Exhibit 10.21
AMENDED AND RESTATED PLEDGE
AGREEMENT
(GUARANTORS)
THIS AMENDED AND RESTATED PLEDGE
AGREEMENT (this “Agreement”) is made on August 5,
2008, by and among SUPERIOR ESSEX INC. , a Delaware
corporation (“ SEI ”); SUPERIOR ESSEX HOLDING
CORP. , a Delaware corporation (“ SEHC ”);
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, SEHC, SEC GP, Essex
International, Essex Canada, Essex Mexico, and EMH are collectively
referred to herein as “ Pledgor ” and
individually as “ Pledgors ”), 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 the financial institutions
(collectively, “ Lenders ”) now or hereafter
parties to the Loan Agreement (as defined below), and the other
Secured Parties (as defined in the Loan Agreement).
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, by and among SUPERIOR ESSEX COMMUNICATIONS
LP , a Delaware limited partnership (“
Communications ”), ESSEX GROUP, INC. , a
Michigan corporation (“ EGI ”; Communications
and EGI 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 Pledgors 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 and 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
Pledgors 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.
In connection with the Existing
Guaranty, Pledgors executed and delivered that certain Pledge
Agreement dated November 10, 2003 in favor of Agent and the
Existing Lenders, which Pledge 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 Pledge
Agreement ”), pursuant to which Pledgors agreed to pledge
to Agent the Pledged Collateral (as defined in the Existing Pledge
Agreement) to secure the Guaranteed Obligations (as defined in the
Existing Guaranty).
U.S. Borrowers and ESSEX GROUP
CANADA INC. , a Nova Scotia company (“ Canadian
Borrower ”; U.S. Borrowers and Canadian Borrower are
sometimes 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 with
Agent, Lenders and the other parties named therein
(as at any time amended, restated, modified or
supplemented, the “ Loan Agreement ”), which
Loan Agreement amends and restates the Existing Loan
Agreement.
In connection with the Loan
Agreement, Pledgors have executed and delivered that certain
Amended and Restated Continuing Guaranty Agreement dated the date
hereof in favor of Agent and the Lenders (as at any time amended,
restated, modified or otherwise supplemented, the “
Guaranty ”), pursuant to which the Pledgors jointly
and severally unconditionally guarantee to the Agent and the
Lenders the payment and performance of all of the “Guaranteed
Obligations” as defined therein.
It is a condition to the Secured
Parties’ willingness to make loans and other financial
accommodations to or for the benefit of Borrowers under the Loan
Agreement that each of the Pledgors agree to amend and restate the
Existing Pledge Agreement in its entirety as hereinafter set
forth.
The parties hereto agree that the
Existing Pledge Agreement is hereby amended and restated in its
entirety by this Agreement, and each Pledgor agrees to pledge to
the Agent, for the benefit of the Secured Parties, the Pledged
Collateral described herein, and to ratify, renew and continue the
prior pledge of such Pledged Collateral, in order to ensure and
secure the prompt payment and performance of the
Obligations.
NOW, THEREFORE, for Ten Dollars
($10.00) in hand paid to Pledgors and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and to secure the timely payment and performance of
the Secured Obligations (as hereinafter defined), each Pledgor
agrees as follows:
1.
Definitions
. Capitalized terms used
herein, unless otherwise defined, shall have the meaning
ascribed to them in the Loan Agreement. As used herein, the
following terms shall have the following meanings:
“ Companies ”
shall mean Communications, ECM, EGI, EGM, EMH, GEM, SEHC, and SEC
GP, and each individually is referred to herein as a
“Company”.
“ ECM ” shall
mean Essex Comercial Mexico, S. de R.L. de C.V., a Mexican
company.
“ EGM ” shall
mean Essex Group Mexico S.A. de CV., a Mexican company.
“ EMH ” shall
mean Essex Mexico Holdings, L.L.C., a Delaware limited liability
company.
“ Essex International
” shall mean Essex International Inc., a Delaware
corporation.
“ GEM ” shall
mean Grupo Essex de Mexico, S. de R.L. de C.V., a Mexican
company.
“ Pledged Collateral
” shall have the meaning ascribed to in Section 2
hereof.
“ Power ” shall
have the meaning ascribed to it in Section 2
hereof.
“ SEC GP ” shall
mean SE Communications GP Inc., a Delaware corporation.
