Exhibit 10.1.11
FIRST AMENDMENT, dated as of February 8, 2002 (this "Amendment"), to
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the Amended and Restated Guarantee and Collateral Agreement, dated as of July
27, 2000 (such Guarantee and Collateral Agreement, as amended, supplemented or
otherwise modified from time to time, the "Collateral Agreement"), made by SMTC
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CORPORATION, a Delaware corporation ("Holdings"), HTM HOLDINGS, INC., a Delaware
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corporation (the "U.S. Borrower") and certain of their Subsidiaries in favor of
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LEHMAN COMMERCIAL PAPER INC., as general administrative agent (in such capacity,
the "General Administrative Agent") for the banks and other financial
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institutions from time to time parties to the Amended and Restated Credit
Agreement, dated July 27, 2000 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among Holdings, the U.S. Borrower and
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the other parties thereto.
W I T N E S S E T H:
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WHEREAS, the Borrower and Holdings have requested that the Lenders
amend, and the Required Lenders have agreed to amend, certain of the provisions
of the Collateral Agreement, upon the terms and subject to the conditions set
forth below;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the U.S. Borrower, Holdings, the Grantors, the Lenders and
the Administrative Agent hereby agree as follows:
1. Definitions. All terms defined in the Collateral Agreement and the
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Credit Agreement shall have such defined meanings when used herein unless
otherwise defined herein.
2. Amendment of Section 1.1(b). Section 1.1(b) of the Collateral
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Agreement is hereby amended by:
(a) adding the following new definitions in their appropriate
alphabetical order:
""Borrower Cash Management Obligations": the collective reference
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to all obligations and liabilities of the U.S. Borrower to the General
Administrative Agent or any Lender or any affiliate of either of the
foregoing, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise
out of, or in connection with, any Cash Management Losses or any
document made, delivered, or given in connection therewith, whether on
account of reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the relevant Lender or affiliate thereof
that are required to be paid by the U.S. Borrower pursuant to the
terms of any such document).
"Cash Management Obligations": the collective reference to the
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Borrower Cash Management Obligations and the Guarantor Cash Management
Obligations.
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"Guarantor Cash Management Obligations": as to any Guarantor, the
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collective reference to all obligations and liabilities of such
Guarantor to the General Administrative Agent or any Lender or any
affiliate of either of the foregoing, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise out of, or in connection with, any
Cash Management Losses or any document made, delivered, or given in
connection therewith, whether on account of reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the relevant
Lender or affiliate thereof that are required to be paid by such
Guarantor pursuant to the terms of any such document).";
(b) amending the definition of "Borrower Obligations" by deleting "and
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(iii)" therein and substituting in lieu thereof the following: ", (iii) the
Borrower Cash Management Obligations, and (iv)"; and
(c) amending the definition of "Guarantor Obligations" by: (i) adding
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immediately after "with respect to any Guarantor," therein a reference to
"(i)" and (ii) adding at the end thereof immediately prior to the period
therein "and (ii) any Guarantor Cash Management Obligations of such
Guarantor".
3. Amendment of Section 3 (Grant of Security Interest). Section 3 of
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the Collateral Agreement is hereby amended by adding immediately after paragraph
(b) thereof the following:
"(c) As of the Fourth Amendment Effective Date, each Grantor hereby
confirms and reaffirms its grant of the security interests described in
paragraphs (a) and (b) above; it being understood that as of the Fourth
Amendment Effective Date, the Tranche C Term Loans have been repaid in
full.
(d) On the Fourth Amendment Effective Date, each Grantor pursuant
hereto hereby assigns and transfers to the General Administrative Agent and
hereby grants, to the General Administrative Agent, for the benefit of the
General Administrative Agent and the Lenders (and any affiliates of any
Lender to which Cash Management Obligations are owing), a security interest
in all right, title and interest of such Grantor in all Collateral, whether
now existing or hereafter acquired, as collateral security for the prompt
and complete payment, performance, discharge and satisfaction of such
Grantor's Cash Management Obligations.
(e) As set forth in the separate granting clauses contained in
paragraphs (a) and (d) above, it is the intent of each Grantor, the Lenders
and the General Administrative Agent, that paragraphs (a) and (d) shall
create, as of the Fourth Amendment Effective Date, separate and distinct
Liens in favor of (x) the General Administrative Agent, for the benefit of
the holders of the Cash Management Obligations and (y) the General
Administrative Agent, for the benefit of the holders of the Obligations
(other than such Obligations in respect of Cash Management Obligations).
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(f) Notwithstanding anything to the contrary contained in the Credit
Agreement or in this Agreement, and irrespective of (i) the time, order or
method of attachment or perfection of the security interests created by
this Agreement; (ii) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect security
interests in any Collateral; (iii) anything contained in any filing or
agreement to which the General Administrative Agent, any Lender or any
affiliate of any Lender now or hereafter may be a party; and (iv) the rules
for determining priority under the Uniform Commercial Code or any other law
governing the relative priorities of secured creditors; any security
interest in the Collateral granted to secure the Cash Management
Obligations pursuant to this Agreement has and shall have priority to the
extent of any unpaid Cash Management Obligations, over any security
interest in the Collateral granted pursuant to this Agreement to secure the
Obligations (other than such Obligations in respect of Cash Management
Obligations).".
4. Amendment of Section 6.5 (Application of Proceeds). Section 6.5 of
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the Collateral Agreement the is hereby amended by deleting the references to
"Sections 7.5 and 15.18 of the Credit Agreement" in clauses Second and Third
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thereof and substituting in lieu thereof "Section 15.18 of the Credit
Agreement".
5. Limited Consent and Amendment. Except as expressly amended herein,
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the Collateral Agreement shall continue to be, and shall remain, in full force
and effect. This Amendment shall not be deemed to be a waiver of, or consent to,
or a modification or amendment of, any other term or condition of the Collateral
Agreement or any other Loan Document or to prejudice any other right or rights
which the Lenders may now have or may have in the future under or in connection
with the Collateral Agreement or any of the instruments or agreements referred
to therein, as the same may be amended from time to time.
6. Counterparts. This Amendment may be executed by one or more of the
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parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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7. Effectiveness. This Amendment shall become effective on and as of
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the date that the Administrative Agent shall have received counterparts of this
Amendment, duly executed and delivered by a duly authorized officer of each of
the Grantors party to the Collateral Agreement.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
SMTC CORPORATION
HTM HOLDINGS, INC.
SMTC MANUFACTURING CORPORATION OF
CALIFORNIA
SMTC MANUFACTURING CORPORATION OF
COLORADO
SMTC MANUFACTURING CORPORATION OF
MASSACHUSETTS
SMTC MANUFACTURING CORPORATION OF
NORTH CAROLINA
SMTC MANUFACTURING CORPORATION OF
TEXAS
SMTC MANUFACTURING CORPORATION OF
WISCONSIN
SMTC MEX HOLDINGS, INC.
QUALTRON, INC.
By: /s/ Paul Walker
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Name: Paul Walker
Title: President and CEO
LEHMAN COMMERCIAL PAPER INC., as
General Administrative Agent
By: /s/ G. Andrew Keith
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Name: G. Andrew Keith
Title: Authorized Signatory