Exhibit 10.22
AMENDED AND RESTATED
CONTINUING GUARANTY AGREEMENT
THIS AMENDED AND RESTATED CONTINUING
GUARANTY AGREEMENT (this “ Guaranty ”) is made
on August 5, 2008, by SUPERIOR ESSEX INC. , a Delaware
corporation (“ SEI ”); SUPERIOR ESSEX HOLDING
CORP. , a Delaware corporation (“ Parent ”);
SE COMMUNICATIONS GP INC. , a Delaware corporation (“
SEC GP ”); ESSEX INTERNATIONAL INC. , a
Delaware corporation (“ Essex International ”);
ESSEX CANADA INC. , a Delaware corporation (“ Essex
Canada ”); ESSEX GROUP MEXICO INC. , a Delaware
corporation (“ Essex Mexico ”); and ESSEX
MEXICO HOLDINGS, L.L.C. , a Delaware limited liability company
(“ EMH ”; SEI, Parent, SEC GP, Essex
International, Essex Canada, Essex Mexico, and EMH are collectively
referred to herein as “ Guarantors ” and
individually as “ Guarantor ”), in favor of each
of the financial institutions (collectively, “ Lenders
”) now or hereafter parties to the Loan Agreement (as defined
below) and BANK OF AMERICA, N.A. , a national banking
association with a mailing address at 300 Galleria Parkway, N.W.,
Suite 800, Atlanta, Georgia 30339, as administrative and
collateral agent (in such capacity, together with its successors in
such capacity, “ Agent ”) for each of Lenders
and the other Credit Parties (as defined in the Loan Agreement)
(Agent and each other Credit Party are collectively referred to
herein as “ Guaranteed Parties ” and
individually as “ Guaranteed Party
”).
Recitals
:
Pursuant to that certain Credit
Agreement dated November 10, 2003, as amended and restated by
that certain Amended and Restated Loan and Security Agreement dated
April 14, 2006, among SUPERIOR ESSEX COMMUNICATIONS
LP , a Delaware limited partnership (“ Superior
Essex ”), ESSEX GROUP, INC. , a Michigan
corporation (“ Essex ”; Superior Essex and Essex
are collectively referred to herein as “ U.S.
Borrowers ”), Agent, and the various financial
institutions party thereto from time to time (the “
Existing Lenders ”) (as at any time amended, restated,
modified or otherwise supplemented prior to the date hereof, the
“ Existing Loan Agreement ”), the Existing
Lenders agreed to make loans to, and issue letters of credit and
provide other financial accommodations on behalf of, U.S.
Borrowers.
In connection with the Existing Loan
Agreement, certain of the Guarantors executed and delivered that
certain Continuing Guaranty Agreement dated November 10, 2003
in favor of Agent and the Existing Lenders, which Continuing
Guaranty Agreement was further acknowledged and reaffirmed pursuant
to that certain Acknowledgement Reaffirmation of Loan Documents
dated April 14, 2006 (as at any time amended, restated,
modified or otherwise supplemented prior to the date hereof, the
“ Existing Guaranty ”), pursuant to which the
Guarantors jointly and severally unconditionally guaranteed to the
Agent and the Existing Lenders the payment and performance of all
of the “Guaranteed Obligations” as defined
therein.
Guaranteed Parties, U.S. Borrowers
and ESSEX GROUP CANADA INC. , a Nova Scotia company (“
Canadian Borrower ”; U.S. Borrowers and Canadian
Borrower are collectively referred to herein as “
Borrowers ” and individually as “
Borrower ”), have now entered into a certain Second
Amended and Restated Loan Agreement dated the date hereof, 2006 (as
at any time amended, restated, modified or supplemented, the
“ Loan Agreement ”), which Loan Agreement amends
and restates the Existing Loan Agreement.
It is a condition to the Guaranteed
Parties’ willingness to make loans and other financial
accommodations to or for the benefit of the Borrowers under the
Loan Agreement that each of the Guarantors agreed to amend and
restate the Existing Guaranty in its entirety as hereinafter set
forth.
Each of the Guarantors has
determined that it is and will be the best interest and to the
direct advantage of such Guarantor to assist the Borrowers in
borrowing money and obtaining extensions of
credit from the Agent and the Lenders under the
Loan Agreement in order to further the business of such Guarantor,
and each Guarantor agrees that the Existing Guaranty is hereby
amended and restated in its entirety by this Guaranty, and each
Guarantor agrees to unconditionally guarantee to the Guaranteed
Parties all of the Guaranteed Obligations (as defined herein), and
to ratify, renew and continue the prior “Guaranteed
Obligations” as defined in the Existing Guaranty, all on the
terms set forth herein.
Agreement
:
NOW, THEREFORE, for Ten Dollars
($10) in hand paid and in consideration of the premises and the
mutual covenants and agreements set forth herein, the parties
hereto hereby agrees to amend and restate the Existing Guarantee as
follows:
1.
Definitions; Rules of
Construction . Capitalized terms used herein, unless otherwise
defined, shall have the meanings ascribed to them in the Loan
Agreement. As used herein, the words “ herein
,” “ hereof ,” “ hereunder
,” and “ hereon ” shall have reference to
this Guaranty taken as a whole and not to any particular provision
hereof; and the word “ including ” shall mean
“including, without limitation.”
2.
Guaranty
. (a) Each Guarantor hereby unconditionally
and absolutely guarantees to each Guaranteed Party the due and
punctual payment, performance and discharge (whether upon stated
maturity, demand, acceleration or otherwise in accordance with the
terms thereof) of all of the Obligations, including, without
limitation, the U.S. Obligations and the Canadian Obligations,
whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, joint or several, primary or
secondary, liquidated or unliquidated, now existing or hereafter
incurred, created or arising, and howsoever evidenced, whether
created directly to or acquired by assignment or otherwise by any
Guaranteed Party, and whether Borrowers may be liable individually
or jointly with others, and regardless of whether recovery upon any
of such Obligations becomes barred by any statute of limitations,
is void or voidable under any law relating to fraudulent
obligations or otherwise or is or becomes invalid or unenforceable
for any other reason (all of such Obligations being jointly
referred to herein as the “ Guaranteed Obligations
”). Without limiting the generality of the foregoing,
the term “ Guaranteed Obligations ” as used
herein shall include all debts, liabilities and obligations
incurred by a Borrower to any of Guaranteed Parties in any
bankruptcy case or Insolvency Proceeding of such Borrower and any
interest, fees or other charges accrued in any such bankruptcy,
whether or not any such interest, fees or other charges are
recoverable from such Borrower or its estate under 11 U.S.C. §
506 or other Applicable Law.
(b)
No Guaranteed Party shall be under
any obligation to marshal any assets in favor of any Guarantor or
in payment of any of the Guaranteed Obligations. If and to
the extent any Guaranteed Party receives any payment on account of
any of the Guaranteed Obligations (whether from Borrowers, any
Guarantor or a third party obligor or from the sale or other
disposition of any Collateral) and such payment or any part thereof
is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee,
receiver or any other Person under any state, federal or foreign
bankruptcy or other insolvency law, common law or equitable cause,
then the part of the Guaranteed Obligations intended to be
satisfied shall be revived and continued in full force and effect
as if said payment had not been made. The foregoing
provisions of this paragraph shall survive Full Payment of the
Obligations and the termination of this Guaranty.
(c)
Agent, for and on behalf of the
Guaranteed Parties, shall have the right to seek recourse against
Guarantors to the full extent provided for herein and against
Borrowers to the full extent provided for in any of the Loan
Documents. No election to proceed in one form of action or
proceeding, or against any Person, or on any obligation, shall
constitute a waiver of any Guaranteed Party’s right to
proceed in any other form of action or proceeding or against any
other Person unless such Guaranteed
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Party has expressly waived such right in
writing. Specifically, but without limiting the generality of
the foregoing, no action or proceeding by Guaranteed Parties
against Borrowers under the Loan Documents or any other instrument
or agreement evidencing or securing Guaranteed Obligations shall
serve to diminish the liability of Guarantors for the balance of
the Guaranteed Obligations.
3.
Nature of
Guaranty . This Guaranty is a primary, immediate and
original obligation of each Guarantor; is an absolute,
unconditional, continuing and irrevocable guaranty of payment of
the Guaranteed Obligations and not of collectibility only; is not
contingent upon the exercise or enforcement by Guaranteed Parties
of whatever rights or remedies Guaranteed Parties may have against
Borrowers or others, or the enforcement of any Lien or realization
upon any Collateral or other security that any of Guaranteed
Parties may at any time possess; and shall remain in full force and
effect without regard to future changes in conditions, including
change of law or any invalidity or unenforceability of any
Guaranteed Obligations or agreements evidencing same. This
Guaranty shall be in addition to any other present or future
guaranty or other security for any of the Guaranteed Obligations,
shall not be prejudiced or unenforceable by the invalidity of any
such other guaranty or security, and is not conditioned upon or
subject to the execution by any other Person of this Guaranty or
any other guaranty or suretyship agreement. This Guaranty is
secured by security interests and other Liens granted by each
Guarantor to Agent pursuant to the Security Documents executed by
such Guarantor.
4.
Payment and Enforcement of
Guaranteed Obligations . (a) If any Guarantor should
dissolve or become insolvent (within the meaning of the UCC), or if
a petition for an order for relief with respect to any Guarantor
should be filed by or against any Guarantor under any chapter of
the Bankruptcy Code, or if a receiver, trustee, conservator or
other custodian should be appointed for any Guarantor or any of any
Guarantor’s property, or if an Event of Default shall occur
and be continuing, then, in any such event and whether or not any
of the Guaranteed Obligations are then due and payable or the
maturity thereof has been accelerated or demand for payment thereof
has been made, Agent, on behalf of Guaranteed Parties, may, without
notice to any Guarantor, make the Guaranteed Obligations
immediately due and payable hereunder as to each Guarantor, and
Agent, on behalf of Guaranteed Parties, shall be entitled to
enforce the obligations of each Guarantor hereunder as if the
Guaranteed Obligations were then due and payable in full. If
any of the Guaranteed Obligations are collected by or through an
attorney at law, Guarantors agree to jointly and severally pay to
Guaranteed Parties reasonable attorneys’ fees and court
costs. Guarantors shall be jointly and severally obligated to
make payments under this Guaranty with respect to U.S. Obligations
in Dollars, and with respect to Canadian Obligations in Canadian
Dollars, or, in the case of Canadian Obligations, in an amount that
is the Dollar Equivalent of such Canadian Obligations.
Guarantors shall be obligated to make multiple payments under this
Guaranty to the extent necessary to cause Full Payment of the
Guaranteed Obligations.
(b)
Any and all payments by any
Guarantor hereunder shall be made free and clear of and without
deduction for any setoff, counterclaim, or withholding so that, in
each case, Guaranteed Parties shall receive, after giving effect to
any taxes (excluding taxes imposed on the overall net income of
Guaranteed Parties to the extent excluded pursuant to the Loan
Agreement), the full amount that they would otherwise be entitled
to receive with respect to the Guaranteed Obligations (but without
duplication of amounts for taxes already included in the Guaranteed
Obligations). If for any reason any Borrower has no legal
existence or is under no legal obligation to discharge any of the
Guaranteed Obligations, or if any of the Guaranteed Obligations
become unrecoverable from any Borrower by reason of such
Borrower’s insolvency, bankruptcy or reorganization or by
other operation of law or for any other reason, this Guaranty shall
nevertheless be binding on each Guarantor to the same extent as if
such Guarantor had at all times been the principal obligor on all
such Guaranteed Obligations. If acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy, dissolution or reorganization of debt or
for any other reason, all such amounts otherwise subject to
acceleration under the terms of any Loan Documents or other
instrument or agreement evidencing or securing the payment of the
Guaranteed Obligations shall nevertheless be immediately due and
payable by Guarantors.
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(c)
The books and records of Agent
showing the amounts owed to Guaranteed Parties by Borrowers shall
be admissible in evidence in any action or proceeding against or
involving any Guarantor as prima facie proof of the items
therein set forth, and the monthly statements of Agent rendered to
Borrowers, to the extent no written objection thereto is made
within 30 days from the date of sending thereof to Borrowers, shall
be deemed conclusively correct and shall constitute an account
stated between Guaranteed Parties and Borrowers and shall be
binding on Guarantors.
(d)
Each Guarantor acknowledges that
Agent is authorized and empowered to enforce this Guaranty for the
benefit of all of the Guaranteed Parties and to collect from
Guarantors the amount of the Guaranteed Obligations from time to
time, in Agent’s own name and without the necessity of
joining any other Guaranteed Party in any action, suit or other
proceeding to enforce this Guaranty.
5.
Specific Waivers of Each
Guarantor . (a) To the fullest extent permitted by
Applicable Law, each Guarantor does hereby waive notice of each
Guaranteed Party’s acceptance hereof and reliance hereon;
notice of the extension of credit from time to time by Guaranteed
Parties to any Borrower and the creation, existence or acquisition
of any Guaranteed Obligations; notice of the amount of Guaranteed
Obligations of Borrowers to Guaranteed Parties from time to time
(subject, however, to such Guarantor’s right to make inquiry
of Agent to ascertain the amount of Guaranteed Obligations at any
reasonable time); notice of any adverse change in any
Borrower’s financial condition or of any other fact which
might increase such Guarantor’s risk; notice of presentment
for payment, demand, protest and notice thereof as to any
instrument; notice of default or acceleration; all other notices
and demands to which such Guarantor might otherwise be entitled
(except those notices or demands Agent has expre
