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Exhibit
10.8
AMENDED AND RESTATED
GUARANTEE
August 10,
2007
Wachovia Capital Finance Corporation
(Central), as Agent
150 South Wacker Drive, Suite
2200
Chicago, Illinois 60606
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Re: |
SMTC Manufacturing Corporation of Massachusetts, SMTC
Manufacturing Corporation of California 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
Due to the close business and
financial relationships between Borrowers and each of the
undersigned (individually, a “ Guarantor ” and
collectively, the “Guarantors ”), in
consideration of the benefits which will accrue to each Guarantor
and as an inducement for and in consideration of Agent, Tranche B
Agent and Lenders making loans and advances and
providing
US OBLIGORS
GUARANTEE
other financial accommodations to
Borrowers and their affiliates pursuant to the Loan Agreement and
other Financing Agreements, each Guarantor hereby agrees to amend
and restate the Original Guarantee and to jointly and severally
provide this Amended and Restated Guarantee (the
“Guarantee ”) as follows:
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(a) |
Each 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, any 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
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GUARANTEE
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Agreements or after the
commencement of any case with respect to Borrowers and/or their
affiliates or any Guarantor under the Insolvency
Legislation.
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(b) |
This Guarantee is a guaranty of payment and not of collection.
Each 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, any other Guarantor or any other
Obligor or to realize upon any collateral, but may require any
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 Guarantors) and in accordance with the Loan
Agreement. |
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(c) |
Payment by a 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. Each
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 any 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 any
Guarantor, each 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 any 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 any Guarantor is
entitled are hereby waived by each Guarantor. Each of the
Guarantors 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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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, any 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. Each
Guarantor agrees that the amount of the Guaranteed Obligations
shall not be diminished and the liability of each Guarantor
hereunder shall not be otherwise impaired or affected by any of the
foregoing; and |
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(v) |
any Financing by Agent or Lenders of Borrowers under
Section 364 of the United Bankruptcy Code or consent to the
use of cash collateral by Agent under Section 363 of the
United States Bankruptcy Code. |
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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 any Guarantor in respect of
this Guarantee, affect, impair or be a defence to this Guarantee.
Without limitation of the foregoing, the liability of each
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, each 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. Each Guarantor acknowledges that
Agent has not made any representations to any Guarantor with
respect to Borrowers and/or their affiliates, any other Obligor or
otherwise in connection with the execution and delivery by each
Guarantor of this Guarantee and each Guarantor is not in any
respect relying upon Agent or any statements by Agent in connection
with this Guarantee. |
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(c) |
Each
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
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GUARANTEE
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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 and the benefit of Tranche B Agent and the Lenders by each
Guarantor hereunder and each Guarantor hereby further irrevocably
and unconditionally waives and relinquishes any and all other
benefits which a Guarantor might otherwise directly or indirectly
receive or be entitled to receive by reason of any amounts paid by
or collected or due from such 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 each 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 each Guarantor hereunder
shall be limited to the maximum amount that could be guaranteed by
each Guarantor without rendering such Guarantor’s obligations
under this Guarantee invalid, avoidable or unenforceable under such
applicable law. |
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Subordination . Payment of all amounts now or hereafter
owed to each Guarantor by a Borrower or its affiliates or any other
Obligor is hereby subordinated in right of payment to the
indefeasible payment in full to Agent, for itself, Tranche B Agent
and Lenders of the Guaranteed Obligations and all such amounts and
any security and guarantees therefor are hereby assigned to Agent
as security for the Guaranteed Obligations. |
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Acceleration . Notwithstanding anything to the contrary
contained herein or any of the terms of any of the other Financing
Agreements, the liability of each Guarantor for the entire
Guaranteed Obligations shall mature and become immediately due and
payable, even if the liability of a Borrower or any other Obligor
therefor does not, upon the occurrence of any act, condition or
event which constitutes an Event of Default (as such term is
defined in the Loan Agreement). |
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