EXHIBIT 10.3
GE CAPITAL INTERCREDITOR AGREEMENT
THIS AGREEMENT is made as of June 30, 2004, between GE CAPITAL FINANCE
HOLDING COMPANY., a Nova Scotia unlimited liability company ("Canadian Agent"),
and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("US Agent").
RECITALS
A. Pursuant to that certain Credit Agreement dated as March 30, 2004,
by and among Dynamic Details, Incorporated ("Details"), Dynamic Details,
Incorporated, Virginia, ("Virginia"), Dynamic Details Incorporated, Silicon
Valley ("Valley"), and Laminate Technology Corp. ("Laminate")(Details, Virginia,
Valley and Laminate are collectively referred to as "US Borrowers" and each
individually as a "US Borrower"), the other credit parties signatory thereto
("US Credit Parties"), the lenders ("US Lenders") signatory thereto from time to
time, and US Agent, as agent for US Lenders (as from time to time amended,
restated, supplemented or otherwise modified, the "US Credit Agreement"), US
Lenders have agreed to make loans and extend other financial accommodations to
or for the benefit of US Borrowers.
B. Pursuant to that certain Credit Agreement dated as of the date
hereof by and among Dynamic Details Canada, Corp. ("Canada") and DDI Canada
Acquisition Corp. ("DDi Canada") (Canada and DDi Canada are collectively
referred to as "Canadian Borrowers" and each individually as a "Canadian
Borrower"), the other credit parties signatory thereto ("Canadian Credit
Parties"), the lenders ("Canadian Lenders") signatory thereto from time to time,
and Canadian Agent, as agent for Canadian Lenders (as from time to time amended,
restated, supplemented or otherwise modified, the "Canadian Credit Agreement"),
Canadian Lenders have agreed to make loans and extend other financial
accommodations to or for the benefit of Canadian Borrowers.
C. Canadian Agent and US Agent desire to set forth their respective
rights and priorities with respect to the Canadian Assets and the US Assets (as
defined in SECTION 1) as herein provided.
AGREEMENT
FOR VALUE RECEIVED, the parties agree as follows:
1. DEFINITIONS
In this Agreement:
"Agent" and "Agents" means, individually or collectively, as
applicable the Canadian Agent and the US Agent.
"Borrower" and "Borrowers" means individually or collectively, as
applicable, Canadian Borrower and US Borrower.
"Canadian Assets" means all of the present and after acquired real
and personal property, assets and undertakings of Canadian Borrowers of whatever
nature or kind and wherever situated, including all accounts, goods, chattel
paper, contracts, documents of title (whether negotiable or not), fixtures,
instruments, intangibles, money and securities now owned or hereafter owned or
acquired by or on behalf of any Canadian Borrower and in and to all proceeds and
renewals thereof, accretions thereto and substitutions therefor and all other
Collateral (as defined in the Canadian Credit Agreement).
INTERCREDITOR AGREEMENT
"Credit Agreement" means, as applicable, the Canadian Credit
Agreement or the US Credit Agreement.
"Default" means any of the "Events of Default" specified in the
Canadian Credit Agreement or the US Credit Agreement.
"Demand" means any notification by either Agent to either Borrower:
(i) of a Default with respect to its respective Credit
Agreement;
(ii) of a cancellation of a credit facility provided for in
its respective Credit Agreement; or
(iii) that any of the Obligations (as such term is defined in
the applicable Credit Agreement) are due and payable.
"Insolvency Law" means any of the Bankruptcy and Insolvency Act
(Canada), the Companies' Creditors Arrangement Act (Canada) and title 11 of the
United States Code entitled "Bankruptcy" each as now and hereafter in effect,
any successors to such statutes and any other applicable insolvency or other
similar laws of any jurisdiction, including any law of any jurisdiction
permitting a debtor to obtain a stay or a compromise of the claims of its
creditors against it.
"Lender" and "Lenders" means, individually or collectively, as
applicable the Canadian Lenders and the US Lenders.
"Obligations" means the Senior Canada Obligations, the Subordinate
Canada Obligations, the Senior US Obligations and the Subordinate US
Obligations.
"Proceeds of Realization" means all proceeds and amounts recovered
in respect of any of the collateral charged by the Security pursuant to (1) any
enforcement or realization action or proceedings in respect of any Security, (2)
any insurance policies or expropriation proceedings in respect of any of the
collateral charged by the Security or (3) any bankruptcy, insolvency,
liquidation, reorganization, receivership or similar proceeding relating to a
Borrower.