“ SEHC ” shall
mean Superior Essex Holding Corp., a Delaware
corporation.
“ Secured Obligations
” shall mean all of the Obligations under (and as defined in)
the Loan Agreement, including, without limitation, all U.S.
Obligations and
2
Canadian Obligations, all
liabilities and obligations of Pledgors as guarantors of the U.S.
Obligations and Canadian Obligations pursuant to Pledgors’
Guaranty, and all obligations of each Pledgor now or hereafter
existing under this Agreement.
2.
Pledge; Agent’s
Duties .
(a)
Each Pledgor hereby pledges, assigns, transfers, sets over and
delivers to Agent, and hereby grants to Agent, for the benefit of
itself and Lenders, a security interest in all of the Equity
Interests of the Companies held by such Pledgor and more
particularly described on Annex A and all of such
Pledgor’s options, if any, for the purchase of any Equity
Interests of the Companies, herewith delivered to Agent, and where
certificated, accompanied by powers (“ Powers ”)
duly executed in blank, with signatures properly guaranteed, and
all proceeds thereof and all dividends or distributions at any time
payable in connection therewith (said Equity Interests, Powers,
options, proceeds, dividends and distributions hereinafter
collectively called the “ Pledged Collateral ”)
as security for the due and punctual payment and performance of the
Secured Obligations. In addition to the foregoing, each
Pledgor hereby ratifies, reaffirms, renews and continues its prior
pledge and grant of a security interest in favor of Agent, for the
benefit of the Secured Parties, in all of the Pledged Collateral
described in the Existing Pledge Agreement. Notwithstanding
anything to the contrary contained herein or in the other Loan
Documents, Pledgors shall not pledge more than 65% of the total
voting Equity Interests in any Foreign Subsidiary as Pledged
Collateral.
(b)
Agent shall have no duty with respect to any of the Pledged
Collateral other than the duty to use reasonable care in the safe
custody of any tangible items of the Pledged Collateral in its
possession. Without limiting the generality of the foregoing,
Agent shall be under no obligation to sell any of the Pledged
Collateral or otherwise to take any steps necessary to preserve the
value of any of the Pledged Collateral or to preserve rights in the
Pledged Collateral against any other Persons, but may do so at its
option, and all expenses incurred in connection therewith shall be
for the sole account of Pledgors.
3.
Voting Rights
. During the term of this
Agreement, and so long as no Event of Default shall exist, each
Pledgor shall have the right to vote all or any portion of the
Equity Interests owned by such Pledgor on all corporate questions
for all purposes not inconsistent with the terms of this Agreement
or any of the other Loan Documents. To that end, if Agent
transfers all or any portion of the Pledged Collateral, into its
name or the name of its nominee, to the extent authorized to do so
under this Agreement or any of the other Loan Documents, Agent
shall, upon the request of any Pledgor, unless an Event of Default
shall exist, execute and deliver or cause to be executed and
delivered to such Pledgor, proxies with respect to the Pledged
Collateral. Each Pledgor hereby grants to Agent, effective only
upon the occurrence and during the continuation of any Event of
Default, an IRREVOCABLE PROXY pursuant to which Agent
shall be entitled to exercise all voting powers pertaining to the
Pledged Collateral, including to call and attend all meetings of
the shareholders or members of the Companies to be held from time
to time with full power to act and vote in the name, place and
stead of such Pledgor (whether or not the Equity Interests shall
have been transferred into its name or the name of its nominee or
nominees), give all consents, waivers and ratifications in respect
of the Pledged Collateral and otherwise act with respect thereto as
though it were the outright owner thereof, and any and
all proxies theretofore executed by Agent shall terminate and
thereafter be null and void and of no effect
whatsoever.
4.
Collection of Dividend
Payments .
During the term of this Agreement, and so long as there shall not
exist any Event of Default, each Pledgor shall have the right to
receive and retain any and all dividends and other distributions
payable by any Company to such Pledgor on account of any of the
Pledged Collateral; provided , that , to the extent
any Pledgor shall receive any dividends or other distributions
which are not expressly permitted under or contemplated by the Loan
Agreement, such Pledgor shall hold the same in trust and promptly
pay the same over to Agent for application to the Secured
Obligations. Upon the occurrence and during the continuation
of any Event of Default, all
3
dividends and other distributions payable by any
Company on account of any of the Pledged Collateral shall be paid
to Agent and any such sum received by such Pledgor shall be deemed
to be held by such Pledgor in trust for the benefit of Agent and
shall be forthwith turned over to Agent for application by Agent to
the Secured Obligations in such order of application as is
specified in the Loan Agreement.
