Exhibit 10.7
WAIVER NO.1
WAIVER NO. 1 (this "Waiver"), dated as of August 18, 2003, with respect to
that certain Plan Support Agreement (together with exhibits, annexes and
attachments thereto, the "PSA"), dated as of August 8, 2003 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"), and (ii) the
Consenting Subordinated Noteholders signatory thereto. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
PSA.
W I T N E S S E T H:
WHEREAS, pursuant to the PSA, the Consenting Subordinated Noteholders 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 Consenting Subordinated
Noteholders holding at least one-half (1/2) in aggregate principal amount of the
debt held by Consenting Subordinated Noteholders (the "Required Subordinated
Noteholders") 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. The parties hereto hereby agree that:
(a) 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 Required Lenders execute a waiver in the form
annexed hereto as Exhibit A, (x) no Termination Event shall be deemed to have
occurred under the PSA as a result of any default in the observance of Section
5(ii)(A) of the PSA and (y) no Termination Event will be deemed to have occurred
under the PSA as a result of any default in the observance of Section 5(ii)(B)
of the PSA;
2. Agreements of the Required Subordinated Noteholders.
(a) Amendment to PSA. By execution of this Waiver, each Required
Consenting Subordinated Noteholder agrees to execute the first amendment to the
PSA, in the form annexed hereto as Exhibit C (the "First Amendment"), provided
that the First Amendment shall only become effective if 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 D prior to the Petition Date
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 PSA 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 PSA therein shall be deemed to be references to this
Waiver and to the PSA as modified by this Waiver.
4. No Change. Except as expressly provided herein, no term or provision of
the PSA shall be amended, modified or supplemented, and each term and provision
of the PSA 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 Consenting Subordinated
Noteholders shall preserve all rights, remedies, power or privileges set forth
in the PSA and under applicable law and (b) nothing contained herein shall in
any way limit or otherwise prejudice, and the Consenting Subordinated
Noteholders have reserved their right to invoke fully, any right, remedy, power
or privilege which the Consenting Subordinated Noteholders may not have or may
have in the future under or in connection with the PSA and applicable law, or
diminish any of the obligations of any member of the Company Group contained in
the PSA. The rights, remedies, powers and privileges of the Consenting
Subordinated Noteholders provided under this Waiver and the PSA are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.
6. Effectiveness. This Waiver shall become effective as of the date hereof
upon receipt by the Company Group of counterparts hereof duly executed by each
member of the Company Group and the Required Consenting Subordinated
Noteholders.
7. 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.
8. 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 WITNES5 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
------------------------------------
Title: CFO
DYNAMIC DETAILS, INCORPORATED
By: /s/ JOHN STUMPF
------------------------------------
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
------------------------------------
Title: CFO
ARGENT, as a 6.25%
Subordinated Noteholder
By: /s/ NATE BROWN
------------------------------------
Name: Nate Brown
Title: Illegible
[Signature Page to Waiver No. 1]
PROVIDENCE CAPITAL, LLC,
ON BEHALF OF AQUITANIA PARTNERS, LP
_______, LP; ___________
MAURETANIA PARTNERS, LP; AND RAM
CSA LIMITED, as a 5 1/2%
Subordinated Noteholder
By: /s/ JOHN C. KOPCHIK
------------------------------------
Name: John C. Kopchik
Title: PRESIDENT,
PROVIDENCE CAPITAL, LLC
[Signature Page to Waiver No. 1]
PROVIDENCE CAPITAL, LLC
ON BEHALF OF
MAURETANIA PARTNERS, LP, as a ____%
Subordinated Noteholder
By: /s/ JOHN C. KOPCHIK
------------------------------------
Name: John C. Kopchik
Title: PRESIDENT,
PROVIDENCE CAPITAL, LLC
[Signature Page to Waiver No. 1]
Tablerock Fund Management, as a 5 1/4%
Subordinated Noteholder
By: /s/ Illegible
------------------------------------
Name: ______________
Title: Member, Authorised Signatory
[Signature Page to Waiver No. 1]
Tablerock Fund Management, as a 6 1/4%
Subordinated Noteholder
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: Member, Authorised Signatory
[Signature Page to Waiver No. 1]
[ILLEGIBLE], as a 5.25%
Subordinated Noteholder
By: /s/ DAVID SHERMAN
------------------------------------
Name: David Sherman
Title: President of Cohanzide
Capital Management
[Signature Page to Waiver No. 1]