Exhibit 10.8
WAIVER NO.1
WAIVER NO. 1 (this "Waiver"), dated as of August 19, 2003, with
respect to (A) that certain Restructuring Support Agreement, dated as of August
1, 2003, as amended by the First Amendment dated as of August 7, 2003 (together
with exhibits, annexes and attachments thereto, the "RSA"), by and among (i) DDi
Corp. ("DDi"), DDi Intermediate Holdings Corp. ("DDi Intermediate"), DDi Capital
Corp. ("DDi Capital"), Dynamic Details, Incorporated ("Details"), Dynamic
Details, Incorporated, Silicon Valley ("DDISV") and their respective
subsidiaries and affiliates (collectively, the "Company Group"), (ii) the
Administrative Agent and (iii) the Consenting Lenders signatory thereto and (B)
that certain Budget and Funding Agreement, dated as of August 1, 2003 (the
"Budget and Funding Agreement"), by and among, (i) DDi, (ii) DDi Capital; (iii)
Details; (iv) DDISV; (v) each Subsidiary Guarantor (as defined in the Budget and
Funding Agreement); (vi) the Consenting Lenders; (vii) the Administrative Agent
and (viii) the Professionals (as defined in the Budget and Funding Agreement)
signatory thereto. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the RSA.
W I T N E S S E T H:
WHEREAS, pursuant to the RSA, the Consenting Lenders have agreed to
implement a restructuring and reorganization of the Company Group pursuant to
the Restructuring Terms as set forth on the Term Sheet;
WHEREAS, the Company Group has requested that the Required Lenders enter
into this Waiver on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Waiver.
(a) Each member of the Company Group, the Administrative Agent and
each of the Required Lenders hereby agree that, in light of the blackout that
occurred on August 14, 2003, provided that DDi and DDi Capital file (i)
voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the
Bankruptcy Court on or prior to August 21, 2003 (the "Petition Date") and (ii)
the Conforming Disclosure Statement and the Conforming Plan with the Bankruptcy
Court on or prior to August 30, 2003, and further provided that, the Consenting
Subordinated Noteholders holding at least one-half (1/2) in aggregate principal
amount of the debt held by Consenting Subordinated Noteholders Consenting
Subordinated Noteholders and each member of the Company Group execute a waiver
in the form annexed hereto as Exhibit A, (x) no Termination Event shall be
deemed to have occurred under the RSA as a result of any default in the
observance of Sections 4(b)(i) and 5(ii)(A) of the RSA, (y) no Termination Event
will be deemed to have occurred under the RSA as a result of any default in the
observance of Sections 4(b)(ii) and 5(ii)(B) of the RSA and (z) solely with
respect to the failure to observe Section 5(ii)(A) of the RSA and the expected
failure to observe Section 5(ii)(B) of the RSA, no Default shall be (or will be)
deemed to have occurred under the Budget and Funding Agreement as a result of
any default in the observance of Section 11(iv) of the Budget and Funding
Agreement.
(b) Each member of the Company Group, each of the Professionals, the
Administrative Agent and each of the Required Lenders hereby agree that, solely
with respect to the payments made to certain of the Professionals during the
period from August 1 through August 14, 2003 by DDi, DDi Capital, Details or
DDISV and provided that the Required Lenders approve the revised Initial Budget
(as defined in the Budget and Funding Agreement) in the form annexed hereto as
Exhibit B, (x) no Termination Event shall be deemed to have occurred under the
RSA as a result of any default in the observance of Section 5(xiii) of the RSA
and (y) no Default shall be deemed to have occurred under the Budget and Funding
Agreement as a result of any default in the observance of Sections 11(ii)-(iv)
of the Budget and Funding Agreement, it being understood that, as set forth in,
and subject to any exception
contained in, the Budget and Funding Agreement, the Consenting Lenders have not
agreed and do not consent to the use of the Cash Collateral (as defined in the
Budget and Funding Agreement) for payment of any obligation that either Details
or DDISV may have (if any) to such Professionals.
2. Agreements of the Required Lenders.
(i) Approval of Revised Initial Budget. By execution of this Waiver,
each of the Required Lenders approves the revised Initial Budget.
(ii) Amendment to RSA. Provided that (x) the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the aggregate principal amount of
the Senior Discount Notes (collectively, the "Consenting Senior Discount
Noteholders") execute a Senior Discount Noteholder Plan Support Agreement
("SDPSA"), in the form annexed hereto as Exhibit C prior to the Petition Date
and (y) Hahn & Hessen LLP execute a joinder to the Budget and Funding Agreement
as a Professional (as defined in the Budget and Funding Agreement) in the form
annexed hereto as Exhibit D prior to the Petition Date, by execution of this
Waiver, each Required Lender consents to the Administrative Agent entering into
an amendment to the RSA, in the form annexed hereto as Exhibit E, which shall
provide for (i) the inclusion of a description of the SDPSA in the recitals,
(ii) replace Schedule E of the Term Sheet with the term sheet annexed as Exhibit
A to the SDPSA and (iii) include the occurrence of a Termination Event (as
defined in the SDPSA) under the SDPSA as a new Termination Event in Section 5 of
the RSA.
