GUARANTY AND SURETYSHIP AGREEMENT
Exhibit
10.3
THIS
GUARANTY AND SURETYSHIP AGREEMENT
(this
“Guaranty”)
is made
and entered into as of this 17th
day of
April, 2008, by BERLINER
COMMUNICATIONS, INC. (the“Guarantor”),
with
an address at 00 Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000, in consideration
of the extension of credit by PNC
BANK, NATIONAL ASSOCIATION (the
“PNC”),
with
an address at PNC
Bank
Center, Xxx Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000,
the
various financial institutions named in the Loan Agreement (as defined herein)
or which hereafter become a party thereto (together with PNC collectively,
“Lenders”),
and
PNC as agent for Lenders (in such capacity, “Agent”),
to
BCI
COMMUNICATIONS, INC.
(the
“Borrower”),
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged.
1.
Guaranty
of Obligations.
The
Guarantor hereby unconditionally guarantees, and becomes surety for, the prompt
payment and performance of all loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Agent for the benefit of
the
Lenders, any Lender or to any other direct or indirect subsidiary of the parent
of any Lender, of any kind or nature, present or future (including any interest
accruing thereon after maturity, or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to the Borrower, whether or not a claim for post-filing
or
post-petition interest is allowed in such proceeding), whether direct or
indirect (including those acquired by assignment or participation), absolute
or
contingent, joint or several, due or to become due, now existing or hereafter
arising, whether or not (i) evidenced by any note, guaranty or other instrument,
(ii) arising under a certain Revolving Credit and Security Agreement dated
the
date hereof by and among the Borrower, the Agent and the Lenders, as may be
amended, modified, restated and/or replaced from time to time, (the “Loan
Agreement”), any other agreement, instrument or document, (iii) for the payment
of money, (iv) arising by reason of an extension of credit, opening of a letter
of credit, loan, equipment lease or guarantee, (v) under any interest or
currency swap, future, option or other interest rate protection or similar
agreement, (vi) under or by reason of any foreign currency transaction, forward,
option or other similar transaction providing for the purchase of one currency
in exchange for the sale of another currency, or in any other manner, or (vii)
arising out of overdrafts on deposit or other accounts or out of electronic
funds transfers (whether by wire transfer or through automated clearing houses
or otherwise) or out of the return unpaid of, or other failure of the Agent
or
Lenders to receive final payment for, any check, item, instrument, payment
order
or other deposit or credit to a deposit or other account, or out of the Agent's
or Lender’s non-receipt of or inability to collect funds or otherwise not being
made whole in connection with depository or other similar arrangements; and
any
amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Agent or Lenders incurred in the
documentation, negotiation, modification, enforcement, collection and otherwise
in connection with any of the foregoing, including reasonable attorneys' fees
and expenses (hereinafter referred to collectively as the “Obligations”).
If the
Borrower defaults under any such Obligations, the Guarantor will pay the amount
due to the Agent for the benefit of the Lenders.
2. Nature
of Guaranty; Waivers. This
is a guaranty of payment and not of collection and the Agent shall not be
required or obligated, as a condition of the Guarantor's liability, to make
any
demand upon or to pursue any of its rights against the Borrower, or to pursue
any rights which may be available to it with respect to any other person who
may
be liable for the payment of the Obligations.
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This
is
an absolute, unconditional, irrevocable and continuing guaranty and will remain
in full force and effect until all of the Obligations have been indefeasibly
paid in full, and the Agent has terminated this Guaranty. This Guaranty will
remain in full force and effect even if there is no principal balance
outstanding under the Obligations at a particular time or from time to time.
This Guaranty will not be affected by any surrender, exchange, acceptance,
compromise or release by the Agent or any Lender of any other party, or any
other guaranty or any security held by it for any of the Obligations, by any
failure of the Agent or any Lender to take any steps to perfect or maintain
its
lien or security interest in or to preserve its rights to any security or other
collateral for any of the Obligations or any guaranty, or by any irregularity,
unenforceability or invalidity of any of the Obligations or any part thereof
or
any security or other guaranty thereof. The Guarantor's obligations hereunder
shall not be affected, modified or impaired by any counterclaim, set-off
recoupment, deduction or defense based upon any claim the Guarantor may have
(directly or indirectly) against the Borrower or the Agent or any Lender, except
payment or performance of the Obligations.
Notice
of
acceptance of this Guaranty, notice of extensions of credit to the Borrower
from
time to time, notice of default, diligence, presentment, notice of dishonor,
protest, demand for payment, and any defense based upon the Agent's or any
Lender’s failure to comply with the notice requirements under Sections 9-611 and
9-612 of the Uniform Commercial Code as in effect from time to time are hereby
waived. The Guarantor waives all defenses based on suretyship or impairment
of
collateral.
The
Agent
or the Lenders at any time and from time to time, without notice to or the
consent of the Guarantor, and without impairing or releasing, discharging or
modifying the Guarantor's liabilities hereunder, may (a) change the manner,
place, time or terms of payment or performance of or interest rates on, or
other
terms relating to, any of the Obligations; (b) renew, substitute, modify,
amend or alter, or grant consents or waivers relating to any of the Obligations,
any other guaranties, or any security for any Obligations or guaranties;
(c) apply any and all payments by whomever paid or however realized
including any proceeds of any collateral, to any Obligations of the Borrower
in
such order, manner and amount as the Agent or the Lenders may determine in
its
sole discretion; (d) settle, compromise or deal with any other person,
including the Borrower or the Guarantor, with respect to any Obligations in
such
manner as the Agent or any Lender deems appropriate in its sole discretion;
(e) substitute, exchange or release any security or guaranty; or (f) take
such actions and exercise such remedies hereunder as provided
herein.
3. Repayments
or Recovery from the Agent. If
any demand is made at any time upon the Agent or the Lenders for the repayment
or recovery of any amount received by it in payment or on account of any of
the
Obligations and if the Agent or the Lenders repays all or any part of such
amount by reason of any judgment, decree or order of any court or administrative
body or by reason of any settlement or compromise of any such demand, the
Guarantor will be and remain liable hereunder for the amount so repaid or
recovered to the same extent as if such amount had never been received
originally by the Agent or such Lenders. The provisions of this section will
be
and remain effective notwithstanding any contrary action which may have been
taken by the Guarantor in reliance upon such payment, and any such contrary
action so taken will be without prejudice to the Agent's rights hereunder and
will be deemed to have been conditioned upon such payment having become final
and irrevocable.
4.
Financial
Statements.
Unless
compliance is waived in writing by the Agent or until all of the Obligations
have been paid in full, the Guarantor will promptly submit such information
relating to the Guarantor’s affairs as requested by the Agent from time to time
in it sole discretion.
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5. Enforceability
of Obligations. No
modification, limitation or discharge of the Obligations arising out of or
by
virtue of any bankruptcy, reorganization or similar proceeding for relief of
debtors under federal or state law will affect, modify, limit or discharge
the
Guarantor's liability in any manner whatsoever and this Guaranty will remain
and
continue in full force and effect and will be enforceable against the Guarantor
to the same extent and with the same force and effect as if any such proceeding
had not been instituted. The Guarantor waives all rights and benefits which
might accrue to it by reason of any such proceeding and will be liable to the
full extent hereunder, irrespective of any modification, limitation or discharge
of the liability of the Borrower that may result from any such
proceeding.
The
Guarantor expressly waives the effect of any statute of limitations or other
limitations on any actions under this Guaranty.
6. Events
of Default. Any
Event of Default (as defined in the Loan Agreement) shall constitute an
“Event
of Default” hereunder.
Upon the occurrence of any Event of Default, (a) the Guarantor shall pay to
the
Agent the amount of the Obligations (exclusive of Obligations under any interest
rate swap agreements with any Lenders or any of their affiliates, which shall
be
controlled by such interest rate swap agreements);
or (b)
on demand of the Agent, the Guarantor shall immediately deposit with the Agent,
in U.S. dollars, all amounts due or to become due under the Obligations, and
the
Agent may at any time use such funds to repay the Obligations; or (c) the Agent
in its discretion may exercise with respect to any collateral any one or more
of
the rights and remedies provided a secured party under the applicable version
of
the Uniform Commercial Code; or (d) the Agent in its discretion may exercise
from time to time any other rights and remedies available to it at law, in
equity or otherwise.
7.
Right
of Setoff.
In
addition to all liens upon and rights of setoff against the Guarantor’s money,
securities or other property given to the Agent or to any Lenders by law, the
Agent shall have, with respect to the Guarantor's obligations to the Agent
under
this Guaranty and to the extent permitted by law, a contractual possessory
security interest in and a contractual right of setoff against, and the
Guarantor hereby grants Agent a security interest in, and hereby assigns,
conveys, delivers, pledges and transfers to the Agent or to any Lenders all
of
the Guarantor's right, title and interest in and to, all of the Guarantor’s
deposits, moneys, securities and other property now or hereafter in the
possession of or on deposit with, or in transit to, the Agent, any Lenders
or
any other direct or indirect subsidiary of any parent of any Lender, whether
held in a general or special account or deposit, whether held jointly with
someone else, or whether held for safekeeping or otherwise, excluding, however,
all XXX, Xxxxx, and trust accounts. Every such security interest and right
of
setoff may be exercised without demand upon or notice to the Guarantor. Every
such right of setoff shall be deemed to have been exercised immediately upon
the
occurrence of an Event of Default hereunder without any action of the Agent,
although the Agent may enter such setoff on its books and records at a later
time.
8.
Collateral.
This
Guaranty is secured by the property described in the Loan Agreement and in
any
collateral security documents which the Guarantor executes and delivers to
the
Agent and by such other collateral as previously may have been or may in the
future be granted to the Agent to secure any Obligations of the Guarantor to
the
Agent.
9. Costs. To
the extent that the Agent incurs any costs or expenses in protecting or
enforcing its rights under the Obligations or this Guaranty, including
reasonable attorneys' fees and the costs and expenses of litigation, such costs
and expenses will be due on demand, will be included in the Obligations and
will
bear interest from the incurring or payment thereof at the Default Rate (as
defined in the Loan Agreement).
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10.
Postponement
of Subrogation.
Until
the Obligations are indefeasibly paid in full, expire, are terminated and are
not subject to any right of revocation or rescission, the Guarantor postpones
and subordinates in favor of the Agent or its designee (and any assignee or
potential assignee) any and all rights which the Guarantor may have to (a)
assert any claim whatsoever against the Borrower based on subrogation,
exoneration, reimbursement, or indemnity or any right of recourse to security
for the Obligations with respect to payments made hereunder, and (b) any
realization on any property of the Borrower, including participation in any
marshalling of the Borrower's assets.
11.
Notices. All
notices, demands, requests, consents, approvals and other communications
required or permitted hereunder (“Notices”)
must be
in writing and will be effective upon receipt. Notices may be given in any
manner to which the Agent and the Guarantor may separately agree, including
electronic mail. Without limiting the foregoing, first-class mail, facsimile
transmission and commercial courier service are hereby agreed to as acceptable
methods for giving Notices. Regardless of the manner in which provided, Notices
may be sent to addresses for the Agent and the Guarantor as set forth above
or
to such other address as either may give to the other for such purpose in
accordance with this section.
12. Preservation
of Rights. No
delay or omission on the Agent's part to exercise any right or power arising
hereunder will impair any such right or power or be considered a waiver of
any
such right or power, nor will the Agent's action or inaction impair any such
right or power. The Agent's rights and remedies hereunder are cumulative and not
exclusive of any other rights or remedies which the Agent may have under other
agreements, at law or in equity. The Agent may proceed in any order against
the
Borrower, the Guarantor or any other obligor of, or collateral securing, the
Obligations.
13.
Illegality.
If any
provision contained in this Guaranty should be invalid, illegal or unenforceable
in any respect, it shall not affect or impair the validity, legality and
enforceability of the remaining provisions of this Guaranty.
14.
Changes
in Writing.
No
modification, amendment or waiver of, or consent to any departure by the
Guarantor from, any provision of this Guaranty will be effective unless made
in
a writing signed by the Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No
notice to or demand on the Guarantor will entitle the Guarantor to any other
or
further notice or demand in the same, similar or other
circumstance.
15.
Entire
Agreement.
This
Guaranty (including the documents and instruments referred to herein)
constitutes the entire agreement and supersedes all other prior agreements
and
understandings, both written and oral, between the Guarantor and the Agent
with
respect to the subject matter hereof; provided, however, that this Guaranty
is
in addition to, and not in substitution for, any other guarantees from the
Guarantor to the Agent.
16.
Successors
and Assigns.
This
Guaranty will be binding upon and inure to the benefit of the Guarantor and
the
Agent and their respective heirs, executors, administrators, successors and
assigns; provided,
however,
that
the Guarantor may not assign this Guaranty in whole or in part without the
Agent's prior written consent and the Agent at any time may assign this Guaranty
in whole or in part.
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17.
Interpretation.
In this
Guaranty, unless the Agent and the Guarantor otherwise agree in writing, the
singular includes the plural and the plural the singular; references to statutes
are to be construed as including all statutory provisions consolidating,
amending or replacing the statute referred to; the word “or” shall be deemed to
include “and/or”, the words “including”, “includes” and “include” shall be
deemed to be followed by the words “without limitation”; and references to
sections or exhibits are to those of this Guaranty. Section headings in this
Guaranty are included for convenience of reference only and shall not constitute
a part of this Guaranty for any other purpose. If this Guaranty is executed
by
more than one party as Guarantor, the obligations of such persons or entities
will be joint and several. All capitalized terms not otherwise defined herein
shall have the definition ascribed to them in the Loan Agreement.
18.
Indemnity.
The
Guarantor agrees to indemnify each of the Lenders, each legal entity, if any,
who controls any Lender and each of their respective directors, officers and
employees (the “Indemnified
Parties”),
and to
hold each Indemnified Party harmless from and against, any and all claims,
damages, losses, liabilities and expenses (including all fees and charges of
internal or external counsel with whom any Indemnified Party may consult and
all
expenses of litigation and preparation therefor) which any Indemnified Party
may
incur or which may be asserted against any Indemnified Party by any person,
entity or governmental authority (including any person or entity claiming
derivatively on behalf of the Guarantor), in connection with or arising out
of
or relating to the matters referred to in this Guaranty, whether (a) arising
from or incurred in connection with any breach of a representation, warranty
or
covenant by the Guarantor, or (b) arising out of or resulting from any suit,
action, claim, proceeding or governmental investigation, pending or threatened,
whether based on statute, regulation or order, or tort, or contract or
otherwise, before any court or governmental authority; provided,
however,
that
the foregoing indemnity agreement shall not apply to any claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party's
gross negligence or willful misconduct. The indemnity agreement contained in
this Section shall survive the termination of this Guaranty and assignment
of
any rights hereunder. The Guarantor may participate at its expense in the
defense of any such claim.
19.
Governing
Law and Jurisdiction.
This
Guaranty has been delivered to and accepted by the Agent and will be deemed
to
be made in the State of New Jersey. THIS
GUARANTY WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE AGENT AND
THE
GUARANTOR DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY,
EXCLUDING ITS CONFLICT OF LAWS RULES. The
Guarantor hereby irrevocably consents to the exclusive jurisdiction of any
state
or federal court in the county or judicial district in the State of New Jersey;
provided that nothing contained in this Guaranty will prevent the Agent from
bringing any action, enforcing any award or judgment or exercising any rights
against the Guarantor individually, against any security or against any property
of the Guarantor within any other county, state or other foreign or domestic
jurisdiction. The Guarantor acknowledges and agrees that the venue provided
above is the most convenient forum for both the Agent and the Guarantor. The
Guarantor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Guaranty.
20.
WAIVER
OF JURY TRIAL.
THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT THE GUARANTOR MAY HAVE TO
A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO
THIS
GUARANTY, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS GUARANTY OR ANY
TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE GUARANTOR ACKNOWLEDGES
THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
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The
Guarantor acknowledges that it has read and understood all the provisions of
this Guaranty, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
The
due
execution hereof as of the date first written above, with the intent to be
legally bound hereby.
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ATTEST:
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BERLINER
COMMUNICATIONS, INC.
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By:
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Name:
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XXXXXXXX XXX |
Name:
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XXXXXXX
XXXXXXXX
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Title:
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General Counsel and Secretary |
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Title:
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Chief
Executive Officer and President
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