would exceed that amount
permitted to be paid pursuant to the Senior Subordinated Note Indenture, the
Company Indenture or the New Intermediate Note Indenture at such time."
25. Amendment to Section 7.11. Section 7.11 is hereby deleted in its
-------------------------
entirety and the following substituted in lieu thereof:
"Limitation on Sales and Leasebacks. Other than as permitted in the second
----------------------------------
sentence, enter into any arrangement with any Person providing for the leasing
by the Company or any of its Subsidiaries of real or personal property which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Company or such Subsidiary (a "Sale-Leaseback Transaction"). The Company or any
--------------------------
of its Subsidiaries may enter into a Sale-Leaseback Transaction with respect to
the Company's facility located in Garland, Texas, provided that (i) such
--------
Sale-Leaseback Transaction does not raise more than $10,000,000 in Net Cash
Proceeds and (ii) there is deposited into a Qualified Account an amount equal to
the first two years of rent payable to the new owner of the Garland, Texas
facility and (iii) notwithstanding any other provision of the Credit Agreement,
Net Cash Proceeds that arise from the Sale-Leaseback Transaction are applied in
accordance with Section 2.11(d) of the Credit Agreement."
26. Addition of Section 7.18. A new Section 7.18, to read as follows, is
------------------------
hereby added to the Credit Agreement:
"Cash Accounts. From 90 days after the Fifth Amendment Effective Date,
-------------
permit the aggregate amount of cash or cash equivalents held by the Borrowers
and their Subsidiaries that is not held in Qualified Accounts to exceed
$5,000,000. As used above, "Qualified Account" means any deposit account
-----------------
(consisting of Permitted Investments) of the Borrowers and their Subsidiaries in
which the Administrative Agent has a perfected first priority security interest,
in each case on terms and conditions satisfactory to the Administrative Agent.
The requirements set forth in this Section shall cease to apply from and after
the Second Quarter 2003 Compliance Date, provided, that on such date, no Default
--------
or Event of Default shall have occurred and be continuing (including, without
limitation, pursuant to Section 7.1 for the second calendar quarter of 2003)."
27. Amendment to Section 8(m). Section 8(m)(v) of the Credit Agreement is
-------------------------
hereby amended by deleting the word "and" before the beginning of clause (F) and
adding the following new clause (G) at the end thereof and prior to the
semi-colon: "and (G) with respect to DDi Corp., pursuant to Section 7.2(o)."
28. Amendment to Annex A. Annex A of the Credit Agreement is hereby amended
--------------------
by deleting the Pricing Grid in its entirety and substituting in lieu thereof
the following:
9
Consolidated Applicable Applicable Commitment Fee
Leverage Ratio Margin for Margin for ABR Rate
Eurodollar Loans Loans and
and Letters of Swing Line
Credit Loans
(greater than or equal to) 5.00 to 1.0 3.75% 2.75% 0.50%
(less than) 5.00 to 1.0 3.50% 2.50% 0.50%
and (greater than or equal to) 4.00 to
1.0
(less than) 4.00 to 1.0 3.25% 2.25% 0.50%
and (greater than or equal to) 3.00 to
1.0
(less than) 3.00 to 1.0 3.25% 2.25% 0.50%
and (greater than or equal to) 2.50 to
1.0
(less than) 2.50 to 1.0 3.00% 2.00% 0.50%
29. Representations and Warranties. As of the date hereof and after giving
------------------------------
effect to this Fifth Amendment, the Company and each Borrower hereby confirm,
reaffirm and restate the representations and warranties made by it in Section 4
of the Credit Agreement and otherwise in the Loan Documents to which it is a
party; provided that each reference to the Credit Agreement therein shall be
deemed to be a reference to the Credit Agreement after giving effect to this
Fifth Amendment. No Default or Event of Default has occurred and is continuing.
30. Fees. The Borrowers agree to pay an amendment fee for the account of
----
each Lender that consents to this Fifth Amendment in the amount of 0.25% of each
such Lender's Commitment.
31. Within 30 days of the Fifth Amendment Effective Date, the Borrowers
agree to provide to the Administrative Agent an Officer's Certificate, in form
and substance reasonably acceptable to the Administrative Agent, certifying as
to the correctness and completeness of the Schedules to the Guarantee and
Collateral Agreement.
32. No Change. Except as expressly provided herein, no term or provision of
---------
the Credit Agreement shall be amended, modified or supplemented, and each term
and provision of the Credit Agreement shall remain in full force and effect.