"Receiver" means any of an agent, trustee, interim receiver,
receiver, manager, receiver-manager or receiver and manager.
"Security" means the Senior Canada Security, the Subordinate Canada
Security, the Senior US Security and the Subordinate US Security.
"Senior Canada Obligations" means all present and future
indebtedness, liabilities and obligations of Canadian Borrowers to Canadian
Agent and Canadian Lenders, including all "Obligations" of Canadian Borrowers
under and as defined in the Canadian Credit Agreement.
"Senior Canada Security" means all security now or hereafter granted
by Canadian Borrowers upon any of the Canadian Assets securing any of the Senior
Canada Obligations, including pursuant to each of the "Collateral Documents," as
such term is defined in the Canadian Credit Agreement.
"Senior US Obligations" means all present and future indebtedness,
liabilities and obligations of US Borrower to US Agent and US Lenders, including
all "Obligations" of US Borrowers under and as defined in the US Credit
Agreement.
INTERCREDITOR AGREEMENT
"Senior US Security" means all security now or hereafter granted by
US Borrowers upon any of the US Assets securing any of the Senior US
Obligations, including pursuant to each of the "Collateral Documents," as such
term is defined in the US Credit Agreement. "Senior US Security" also includes
the pledge by Details of a 65% ownership interest in its wholly-owned
Subsidiary, DDi Acquisition Corp.
"Subordinate Canada Obligations" means all present and future
indebtedness, liabilities and obligations of Canadian Borrowers to US Agent and
US Lenders, if any.
"Subordinate Canada Security" means all security now or hereafter
granted by any Canadian Borrower upon any of the Canadian Assets securing any of
the Subordinate Canada Obligations; provided, that as of the date of this
Agreement the parties acknowledge that no Subordinate Canada Security exists.
"Subordinate US Obligations" means all present and future
indebtedness, liabilities and obligations of US Borrowers to Canadian Agent and
Canadian Lenders, including the obligations of US Borrowers to Canadian Agent
and Canadian Lenders arising under the US Guaranty.
"Subordinate US Security" means all security now or hereafter
granted by US Borrowers upon any of the US Assets securing any of the
Subordinate US Obligations.
"US Assets" means all of the present and after acquired real and
personal property, assets and undertakings of US Borrowers of whatever nature or
kind and wherever situated, including all accounts, goods, chattel paper,
contracts, documents of title (whether negotiable or not), fixtures,
instruments, intangibles, money and securities now owned or hereafter owned or
acquired by or on behalf of US Borrowers and in and to all proceeds and renewals
thereof, accretions thereto and substitutions therefor and all other Collateral
(as defined in the US Credit Agreement).
2. PRIORITIES BETWEEN CANADIAN AGENT AND US AGENT
2.1 Priorities with respect to Canadian Assets. As between the parties
hereto, the Senior Canada Security and the Subordinate Canada Security (and the
respective rights and remedies thereunder) shall rank and shall continue to rank
in all respects in the following order of priority with respect to the Canadian
Assets:
(a) FIRSTLY, the Senior Canada Security to the extent of the
Senior Canada Obligations; and
(b) SECONDLY, the Subordinate Canada Security to the extent of the
Subordinate Canada Obligations.
As a result, any Proceeds of Realization derived from the Canadian Assets shall
be applied first in satisfaction of the Senior Canada Obligations and second in
satisfaction of the Subordinate Canada Obligations, if any.
2.2 Priorities with respect to US Assets. As between the parties hereto,
the Senior US Security and the Subordinate US Security (and the respective
rights and remedies thereunder) shall rank and shall continue to rank in all
respects in the following order of priority with respect to the US Assets:
INTERCREDITOR AGREEMENT
(a) FIRSTLY, the Senior US Security to the extent of the Senior US
Obligations; and
(b) SECONDLY, the Subordinate US Security to the extent of the
Subordinate US Obligations.
As a result, any Proceeds of Realization derived from the US Assets shall be
applied first in satisfaction of the Senior US Obligations and second in
satisfaction of the Subordinate US Obligations.
2.3 Effect of Agreement. The priorities provided for in this Agreement
shall apply notwithstanding:
(a) the priorities otherwise accorded to the Security under
applicable law;
(b) the timing, order or manner of creation, grant, execution,
delivery, attachment, registration, perfection or enforcement of the Security;
(c) that any of the Security shall be defective, unperfected, void
or unenforceable for any reason whatsoever;
(d) the time of crystallization of any floating charge under the
Security;
(e) the provisions of the Security;
(f) any forbearance whatsoever, whether as to time, performance,
or otherwise or by any release, discharge, loss or alteration in or dealing with
all or any part of the Obligations or Security or any part thereof;
(g) any failure or delay in giving any notice required under this
Agreement;
(h) any invalidity or unenforceability of, or any limitation on
the liability of, a Borrower;
(i) any defense, compensation, set-off or counterclaim that a
Borrower may have or assert;
(j) any dissolution, bankruptcy, receivership, winding-up,
liquidation or other similar proceedings in respect of one or more of the
Borrowers (whether voluntary or involuntary), any proposal or similar proceeding
made or commenced by a Borrower under an Insolvency Law or any distribution of
assets of one or more of the Borrowers among its or their creditors in any
manner whatsoever and any sale of all or substantially all of the assets of one
or more Borrowers;
(k) the date of any advance or advances made to a Borrower by any
Lender;
(l) any priority granted by any principle of law or any statute;
or
(m) any other matter whatsoever.
3. ENFORCEMENT AND REALIZATION
3.1 Notice of Default. So long as any of the Obligations remain
outstanding, each Agent shall give to the other prompt notice in writing of:
(a) any Default under its respective Credit Agreement or under the
applicable Security, specifying in reasonable detail the nature of such Default;
or
INTERCREDITOR AGREEMENT
(b) any Demand, concurrently with the making of such Demand, and
enclosing with such notice a copy of the Demand.
Inadvertent failure by any Agent to give such notice, or any defect in the
giving thereof, shall not prejudice the rights and remedies of such Agent under
this Agreement, its respective Credit Agreement or the applicable Security.
3.2 Appointment of Receiver and Delegation of Authority to Act. Should
any Agent determine to make a Demand in accordance with its rights under its
respective Credit Agreement or the applicable Security, such Agent will
co-operate with the other Agent and, notwithstanding anything to the contrary
contained herein, should an Agent wish to appoint a Receiver it shall first give
24 hours prior written notice to the other Agent. If a party to whom such notice
is given wishes to join in the appointment of such Receiver, such Agent shall
use its best efforts to agree on the appointee.
3.3 Amounts Held in Trust. All payments or amounts (including any
Proceeds of Realization) received by any Agent from or in connection with a
Borrower (including from any third party on account of or otherwise for the
benefit of such Borrower) shall be dealt with in such a way as to give effect to
the provisions of this Agreement and the priorities created and established
hereby. Any payments or amounts received by any Agent from a Borrower in breach
of the provisions of this Agreement shall be received in trust for the other
Agent and shall be paid over to the other Agent forthwith upon receipt by such
Agent, but no such payment shall have the effect of reducing the Obligations
until such payment has been received by the other Agent.
4. CONSENTS TO LIENS
Each of Canadian Agent and US Agent hereby consents to the liens and
security interests in the Security held by the other party for the claims and
with the priorities described in this Agreement and agrees that the grant or
existence of such liens and security interests does not constitute a "default"
or an "event of default" under its agreements with any of the Borrowers.
5. POSSESSION OF DOCUMENTS, INSTRUMENTS AND CHATTEL PAPER
If and to the extent any party hereto (the "Possession Party") is in
possession of any Security consisting of documents, instruments, securities or
chattel paper, including certificates of stock, (collectively, "Collateral in
Possession") in order to perfect a security interest therein, the Possession
Party shall also hold such Collateral in Possession for the benefit of the other
party for the purpose of perfecting such other party's security interest
therein. The Possession Party shall have no duties or responsibilities to the
other party with respect to, or arising from, the Possession Party's possession
of such Collateral in Possession; provided, that (a) if the Possession Party is
not the party entitled to the first ranking priority under the terms hereof with
respect to such Collateral in Possession, the Possession Party shall deliver the
Collateral in Possession to the other party and following such delivery, the
other party shall be the "Possession Party" hereunder, and (b) after all of the
applicable Borrower's obligations to the Possession Party have been fully and
finally paid and all of the Possession Party's commitments to extend financing
to such Borrower have terminated, the Possession Party shall deliver such
documents, instruments and chattel paper to the other party to the extent such
other party holds a security interest in such Security at that time.
INTERCREDITOR AGREEMENT
6. ASSIGNMENTS
6.1 Assignment. No Agent shall assign its rights hereunder or any of its
rights or interests in any assets of any Borrower, including any security
interests, any rights under any lease of property and any rights under any
Security securing any Obligations, unless any assignee first agrees to be bound
by the provisions of this Agreement in its place and stead as if such assignee
were originally a party hereto.
6.2 Binding Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
7. MISCELLANEOUS
7.1 Entire Agreement. This Agreement, including all documents
contemplated hereby, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior negotiations,
undertakings, representations and understandings, including any correspondence
between the parties hereto dated before the date of this Agreement.
7.2 Relationship of Parties. The Obligations shall exist on a several
basis only and nothing herein contained shall be deemed, interpreted or
construed as creating between the Agents a partnership, joint venture or other
joint association.
7.3 Conflicts. In the event of a conflict between any term, condition or
provision of this Agreement and those of the Canadian Credit Agreement or the US
Credit Agreement, then as between the Agents the terms, conditions or provisions
of this Agreement shall prevail; provided, that nothing in this Agreement shall
relieve any Borrower of any of its obligations under any agreements it may be a
party to with any Agent or any Lender.
7.4 No Waiver. No waiver by any Agent or failure or delay in exercising
on the part of any Agent of any right, power or remedy (whether in whole or in
part) under this Agreement shall take effect or be binding upon such Agent
unless in writing and signed by such Agent or shall limit or affect the rights
of either of them with respect to any other right, power or remedy.
7.5 Revival. Each Borrower agrees that, to the extent such Borrower
makes a payment or payments to an Agent or Lender, which payment or payments or
any parts thereof are subsequently invalidated, avoided, declared to be
fraudulent or preferential, set aside or required to be repaid to a debtor in
possession, a trustee, a receiver or any other party under any Insolvency Law or
any other provincial, state or federal law, common law, or equitable cause, then
to the extent of such payment or repayment, the obligation or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as a part of the Obligations of such Borrower as if such payment had not been
made and shall be subject in all respects to the subordination and other
provisions in favor of both Agents hereunder. The termination under SECTION 7.11
shall not occur until any such revived Obligation shall be finally satisfied.
7.6 Notices. Any notice, demand, request, consent, approval, declaration
or other communication hereunder shall or may be given in accordance with the
Canadian Credit Agreement, if to any Canadian Borrower or Canadian Agent, or the
US Credit Agreement, if to any US Borrower or US Agent.
INTERCREDITOR AGREEMENT
7.7 Severability. If any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any jurisdiction, the illegality,
invalidity or unenforceability of that provision will not affect:
(a) the legality, validity or enforceability of the remaining
provisions of this Agreement; or
(b) the legality, validity or enforceability of that provision in
any other jurisdiction.
7.8 Further Assurances. Each party to this Agreement shall perform,
execute, deliver and do all acts, deeds and documents as may be reasonably
necessary from time to time to give full effect to the terms and intent of this
Agreement.
7.9 Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, construed and enforced in accordance
with, the laws of the State of California applicable to contracts made and
performed in such State.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered is an original and all
of which taken together constitute one and the same instrument.
7.11 Termination. This Agreement shall terminate when each of the
Canadian Credit Agreement and the US Credit Agreement have been terminated and
all Obligations have been paid and satisfied in full.
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INTERCREDITOR AGREEMENT
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto
as of the date first written above.
"US AGENT" "CANADIAN AGENT"
GENERAL ELECTRIC CAPITAL CORPORATION GE CANADA FINANCE HOLDING COMPANY
By: /s/ X. X. XXXX By: /s/ XXXXXXX X. XXXXX
--------------------------- -------------------------------
X. X. Xxxx Name: Xxxxxxx X. Xxxxx
Duly Authorized Signatory Title: President
ACKNOWLEDGEMENT
Each of the undersigned hereby acknowledges that it has received a copy of the
foregoing GE Capital Intercreditor Agreement and consents thereto, and agrees to
recognize all rights granted thereby to the parties thereto, and will do no act
or perform no obligation that is not in accordance with the agreements set forth
in such GE Capital Intercreditor Agreement as in effect from time to time.
DYNAMIC DETAILS, INCORPORATED DYNAMIC DETAILS, INCORPORATED,
VIRGINIA
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
Vice President and Secretary Vice President and Secretary
DYNAMIC DETAILS INCORPORATED, LAMINATE TECHNOLOGY CORP.
SILICON VALLEY
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
Vice President and Secretary Vice President and Secretary
DDI CANADA ACQUISITION CORP. DYNAMIC DETAILS CANADA, CORP.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- -------------------------------
Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
Vice President and Secretary Vice President and Secretary
INTERCREDITOR AGREEMENT
