Exhibit 10.18


 


AGREEMENT REGARDING ENVIRONMENTAL MATTERS


 


THIS
AGREEMENT REGARDING ENVIRONMENTAL MATTERS (this “Agreement”) is made on August 5,
2008, by 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 “Indemnitors” and individually as
an “Indemnitor”), each with a mailing address at 6120 Powers Ferry Road,
Suite 150, Atlanta, Georgia 30339, in favor of 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
Credit Parties (as defined in the Loan Agreement).


Recitals:


 


Agent and Lenders have been
requested to make loans and other extensions of credit to Indemnitors and ESSEX GROUP CANADA, INC., a Nova Scotia company (“Canadian
Borrower”; Indemnitors and Canadian Borrower are collectively referred to
herein as “Borrowers” and individually as a “Borrower”) pursuant
to the terms of a certain Second Amended and Restated Loan and Security
Agreement dated of even date herewith by and among Borrowers, Agent, Lenders,
and the other parties thereto (as at any time amended, modified, renewed or
supplemented, the “Loan Agreement”), all of which loans and other
extensions of credit are to be secured by, among other things, all of
Indemnitors’ right, title and interest (including any leasehold interest) in
and to various parcels of real estate and improvements thereon located in Allen
County, Johnson County, Knox County, Noble County, and Whitley County, Indiana;
Barton County, Kansas; Edgecombe County, North Carolina; Chester County, South
Carolina; and Simcoe, Ontario, Canada, as more particularly described in Exhibit A
attached hereto (all such real property and improvements being collectively
called the “Premises”).


 


A condition under the Loan
Agreement to Agent’s and Lenders’ willingness to consider making any loans or
extending any other credit to or for the benefit of Borrowers is the execution
and delivery of this Agreement by each Indemnitor in favor of Agent and the
other Credit Parties.


 


NOW, THEREFORE, in
consideration of Ten Dollars ($10.00) in hand paid, the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, each Indemnitor hereby
covenants, warrants, represents and agrees as follows:


 


1.            Definitions;
Matters of Construction.


 


1.1.          Definitions.  Capitalized terms used herein, unless
otherwise defined in this Section 1 or elsewhere in this Agreement, shall
have the meanings ascribed to them in the Loan Agreement.  In addition, for purposes of this Agreement,
the following terms shall have the following meanings (terms defined in the singular
to have the meaning when used in the plural, and vice versa):


 


“CEPA” means the Canadian Environmental Protection Act, 1999
(S.C. 1999, c. 33) and all rules and regulations promulgated pursuant
thereto.


 


“CERCLA” means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601, et  seq.),
and all rules and regulations promulgated pursuant thereto.


 

















 


“Contamination” means the presence of Regulated Substances
at, under or upon the environment relating to the Premises or migrating to or
from the Premises, which requires investigation, response or removal action or
remediation under any applicable Environmental Laws.


 


“Corrective Work” shall have the meaning ascribed thereto in Section 9
of this Agreement.


 


“CWA” means the Clean Water Act (33 U.S.C. §§ 1251 et  seq.)
and all rules and regulations promulgated pursuant thereto.


 


“Environmental Damages” means, with respect to any Person,
all liabilities, costs, damages or expenses that are at any time suffered or
incurred by such Person and that arise out of or result from any Indemnitor’s
noncompliance with any Environmental Law or its breach of a covenant,
representation or warranty in this Agreement, including liabilities, costs,
damages or expenses consisting of:


 


(i)            damages
actually suffered by such Person for personal injury, or injury to property or
natural resources, including the cost of demolition and rebuilding of any
improvements on real property;


 


(ii)           reasonable
fees and expenses incurred by such Person for the services of attorneys,
consultants, contractors, experts, laboratories and all other costs and
expenses incurred in connection with preparation of any feasibility studies or
reports, investigation, monitoring, cleanup, remediation, removal, response,
abatement, containment, closure, restoration, treatment, or post-remediation
monitoring, operation and maintenance, relating to any Regulated Substances or
Contamination, in each case to the extent required by any applicable
Environmental Laws, or reasonably necessary to make full economic use of any of
the Premises (for comparable commercial or industrial purposes);


