Exhibit
10(c)


 


EXECUTION COPY


 




 





 


REGISTRATION RIGHTS AGREEMENT


 


by and among


 


SUPERIOR ESSEX COMMUNICATIONS LLC,


 


ESSEX GROUP, INC.


 


THE GUARANTORS NAMED HEREIN


 


and


 


THE HOLDERS OF SECOND PRIORITY SECURED NOTES NAMED HEREIN


 












Dated as of November 10, 2003














 


 





 

















 


Table of Contents


 


	
  1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Initial
  Registration Under the Securities Act

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Securities Act
  Registration on Request.

  	
   

  
	
   

  	
  (a)     Request

  	
   

  
	
   

  	
  (b)     Shelf
  Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Piggyback
  Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Expenses.

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  General.

  	
   

  
	
   

  	
  (a)     RESERVED

  	
   

  
	
   

  	
  (b)     Registration Statement Form

  	
   

  
	
   

  	
  (c)     Effective
  Registration Statement

  	
   

  
	
   

  	
  (d)     Selection of
  Underwriters

  	
   

  
	
   

  	
  (e)     Priority
  in Requested Registration

  	
   

  
	
   

  	
  (f)      Registration
  Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Underwritten
  Offerings

  	
   

  
	
   

  	
  (a)     Requested
  Underwritten Offerings

  	
   

  
	
   

  	
  (b)     Holders of Registrable
  Notes to be Parties to Underwriting Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Preparation:
  Reasonable Investigation

  	
   

  
	
   

  	
  (a)     Registration
  Statements

  	
   

  
	
   

  	
  (b)     Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Postponements

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Indemnification

  	
   

  
	
   

  	
  (a)     Indemnification by the
  Issuers

  	
   

  
	
   

  	
  (b)     Indemnification by the
  Offerors and Sellers

  	
   

  
	
   

  	
  (c)     Notices
  of Losses, etc.

  	
   

  
	
   

  	
  (d)     Contribution

  	
   

  
	
   

  	
  (e)     Other
  Indemnification

  	
   

  
	
   

  	
  (f)      Indemnification
  Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Registration Rights to
  Others

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Rule
  144 and Rule 144A

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Amendments
  and Waivers

  	
   

  



 


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  14.

  	
  Nominees for Beneficial
  Owners

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Calculation of Percentage
  or Aggregate Principal Amount of Registrable Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Termination of
  Registration Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Miscellaneous.

  	
   

  
	
   

  	
  (a)     Further
  Assurances

  	
   

  
	
   

  	
  (b)     Headings

  	
   

  
	
   

  	
  (c)     Remedies

  	
   

  
	
   

  	
  (d)     Entire
  Agreement

  	
   

  
	
   

  	
  (e)     Notices

  	
   

  
	
   

  	
  (f)      Governing Law

  	
   

  
	
   

  	
  (g)     Severability

  	
   

  
	
   

  	
  (h)     Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  SCHEDULE
  A – HOLDERS OF REGISTRABLE NOTES

  	
   

  
	
  SCHEDULE
  B – NOTICES

  	
   

  



 


ii

















 


REGISTRATION
RIGHTS AGREEMENT


 


REGISTRATION RIGHTS AGREEMENT, dated as of
November 10, 2003 (this “Agreement”), by and among Superior Essex
Communications LLC, a Delaware
limited liability company (the “LLC”), Essex Group, Inc., a Michigan
corporation (“Essex”), the Guarantors party to this Agreement (the “Guarantors”,
and, together with the LLC and Essex, the “Issuers”), and the holders of Registrable
Notes (as hereinafter defined) who are listed on Schedule A to this Agreement
(the “Original Holders”) and such other Persons who may become a party
hereto pursuant to Section 15.


 


This Agreement is being entered into in
connection with the acquisition of Notes (as hereinafter defined) on the date
hereof by the Original Holders pursuant to the Plan (as hereinafter defined).  Upon
the issuance of the Notes pursuant to the Plan, each Original Holder will own the
principal amount of Notes specified with respect to such Original Holder in
Schedule A hereto.


 


To induce the Original Holders to vote in
favor of the Plan and to accept the Notes under the Plan, the Issuers are
herewith agreeing to register Registrable Notes under the Securities Act (as
hereinafter defined) and to take certain other actions with respect to the
Registrable Notes, subject to the terms and conditions of such undertaking of
this Agreement.


 


Concurrently with the effective date of the
Plan, Superior Essex Inc., a Delaware Corporation (“SEI”), will enter
into a registration rights agreement (the “Common Stock Registration Rights
Agreement”) to induce the holders of Common Stock (as defined below) of SEI
to vote in favor of the Plan and to accept the issuance of Common Stock under
the Plan.


 


In consideration of the premises and the
mutual agreements set forth herein, the parties hereto hereby agree as follows:


 


1.                Definitions. 
Unless otherwise defined herein, capitalized terms used herein and in
the recitals above shall have the following meanings:


 


“Affiliate” of a Person means any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such other
Person.  For purposes of this
definition, “control” means the ability of one Person to direct the
management and policies of another Person.


 


“Agreement” has the meaning set forth
in the preamble hereto.


 


“Business Day” means any day except a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to be closed.


 


“Commission” means the U.S. Securities
and Exchange Commission.


 


“Common Stock” means the shares of
Common Stock, $.01 par value per share, of SEI, as adjusted to reflect any
merger, consolidation, recapitalization, reclassification, split-up, stock
dividend, rights offering or reverse stock split made, declared or effected with respect
to the Common Stock.


 

















 


 “Effective
Date” means the effective date of the Plan pursuant to the terms thereof.


 


“Essex” has the meaning set forth in the
preamble hereto.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, or
any similar or successor statute.


 


“Expenses” means all expenses incident
to the Issuers’ performance of or compliance with their obligations under this
Agreement, including, without limitation, all registration, filing, listing,
national securities exchange and NASD fees (including, without limitation, all
fees and expenses of any “qualified independent underwriter” required by the
rules of the NASD), all fees and expenses of complying with state securities or
blue sky laws (including the reasonable fees, disbursements and other charges
of counsel for the underwriters in connection with blue sky filings), all word
processing, duplicating and printing expenses, messenger, telephone and
delivery expenses, all rating agency fees, the fees, disbursements and other
charges of counsel for the Issuers and of their independent public accountants,
including the expenses incurred in connection with “cold comfort” letters
required by or incident to such performance and compliance, any fees and
expenses incurred in connection with the listing of the securities to be registered
on PORTAL or any other securities exchange or national market system on which
similar securities issued by the Issuers or SEI are then listed, the reasonable
fees, disbursements and other charges of one firm of counsel (per registration
statement prepared in accordance with the terms hereof) to the holders of
Registrable Notes selling Notes under such registration statement pursuant to
Section 2 or Section 4 hereof (selected by the Holders holding a majority of
the Registrable Notes covered by such registration), the fees and expenses of any special
experts retained by the Issuers in connection with such registration, the fees
and expenses of the Trustee and counsel retained by the Trustee in connection
with such registration, and the fees and expenses of other persons retained by
the Issuers, but excluding underwriting discounts and commissions and
applicable transfer taxes, if any, which discounts, commissions and transfer
taxes shall be borne by the seller or sellers of Registrable Notes in all cases;
provided, that, if the Issuers shall, in accordance with Section
4 or Section 9 hereof, not register any securities with respect to which it had
given written notice of their intention to register to holders of Registrable
Notes, notwithstanding anything to the contrary in the foregoing, all
reasonable out-of-pocket expenses incurred by Requesting Holders in connection
with such registration (other than the reasonable fees, disbursements and other
charges of counsel other than the one firm of counsel referred to above), if
any, shall be deemed to be Expenses.