3. Representations and Warranties. Each member of the Company Group hereby
represents and warrants as of the date hereof that, after giving effect to this
Waiver, (a) other than the Termination Events listed in this Waiver, no other
Termination Event has occurred and is continuing, (b) all representations and
warranties of each member of the Company Group contained in the RSA are true and
correct in all material respects with the same effect as if made on and as of
such date, and (c) the persons named below are duly authorized to execute and
deliver, on behalf of each member of the Company Group, the Waiver; such persons
are now the respective duly elected and qualified officers of each member of the
Company Group, holding the offices indicated next to their respective names and
the signature set forth on the signature line opposite their respective names is
such officer's true and genuine signature, provided that the references to the
RSA therein shall be deemed to be references to this Waiver and to the RSA as
modified by this Waiver.
4. No Change. Except as expressly provided herein, no term or provision of
the RSA and the Budget and Funding Agreement shall be amended, modified or
supplemented, and each term and provision of the RSA and the Budget and Funding
Agreement shall remain in full force and effect.
5. Reservation of Rights. Each member of the Company Group jointly and
severally acknowledges and agrees that, (a) the Lenders and the Administrative
Agent shall preserve all rights, remedies, power or privileges set forth in the
RSA, the Budget and Funding Agreement and under applicable law and (b) nothing
contained herein shall in any way limit or otherwise prejudice, and the
Administrative Agent and the Lenders have reserved their right to invoke fully,
any right, remedy, power or privilege which the Lenders or the Administrative
Agent may not have or may have in the future under or in connection with the
RSA, the Budget and Funding Agreement and applicable law, or diminish any of the
obligations of (i) any member of the Company Group contained in the RSA and (ii)
any member of the Company Group and any of the Professionals contained in the
Budget and Funding Agreement. The rights, remedies, powers and privileges of the
Administrative Agent and the Lenders provided under this Waiver, the RSA and the
Budget and Funding Agreement are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
6. Payment of Fees and Expenses. Details and DDISV agree to pay or
reimburse the Administrative Agent for its out-of-pocket costs and expenses
incurred in connection with this Waiver, any documents prepared in connection
herewith and the transactions contemplated hereby and any outstanding amounts
relating thereto to the Administrative Agent's professional advisors including,
without limitation, the reasonable fees, charges and disbursements of Simpson
Thacher & Bartlett LLP,
counsel to the Administrative Agent, and the reasonable fees, charges and
disbursements of FTI Consulting, subject to the Administrative Agent's approval
of such fees.
7. Effectiveness. This Waiver shall become effective as of the date hereof
upon receipt by the Administrative Agent of counterparts hereof duly executed by
each member of the Company Group and the Required Lenders. The effectiveness of
this Waiver is further conditioned upon the payment of current fees and expenses
billed by professionals and consultants engaged by the Administrative Agent.
8. Counterparts. This Waiver may be executed by the parties hereto in any
number of separate counterparts, by facsimile with originals to follow, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
9. GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties have caused this Waiver 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: /s/ JOHN STUMPF
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Title: CFO
DYNAMIC DETAILS, INCORPORATED
By: /s/ JOHN STUMPF
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Title: CFO
DYNAMIC DETAILS, INCORPORATED, SILICON
VALLEY
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
DYNAMIC DETAILS, INCORPORATED, VIRGINIA
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
DYNAMIC DETAILS TEXAS, L.P.
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
DYNAMIC DETAILS TEXAS HOLDINGS CORP.
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
By: DDi-TEXAS INTERMEDIATE HOLDINGS, L.L.C.
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
By: DYNAMIC DETAILS TEXAS HOLDINGS CORP.
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
By: DYNAMIC DETAILS INCORPORATED, COLORADO
SPRINGS
By: /s/ JOHN STUMPF
---------------------------------------
Title: CFO
By: DYNAMIC DETAILS INCORPORATED, TEXAS
By: /s/ JOHN STUMPF
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Title: CFO
JPMORGAN CHASE BANK, AS ADMINISTRATIVE
AGENT, COLLATERAL AGENT AND
CO-SYNDICATION AGENT
By: /s/ MICHAEL LANCIA
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Title: Vice-President
KIRKLAND & ELLIS LLP
By: /s/ SHARON KOPMAN
---------------------------------------
Title: Senior Associate
PAUL, HASTINGS, JANOFSKY & WALKER LLP
By: /s/ CARL ANDERSON
---------------------------------------
Title: Partner
HOULIHAN LOKEY HOWARD & ZUKIN
By: /s/ ERIC WINTHROP
---------------------------------------
Title: Vice President
STUTMAN TREISTER & GLATT PROFESSIONAL
CORPORATION
By: /s/ Illegible
---------------------------------------
Title: Shareholder
AKIN GUMP STRAUSS HAUER & FELD LLP
By: /s/ Illegible
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Title: Partner
JEFFERIES GROUP INC.