5.
Representations and Warranties of Each Pledgor
. Each Pledgor warrants and
represents to Agent as follows (which representations and
warranties shall be deemed continuing): (a) such Pledgor
is the legal and beneficial owner of its respective portion of the
Pledged Collateral-indicated on Annex A ; (b) all of
the Equity Interests have been duly and validly issued, are fully
paid and nonassessable, and are owned by such Pledgor free of any
Liens except for Permitted Liens and Agent’s security
interest hereunder; (c) the Pledged Collateral constitutes
(i) all of the issued and outstanding Equity Interests of each
of Communications, EGI, EMH, Essex International, SEHC, and SEC GP,
and (ii) 65% of the issued and outstanding voting Equity
Interests of each of ECM, EGM and GEM; (d) there are no
contractual or charter restrictions upon the voting rights or upon
the transfer of any of the Pledged Collateral; (e) such
Pledgor has the right to vote, pledge and grant a security
interest in or otherwise transfer the Pledged Collateral without
the consent of any other party and free of any Liens other than
Permitted Liens and applicable restrictions imposed by any
Governmental Body and without any restriction under the Organic
Documents of such Pledgor or any Company or any agreement among
such Pledgor’s or any Company’s shareholders or
members; (f) this Agreement has been duly authorized, executed
and delivered by such Pledgor and constitutes a legal, valid and
binding obligation of such Pledgor, enforceable in accordance with
its terms except to the extent that the enforceability thereof may
be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors’
rights; (g) the execution, delivery and performance by such
Pledgor of this Agreement and the exercise by Agent of its rights
and remedies hereunder do not and will not result in the violation
of the articles of incorporation or organization or by-laws or
operating agreement of such Pledgor, any material agreement,
indenture, instrument or Applicable Law by which such Pledgor or
any Company is bound or to which such Pledgor or any Company is
subject (except such Pledgor makes no representation or warranty
about Agent’s prospective compliance with any federal or
state laws or regulations governing the sale or exchange of
securities); (h) no consent, filing, approval, registration or
recording is required (x) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or (y) to
perfect the Lien created by this Agreement; (i) none of the
Pledged Collateral is held or maintained in the form of a
securities entitlement or credited to any securities account;
(j) none of the Pledged Collateral constituting membership
interests in a limited liability company is, nor has the relevant
Company elected to designate any of the Pledged Collateral as, a
“security” under (and as defined in) Article 8 of
the UCC; and (k) unless a Power is delivered in connection
therewith, none of the Pledged Collateral is evidenced by a
certificate or other writing.
6.
Affirmative Covenants of Pledgors . Until all of the Secured Obligations
have been satisfied in full and the Loan Agreement has been
terminated, each Pledgor covenants that it will:
(a) warrant and defend at its own expense Agent’s right,
title, and security interest in and to the Pledged Collateral
against the claims of any Person; (b) promptly deliver to
Agent all material written notices with respect to the Pledged
Collateral, and will promptly give written notice to Agent of any
other notices received by such Pledgor with respect to the Pledged
Collateral; and (c) deliver to Agent promptly to hold under
this Agreement any Equity Interests of the Companies subsequently
acquired by such Pledgor, whether acquired by such Pledgor by
virtue of the exercise of any options included within the Pledged
Collateral or otherwise (which Equity Interests shall be deemed to
be a part of the Pledged Collateral); (d) if any of the
Pledged Collateral constituting membership interests in a limited
liability company is hereafter designated by the relevant Company
as a “security” under (and as defined in)
Article 8 of the
4
UCC, cause such Pledged Collateral to be
certificated; and (e) if at any time hereafter any of the
Pledged Collateral which is not currently certificated becomes
certificated, deliver all certificates or other documents
evidencing or representing the Pledged Collateral to Agent,
accompanied by Powers, all in form and substance satisfactory to
Agent and as required pursuant to this Agreement.
7.
Negative Covenants of
Pledgors .
Until all of the Secured Obligations have been satisfied in full
and the Loan Agreement has been terminated, each Pledgor covenants
that it will not, without the prior written c