 


“Guarantors”
has the meaning set forth in the preamble hereto.


 


“Holders” means the Original Holders
and such other Persons who may become party hereto pursuant to Section 15.


 


“Holder Indemnitee” has the meaning
set forth in Section 10(b) hereof.


 


 “Indenture” means the indenture dated
November 10, 2003 by and among the Issuer, the Guarantors and The
Bank of New York as Trustee, pursuant to which the Notes are to


 


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be issued, as such Indenture is amended and supplemented from time to
time in accordance with the terms thereof.


 


“Initial Registration Period” has the
meaning set forth in Section 2 hereof.


 


“Initial Registration Statement” has
the meaning set forth in Section 2 hereof.


 


“Initiating Request” has the meaning
set forth in Section 3(a) hereof.


 


“Issuers” has the meaning set forth in the
preamble hereto.


 


“Issuers
Indemnitee” has the meaning set forth in Section 10(a) hereof.


 


“Loss” and “Losses” have the
meanings set forth in Section 10(a) hereof.


 


“NASD” means the National Association
of Securities Dealers, Inc.


 


“Notes” means the aggregate principal
amount of second priority secured notes due 2008 issued in accordance with the
Plan pursuant to the Indenture, including any Secondary Senior Notes (as
defined in the Indenture).


 


 “Offering
Documents” has the meaning set forth in Section 10(a) hereof.


 


“Original Holders” has the meaning set
forth in the preamble hereto.


 


“Person” means any individual,
corporation, limited liability company, partnership, firm, joint venture,
association, joint stock company, trust, unincorporated organization,
governmental or regulatory body or subdivision thereof or other entity.


 


“Piggyback Requesting Holder” has the
meaning set forth in Section 4 hereof.


 


“Plan” means the Joint Plan of
Reorganization under Chapter 11 of the United States Bankruptcy Code for
Superior Telecom Inc. and certain of its domestic subsidiaries, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.


 


“PORTAL” means The PORTAL Market.


 


“Public Offering” means a public
offering and sale of the Notes pursuant to an effective registration statement
under the Securities Act.


 


“Public Offering of Common Stock”
means a public offering and sale of Common Stock pursuant to an effective
registration statement under the Securities Act.


 


“Registrable Notes” means any of the
Notes issued pursuant to the Indenture and owned by the Holders from time to
time; provided, however, that a Note shall cease to be a Registrable
Note after it has been sold under a registration statement effected pursuant
hereto or pursuant to Rule 144 promulgated under the Securities Act or has
otherwise been Transferred


 


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without a valid assignment by the Transferor to the Transferee of the
rights and obligations hereunder pursuant to Section 15 hereof.


 


“Requesting
Holders” means one or more Holders which, together with their Affiliates,
collectively beneficially own at least 15% of the outstanding aggregate
principal amount of Notes.


 


“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar or successor statute.


 


“SEI” has the meaning set forth in the
preamble hereto.


 


“Selling Holders” means the holders of
Registrable Notes that have requested that some or all of their Notes be
registered pursuant hereto.


 


“Shelf Registration” has the meaning
set forth in Section 3(b) hereof.


 


“Shelf Registration Statement” has the
meaning set forth in Section 3(b) hereof.


 


“Shelf Request Date” has the meaning
set forth in Section 3(b) hereof.


 


“Transfer” means any transfer, sale,
assignment, pledge, hypothecation or other disposition of any interest.  “Transferor” and “Transferee” have
correlative meanings.


 


“Trustee” means The Bank of New York
in its capacity as Trustee under the Indenture.


 


2.                Initial Registration Under the
Securities Act.  The Issuers
shall use their reasonable best efforts to file and have declared effective by
the Commission, as promptly as practicable after the Issuers’ registration
statement on Form 10 becomes effective under the Exchange Act (but in no event
more than 30 days thereafter), which registration statement on Form 10 shall be
filed with the Commission as promptly as practicable after the Effective Date
(but in no event more than 30 days thereafter), a shelf registration statement
on Form S-1 pursuant to Rule 415 promulgated under the Securities Act (the “Initial
Registration Statement”) providing for the sale by the Holders of all of
the Registrable Notes.  The Issuers
agree to use their reasonable best efforts to have such Form 10 declared
effective as promptly as practicable after it is filed.  Subject to Section 9(b), the Issuers agree to
use their reasonable best efforts to keep the Initial Registration Statement
continuously current and effective until the third anniversary of the date such
Initial Registration Statement is declared effective by the Commission (plus a
number of Business Days equal to the number of Business Days, if any, that the
Initial Registration Statement is not kept effective after the initial date of
its effectiveness and prior to the third anniversary thereof) or such shorter
period which will terminate when all of the Registrable Notes covered by the
Initial Registration Statement have been sold pursuant to the Initial
Registration Statement or such Notes covered by the Registration Statement
cease to be Registrable Notes (the “Initial Registration Period”).  As promptly as practicable after becoming
eligible to file a registration statement on Form S-3 under the Securities Act,
the Issuers shall amend the Initial Registration Statement utilizing Form S-3.  Holders may effect underwritten offerings
pursuant to the Initial Registration Statement without reducing the number of


 


4

















 


registrations that the Issuers are required to effect pursuant to
Section 3 hereof, provided that at least 180 days must elapse between
the initiation of an underwritten offering and the closing of a prior
underwritten offering.  In the case of a
registration statement pursuant to this Section 2, the Issuers agree to cause
the Indenture to continue to be qualified under the Trust Indenture Act of
1939, as amended, and in the event that such qualification would require the
appointment of a new trustee under the Indenture, the Issuers shall appoint a
new trustee pursuant to the applicable provisions of the Indenture.


