EX-10.8 10 dex108.txt WAIVER NO. 1 TO AMENDED RESTRUCTURING SUPPORT AGREEMENT 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 --------------------------------------- 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 JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT, COLLATERAL AGENT AND CO-SYNDICATION AGENT By: /s/ MICHAEL LANCIA --------------------------------------- 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 --------------------------------------- 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 --------------------------------------- Name: ANN E. MORRIS Title: AUTHORIZED AGENT [Signature Page to Waiver No. 1] IBM Credit LLC, as a Lender By: /s/ Steven A. Flanagan --------------------------------------- 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 --------------------------------------- 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]