Exhibit 10.2
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND
SURETYSHIP AGREEMENT (this “ Guaranty ”) dated
as of the 24th day of January, 2005, made by BLACK BOX CORPORATION,
a Delaware corporation (“ Guarantor ”), to the
lenders parties to the Credit Agreement (as defined below) from
time to time (the “ Lenders ”) and CITIZENS BANK
OF PENNSYLVANIA, a banking association organized under the laws of
the Commonwealth of Pennsylvania, as agent for the Lenders (in such
capacity, together with its successors in such capacity, the
“ Agent ”).
W I T N E S
S E T H :
WHEREAS,
Guarantor, Black Box Corporation of Pennsylvania
(“BBCPA”), certain of the Lenders, the Agent (through
its predecessor in interest, Mellon Bank, N.A.), and certain
Subsidiaries of the Guarantor entered into that certain Credit
Agreement dated April 4, 2000, as amended (the “
Original Credit Agreement ”), pursuant to which the
Lenders made a revolving credit facility available to
BBCPA;
WHEREAS,
Guarantor, BBCPA, certain of the Lenders, the Agent, and certain
Subsidiaries of the Guarantor entered into that certain Amended and
Restated Credit Agreement dated as of June 30, 2004 which
amended and restated the Original Credit Agreement (the “
Existing Credit Agreement ”), pursuant to which the
Lender parties to the Existing Credit Agreement made a revolving
credit facility available in the maximum aggregate amount of
$120,000,000 available to BBCPA;
WHEREAS, in
connection with the Original Credit Agreement, the Guarantor
executed and delivered to the Lenders and the Agent that certain
Guaranty and Suretyship Agreement dated as of April 4, 2000,
and in connection with the Existing Credit Agreement, the Guarantor
executed and delivered to the Lenders and the Agent that certain
Guaranty and Suretyship Agreement dated as of June 30, 2004
(collectively the “ Existing Guaranty
”);
WHEREAS,
Guarantor, BBCPA and SF Acquisition Co. (collectively with BBCPA,
the “ Borrowers ”), the guarantor parties
thereto, the Lenders and the Agent are parties to a Second Amended
and Restated Credit Agreement, dated as of January 24, 2005
(as amended, the “ Credit Agreement ”) which
amends and restates the Existing Credit Agreement; and
WHEREAS, pursuant
to the terms of the Credit Agreement, Lenders may make certain
Loans to the Borrowers as evidenced in part by certain promissory
notes of the Borrowers to each Lender dated of even date herewith
(collectively, the “ Note ”);
WHEREAS, the
execution and delivery by Guarantor of this Guaranty is a condition
to Lenders’ obligation to make Loans to the Borrowers and to
issue letters of credit on behalf of the Borrowers, and Guarantor,
as owner, directly or indirectly, of all of the outstanding shares
of stock of the Borrowers, expects to derive a financial benefit
from the making of such Loans and issuances of such letters of
credit; and
WHEREAS, this
Guaranty amends and restates the Existing Guaranty.
NOW, THEREFORE, in
consideration of the premises and other good and valuable
consideration, the receipt of which is hereby acknowledged by
Guarantor, and intending to be legally bound, Guarantor hereby
agrees as follows:
ARTICLE I.
DEFINITIONS
1.1
Definitions .
(a)
Certain Definitions . Capitalized terms not otherwise
defined herein shall have the meanings given in the Credit
Agreement. In addition to the other terms defined elsewhere in this
Agreement, as used herein the following terms shall have the
following meanings:
“
Guaranteed Obligations ” shall mean all obligations
from time to time of the Borrowers, collectively or individually,
to the Agent or any Lender under or in connection with any Loan
Document, including all obligations to pay principal, interest,
fees, indemnities or other amounts under such Loan Documents, in
each case whether such obligations are direct or indirect, secured
or unsecured, joint or several, absolute or contingent, due or to
become due, whether for payment or performance, now existing or
hereafter arising (including interest and other obligations arising
or accruing after the commencement of any bankruptcy, insolvency,
reorganization, dissolution or similar proceeding with respect to
the Borrowers or any other Person, or which would have arisen or
accrued but for the commencement of such proceeding, even if such
obligation or the claim therefor is not enforceable or allowable in
such proceeding).
ARTICLE II.
GUARANTY AND SURETYSHIP
2.1
Guaranty and Suretyship . The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees and becomes surety for
the full and punctual payment and performance of the Guaranteed
Obligations as and when such payment or performance shall become
due (at scheduled maturity, by acceleration or otherwise) in
accordance with the terms of the Loan Documents. This Agreement is
an agreement of suretyship as well as of guaranty, is a guarantee
of payment and performance and not merely of collectibility, and is
in no way conditioned upon any attempt to collect from or proceed
against the Borrowers or any other Person or any other event or
circumstance. The obligations of the Guarantor under this Agreement
are direct and primary obligations of the Guarantor and are
independent of the Guaranteed Obligations, and a separate action or
actions may be brought against the Guarantor regardless of whether
action is brought against the Borrowers or any other Person or
whether the Borrowers or any other Person is joined in any such
action or actions.
2.2
Obligations Absolute . The Guarantor agrees that the
Guaranteed Obligations will be paid and performed strictly in
accordance with the terms of the Loan Documents, regardless of any
law, regulation or order now or hereafter in effect in any
jurisdiction affecting the Guaranteed Obligations, any of the terms
of the Loan Documents or the rights of the Agent or any Lender or
any other Person with respect thereto. The obligations of
the
2
Guarantor under this Agreement
shall be absolute, unconditional and irrevocable, irrespective of
any of the following:
(a) any
lack of legality, validity, enforceability, allowability (in a
bankruptcy, insolvency, reorganization, dissolution or similar
proceeding, or otherwise), or any avoidance or subordination, in
whole or in part, of any Loan Document or any of the Guaranteed
Obligations;
(b) any
change in the amount, nature, time, place or manner of payment or
performance of, or in any other term of, any of the Guaranteed
Obligations (whether or not such change is contemplated by the Loan
Documents as presently constituted, and specifically including any
increase in the Guaranteed Obligations, whether resulting from the
extension of additional credit to the Borrowers or otherwise), any
execution of any additional Loan Documents, or any amendment or
waiver of or any consent to departure from any Loan
Document;
(c) any
taking, exchange, release, impairment or nonperfection of any
collateral, or any taking, release, impairment or amendment or
waiver of or consent to departure from any other guaranty or other
direct or indirect security for any of the Guaranteed
Obligations;
(d) any
manner of application of collateral or other direct or indirect
security for any of the Guaranteed Obligations, or proceeds
thereof, to any of the Guaranteed Obligations, or any commercially
reasonable manner of sale or other disposition of any collateral
for any of the Guaranteed Obligations or any other assets of the
Borrowers;
(e) any
permanent impairment by any Lender or any other Person of any
recourse of the Guarantor against the Borrowers or any other
Person, or any other permanent impairment by any Lender or any
other Person of the suretyship status of the Guarantor;
(f) any
bankruptcy, insolvency, reorganization, dissolution or similar
proceedings with respect to, or any change, restructuring or
termination of the corporate structure or existence of, the
Borrowers, the Guarantor or any other Person; or
(g) any
failure of any Lender or any other Person to disclose to the
Guarantor any information pertaining to the business, operations,
condition (financial or other) or prospects of the Borrowers or any
other Person, or to give any other notice, disclosure or
demand.
2.3
Waivers, etc . The Guarantor hereby irrevocably waives any
defense to or limitation on its obligations under this Agreement
arising out of or based upon any matter referred to in
Section 2.2 and, without limiting the generality of the
foregoing, any requirement of promptness, diligence or notice of
acceptance, any other notice, disclosure or demand with respect to
any of the Guaranteed Obligations and this Agreement, any
requirement of acceptance hereof, reliance hereon or knowledge
hereof by the Agent or any Lender, and any requirement that the
Agent or any Lender protect, secure, perfect or insure any lien or
any property subject thereto or exhaust any right or take any
action against the Borrowers or any other Person or any collateral
or other direct or indirect security for any of the Guaranteed
Obligations.
3
Notwithstanding the foregoing
sentence, the Guarantor’s waiver under this Section 2.3
shall apply only to the Guarantor’s obligations hereunder and
shall not limit or waive any of the Guarantor’s rights or
obligations as a borrower under the Credit Agreement or any other
subrogation rights.
2.4
Reinstatement . This Agreement shall continue to be
effective, or be automatically reinstated, as the case may be, if
at any time payment of any of the Guaranteed Obligations is
avoided, rescinded or must otherwise be returned by the Agent or
any Lender for any reason, all as though such payment had not been
made.
2.5
No Stay . Without limiting the generality of any other
provision of this Agreement, if any acceleration of the time for
payment or performance of any Guaranteed Obligation, or any
condition to any such acceleration, shall at any time be stayed,
enjoined or prevented for any reason (including stay or injunction
resulting from the pendency against the Borrowers or any other
Person of a bankruptcy, insolvency, reorganization, dissolution or
similar proceeding), the Guarantor agrees that, for purposes of
this Agreement and its obligations hereunder, at the option of the
Agent such Guaranteed Obligation shall be deemed to have been
accelerated and such condition to acceleration shall be deemed to
have been met.
2.6
Payments . All payments to be made by the Guarantor pursuant
to th
|