 


3.                Securities Act Registration on
Request.


 


(a)  Request.  At any time and from time to time during the
period commencing 180 days after the expiration of the Initial Registration
Period, the Requesting Holders may make a written request (the “Initiating
Request”) to SEI, acting for itself and as agent for the other Issuers, for
the registration with the Commission under the Securities Act of all or part of
such Requesting Holders’ Registrable Notes, which Initiating Request shall
specify the principal amount of Notes proposed to be disposed of by such
Requesting Holders and the proposed plan of distribution therefor.  Upon the receipt of any Initiating Request
for registration pursuant to this Section 3(a), SEI shall cause the Issuers to
promptly shall notify in writing all other Holders of the receipt of such
request and will use their reasonable best efforts to effect, at the earliest
practicable date, such registration under the Securities Act, including a Shelf
Registration, if applicable, of


 


(i)                                     the
Registrable Notes which the Issuers have been so requested to register by such
Requesting Holder or Holders, and


 


(ii)                                  all
other Registrable Notes which the Issuers have been requested to register by
any other Holders by written request given to the Issuers within 30 days after
the giving of written notice by the Issuers to such other Holders of the
Initiating Request,


 


all to the
extent necessary to permit the disposition (in accordance with Section 6(c)
hereof) of the Registrable Notes so to be registered; provided, that,


 


(A)  the Issuers shall not be
required to effect more than a total of four registrations pursuant to this
Section 3(a) (including a Shelf Registration effected pursuant to Section
3(b)),


 


(B)  if the intended method of
distribution is an underwritten Public Offering of the Notes, the Issuers shall
not be required to effect such registration pursuant to this Section 3(a)
unless such underwriting shall be conducted on a “firm commitment” basis,


 


(C)  if the Issuers shall have previously
effected a registration pursuant to this Section 3(a) (including one
registration effected pursuant to Section 3(b)) or shall have previously
effected a registration of which notice has been given to the Holders pursuant
to Section 4 hereof, the Issuers shall not be required to effect any
registration or file a Registration Statement pursuant to this


 


5

















 


Section 3(a)
until a period of 180 days shall have elapsed from the date on which the
previous such registration ceased to be effective,


 


(D)  any Holder whose
Registrable Notes were to be included in any such registration pursuant to this
Section 3(a), by written notice to the Issuers, may withdraw such request and,
on receipt of such notice of the withdrawal of such request from Holders
holding a percentage of Registrable Notes, such that the Holders that have not
elected to withdraw do not hold, in the aggregate, the requisite percentage of
the Registrable Notes to initiate a request under this Section 3(a), the
Issuers shall not effect such registration, and


 


(E)  the Issuers shall not be
required to effect any registration pursuant to this Section 3(a) unless at
least 15% of the aggregate principal amount of Registrable Notes outstanding at
the time of such request are to be included in such registration.


 


(b)  Shelf
Registration.  One Initiating
Request may be made for a shelf registration statement (a “Shelf
Registration Statement”) pursuant to Rule 415 promulgated under the
Securities Act (a “Shelf Registration”) providing for the sale by the
Holders of any or all of the Registrable Notes (the date of such request, the “Shelf
Request Date”).  After the Shelf
Request Date, the Issuers shall (i) use their reasonable best efforts to file,
at the earliest practicable date, such Shelf Registration Statement under the
Securities Act and (ii) use their reasonable best efforts to have such Shelf
Registration Statement thereafter declared effective by the Commission at the
earliest practicable date, but in any event not later than 120 days after the
Shelf Request Date or, if a Shelf Registration Statement is reviewed by the
Staff of the Commission, not later than 180 days after the Shelf Request
Date.  Subject to Section 9(b), the
Issuers agree to use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective under Rule 415 of the Securities
Act until the earliest to occur of (i) the first anniversary of the date such
Shelf Registration Statement initially is declared effective by the Commission
(plus a number of Business Days equal to the number of Business Days, if any,
that the Shelf Registration Statement is not kept effective after the initial
date of its effectiveness and prior to the first anniversary thereof), (ii) the
day after the date on which all of the Registrable Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or (iii) the first date on which there shall cease to be any
Registrable Notes.  In the case of a
registration statement pursuant to this Section 3(b), the Issuers agree to
cause the Indenture to continue to be qualified under the Trust Indenture Act
of 1939, as amended, and in the event that such qualification would require the
appointment of a new trustee under the Indenture, the Issuer shall appoint a
new trustee pursuant to the applicable provisions of the Indenture.


 


4.                Piggyback Registration.  If any one of LLC, Essex or SEI, at any time
when the Initial Registration Statement or a Shelf Registration Statement
covering all outstanding Registrable Notes is not effective, proposes to
register any of their respective securities under the Securities Act by
registration on any forms other than Form S-4 or S-8 (or any successor or
similar form(s)), whether or not pursuant to registration rights granted to
other holders of their securities and whether or not for sale for their own
accounts, the Issuers, jointly, shall give prompt written notice to all of the
Holders of the Registrable Notes of such intention to do so and


 


6

















 


of such Holders’ rights (if any) under this Section 4, which notice,
shall be given at least 30 days prior to such proposed registration.  Upon the written request of any Holder that
is a holder of Registrable Notes receiving notice of such proposed registration
(a “Piggyback Requesting Holder”) made within 20 days after the receipt
of any such notice (ten days if the Issuers state in such written notice to the
relevant security holders stating that (i) such registration will be on Form
S-3 and (ii) such shorter period of time is required because of a planned
filing date), which request shall specify the Registrable Notes intended to be
disposed of by such Piggyback Requesting Holder and, in the case of an
underwritten offering the minimum offering price at which such Piggyback
Requesting Holder is willing to sell its Registrable Notes, the Issuers shall,
jointly, subject to Section 7(b) hereof, effect the registration under the Securities
Act of all Registrable Notes which the Issuers have been so requested to
register by the Piggyback Requesting Holders thereof; provided  that,


 


(A)  prior to the effective date
of the registration statement filed in connection with such registration pursuant
to this Section 4, promptly following receipt of notification by the Issuers
from the managing underwriter (if an underwritten offering) of the price or
range of prices at which such securities are proposed to be sold, the Issuers
shall so advise each Piggyback Requesting Holder of such price, and if such
price is below the minimum price which any Piggyback Requesting Holder shall
have indicated to be acceptable to such Piggyback Requesting Holder, such
Piggyback Requesting Holder shall then have the right irrevocably to withdraw
its request to have its Registrable Notes included in such registration
statement, by delivery of written notice of such withdrawal to the Issuers
within one (1) Business Day of its being notified in writing of such price, without
prejudice to the rights of any holder or holders of Registrable Notes to
include Registrable Notes in any future registration (or registrations)
pursuant to this Section 4 or to cause such registration to be effected as a
registration under Section 3(a) hereof, as the case may be;


 


(B)  if at any time after giving
written notice of their intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, any one of the Issuers shall determine for any reason not to
register or to delay registration of all of such securities, the Issuers may,
at their election, give written notice of such determination to each Piggyback
Requesting Holder and (i) in the case of a determination not to register, shall
be relieved of their obligation to register any Registrable Notes in connection
with such registration (but not from any obligation of the Issuers to pay the
Expenses in connection therewith), without prejudice, however, to the rights of
any Holder to include Registrable Notes in any future registration (or
registrations) pursuant to this Section 4 or to cause such registration to be
effected as a registration under Section 3 hereof, as the case may be, and (ii)
in the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Notes, for the same period as the delay in
registering such other securities; and


 


(C)  RESERVED.


 


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No registration effected under this Section 4
shall relieve the Issuers of their obligation to effect any registration upon
request under Section 3(a) or 3(b) hereof and no registration effected pursuant
to this Section 4 shall be deemed to have been effected pursuant to Section
3(a) or 3(b) hereof.