By: /s/ Illegible
---------------------------------------
Title: Managing Director
HAHN & HESSEN LLP
By:
---------------------------------------
Title:
JPMorgan Chase Bank, as a Lender
By: /s/ Michael Lancia
---------------------------------------
Name: Michael Lancia
Title: Vice President
[Signature Page to Waiver No. 1]
Citizens Bank of MA, as a Lender
By: /s/ Steven C. Petrarca
---------------------------------------
Name: STEVEN C. PETRARCA
Title: VICE PRESIDENT
[Signature Page to Waiver No. 1]
Crescent/Mach I Partners, L.P
by: TCW Asset Management Company
Its Investment Manager
By: /s/ Richard Kurth
---------------------------------------
Name: RICHARD KURTH
Title: SENIOR VICE PRESIDENT
By: /s/ Jonathan R. Insull
---------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
Lenders
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/ James M. Gallagher
---------------------------------------
Name: JAMES M. GALLAGHER
Title: DIRECTOR
By: /s/ Lisa M. Overton
---------------------------------------
Name: Lisa M. Overton
Title: Associate
Deutsche Bank Trust Company Americas,
as a Lender
By: /s/ Gregory Shefrin
---------------------------------------
Name: Gregory Shefrin
Title: Director
[Signature Page to Waiver No. 1]
Grayston CLO 2001-01 Ltd.
By: Bear Streams Asset Management Inc.
as its Collateral Manager, as a Lender
By: /s/ Jonathan Berg
---------------------------------------
Name: Jonathan Berg
Title: Vice President
[Signature Page to Waiver No. 1]
GSC PARTNERS GEMINI FUND LIMITED, as a
lender
By: GSCP (NJ) L.P., as Collateral
Monitor
By: GSCP (NJ), INC., its General Partner
By: /s/ Harvey B. Siegel
---------------------------------------
Name: Harvey B. Siegel
Title: Authorized Signatory
HARBOUR TOWN FUNDING TRUST, as a Lender
By: /s/ Ann E. Morris
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Name: ANN E. MORRIS
Title: AUTHORIZED AGENT
[Signature Page to Waiver No. 1]
IBM Credit LLC, as a Lender
By: /s/ Steven A. Flanagan
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Name: Steven A. Flanagan
Title: Manager, Global Special Handling
[Signature Page to Waiver No. 1]
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Charles Kobayashi
---------------------------------------
Name: Charles Kobayashi
Title: Principal and Portfolio Manager
[Signature Page to Waiver No. 1]
MASSACHUSETTS MUTUAL
LIFE INSURANCE, as a Lender
By: /s/ Steven J. Katz
---------------------------------------
Name: STEVEN J. KATZ
Title: SECOND VICE PRESIDENT AND
ASSOCIATE GENERAL COUNSEL
[Signature Page to Waiver No. 1]
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Philip J. Brendel
---------------------------------------
Philip J. Brendel
Authorized Signatory
DEBT STRATEGIES FUND, INC.
By: /s/ Philip J. Brendel
---------------------------------------
Philip J. Brendel
Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Investment Management,
L.P. as Investment Advisor
By: /s/ Philip J. Brendel
---------------------------------------
Philip J. Brendel
Authorized Signatory
[Signature Page to Waiver No. 1]
Morgan Stanley Prime Income Trust,
as a Leader
By: /s/ Peter Gewirtz
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Name: Peter Gewirtz
Title: Vice President
[Signature Page to Waiver No. 1]
Sankaty Advisors, LLC, as Collateral
Manager for Brant Point II CBO 2000-1
LTD., as Term Lender
By: /s/ Diane J. Exter
------------------------------------
Name: DIANE J. EXTER
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to Waiver No. 1]
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill I - INGOTS, Ltd.,
as Term Lender
By: /s/ Diane J. Exter
------------------------------------
Name: DIANE J. EXTER
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to Waiver No. 1]
Sankaty Advisors, LLC as Collateral
Manager for Race Point CLO, Limited,
as Term Lender
By: /s/ Diane J. Exter
------------------------------------
Name: DIANE J. EXTER
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to Waiver No. 1]
Sankaty High Yield Partners II, L.P.,
as a Lender
By: /s/ Diane J. Exter
------------------------------------
Name: DIANE J. EXTER
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
[Signature Page to Waiver No. 1]
Smoky River CDO, L.P.,
By RBC Leveraged Capital as Portfolio
Advisor
By: /s/ Melissa Marano
---------------------------------------
Name: Melissa Marano
Title: Authorized Signatory
[Signature Page to Waiver No. 1]
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc. as its
Collateral Manager
By: /s/ Illegible
---------------------------------------
Name: Illegible
Title: SENIOR VICE PRESIDENT
By: /s/ Jonathan R. Insull
---------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
VAN KAMPEN SENIOR LOAN FUND
By: Van Kampen Investment Advisory Corp.,
as a Lender
By: /s/ Christina Jamieson
-------------------------------------
Name: CHRISTINA JAMIESON
Title: VICE PRESIDENT
[Signature Page to Waiver No. 1]