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Exhibit
10.12
AMENDED AND RESTATED
GUARANTEE
August 10,
2007
Wachovia Capital Finance Corporation
(Canada), as Agent
141 Adelaide Street West, Suite
1500
Toronto, Ontario M5H 3L9
| Re: |
SMTC Manufacturing Corporation of Canada/Societe De
Fabrication SMTC Du Canada (the
“Borrower”) |
Ladies and Gentlemen:
WHEREAS Congress Financial
Corporation (Canada) (“ Congress ”) (predecessor
to Wachovia Capital Finance Corporation (Canada) (“
Wachovia ”)) has entered into certain financing
arrangements with Borrower and affiliates of Borrower pursuant to
which Congress made loans and provided other financial
accommodations to Borrower and its affiliates set forth in the Loan
Agreement dated as of June 1, 2004 (as amended pursuant to a
first amending agreement dated March 31, 2005, a second
amending agreement dated August 17, 2005, a third amending
agreement dated June 12, 2006, an extension letter dated
August 1, 2006 and a fourth amending agreement dated
September 20, 2006, collectively, the “ Original Loan
Agreement ”) and other agreements, documents and
instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including a
guarantee provided by the undersigned in favour of Congress dated
as of June 1, 2004 (the “ Original Guarantee
”) (all of the foregoing, including the Original Loan
Agreement, being collectively referred to herein as the “
Original Financing Agreements ”).
WHEREAS Borrower has
requested that Wachovia for and on behalf of itself and as agent
(in such capacity, together with any successors and assigns, the
“ Agent ”) for Monroe Capital Management
Advisors LLC, a Delaware limited liability company (in such
capacity and together with any successors and assigns, if any, the
“ Tranche B Agent ”) and the lenders that from
time to time are party to the Loan Agreement (as defined below)
(collectively, the “ Lenders ”) amend and
restate the Original Loan Agreement pursuant to an amended and
restated loan agreement dated as of the date hereof (as the same
now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, the “ Loan
Agreement ”) and Borrower, Agent, Tranche B Agent and
Lenders have also agreed to amend and restate the other Original
Financing Agreements, including the Original Guarantee (all of the
foregoing, including the Loan Agreement, as the same now exists or
may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, collectively the “
Financing Agreements ”).
WHEREAS due to the close
business and financial relationships between Borrower and the
undersigned (the “ Guarantor ”), in
consideration of the benefits which will accrue to Guarantor and as
an inducement for and in consideration of Agent, Tranche B Agent
and Lenders making loans and advances and providing other financial
accommodations to Borrower and its affiliates pursuant to the Loan
Agreement and other Financing Agreements, the Guarantor hereby
agrees to amend and restate the Original Guarantee and provide this
Amended and Restated Guarantee (the “ Guarantee
”) as follows:
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(a) |
Guarantor absolutely and unconditionally guarantees and agrees
to be liable for the full and indefeasible payment and performance
when due of the following (all of which are collectively referred
to herein as the “ Guaranteed Obligations
”): |
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(i) |
all obligations, liabilities and indebtedness of any kind,
nature and description of Borrower to Agent, Tranche B Agent and
Lenders and/or their affiliates, including principal, interest,
charges, fees, costs and expenses, however evidenced, whether as
principal, surety, endorser, guarantor or otherwise, whether
arising under the Loan Agreement and other Financing Agreements or
otherwise, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of
the Loan Agreement or after the commencement of any case with
respect to Borrower under the Bankruptcy and Insolvency Act
(Canada) (“ BIA ”), Companies’
Creditors Arrangement Act (Canada) (“ CCAA
”) or any similar statute in any jurisdiction (“
Insolvency Legislation ”) (including, without
limitation, the payment of interest and other amounts, which would
accrue and become due but for the commencement of such case,
whether or not such amounts are allowed or allowable in whole or in
part in any such case and including loans, interest, fees, charges
and expenses related thereto and all other obligations of Borrower
or its successors to Agent, Tranche B Agent and Lenders arising
after the commencement of such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary
or secondary, liquidated or unliquidated, secured or unsecured, and
however acquired by Agent, Tranche B Agent and Lenders and/or their
affiliates; and |
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(ii) |
all expenses (including, without limitation, attorneys’
fees and legal expenses) incurred by Agent, Tranche B Agent and
Lenders in connection with the preparation, execution, delivery,
recording, administration, collection, liquidation, enforcement and
defence of Borrower’s and its affiliates’ obligations,
liabilities and indebtedness as aforesaid to Agent, Tranche B Agent
and Lenders, the rights of Agent, Tranche B Agent and Lenders in
any collateral or under this Guarantee and all other Financing
Agreements or in any way involving claims by or against Agent
directly or indirectly arising out of or related to the
relationships between Borrower and/or its affiliates, Guarantor or
any other Obligor (as hereinafter defined) and Agent, Tranche B
Agent and Lenders, whether such expenses are incurred before,
during or after the initial or any renewal term of the Loan
Agreement or other Financing Agreements or after the commencement
of any case with respect to Borrower or Guarantor under any
Insolvency Legislation. |
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(b) |
This Guarantee is a guaranty of payment and not of collection.