 


Notwithstanding anything in this Agreement to
the contrary, the Issuers shall have no obligation under this Section 4 to make
any offering of their securities, or to complete an offering of their
securities that they proposes to make, and shall incur no liability to any
Holder for their failure to do so.


 


5.                       Expenses.


 


(a)                                  The Issuers shall pay
all Expenses in connection with any registration initiated pursuant to Section
2, 3 or 4 hereof, whether or not such registration shall become effective and
whether or not all or any portion of the Registrable Notes originally requested
to be included in such registration are ultimately included in such
registration.


 


(b)                                 Notwithstanding
anything in Section 5(a) to the contrary, the Issuers shall not be required to
pay for any Expenses of any registration proceeding begun pursuant to Section 2
or 3 if the registration request is subsequently withdrawn at the request of
Holders of a majority of the Registrable Notes to be registered (in which case
all participating Holders shall bear such expenses pro rata based upon the
aggregate principal amount of Registrable Notes that were requested to be
included in the withdrawn registration), unless (i) in the case of a
registration requested under Section 3, the Holders of a majority of the
Registrable Notes agree to forfeit their right to one demand registration
pursuant to Section 3 or (ii) such withdrawal was effected in accordance with
Section 9 hereof.


 


6.                       General.


 


(a)  RESERVED.


 


(b)  Registration Statement
Form.  Registrations under Section 2
or 3 hereof shall be on such appropriate registration form prescribed by the
Commission under the Securities Act as shall be selected by the Issuers and as
shall permit the disposition of the Registrable Notes pursuant to an
underwritten offering unless the Selling Holders holding at least a majority of
the aggregate principal amount of Registrable Notes requested to be included in
such registration statement determine otherwise, in which case pursuant to the
method of disposition determined by such Selling Holders.  The Issuers agree to include in any such
registration statement filed pursuant to Section 2 or 3 hereof all information
which the Selling Holders holding the majority of aggregate principal amount of
the Registrable Notes covered by such registration statement effected pursuant
hereto, upon advice of counsel, shall reasonably request.  The Issuers may, if permitted by law, effect
any registration requested under Section 2 or 3 by the filing of a registration
statement on Form S-3 (or any successor or similar short form registration
statement).


 


(c)  Effective
Registration Statement.  A
registration requested pursuant to Section 2 or 3 hereof shall not be deemed to
have been effected


 


8

















 


(i)                                     unless
a registration statement with respect thereto has been declared effective by
the Commission and remains effective in compliance with the provisions of the
Securities Act and the laws of any state or other jurisdiction applicable to
the disposition of Registrable Notes covered by such registration statement
until such time as all of such Registrable Notes have been disposed of in
accordance with the method of disposition set forth in such registration
statement or there shall cease to be any Registrable Notes, provided, that,
except with respect to the Initial Registration or Shelf Registration, such
period need not exceed 90 days, and, provided, further, that with
respect to the Initial Registration or Shelf Registration, such period need not
extend beyond the applicable period provided for in Section 2 or, as the case
may be, 3(b) hereof,


 


(ii)                                  if,
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental or regulatory agency or court for any reason other than a
violation of applicable law or regulation solely by any Selling Holder and has
not thereafter become effective or,


 


(iii)                               if,
in the case of an underwritten offering pursuant to a registration statement
requested under Section 3(a) hereof, the conditions to closing specified in an
underwriting agreement to which the Issuers are parties are not satisfied or
waived other than by reason of any breach or failure by any Selling Holder, or
are not otherwise waived.


 


The Holders of Registrable Notes to be
included in a registration statement may at any time terminate a request for
registration made pursuant to Section 3(a) in accordance with Section 3(a)(ii)(D).


 


(d)  Selection
of Underwriters.  The
underwriter or underwriters of each underwritten offering, if any, of the
Registrable Notes pursuant to a registration statement effected under Section 2
or 3 hereof shall be mutually selected by the Selling Holders owning at least a
majority of the aggregate principal amount of Registrable Notes to be
registered and the Issuers.


 


(e)  Priority
in Requested Registration.  If a
registration under Section 3(a) hereof involves an underwritten Public Offering
or if an underwritten Public Offering is being effected pursuant to a shelf
registration statement, and the managing underwriter of such underwritten
offering shall advise the Issuers in writing (with a copy to each Selling
Holder requesting that Registrable Notes be included in such underwritten
offering) that, in its opinion, the aggregate principal amount of Registrable
Notes requested to be included in such underwritten offering exceeds the
aggregate principal amount of Receivable Notes that can be sold in such
offering within a price range stated to such managing underwriter by Selling
Holders owning at least a majority of the aggregate principal amount of
Registrable Notes requested to be included in such underwritten offering to be
acceptable to such Selling Holders, the Issuers shall include in such
underwritten offering, to the extent of the number and type of securities which
the Issuers are advised can be sold in such offering, all Registrable Notes
requested to be included, pro rata among the Selling Holders requested to be
included in such underwritten offering on the basis of


 


9

















 


the aggregate principal amount of Registrable Notes requested to be
included by all such Selling Holders, and no other Registrable Notes, whether
to be sold by the Issuers or any other Person.


 


(f)                                    Registration Procedures.  If and whenever the Issuers are required to
effect any registration under the Securities Act as provided in Section 2, 3 or
4 hereof, the Issuers shall, as expeditiously as possible:


 


(i)                                     jointly
prepare and file as co-registrants with the Commission (promptly and, in the
case of any registration pursuant to Section 3(a), in any event on or before
the date that is (A) 90 days after the date that an Initiating Request is made
in accordance with Section 3(a) or (B) if, as of such ninetieth day, both of
the Issuers do not have any audited financial statements required to be
included in the registration statement, 30 days after the date both Issuers
have received from their independent public accountants their respective
audited financial statements, which the Issuers shall use their reasonable best
efforts to obtain as promptly as practicable) the requisite registration
statement to effect such registration and thereafter use their reasonable best
efforts to cause such registration statement to become and remain effective; provided,
however, that the Issuers may discontinue any registration of their
securities that are not Registrable Notes at any time prior to the effective
date of the registration statement relating thereto;


 


(ii)                                  prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective and to comply with
the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Notes covered by such registration statement
until such time as all of such Registrable Notes has been disposed of in
accordance with the method of disposition set forth in such registration
statement; provided, that, except with respect to any Initial
Registration or Shelf Registration, such period need not extend beyond 90 days
after the effective date of the registration statement; and provided, further,
that with respect to the Initial Registration or Shelf Registration, such
period need not extend beyond the applicable period provided for in Section 2
or, as the case may be, 3(b) hereof;


 


(iii)                               furnish
to each seller of Registrable Notes covered by such registration statement and
their representatives designated pursuant to Section 8(a), if any, and each
underwriter, if any, such number of copies of such drafts and final conformed
versions of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits and any documents
incorporated by reference), such number of copies of such drafts and final
versions of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other documents, including
without limitation notification of whether such registration statement or
amendment or supplement thereto will be reviewed by the Commission or any