 


(iii)          all
reasonable amounts expended by such Person in the defense (or settlement) of
any action, suit or other proceeding, whether brought by any Governmental
Authority or any other Person, including amounts paid for the services of
attorneys, consultants, contractors, experts and other professional persons;


 


(iv)          any
reasonable costs incurred to comply, in connection with all or any portion of
any of the Premises or any area surrounding or adjoining any of the Premises,
with applicable Environmental Laws; but in all circumstances excluding any
claim on any theory of liability for special, indirect, consequential,
exemplary or punitive damages (as opposed to direct or actual damages); and


 


(v)           any
diminution in the value of any of the Premises, and damages for the loss of
business and restriction on the use or adverse impact on the marketing of
rentable or usable space or of any amenity of any of the Premises in each case
with respect to the use of the Premises for comparable commercial or industrial
purposes.


 


“Environmental Laws” means all federal, state or
commonwealth, provincial, territorial, and local laws, regulations, statutes,
codes, rules, resolutions, directives, orders, executive orders, consent
orders, enforceable guidance from regulatory agencies, judicial decrees,
standards, permits, licenses and ordinances, or any judicial or administrative
interpretation of any of the foregoing, pertaining to the protection of land,
water, air, health, safety or the environment, whether now or in the 


 


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future
enacted, promulgated or issued, including CERCLA, RCRA, CWA, EPA, FA, CEPA, and
all Environmental Property Transfer Acts.


 


“Environmental Lien” means a Lien in favor of any
Governmental Authority for any (i) liabilities arising under any
Environmental Laws or (ii) Environmental Damages arising from, or costs
incurred by such Governmental Authority in response to, a Contamination or
threatened Contamination.


 


“Environmental Notice” means a notice (whether written or
oral) from any Governmental Authority or any other Person of possible or
alleged noncompliance with or liability under any Environmental Laws, including
any complaints, citations, demands or request from any Governmental Authority
or any other Person for correction or remediation of any asserted violation of
any Environmental Laws or any investigations concerning any asserted violation
of any Environmental Laws.


 


“Environmental Permit” means any permit, license, approval,
certificate of approval, authorization, consent or waiver of or from any
Governmental Authority that is applicable to any property owned, leased,
operated or otherwise used by any Indemnitor or the operations of any
Indemnitor and that is required to be obtained under any Environmental Law.


 


“Environmental Property Transfer Acts” means any applicable
laws that condition, restrict, prohibit or require any notification or
disclosure triggered by the transfer, sale, lease or closure of any property,
deed or title for any property for environmental reasons, including any
so-called “Environmental Cleanup Responsibility Acts,” “Industrial Site
Recovery Act” or “Responsible Transfer Acts”.


 


“EPA” means the Environmental Protection Act (R.S.O. 1990, c.
E-19) and all rules and regulations promulgated pursuant thereto.


 


“FA” means the Fisheries Act (R.S.O. 1985, c. F-14) and all rules and
regulations promulgated pursuant thereto.


 


“Indemnified Parties” means (i) Agent, on behalf of
Lenders and the other Credit Parties (including Agent as
mortgagee-in-possession or successor-in-interest to any Indemnitor as owner of
any of the Premises by virtue of a foreclosure or acceptance of a deed-in-lieu
of foreclosure), (ii) Lenders and the other Credit Parties under (and as
defined in) the Loan Agreement, (iii) all of Agent’s and the other Credit
Parties’ officers, directors, employees and agents and each participant in any
loans or other extensions of credit made by Agent and the other Credit Parties
to or for the benefit of any Indemnitor under the Loan Agreement, together with
all of the respective successors and assigns of the foregoing Persons.