Guarantor agrees that Agent for itself, and for the ratable benefit
of Tranche B Agent and Lenders need not attempt to collect any
Guaranteed Obligations from Borrower and/or its affiliates, or any
other Obligor (as defined below) or to realize upon any collateral,
but may require Guarantor to make immediate payment of all of the
Guaranteed Obligations to Agent for itself, and for the ratable
benefit of Tranche B Agent and Lenders when due, whether by
maturity, acceleration or otherwise, or at any time thereafter.
Agent shall apply any amounts received in respect of the Guaranteed
Obligations to any of the Guaranteed Obligations, in whole or in
part (including attorneys’ fees and legal expenses incurred
by Agent, Tranche B Agent and Lenders with respect thereto or
otherwise chargeable to the Borrower and/or its affiliates or
Guarantor) and in accordance with the Loan Agreement. |
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(c) |
Payment by Guarantor shall be made to Agent for itself, and for
the ratable benefit of Tranche B Agent and Lenders at the office of
Agent from time to time, on demand, as Guaranteed Obligations
become due. Guarantor shall make all payments to Agent for itself,
and for the ratable benefit of Tranche B Agent and Lenders on the
Guaranteed Obligations free and clear of, and without deduction or
withholding for or on account of, any set-off, counterclaim,
defence, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more
successive or concurrent actions may be brought hereon against
Guarantor either in the same action in which Borrower and/or its
affiliates or any other Obligor is sued or in separate actions. In
the event any claim or action, or action on any judgment, based on
this Guarantee is brought against Guarantor, Guarantor agrees not
to deduct, set-off, or seek any counterclaim for or recoup any
amounts which are or may be owed by Agent to Guarantor. |
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(a) |
Notice of acceptance of this Guarantee, the making of loans and
advances and providing other financial accommodations to Borrower
and its affiliates and presentment, demand, protest, notice of
protest, notice of non-payment or default and all other notices to
which Borrower and/or its affiliates or Guarantor is entitled are
hereby waived by Guarantor. Guarantor also waives notice of and
hereby consents to: |
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(i) |
any amendment, modification, supplement, extension, renewal, or
restatement of the Loan Agreement and other Financing Agreements,
including, without limitation, extensions of time of payment of or
increase or decrease in the amount of any of the Guaranteed
Obligations, the interest rate, fees, other charges, or any
collateral, and the guarantee made herein shall apply to the Loan
Agreement and other Financing Agreements and the Guaranteed
Obligations as so amended, modified, supplemented, renewed,
restated or extended, increased or decreased; |
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(ii) |
the taking,
exchange, surrender and releasing of collateral or guarantees now
or at any time held by or available to Agent for the obligations
of
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Borrower and/or its
affiliates or any other party at any time liable on or in respect
of the Guaranteed Obligations or who is the owner of any property
which is security for the Guaranteed Obligations (individually, an
“ Obligor ” and collectively, the “
Obligors ”);
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(iii) |
the exercise of, or refraining from the exercise of any rights
against Borrower and/or its affiliates, Guarantor or any other
Obligor or any collateral; and |
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(iv) |
the settlement, compromise or release of, or the waiver of any
default with respect to, any of the Guaranteed Obligations.
Guarantor agrees that the amount of the Guaranteed Obligations
shall not be diminished and the liability of Guarantor hereunder
shall not be otherwise impaired or affected by any of the
foregoing. |
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(b) |
No invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations shall affect, impair or be a
defence to this Guarantee, nor shall any other circumstance which
might otherwise constitute a defence available to or legal or
equitable discharge of Borrower and/or its affiliates in respect of
any of the Guaranteed Obligations, or Guarantor in respect of this
Guarantee, affect, impair or be a defence to this Guarantee.
Without limitation of the foregoing, the liability of Guarantor
hereunder shall not be discharged or impaired in any respect by
reason of any failure by Agent to perfect or continue perfection of
any lien or security interest in any collateral or any delay by
Agent in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the
commencement of any case with respect to Borrower and/or its
affiliates under any Insolvency Legislation, Guarantor shall be
liable therefor, even if Borrower’s or its affiliates’
liability for such amounts does not, or ceases to, exist by
operation of law. Guarantor acknowledges that Agent has not made
any representations to Guarantor with respect to Borrower and/or
its affiliates or any other Obligor or otherwise in connection with
the execution and delivery by Guarantor of this Guarantee and
Guarantor is not in any respect relying upon Agent or any
statements by Agent in connection with this Guarantee. |
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(c) |
Guarantor hereby irrevocably and unconditionally waives and
relinquishes all statutory, contractual, common law, equitable and
all other claims against Borrower and its affiliates or any other
Obligors, any collateral for the Guaranteed Obligations or other
assets of Borrower and/or its affiliates or any other Obligor, for
subrogation, reimbursement, exoneration, contribution,
indemnification, set-off or other recourse in respect to sums paid
or payable to Agent, for itself and for the ratable benefit of
Tranche B Agent or the Lenders by Guarantor hereunder and Guarantor
hereby further irrevocably and unconditionally waives and
relinquishes any and all other benefits which it might otherwise
directly or indirectly receive or be entitled to receive by reason
of any amounts paid by or collected or due from it, Borrower, its
affiliates or any other Obligor upon the Guaranteed Obligations or
realized from their property. |
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| 3. |
Subordination . Payment of all amounts now or hereafter
owed to Guarantor by Borrower, its affiliates or any other Obligor
is hereby subordinated in right of payment to the indefeasible
payment in full to Agent, for itself, and for the ratable benefit
of Tranche B Agent or Lenders of the Guaranteed Obligations and all
such amou |
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