 


10

















 


other regulatory authority and any oral or written comments on such registration
statement or amendment or supplement thereto delivered to the Issuers by the
Commission or any other regulatory authority, as the sellers of a majority of
the Registrable Notes covered by such registration statement or any underwriter
may reasonably request in writing; provided, that all drafts of such
registration statement or amendment or supplement thereto shall be furnished to
each seller of Registrable Notes covered by such registration statement and
their representatives designated pursuant to Section 8(a) whether or not so
requested;


 


(iv)                              use
their reasonable best efforts (i) to register or qualify all Registrable Notes
and other securities, if any, covered by such registration statement under such
other securities or blue sky laws of such states or other jurisdictions of the
United States of America as the sellers of a majority of the Registrable Notes
covered by such registration statement shall reasonably request in writing,
(ii) to keep such registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any other action
that may be necessary or reasonably advisable to enable such sellers to
consummate the disposition in such jurisdictions of the securities to be sold
by such sellers, except that the Issuers shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this Section
6(f)(iv) be obligated to be so qualified, to subject itself to taxation in such
jurisdiction or to consent to general service of process in any such
jurisdiction;


 


(v)                                 use
their reasonable best efforts to cause all Registrable Notes and other
securities, if any, covered by such registration statement to be registered
with or approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the Issuers and
counsel to the seller or sellers of Registrable Notes to enable the seller or
sellers thereof to consummate the disposition of such Registrable Notes;


 


(vi)                              furnish
to each seller of Registrable Notes, and each such seller’s underwriters, if
any, a signed


 


(A)                 opinions of counsel for the respective
Issuers, dated the effective date of such registration statement (and, if such
registration involves an underwritten offering, dated the date of the closing
under the underwriting agreement and addressed to the underwriters), reasonably
satisfactory (based on the customary form and substance of opinions of issuers’
counsel customarily given in such an offering) in form and substance to such
Selling Holders holding a majority of the Registrable Notes being sold, and


 


(B)                   “cold comfort” letters, dated the
effective date of such registration statement (and, if such registration
involves an underwritten offering, dated the date of the closing under the
underwriting agreement and addressed to the underwriters) and signed by the
independent public accountants who have certified the each of the Issuers’ financial
statements included or incorporated by reference in such registration
statement, reasonably satisfactory (based on the customary form and substance
of “cold comfort” letters of issuers’ independent public accountant customarily
given in such an offering) in form and substance to


 


11

















 


Selling
Holders holding a majority of the Registrable Notes being sold, in each case,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants’ comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in accountants’ comfort
letters delivered to underwriters in underwritten public offerings of
securities;


 


(vii)                           notify
each seller of Registrable Notes and other securities covered by such
registration statement, if any, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and, at the written request of
any such seller of Registrable Notes, promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus, as supplemented or amended,
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made;


 


(viii)                        use
their reasonable best efforts to obtain the withdrawal of any order suspending
the effectiveness of a registration statement relating to the Registrable Notes
at the earliest possible moment;


 


(ix)                                otherwise
comply with all applicable rules and regulations of the Commission and any
other governmental agency or authority having jurisdiction over the offering,
and make available to their security holders, as soon as reasonably practicable
but in no event later than 60 days following the end of the earnings period, an
earnings statement covering the period of at least 12 months, but not more than
18 months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and furnish to each seller of Registrable Notes and to the managing
underwriter, if any, at least ten days prior to the filing thereof (or such
shorter period as may be necessary to comply with applicable rules and
regulations or to correct any material misstatement or deficiency) a copy of
any amendment or supplement to such registration statement or prospectus;


 


(x)                                   subject
to the Issuers being able to comply with the listing and other requirements of
a national securities exchange or PORTAL, use their reasonable best efforts to
cause all Registrable Notes covered by a Registration Statement to be listed on
PORTAL or any other national securities exchange on which similar securities
issued by the Issuers are then listed, if the listing of such Registrable Notes
is then permitted under the rules of such exchange;


 


12

















 


(xi)                                provide
a CUSIP number for all Registrable Notes covered by a Registration Statement no
later than the effective date thereof and provide the Trustee under the
Indenture with printed certificates for the Registrable Notes which are in a
form eligible for deposit with The Depository Trust Company;


 


(xii)                             enter
into such agreements (including an underwriting agreement in customary form)
and take such other actions as the Holders holding a majority of the aggregate
principal amount of Registrable Notes covered by such registration statement
shall reasonably request in order to expedite or facilitate the disposition of
such Registrable Notes, including customary indemnification;


 


(xiii)                          if
requested by the managing underwriter(s) or the Holders holding a majority of
the aggregate principal amount of Registrable Notes being sold in connection
with an underwritten offering, subject to applicable law, promptly incorporate
in a prospectus supplement or post-effective amendment such information as the
managing underwriter(s) and the Holders of a majority of the Registrable Notes
being sold agree should be included therein relating to the plan of
distribution with respect to such Registrable Notes, including without
limitation, information with respect to the aggregate principal amount of
Registrable Notes being sold to such underwriters, the purchase price being
paid therefor by such underwriters and with respect to any other terms of the
underwritten offering of the Registrable Notes to be sold in such offering; and
make all required filings of such prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment; and


 


(xiv)                         if
requested by the Selling Holders holding a majority of the aggregate principal
amount of Registrable Notes being sold, reasonably cooperate with the Selling
Holders of Registrable Notes and the managing underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold and not bearing any restrictive legends; and
enable such Registrable Notes to be in such amounts and registered in such
names as the managing underwriter(s) or, if none, the Selling Holders holding a
majority of the aggregate principal amount of Registrable Notes being sold, may
request at least three Business Days prior to any sale of Registrable Notes to
the underwriters.


 


As a condition to the obligations of the
Issuers to complete any registration pursuant to this Agreement with respect to
the Registrable Notes of a Holder, such Holder must furnish to the Issuers in
writing such information regarding itself, the Registrable Notes held by it and
the intended methods of disposition of the Registrable Notes held by it as is
necessary to effect the registration of such Holders’ Registrable Notes and is
requested in writing by the Issuers.  At
least 20 days prior to the first anticipated filing date of a Registration
Statement for any registration under this Agreement, the Issuers will notify in
writing each Holder as to the information referred to in the preceding sentence
which the Issuers are requesting from that Holder whether or not such Holder
has elected to have any of its Registrable Notes included in the Registration
Statement.  If, within 10 days prior to
the anticipated filing date, the Issuers have not received the requested information
from a Holder, then the Issuers may file the Registration


 


13

















 


Statement without including Registrable Notes of that Holder, if, in
the opinion of the Issuers’ counsel, such information is required to be
included in such Registration Statement.


 


Each Holder agrees that as of the date that a
final prospectus is made available to it for distribution to prospective
purchasers of Registrable Notes it shall cease to distribute copies of any
preliminary prospectus prepared in connection with the offer and sale of such
Registrable Notes.  Each Holder further
agrees that, upon receipt of any written notice from the Issuers of the
happening of any event of the kind described in Section 6(f)(vii), such Holder
shall forthwith discontinue such Holder’s disposition of Registrable Notes
pursuant to the registration statement relating to such Registrable Notes until
such Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 6(f)(vii) and, if so directed by the Issuers, shall
deliver to the Issuers (at the Issuers’ expense) all copies, other than
permanent file copies, then in such Holder’s possession of the prospectus
relating to such Registrable Notes current at the time of receipt of such
notice.  If any event of the kind
described in Section 6(f)(vii) occurs and such event is the fault solely of a
Holder (or Holders), such Holder (or Holders) shall pay all Expenses
attributable to the preparation, filing and delivery of any supplemented or
amended prospectus contemplated by Section 6(f)(vii).


 


7.                Underwritten Offerings.


 


(a)  Requested
Underwritten Offerings.  If
requested by the underwriters in connection with an underwritten Public
Offering pursuant to a registration under Section 2 or 3 hereof, the Issuers
shall enter into a firm commitment underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Issuers and a majority of the Selling Holders whose
Registered Notes is included in such offering, and the underwriters and to
contain such representations and warranties by the Issuers and the Selling
Holders and such other terms as are customary in agreements of that type,
including, without limitation, indemnification and contribution to the effect
and to the extent provided in Section 10 hereof.


 


(b)  Holders
of Registrable Notes to be Parties to Underwriting Agreement.  The holders of Registrable Notes to be
distributed by underwriters in an underwritten offering contemplated by Section
7(a) shall be parties to the underwriting agreement between the Issuers and
such underwriters and any such Holder, at its option, may reasonably require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Issuers to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holders.  No such Holder shall be
required to make any representations or warranties to or agreements with the
Issuers or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder’s Registrable Notes and such
Holder’s intended method of distribution; provided that any liability of
such Holder shall be limited to the proceeds received from such distribution in
accordance with Section 10(b) or (d) hereof.


 


14

















 


8.                Preparation: Reasonable
Investigation.


 


(a)  Registration
Statements.  In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Issuers shall (i) give representatives
(designated to the Issuers in writing) of each Holder or group of Holders
holding at least 10% of the aggregate principal amount of Registrable Notes
registered under such registration statement, the underwriters, if any, and one
firm of counsel, one firm of accountants and one firm of other agents retained
on behalf of all underwriters and one firm of counsel, one firm of accountants
and one firm of other agents retained on behalf of Holders holding a majority
of the aggregate principal amount of Registrable Notes covered by such
registration statement, the reasonable opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto,
(ii) upon reasonable advance notice to the Issuers, give each of them such
reasonable access to all financial and other records, corporate documents and
properties of the Issuers and their subsidiaries, as shall be necessary, in the
reasonable opinion of such Holders’ and such underwriters’ counsel, to conduct
a reasonable due diligence investigation for purposes of the Securities Act,
and (iii) upon reasonable advance notice to the Issuers, provide such reasonable
opportunities to discuss the respective businesses of the Issuers with their
respective officers, directors, employees and the independent public
accountants who have certified each of their respective financial statements as
shall be necessary, in the reasonable opinion of such Holders’ and such
underwriters’ counsel, to conduct a reasonable due diligence investigation for
purposes of the Securities Act.


 


(b)  Confidentiality.  Each Holder of Registrable Notes shall
maintain, and shall cause its agents referred to in Section 8(a) to maintain,
the confidentiality of any confidential information received from or otherwise
made available by the Issuers to such Holder of Registrable Notes.  Information that (i) is or becomes available
to a Holder of Registrable Notes from a public source other than as a result of
a disclosure by such Holder or any of its Affiliates, (ii) is disclosed to a
Holder of Registrable Notes by a third-party source who the Holder of
Registrable Notes reasonably believes is not bound by an obligation of
confidentiality to the Issuers or (iii) is or becomes required to be disclosed
by a Holder of Registrable Notes by law, including by court order, shall not be
deemed to be confidential information for purposes of this Agreement.  The Holders of Registrable Notes shall not
grant access, and the Issuers shall not be required to grant access, to
information under this Section 8 to any Person who will not agree to maintain
the confidentiality (to the same extent a Holder is required to maintain
confidentiality) of any confidential information received from or otherwise
made available to it by the Issuers or the holders of Registrable Notes under
this Agreement.


 


9.                Postponements.


 


(a)  If the Issuers shall fail to file or delay
filing for more than 90 days after receipt of any Initiating Request any
registration statement to be filed pursuant to a request for registration under
Section 3 hereof (whether or not pursuant to Section 9(b)), the Holders
requesting such registration shall have the right to withdraw the request for
registration if such withdrawal shall be made by Holders of Notes holding an
aggregate principal amount of Notes such that the Holders that have not elected
to withdraw do not hold the requisite percentage or amount of Notes to initiate
a request under Section 3.  Any such
withdrawal shall be made by


 


15

















 


giving written notice to the Issuers within 20 days after, in the case
of a request pursuant to Section 3 hereof, the date on which a registration
statement would otherwise have been required to have been filed with the
Commission under clause (A) of Section 6(f)(i) hereof (i.e., 20 days
after the date that is 90 days after the conclusion of the period within which
requests for registration may be given to the Issuers, or, if, as of such
ninetieth day, the Issuers do not have the audited financial statements
required to be included in the registration statement, 30 days after the
receipt by the Issuers from their independent public accountants of such
audited financial statements).  In the
event of such withdrawal, the request for registration shall not be counted for
purposes of determining the number of registrations to which Holders are
entitled pursuant to Section 3 hereof.


 


(b)  The Issuers shall not be obligated to file
any registration statement, or file any amendment or supplement to any
registration statement, and may suspend any Selling Holder’s rights to make
sales pursuant to any effective registration statement, at any time (but not to
exceed one time in any 12-month period) when either of the Issuers, in the good
faith judgment of its Board of Directors, reasonably believes that the filing
thereof at the time requested, or the offering of securities pursuant thereto,
would adversely affect a pending or proposed Public Offering of such Issuer’s
securities, a material financing, or a material acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction, or
negotiations, discussions or pending proposals with respect thereto or would
require the disclosure of material non-public information that, in the good
faith judgment of such Issuer’s Board of Directors, individually or in the
aggregate, would have a material adverse effect on such Issuer and its
subsidiaries taken as a whole.  The
filing of a registration statement, or any amendment or supplement thereto, by
the Issuers cannot be deferred, and the Selling Holders’ rights to make sales
pursuant to an effective registration statement cannot be suspended, pursuant
to the provisions of the preceding sentence for more than 10 days after the
abandonment or consummation of any of the foregoing proposals or transactions
or for more than 90 days after the date of the Board’s determination referenced
in the preceding sentence.  If any
Issuer suspends the sellers’ rights to make sales pursuant hereto, the
applicable registration period shall be extended by the same number of days of
such suspension.


 


10.          Indemnification.


 


(a)  Indemnification
by the Issuers.  In connection
with any registration statement filed by the Issuers pursuant to Section 2, 3
or 4 hereof, to the fullest extent permitted by law the Issuers shall, and
hereby agree to, jointly and severally, indemnify and hold harmless, each Holder
of any Registrable Notes covered by such registration statement and each other
Person, if any, who controls (within the meaning of the Exchange Act) such
Holder, and their respective stockholders, directors, officers, employees,
partners, agents and Affiliates (each, an “Issuers Indemnitee” for
purposes of this Section 10(a)), against any losses, claims, damages,
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof and whether or not such Indemnified Party is a party thereto),
joint or several, and expenses, including, without limitation, the reasonable
fees, disbursements and other charges of legal counsel and reasonable costs of
investigation, to which such Issuers Indemnitee may become subject under the
Securities Act or otherwise (collectively, a “Loss” or “Losses”),
insofar as such Losses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered or otherwise offered or


 


16

















 


sold under the Securities Act or otherwise, any preliminary prospectus,
final prospectus or summary prospectus related thereto, or any amendment or
supplement thereto (collectively, “Offering Documents”), or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of the
circumstances in which they were made not misleading, or any violation by the
Issuers of any federal or state law, rule or regulation applicable to the
Issuers and relating to action required of or inaction by the Issuers in
connection with any such registration; provided, that, the Issuers shall
not be liable in any such case to the extent that any such Loss arises out of
or is based upon an untrue statement or omission made in such Offering
Documents in reliance upon and in conformity with information furnished to the
Issuers in a writing duly executed by a Issuers Indemnitee specifically stating
that it is expressly for use therein; and provided, further, that the Issuers
shall not be liable to any Person who participates as an underwriter in the
offering or sale of Registrable Notes or any other person, if any, who controls
(within the meaning of the Exchange Act) such underwriter, in any such case to
the extent that any such Loss arises out of such Person’s failure to send or
give a copy of the final prospectus (including any documents incorporated by
reference therein), as the same may be then supplemented or amended, to the
Person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Notes to such Person if such statement or omission was corrected in
such final prospectus.  Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of a Issuers Indemnitee and shall survive the transfer of such
securities by such Issuers Indemnitee.


 


(b)  Indemnification
by the Offerors and Sellers. 
In connection with any registration statement filed by the Issuers
pursuant to Section 2, 3 or 4 hereof in which a Holder has registered for sale
Registrable Notes, each such Holder of Registrable Notes shall, and hereby
agrees to, indemnify and hold harmless to the fullest extent permitted by law
the Issuers and each of their directors, officers, employees, agents, partners,
stockholders, Affiliates and each other Person, if any, who controls (within
the meaning of the Exchange Act) the Issuers and each other seller under such
registration statement and such seller’s employees, directors, officers,
stockholders, partners, agents and Affiliates (each, a “Holder Indemnitee”
for purposes of this Section 10(b)), against all Losses insofar as such Losses
arise out of or are based upon any untrue statement of a material fact
contained in any Offering Documents (or any document incorporated by reference
therein) or any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of
circumstances in which they were made not misleading, if such untrue statement
or omission was made in reliance upon and in conformity with information
furnished to the Issuers in a writing duly executed by such Holder of
Registrable Notes specifically stating that it is expressly for use therein; provided,
however, that the liability of such indemnifying party under this
Section 10(b) shall be limited to the amount of the net proceeds received by
such indemnifying party in the sale of Registrable Notes giving rise to such
liability.  Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of a Holder Indemnitee and shall survive the transfer of such securities by
such indemnifying party.


 


(c)  Notices of Losses,
etc.  Promptly after receipt by an
indemnified party of written notice of the commencement of any action or
proceeding involving a Loss referred to in Section 10(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such


 


17

















 


action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 10(a) or (b), except to the
extent that the indemnifying party is materially and actually prejudiced by
such failure to give notice.  In case
any such action is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and, unless in such indemnified party’s
reasonable judgment, after consultation with its separate counsel, a conflict
of interest between such indemnified and indemnifying parties may exist in
respect of such Loss, to assume and control the defense thereof, in each case
at its own expense, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably satisfactory
to such indemnified party, and after its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation, unless in such
indemnified party’s reasonable judgment, after consultation with its separate
counsel, a conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the defense
thereof, in which event the indemnifying party shall be liable for the legal
expenses of one counsel (plus local counsel) representing the indemnified party
or parties.  No indemnifying party shall
be liable for any settlement of any action or proceeding effected without its
written consent, which shall not be unreasonably withheld.  No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such Loss or which requires action on the part of
such indemnified party or otherwise subjects the indemnified party to any
obligation or restriction to which it would not otherwise be subject.


 


(d)  Contribution.  If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an indemnified party under
Section 10(a) or (b) in respect of any Loss, then, in lieu of the amount paid
or payable under Section 10(a) or (b), the indemnified party and the
indemnifying party under Section 10(a) or (b) shall contribute to the aggregate
Losses (including legal or other expenses reasonably incurred in connection
with investigating the same) (i) in such proportion as is appropriate to
reflect the relative fault of the Issuers on the one hand and the prospective
sellers of Registrable Notes on the other hand covered by the registration
statement which resulted in such Loss or action in respect thereof, with
respect to the statements, omissions or action which resulted in such Loss or
action in respect thereof, as well as any other relevant equitable
considerations, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuers, on the one hand, and
such prospective sellers, on the other hand, from their sale of Registrable
Notes; provided, that, for purposes of this clause (ii), the relative
benefits received by the prospective sellers shall be deemed not to exceed the
amount received by such sellers in the sale of their Registrable Notes.  No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.  The
obligations, if any, of the selling holders of Registrable Notes to contribute
as provided in this Section 10(d) are several in proportion to the relative
value of their respective Registrable Notes covered by such registration statement
and not joint.  In addition, no Person
shall be obligated to contribute hereunder any amounts in payment for any
settlement of any action or Loss effected without such Person’s consent.


 


18

















 


(e)  Other
Indemnification.  The Issuers,
jointly and severally, and, in connection with the Initial Registration
Statement, each Holder, severally and not jointly, shall, and, in connection
with any registration statement filed by the Issuers pursuant to Section 3 or
4, each Holder who has registered for sale Registrable Notes, severally and not
jointly, shall, with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act, indemnify Holder
Indemnitees and Issuers Indemnitees, respectively, against Losses, or, to the
extent that indemnification shall be unavailable to a Holder Indemnitee or
Issuers Indemnitee, contribute to the aggregate Losses of such Holder
Indemnitee or Issuers Indemnitee in a manner similar to that specified in the
preceding subsections of this Section 10 (with appropriate modifications).


 


(f)  Indemnification
Payments.  The indemnification
and contribution required by this Section 10 shall be made by periodic payments
of the amount thereof during the course of any investigation or defense, as and
when any Loss is incurred and is due and payable.


 


11.          Registration Rights to Others.


 


If the Issuers shall at any time hereafter provide
to any holder of any securities of the Issuers rights with respect to the
registration of such securities under the Securities Act or the Exchange Act,
such rights shall not be in conflict (in a manner that adversely affects the
Holders of Registrable Notes) with or adversely affect any of the rights
provided to the holders of Registrable Notes in, or conflict (in a manner that
adversely affects holders of Registrable Notes) with any other provisions
included in, this Agreement.


 


12.          Rule 144 and Rule 144A.


 


The Issuers shall take all actions reasonably
necessary to enable Holders to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
(a) Rule 144 under the Securities Act, as such Rule may be amended from time to
time, (b) Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or (c) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed under the Exchange Act.  Upon the written request of any Holder, each
of the the Issuers shall deliver to such Holder a written statement as to
whether it has complied with such requirements.


 


13.          Amendments and Waivers.


 


Any provision of this Agreement may be
amended, modified or waived if, but only if, the written consent to such
amendment, modification or waiver has been obtained from (i) except as provided
in clause (ii) below, the Holder or Holders of at least a majority of the
aggregate principal amount of Registrable Notes affected by such amendment,
modification or waiver and (ii) in the case of any amendment, modification or
waiver of any provision of Section 2, 5, 9 or 10 or any provisions as to the
number of requests for registration to which holders of Registrable Notes are
entitled under Section 3 or 4 hereof, or this Section 14, the written consent
of each Holder so affected.


 


19

















 


14.          Nominees for Beneficial Owners.


 


Except as provided otherwise below, a person
or entity is deemed to be a holder of Registrable Notes whenever such person or
entity owns of record such Registrable Notes. 
If any Registrable Notes are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its election in writing delivered
to the Issuers, be treated as the Holder of such Registrable Notes for purposes
of any request or other action by any Holder or Holders pursuant to this Agreement
or any determination of the percentage of aggregate principal amount of
Registrable Notes held by any Holder or Holders contemplated by this
Agreement.  The Issuers may require
assurances reasonably satisfactory to it of such owner’s beneficial ownership
of such Registrable Notes.  If the
Issuers receives conflicting instructions, notices or elections from two or
more persons or entities with respect to the same Registrable Notes, the
Issuers will act upon the basis of instructions, notice or election received
from the registered owner of such Registrable Notes.


 


15.          Assignment.


 


The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns.  Any Holder may assign to any permitted Transferee (as permitted
under applicable law) of its Registrable Notes its rights and obligations under
this Agreement, provided  that the provisions of this Agreement
shall only be binding and inure to such Transferee if, after giving effect to
such Transferee, such Transferee shall hold 5% or more of the outstanding
aggregate principal amount of Notes or shall be a director or an executive
officer of either of the Issuers; and, provided  further, that
such Transferee shall agree in writing with the parties hereto prior to the
assignment to be bound by this Agreement as if it were an original party
hereto, whereupon such assignee shall for all purposes be deemed to be a Holder
under this Agreement.  Except as
provided above or otherwise permitted by this Agreement, neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by any Holder without the prior written consent of
the other parties hereto.  The Issuers
may not assign this Agreement or any right, remedy, obligation or liability
arising hereunder or by reason hereof.


 


16.          Calculation of Percentage or
Aggregate Principal Amount of Registrable Notes.  For purposes of this Agreement, all references to a percentage or
amount of Registrable Notes shall be calculated based upon the principal amount
of Notes outstanding at the time such calculation is made and shall exclude any
Registrable Notes owned by the Issuers or any subsidiary of either of the
Issuers.  For the purposes of
calculating any percentage or amount of Registrable Notes as contemplated by
the previous sentence, the terms “Holder” and “Original Holder”
shall include all Affiliates thereof owning any Registrable Notes.


 


17.          Termination of Registration Rights.  The Issuers’ obligations under Sections 2, 3
and 4 hereof to register Notes for sale under the Securities Act shall
terminate on the earlier to occur of (i) the first date on which no Registrable
Notes are held by any Original Holder or their permitted Transferees or (ii)
the first date on which (A) no Holder of Notes, together with its Affiliates,
holds 5% or more of the outstanding aggregate principal amount of Notes or (B)
less than 25% of the aggregate principal amount of Notes issued pursuant to the
Plan are held by the Original Holders or their Affiliates.


 


20

















 


18.          Miscellaneous.


 


(a)  Further
Assurances.  Each of the parties
hereto shall execute such documents and other papers and perform such further
acts as may be reasonably required or advisable to carry out the provisions of
this Agreement and the transactions contemplated hereby.


 


(b)  Headings.  The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.


 


(c)  Remedies.  Each Holder, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.  The Issuers agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and the Issuers hereby agree to waive
the defense in any action for specific performance that a remedy at law would
be adequate.


 


(d)  Entire Agreement.  This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof, and there are no restrictions, promises, representations,
warranties, covenants or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein.  This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.


 


(e)  Notices.  Any notices or other communications to be
given hereunder by any party to another party shall be in writing, shall be
delivered personally, by telecopy, by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other comparable
delivery service, to the address of the party set forth on Schedule B hereto or
to such other address as the party to whom notice is to be given may provide in
a written notice to the other parties hereto, a copy of which shall be on file
with the Secretary of LLC.  Notice shall
be effective when delivered if given personally, when receipt is acknowledged
if telecopied, three days after mailing if given by registered or certified
mail as described above, and one business day after deposit if given by Federal
Express or comparable delivery service.


 


(f)  Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.


 


(g)  Severability.  Notwithstanding any other provision of this
Agreement, neither the Issuers nor any other party hereto shall be required to
take any action which would be in violation of any applicable Federal or state
securities law.  The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or the validity, legality or enforceability
of this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall
be enforceable to the fullest extent permitted by law.


 


(h)  Counterparts.  This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.


 


21

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above written.




	
   

  	
  SUPERIOR
  ESSEX COMMUNICATIONS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ESSEX GROUP,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  On behalf of
  each entity named on the attached

  
	
   

  	
  Schedule I

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[ADDITIONAL SIGNATURE PAGE FOLLOWS]


 


22

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


23

















 


SCHEDULE A


 


HOLDERS OF REGISTRABLE NOTES


 


	
  Original Holder

  	
   

  	
  Aggregate
  Principal

  Amount Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE B


 


NOTICES


 


If to SEI or
the Issuers, to:


 


Superior Essex
Communications LLC

Essex Group, Inc.

Attention: Secretary, Superior Essex Communications LLC

150 Interstate North Parkway

Suite 300

Atlanta, Georgia  30339


 


Tel:                            (770)
953-8338

Fax:                           (770)
303-8892


 


with a copy
to:


 


Proskauer Rose
LLP

Attention: Jack P. Jackson, Esq.

1585 Broadway

New York, New York 10036-8299


 


Tel:                            (212) 969-3000

Fax:                           (212) 969-2900


 


If to the
Holders, to:


 


such Holder,
at such Holder’s address or to such Holder’s telephone or telecopy number
reflected in the Issuers’ books and records


 


with a copy
to:


 


Simpson
Thacher & Bartlett LLP

Attention:  Risë B. Norman, Esq. 

425 Lexington Avenue

New York, New York 10017


 


Tel:                            (212)
455-3080

Fax:                           (212)
455-2502