 


“Mortgage” means any mortgage, security deed, deed of trust,
hypothec, assignment of rents or other instrument creating an interest in land
under applicable law and executed by any Indemnitor in favor of Agent, for the
benefit of itself and the other Credit Parties, to convey to Agent, for the
benefit of itself and the other Credit Parties, a Lien upon all of such
Indemnitor’s interest in any of the Premises.


 


“RCRA” means the Resource Conservation and Recovery Act (42
U.S.C. §§ 6991-6991i) and all rules and regulations promulgated pursuant
thereto.


 


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“Regulated Substances” means any substances, chemicals,
materials or elements that are prohibited, limited or regulated by the
Environmental Laws, or any other substances, chemicals, materials or elements
that are defined as “hazardous” or “toxic” 
under the Environmental Laws, or that are known or considered to be
harmful to the health or safety of occupants or users of the Premises.  Without limiting the generality of the
foregoing, the term “Regulated Substances” shall also include any substance,
chemical, material or element (i) defined as a “regulated substance”
within the meaning of Subtitle I of the RCRA; (ii) designated as a “hazardous
substance” pursuant to Section 311 of the CWA, or listed pursuant to Section 307
of the CWA; (iii) defined as “hazardous”, “toxic”, or otherwise regulated,
under any applicable Environmental Laws adopted by the state or province in
which the Premises is located, or its agencies or political subdivisions; (iv) which
is petroleum, petroleum products or derivatives or constituents thereof; (v) listed
as a “toxic substance” under CEPA; (vi) that would be considered a “pollutant”
or “contaminant” under the EPA; (vii) that would be considered to be “deleterious”
under the FA; (viii) which is asbestos or asbestos-containing materials; (ix) the
presence of which requires notification, investigation or remediation under any
applicable Environmental Laws; (x) which is urea formaldehyde foam
insulation or urea formaldehyde foam insulation-containing materials, lead
based paint or lead based paint-containing materials, polychlorinated biphenyls
or polychlorinated biphenyl-containing materials, radon or radon-containing or
producing materials, radioactive substances, methane or volatile hydrocarbons;
or (xi) which by any laws of any Governmental Authority requires special
handling in its collection, storage, treatment, or disposal due to a “hazardous”
or “toxic” characteristic.


 


1.2.          Matters of Construction.  The terms “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to
any particular section, paragraph or subdivision.  Any pronoun used shall be deemed to cover all
genders.  The section titles appear as a
matter of convenience only and shall not affect the interpretation of the
Agreement.  All references to statutes
and related regulations shall include any amendments of same and any successor
statutes and regulations; to any documents, agreements or instruments shall
include any and all modifications thereto and any and all restatements,
extensions or renewals thereof;  to any
Person shall mean and include the successors and permitted assigns of such
Person; or to “including” and “include” shall be understood to mean “including,
without limitation.”


 


2.            Cumulative Rights
and Remedies.  Agent’s
rights and remedies under this Agreement shall be in addition to all rights and
remedies of Agent and the other Credit Parties under any of the other Loan
Documents.  Payments, if any, by any
Indemnitor as required under this Agreement shall not reduce such Indemnitor’s
obligations and liabilities under any of the other Loan Documents. Any default
by any Indemnitor under this Agreement (including any breach of any
representation or warranty made by such Indemnitor) shall constitute an “Event
of Default” to the extent set forth in Section 11.1 of the Loan Agreement.


 


3.            Representations
and Warranties.  Each
Indemnitor hereby represents and warrants that, except as is otherwise set
forth on Schedule I attached hereto:


 


(a)           No Contamination is present at, on or
under the Premises and no Contamination is being discharged, released or
emitted from any of the Premises into the air or onto any surrounding areas
(except for instances of Contamination which could not reasonably be expected
to have a Material Adverse Effect);


 


(b)           All activities and operations at the
Premises (including any activities or operations involving the generation,
manufacture, refinement, transportation, handling, transfer, production,
treatment, storage, disposal or processing of any Regulated Substances) have
been and are being 


 


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conducted
in compliance with all applicable Environmental Laws (except for instances of
noncompliance which could not reasonably be expected to have a Material Adverse
Effect);


 


(c)           Each Indemnitor has obtained all material Environmental
Permits for the conduct of operations and activities at the Premises, and all
such Environmental Permits are in full force and effect;


 


(d)           To the best knowledge of Indemnitors,
no measurable levels of radon or radon containing or producing products that
require investigation or remediation pursuant to applicable Environmental Laws
are present in the existing structures on any of the Premises;


 


(e)           No civil, administrative or criminal
proceeding is pending, or to the best knowledge of Indemnitors threatened,
against such Indemnitor or the Premises relating to any asserted violation of
any Environmental Law with respect to the Premises; such Indemnitor has not
received (nor does such Indemnitor have reason to believe that it will receive)
any Environmental Notice with respect to the Premises (except for Environmental
Notices which could not reasonably be expected to have a Material Adverse
Effect); nor has such Indemnitor entered into any consent, decree or judicial
order or settlement under any Environmental Law affecting any of the Premises;


 


(f)            None of the Premises is listed or (to
the knowledge of such Indemnitor) proposed for listing on the National
Priorities List pursuant to Section 9605 of CERCLA, on the Comprehensive
Environmental Response, Compensation and Liability Information System or on any
similar state or local list of environmentally problematic/regulated sites;


 


(g)           No Environmental Lien has been filed
with respect to any of the Premises or any other assets of such Indemnitor;


 


(h)           To the best of such Indemnitor’s knowledge, after due
inquiry and investigation, no report, analysis, study or other document
prepared by or from any Person exists stating that any Contamination has been
or currently is, located at, under or about any of the Premises; and


 


(i)            Neither the transactions contemplated by the Loan
Documents nor any transactions involving the sale, transfer or exchange of any
of the Premises is subject to any Environmental Property Transfer Act or, to
the extent any such Environmental Property Transfer Act is applicable, such
Indemnitor has complied with the requirements thereof in all material respects.


 


4.            Environmental
Covenants.  Each
Indemnitor hereby covenants and agrees as follows:


 


(a)           To cause all activities at the
Premises prior to Full Payment of the Obligations (including any activities
involving the generation, manufacture, refinement, transportation, handling,
transfer, production, treatment, storage, disposal or processing of any
Regulated Substances) to be conducted in compliance with all applicable
Environmental Laws, except in the event that noncompliance could not reasonably
be expected to have a Material Adverse Effect;


 


(b)           To provide Agent upon its reasonable
request with copies of all:  (i) material
Environmental Notices relating to alleged material noncompliance or material
liability and all other material correspondence, notices of violation, summons,
orders, complaints or other documents received by such Indemnitor pertaining to
compliance with any Environmental Laws; (ii) material reports of previous
environmental investigations undertaken at any of the Premises that such
Indemnitor knows of, or has or can obtain possession; (iii) Environmental
Permits; (iv) a description of the operations and processes of such
Indemnitor; and (v) other material information that Agent may reasonably
request from time to time pertaining to such Indemnitor’s compliance with
applicable Environmental Laws;


 


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(c)           Not to generate, manufacture, refine,
transport, transfer, produce, store, use, process, treat, dispose of, handle or
in any manner deal with, any Regulated Substances on any part of any of the
Premises, nor permit others to do so, except for (i) those Regulated
Substances that are used or present in the ordinary course of such Indemnitor’s
business in compliance with all applicable Environmental Laws in all material
respects and have not been released into the environment in such a manner as to
constitute a material Contamination, and (ii) those Regulated Substances
which are naturally occurring on any of the Premises, but only in such
naturally occurring form and concentration(s);


 


(d)           Not to cause or permit, the presence
of Regulated Substances or Contamination on any of the Premises, whether as a
result of any intentional or unintentional act or omission on the part of such
Indemnitor or any other Person, except for (i) those Regulated Substances
which are used or present in the ordinary course of such Indemnitor’s business
in compliance in all material respects with all applicable Environmental Laws
and have not been released into the environment in such a manner as to
constitute a material Contamination, and (ii) those Regulated Substances
which are naturally occurring on any of the Premises, but only in such
naturally occurring form and concentration(s);


 


(e)           To give notice and a full description
to Agent, promptly upon such Indemnitor’s acquiring knowledge thereof, of (i) any
enforcement, clean-up, removal or other regulatory actions threatened,
instituted or completed by any Governmental Authority under any Environmental
Law with respect to any of the Premises; (ii) material claims made or
threatened by any third party with respect to any of the Premises relating to
damage, contribution, compensation, loss or injury resulting from any Regulated
Substances or Contamination; and (iii) the presence of material
Contamination on, under, from or affecting any of the Premises;


 


(f)            To conduct and complete all
investigations, studies, sampling and testing of as well as all remedial,
removal and other actions necessary to clean up and remove all Contamination
on, under, from or affecting the Premises, to the extent required by applicable
Environmental Laws and in accordance therewith;


 


(g)           To obtain and maintain Environmental
Permits relating to such Indemnitor, the Premises, or the operation of such
Indemnitor’s business, except to the extent that failure to obtain or maintain
any such Environmental Permits could not reasonably be expected to have a
Material Adverse Effect.


 


(h)           If,  at any time
prior to the Full Payment of the Obligations, 
measurable amounts of radon are detected in any structures on any of the
Premises, to, at Indemnitor’s expense, take all actions necessary to reduce
such radon gas to acceptable levels under applicable Environmental Laws.


 


5.             Right to Conduct
an Investigation.


 


(a)           Agent may, at any time and at its sole
discretion, conduct an investigation into the presence of Regulated Substances
or Contamination on, from or affecting any or all of the Premises, or any
Indemnitor’s compliance with applicable Environmental Laws at, or relating to,
any or all of the Premises.  Such an
investigation performed by Agent shall be at Indemnitors’ expense if the
performance of the investigation is commenced (i) upon the occurrence and
during the continuation of a default hereunder or an Event of Default under the
Loan Agreement or any other Loan Documents; or (ii) because Agent has a
reasonable belief that any Indemnitor has materially violated any provision of
this Agreement (including any representation, warranty or covenant
herein).  Except as may be otherwise
provided in the Loan Agreement, all other investigations performed by Agent
shall be at Agent’s expense.  In
connection with any such investigation, each Indemnitor shall (and shall
require any occupants of the Premises to) comply with all reasonable requests
for information made by Agent, subject to the provisions of Section 5(c) hereof,
and each Indemnitor represents and warrants that all responses to any 


 


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such
requests for information will be correct and complete.  Each Indemnitor shall provide Agent and its
agents with rights of access to all areas of the Premises, subject to (except
when a Default or Event of Default exists) reasonable notice and normal business
hours,  and permit Agent and its agents
to perform testing (including any invasive testing) necessary or appropriate,
in Agent’s reasonable judgment, to perform such investigation.


 


(b)           Agent is under no duty to conduct such
investigations of the Premises or any Indemnitor’s compliance with applicable
Environmental Laws, and any such investigations by Agent shall be solely for
the purposes of protecting Agent’s Liens in the Premises and preserving its
rights under the Loan Documents.  No site
visit, observation, or testing by Agent shall constitute a waiver of any
Default or Event of Default or be characterized as a representation regarding
the presence or absence of Regulated Substances or Contamination at any of the
Premises.   Agent owes no duty of care to
protect any Indemnitor or any third party from the presence of Regulated
Substances, Contamination or any other adverse condition affecting any of the
Premises.  Agent agrees to indemnify and
hold harmless from and against any personal injury or property damage arising
directly from Agent’s investigation of any of the Premises that are the result
of Agent’s or its agent’s gross negligence or willful misconduct and return
such Premises to the same physical condition as before the investigation. Agent
shall provide copies to Indemnitors, upon the request of any Indemnitor, of any
report or findings made in connection with any investigation done on behalf of
Agent.  To the extent any investigation
report, findings or other information is shared by an Agent or a Lender with
any Borrower, such Indemnitor acknowledges that it was prepared by Agents and
Lenders for their purposes and Indemnitors shall not be entitled to rely upon
it.


 


(c)           Agent agrees to keep any information provided by
Indemnitors pursuant to or in connection with this Agreement, whether such
information be expressly identified as confidential or not, in confidence in
accordance with the provisions of Section 14.13 of the Loan Agreement.


 


6.             Indemnification.


 


(a)           Each Indemnitor agrees to indemnify
and defend each of the Indemnified Parties and to hold each of the Indemnified
Parties harmless from and against any and all Environmental Damages that may at
any time be imposed upon, threatened against, incurred by or asserted or
awarded against any of the Indemnified Parties (whether before or after the
release, satisfaction or extinguishment of any Mortgage) and arising from or
out of:


 


(i)            such
Indemnitor’s failure to comply with any of the provisions of this Agreement,
including such Indemnitor’s breach of any covenant, representation or warranty
contained in this Agreement;


 


(ii)           any
Contamination, or threatened release of any Regulated Substances or
Contamination, on, in, under, affecting or migrating or threatening to migrate
to or from all or any portion of any of the Premises, to the extent occurring
or existing prior to Full Payment of the Obligations and prior to the delivery
of possession of the Premises to a Person other than an Indemnitor following
any foreclosure upon any Lien of Agent with respect to the Premises or other
taking of title to all or any portion of any of the Premises by Agent or any
affiliate of Agent; or


 


(iii)          any
violation of or noncompliance with, or alleged violation of or noncompliance
with, any applicable Environmental Laws by such Indemnitor, including costs to
remove any Environmental Lien upon any of the Premises;


 


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(iv)          the
willful misconduct, error or omission or negligent act or omission of such
Indemnitor that results in any Contamination or the issuance of an
Environmental Notice to such Indemnitor or Agent;


 


(v)           any
judgment, Lien, order, complaint, notice, citation, action, proceeding or
investigation pending or threatened by or before any Governmental Authority or
any private party litigant or before any court of law (including any private
civil litigation) with respect to such Indemnitor’s business, assets, property
or facilities, including the Premises, in connection with any Regulated
Substances, Contamination or any Environmental Laws (including the assertion by
any Governmental Authority that any Environmental Lien takes priority over any
Lien in favor of Agent with respect to the Premises); or


 


(vi)         
the enforcement of this Agreement or the assertion by such Indemnitor of any
defense to its obligations hereunder.


 


Each
Indemnitor’s indemnification obligations set forth in this Section 6 shall
survive pursuant to Section 16 hereof and shall be in effect and
enforceable regardless of whether any such indemnification obligations arise
before or after foreclosure upon any Lien of Agent with respect to the Premises
or other taking of title to all or any portion of any of the Premises by Agent
or any affiliate of Agent, and whether the underlying basis of any claim arose
from events prior to such Indemnitor acquiring ownership of any of the
Premises; provided, however, that Indemnitors’ indemnification
shall not include any Environmental Damages arising and resulting directly from
the gross negligence or willful misconduct or Agent or any affiliate of Agent.


 


(b)           Promptly after the receipt by Agent of
written notice of any demand or claim or the commencement of any action, suit
or proceeding concerning any Indemnitor or Agent in connection with any of the
Premises, Agent shall endeavor to notify such Indemnitor thereof in
writing.  The failure by Agent promptly
to give such notice shall not relieve any Indemnitor of any liability to Agent
hereunder.


 


7.            Agent’s Right to
Select Professionals.  Without limiting
any other provision hereof, if any claim (whether or not a judicial or
administrative action is involved) is asserted against Agent or any other
Credit Party with respect to Regulated Substances, Environmental Laws or
Contamination, Agent shall have the right to select the engineers, consultants,
attorneys and other professional persons for Agent’s or any other Credit Party’s
defense or guidance, determine the appropriate legal strategy for such defense,
and compromise or settle such claim, all in Agent’s sole discretion, and
Indemnitors shall be liable to pay or reimburse Agent for all Environmental
Damages and other reasonable expenses incurred by Agent or any other Credit
Party in connection therewith to the extent of Indemnitors’ obligations pursuant
to this Agreement.


 


8.            Indemnitors’
Obligation to Deliver Premises.  Each Indemnitor
agrees that, if any Mortgage is foreclosed (whether judicially or by power of
sale) or a deed in lieu of foreclosure with respect to any of the Premises is
tendered, such Indemnitor shall deliver the Premises to Agent free of any and
all Regulated Substances (except for (a) those Regulated Substances which
are used or present in the Ordinary Course of Business of such Indemnitor in
compliance in all material respects with all applicable Environmental Laws or
are listed on Schedule I hereto and have not been emitted, discharged or
released into the environment in such a manner as to constitute material
Contamination hereunder, and (b) those Regulated Substances that are naturally
occurring on the Premises, but only in such naturally occurring form and
concentration(s)) or Contamination in a condition such that the Premises
conforms in all material respects with all applicable Environmental Laws and
such that no material remedial or removal action will be required under
applicable Environmental Laws with respect to the Premises.  Each 


 


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Indemnitor’s
obligations as set forth in this Section are strictly for the benefit of
Agent and the other Credit Parties and any successors or assigns of Agent and
the other Credit Parties as holder of any portion of the Obligations and shall
not in any way impair or affect Agent’s right to foreclose against any of the
Premises.


 


9.            Agent’s Right to
Cure.  In addition to
the other remedies provided to Agent in any Mortgage and the other Loan
Documents, should any Indemnitor fail to abide by any provisions of this
Agreement, Agent may, should it elect to do so, perform any corrective work
required to achieve compliance with the environmental covenants required under Section 4
(“Corrective Work”).  All funds
reasonably expended by Agent in connection with the performance of any
Corrective Work, including all attorneys’ fees, engineering fees, consultant
fees and similar charges, shall become a part of the Obligations secured by
Collateral and shall be due and payable by Indemnitors on demand. Each
disbursement made by Agent pursuant to this provision shall bear interest at
the Default Rate from the date any Indemnitor shall have received written
notice that the funds have been advanced by Agent and the other Credit Parties
until paid in full.


 


10.          Scope of Liability.  The liability under this
Agreement shall in no way be limited or impaired by (a) any extension of
time for performance required by any of the Loan Documents; (b) any sale
or assignment of any Obligations or Mortgage, any foreclosure or acceptance of
a deed in lieu of foreclosure or trustee’s sale, or any sale or transfer of all
or part of any of the Premises; (c) the discharge of the Obligations or
the reconveyance or release of any Mortgage; (d) any exculpatory
provisions in any of the Loan Documents limiting Agent’s or any other Secured
Party’s recourse; (e) the accuracy or inaccuracy of the representations
and warranties made by any Indemnitor, or any other obligor under any of the
Loan Documents; (f) the release of any Indemnitor or any other Person from
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law, Agent’s
voluntary act or otherwise; (g) the release or substitution, in whole or
in part, of any security for the Obligations; or (h) Agent’s failure to
record the Mortgages or file any UCC financing statements (or Agent’s improper
recording or filing of any thereof) or to otherwise perfect, protect, secure or
insure any security interest or lien given as security for the Obligations;
and, in any such case, whether with or without notice to any Indemnitor or any
guarantor or other person or entity and with or without consideration.


 


11.          Notices.  All notices, demands,
requests, consents, approvals and other communications required or permitted
hereunder must be in writing and will be effective if and when delivered in
accordance with the provisions of the Loan Agreement.


 


12.          Preservation of
Rights.  No delay or
omission on 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 Agent’s action or inaction impair any such right or power.
Agent’s and the other Credit Parties’ rights and remedies hereunder are
cumulative and not exclusive of any other rights or remedies which Agent may
have under any of the other Loan Documents, at law or in equity. Any
representations, warranties, covenants or indemnification liabilities for
breach thereof contained in this Agreement shall not be affected by any
knowledge of, or investigations performed by, Agent. Any one or more Persons
comprising any Indemnitor, or any other Person liable upon or in respect of
this Agreement or the Obligations, may be released without affecting the
liability of any party not so released.


 


13.          Illegality.  In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.


 


9

















 


14.          Changes in Writing.  No modification, amendment
or waiver of any provision of this Agreement nor consent to any departure by
any Indemnitor therefrom will be effective unless made in a writing signed by
Agent, 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 any
Indemnitor in any case will entitle any Indemnitor to any other or further
notice or demand in the same, similar or other circumstance.


 


15.          Successors and
Assigns.  This Agreement
shall be binding upon each Indemnitor and such Indemnitor’s successors and
assigns, and shall inure to the benefit of each Indemnified Party and its
successors and assigns as well as any Persons who acquire title to or ownership
of the Premises from, or through action by, Agent (including at a foreclosure,
sheriff’s or judicial sale); provided, however, that no
Indemnitor may assign this Agreement or delegate performance hereunder in whole
or in part without Agent’s prior written consent and Agent at any time may
assign this Agreement in whole or in part.


 


16.          Survival; Joint
and Several Obligations.  Except as
otherwise expressly provided herein, each Indemnitor’s obligations under this Agreement
shall be joint and several and shall survive any judicial foreclosure,
foreclosure by power of sale, deed in lieu of foreclosure, transfer of any of
the Premises by any Indemnitor or Agent and Full Payment of the Obligations.


 


17.          Governing Law and
Jurisdiction.  This Agreement
has been delivered to and accepted by Agent and will be deemed to be made in
the State where Agent’s office indicated above is located.  THIS AGREEMENT WELL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF GEORGIA.  Each Indemnitor hereby irrevocably consents
to the non-exclusive jurisdiction of any state or federal court for the county
or judicial district where Agent’s office indicated above is located, and
consents that all service of process be sent by nationally recognized overnight
courier service directed to such Indemnitor at such Indemnitor’s address set
forth herein and service so made will be deemed to be completed on the business
day after deposit with such courier; provided  that nothing
contained in this Agreement will prevent Agent from bringing any action,
enforcing any award or judgment or exercising any rights against any
Indemnitor, against any security or against any property of any Indemnitor
within any other county, state, province, territory or other foreign or
domestic jurisdiction. Each Indemnitor acknowledges and agrees that the venue
provided above is the most convenient forum for both Agent and Indemnitor.  Each Indemnitor waives any objection to venue
and any objection based on a more convenient forum in any action instituted
under this Agreement.


 


18.            WAIVER OF JURY TRIAL.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH INDEMNITOR AND AGENT IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO
THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS.  EACH INDEMNITOR ACKNOWLEDGES THAT THE
FOREGOING WAIVER IS KNOWING AND VOLUNTARY.


 


[Remainder
of page intentionally left blank; signatures begin on following page.]


 


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WITNESS the due execution
hereof as a document under seal, on the date first written above.


 


	
   

  	
  SUPERIOR
  ESSEX COMMUNICATIONS LP

  
	
   

  	
  (“Indemnitor”)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [COMPANY SEAL]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESSEX
  GROUP, INC.

  
	
   

  	
  (“Indemnitor”)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [CORPORATE SEAL]

  
	
   

  	
   

  
	
   

  	
  Accepted
  in Atlanta, Georgia:

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  Agent for the Credit Parties

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: