Exhibit 10.23
CONTINUING GUARANTY
AGREEMENT
THIS CONTINUING GUARANTY AGREEMENT
(this “ Guaranty ”) is made on August 5,
2008, by SUPERIOR ESSEX COMMUNICATIONS LP , a Delaware
limited partnership with a mailing address at 6120 Powers Ferry
Road, Suite 150, Atlanta, Georgia 30339, and ESSEX GROUP,
INC. , a Michigan corporation with a mailing address at 1601
Wall Street, Fort Wayne, Indiana 46802 (each herein called a
“ Guarantor ” and collectively, “
Guarantors ”), 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 being referred to individually as a “
Guaranteed Party ” and collectively as the “
Guaranteed Parties ”).
Recitals
:
Guaranteed Parties are parties with
Guarantors and ESSEX GROUP CANADA INC. , a Nova Scotia
company (“ Canadian Borrower ”; together with
Guarantors, referred to herein collectively as “
Borrowers ” and individually as “
Borrower ”), to a certain Second Amended and Restated
Loan and Security Agreement dated the date hereof (as at any time
amended, restated, modified or supplemented, the “ Loan
Agreement ”). Pursuant to the Loan Agreement,
Guaranteed Parties have agreed, subject to all the terms and
conditions thereof, to make loans and other extensions of credit to
Borrowers from time to time secured by security interests in and
liens upon certain assets of each Borrower.
A condition set forth in the Loan
Agreement to Guaranteed Parties’ obligation to make loans or
other extensions of credit to Borrowers, is Guarantors’
execution and delivery of this Guaranty.
To induce Guaranteed Parties to make
loans or otherwise extend credit or other financial accommodations
from time to time to Borrowers under the Loan Agreement, Guarantors
are willing to execute this Guaranty.
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, each Guarantor
hereby agrees 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) In addition to Guarantors’
Obligations as U.S. Borrowers under the Loan Agreement, each
Guarantor hereby unconditionally and absolutely, jointly and
severally, 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 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 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
2
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 Canadian Obligations in Canadian Dollars,
or 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.
(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 an