33. Effectiveness. This Fifth Amendment shall become effective as of the
-------------
date hereof upon receipt by the Administrative Agent of:
(a) counterparts hereof duly executed by Company, the Borrowers and the
Required Lenders; the execution and delivery of this Fifth Amendment by any
Lender shall be binding upon each of its successors and assigns (including
assignees of its Commitments and Loans in whole or in part prior to
effectiveness hereof) and binding in respect of all of its Commitments and
Loans, including any acquired subsequent to its execution and delivery hereof
and prior to the effectiveness hereof;
10
(b) a copy of resolutions of such Borrower, certified by the Secretary of
such Borrower, authorizing the execution, delivery and performance of this Fifth
Amendment, which shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded;
(c) a certificate of each of the Borrowers, dated as of the date hereof, as
to the incumbency and signature of the officers of such Borrower executing this
Fifth Amendment, which shall be in form and substance reasonably satisfactory to
the Administrative Agent;
(d) such other documents, instruments and agreements with respect to the
matters contemplated by this Fifth Amendment as the Administrative Agent
reasonably shall request, and all such documents, instruments and agreements
shall be in form and substance reasonably satisfactory to the Administrative
Agent; and
(e) the fees referred to in paragraph 29 of this Fifth Amendment shall have
been paid.
34. Counterparts. This Fifth Amendment may be executed by the parties
------------
hereto in any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
35. GOVERNING LAW. THIS FIFTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
DDI CAPITAL CORP.
By:
--------------------------------------------
Title:
DYNAMIC DETAILS, INCORPORATED
By:
--------------------------------------------
Title:
DYNAMIC DETAILS, INCORPORATED, SILICON
VALLEY
By:
--------------------------------------------
Title:
12
JPMorgan Chase Bank, as
Administrative Agent, Collateral Agent, Co-
Syndication Agent and as a Lender
By:
--------------------------------------------
Title:
BANKERS TRUST COMPANY, as
Documentation Agent, Co-Syndication Agent
and as a Lender
By:
--------------------------------------------
Title:
13
BANK AUSTRIA CREDITANSTALT CORP.
By:
--------------------------------------------
Title:
14
THE BANK OF NOVA SCOTIA
By:
--------------------------------------------
Title:
15
BANKBOSTON, N.A.
By:
--------------------------------------------
Title:
16
SANKATY ADVISORS, INC., as Collateral Manager for
BRANT POINT II CBO 2000-1 LTD.
By:
--------------------------------------------
Title:
17
CITIZENS BANK OF MASSACHUSETTS
By:
--------------------------------------------
Title:
18
CRESCENT/MACH I PARTNERS, L.P.
By:
--------------------------------------------
Title:
19
CYPRESSTREE INVESTMENT PARTNERS I
By:
--------------------------------------------
Title:
20
CYPRESSTREE INVESTMENT PARTNERS II
By:
--------------------------------------------
Title:
21
DEBT STRATEGIES FUND
By:
--------------------------------------------
Title:
22
DRESDNER BANK AG
By:
--------------------------------------------
Title:
23
FIRST DOMINION FUNDING II
By:
--------------------------------------------
Title:
24
FLEET BANK, N.A.
By:
--------------------------------------------
Title:
25
GRAYSTON CLO 2001-01 LTD.
By:
--------------------------------------------
Title:
26
IBM CREDIT CORPORATION
By:
--------------------------------------------
Title:
27
INDOSUEZ CAPITAL FUNDING IIA, LTD.
By:
--------------------------------------------
Title:
28
INDOSUEZ CAPITAL FUNDING IV, L.P.
By:
--------------------------------------------
Title:
29
IBJ WHITEHALL BANK & TRUST COMPANY
By:
--------------------------------------------
Title:
30
KZH CRESCENT 2 LLC
By:
--------------------------------------------
Title:
31
KZH CRESCENT 3 LLC
By:
--------------------------------------------
Title:
32
KZH CYPRESSTREE-1 LLC
By:
--------------------------------------------
Title:
33
MSDW PRIME INCOME TRUST
By:
--------------------------------------------
Title:
34
MASS MUTUAL HIGH YIELD PARTNERS II
By:
--------------------------------------------
Title:
35
MASTER SENIOR FLOATING RATE TRUST
By:
--------------------------------------------
Title:
36
MASSACHUSETTS MUTUAL LIFE
INSURANCE
By:
--------------------------------------------
Title:
37
MERRILL LYNCH PRIME RATE PORTFOLIO
By:
--------------------------------------------
Title:
38
MERRILL LYNCH SENIOR FLOATING RATE FUND
By:
--------------------------------------------
Title:
EXECUTION COPY
NORTH AMERICAN SENIOR FLOATING RATE FUND
By:
--------------------------------------------
Title:
2
PILGRIM AMER. HIGH INCOME INVEST. LTD.
By:
--------------------------------------------
Title:
3
PILGRIM CLO 1999-1
By:
--------------------------------------------
Title:
4
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
--------------------------------------------
Title:
5
SANKATY HIGH YIELD PARTNERS II, L.P.
By:
--------------------------------------------
Title:
6
SOMERS CDO, LIMITED
By:
--------------------------------------------
Title:
7
TCW SELECT LOAN FUND, LIMITED
By:
--------------------------------------------
Title:
8
TORONTO DOMINION (NEW YORK) INC.
By:
--------------------------------------------
Title:
9
VAN KAMPEN SR. FLOATING RATE FUND
By:
--------------------------------------------
Title: