Exhibit 10.3
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND
SURETYSHIP AGREEMENT (this “ Guaranty ”) dated
as of the 24 th day of January, 2005, made by the Guarantors
identified as such on the signature page hereof (each a ”
Guarantor ” and collectively “ Guarantors
”), 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, certain
of the Guarantors, Black Box Corporation of Pennsylvania, a
Delaware corporation (the “ Borrower ”), Black
Box Corporation, a Delaware corporation (the “ Parent
”), certain of the Lenders and the Agent (through its
predecessor in interest, Mellon Bank, N.A.) 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 the
Borrower;
WHEREAS, certain
of the Guarantors, the Borrower, the Parent, certain of the Lenders
and the Agent 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 the Borrower;
WHEREAS, in
connection with the Original Credit Agreement, certain of the
Guarantors 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, certain
of the Guarantors 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,
Guarantors, the Borrower, SF Acquisition Co. (collectively with the
Borrower, the “ Borrowers ”), the Parent, 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, the
Guarantors will derive substantial direct and indirect benefit from
the transactions contemplated by the Credit Agreement;
and
WHEREAS, it is a
condition precedent to the extension of credit under the Credit
Agreement that the Guarantors execute and deliver this Guaranty;
and
WHEREAS, this
Guaranty, among other things, is made by the Guarantors to induce
the Lenders to enter into the Loan Documents (as defined in the
Credit Agreement) and to induce the Lenders to extend credit under
the Credit Agreement;
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 each
Guarantor, and intending to be legally bound, each 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 . Each Guarantor hereby jointly and
severally 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 Guarantors under this Agreement are direct and primary
obligations of each Guarantor and are independent of the Guaranteed
Obligations, and a separate action or actions may be brought
against any 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.
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2.2
Obligations Absolute . Each 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
Guarantors 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, any Guarantor or any other Person; or
(g) any
failure of any Lender or any other Person to disclose to any
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 . Each 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
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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. Notwithstanding the
foregoing sentence, each Guarantor’s waiver under this
Section 2.3 shall apply only to each Guarantor’s
obligations hereunder and shall not limit or waive any of such
Guarantor’s rights or obligations as a borrower under the
Credit Agreement or any 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), each 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 Guarantors
pursuant to this Agreement shall be made at the times and in the
manner prescribed for payments in Articles II and III of the Credit
Agreement, without setoff, counterclaim, withholding or other
deduction of any nature. All payments made by the Guarantors
pursuant to this Agreement may be applied to the Guaranteed
Obligations and all other amounts payable under this Agreement in
such order as the Agent may elect.
2.7
Subrogation. Etc . Any rights which any Guarantor may have
or acquire by way of subrogation, reimbursement, restitution,
exoneration, contribution or indemnity, and any similar rights
(whether arising by operation of law, by agreement or otherwise),
against the Borrowers arising from the existence, payment,
performance or enforcement of any of the obligations of any
Guarantor under or in connection with this Agreement, shall be
subordinate in right of payment to the Guaranteed Obligations, and
the Guarantors shall not exercise any such rights until all
Guaranteed Obligations and all other ob
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