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Exhibit
10.6
AMENDED AND RESTATED
GUARANTEE
August 10,
2007
Wachovia Capital Finance Corporation
(Central), as Agent
150 South Wacker Drive, Suite
2200
Chicago, Illinois 60606
| Re: |
SMTC Manufacturing Corporation of California, SMTC
Manufacturing Corporation of Massachusetts and SMTC Mex Holdings,
Inc. (individually, a “Borrower” and collectively, the
“Borrowers”) |
Ladies and Gentlemen:
WHEREAS Congress Financial
Corporation (Central) (“ Congress ”)
(predecessor to Wachovia Capital Finance Corporation (Central)
(“ Wachovia ”)) individually and as collateral
agent has entered into certain financing arrangements with
Borrowers and affiliates of Borrowers pursuant to which Congress
made loans and provided other financial accommodations to Borrowers
and their 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 Borrowers have
requested that Wachovia (in such capacity, together with any
successors and assigns if any, the “ Agent ”)
for and on behalf of itself and as agent for Monroe Capital
Management Advisors LLC, a Delaware limited liability company (in
such capacity together with any successors and assigns if any, the
“ Tranche B Agent ”) and the lenders from time
to time party to the Loan Agreement (as hereinafter defined)
(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 Borrowers, 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 ”); and
WHEREAS due to the close
business and financial relationships between Borrowers, in
consideration of the benefits which will accrue to the undersigned
(the “ 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
Borrowers and their affiliates
MEX HOLDINGS
GUARANTEE
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 each 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 a Borrower and/or its affiliates under the United States
Bankruptcy Code or any similar statute in any jurisdiction (the
“ 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 a
Borrower and its affiliates or their respective 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 each 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, Tranche B Agent and Lenders directly or indirectly arising
out of or related to the relationships between Borrowers and their
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 Borrowers and/or their
affiliates or Guarantor under the Insolvency
Legislation. |
MEX HOLDINGS
GUARANTEE
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(b) |
This Guarantee is a guaranty of payment and not of collection.
Guarantor agrees that Agent for itself, Tranche B Agent and Lenders
need not attempt to collect any Guaranteed Obligations from
Borrowers and/or their affiliates or any other Obligor or to
realize upon any collateral, but may require Guarantor to make
immediate payment of all of the Guaranteed Obligations to Agent for
itself, 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 or Lenders with respect thereto or otherwise
chargeable to Borrowers and their 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, 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, 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 a Borrower 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 Borrowers
and their affiliates and presentment, demand, protest, notice of
protest, notice of non-payment or default and all other notices to
which Borrowers and/or their 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; |
MEX HOLDINGS
GUARANTEE
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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 Borrowers and/or their 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 a Borrower and/or its affiliates, Guarantor or any other
Obligor or any collateral; |
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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;
and |
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(v) |
any financing by Agent or Lenders of Borrowers under
Section 364 of the United States Bankruptcy Code or consent to
the use of cash collateral by Agent under Section 363 of the
United States Bankruptcy Code. |
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 a Borrower 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 a Borrower or its
affiliates under any Insolvency Legislation, Guarantor shall be
liable therefor, even if a 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
Borrowers and/or their affiliates, 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 Borrowers and their affiliates, any collateral for the
Guaranteed Obligations or other assets of Borrowers and their
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 or
the benefit of Tranche B Agent and Lenders by Guarantor hereunder
and Guarantor hereby
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MEX HOLDINGS
GUARANTEE
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further irrevocably and
unconditionally waives and relinquishes any and all other benefits
which Guarantor might otherwise directly or indirectly receive or
be entitled to receive by reason of any amounts paid by or
collected or due from Guarantor, Borrowers and/or their or any
other Obligor upon the Guaranteed Obligations or realized from
their property.
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(d) |
Notwithstanding anything to the contrary contained herein, the
amount of the obligations payable by Guarantor under this Guarantee
shall be the aggregate amount of the Guaranteed Obligations unless
a court of competent jurisdiction adjudicates Guarantor’s
obligations to be invalid, avoidable or unenforceable for any
reason (including, without limitation, because of any applicable
state or federal law relating to fraudulent conveyances or
transfers), in which case the amount of the Guaranteed Obligations
payable by Guarantor hereun |
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