Exhibit 10(gg)
AMENDMENT NUMBER FIVE dated as of June 5, 2000 ("Amendment No.
5"), to the Senior Subordinated Credit Agreement dated as of May 26, 1999 (the
"Credit Agreement"), among SUPERIOR TELECOMMUNICATIONS INC. (formerly known as
Superior/Essex Corp.), a Delaware corporation (the "Borrower"), SUPERIOR TELECOM
INC., a Delaware corporation (the "Parent"), each of the Subsidiary Guarantors
party thereto (the "Guarantors," and together with the Borrower and the Parent,
the "Credit Parties"), the lending institutions from time to time party thereto
(each a "Lender" and collectively, the "Lenders"), FLEET CORPORATE FINANCE,
INC., as Syndication Agent, and BANKERS TRUST COMPANY, as Administrative Agent
(the "Agents"). Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
WHEREAS, the Agents and the Lenders desire to amend a definition
in Section 9 of the Credit Agreement;
WHEREAS, in connection with the foregoing, the Agents and the
Lenders have requested that certain provisions of the Credit Agreement be
amended; and
WHEREAS, the Credit Parties have considered and agreed to the
Agents' and the Lenders' requests, upon the terms and conditions set forth in
this Amendment No. 5; and
WHEREAS, the consent of the Credit Parties and the Required
Lenders is necessary to effect this Amendment No. 5;
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - AMENDMENT
The Credit Agreement is amended as hereinafter provided in this
Section One, effective as of June 5, 2000 (the "Amendment Effective Date").
1.1. AMENDMENT TO SECTION 9 (DEFINITIONS AND ACCOUNTING TERMS) OF THE CREDIT
AGREEMENT.
(a) Section 9 shall be amended as follows:
"Nine-Month Trigger Date" shall be amended by deleting the definition
thereof and replacing it with the following:
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"'Nine-Month Trigger Date' shall mean June 30, 2000."
SECTION TWO - REPRESENTATIONS AND WARRANTIES
Each of the Parent, Borrower and each Guarantor hereby confirms,
reaffirms and restates the representations and warranties made by it in Section
4 of the Credit Agreement and all such representations and warranties are true
and correct in all material respects as of the date hereof (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct only as of such
specified date), except such representations and warranties need not be true and
correct to the extent that changes in the facts and conditions on which such
representations and warranties are based are required or permitted under the
Credit Agreement or such changes arise out of events not prohibited by the
covenants set forth in Sections 5 and 6 of the Credit Agreement or otherwise
permitted by consents or waivers. Each Credit Party, as applicable, hereby
further represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to the Agents and each Lender that:
(a) Each Credit Party has the corporate power and authority to
execute, deliver and perform this Amendment No. 5 and has taken all
corporate actions necessary to authorize the execution, delivery and
performance of this Amendment No. 5;
(b) No consent of any person other than all of the Lenders and
the Agents parties hereto, and no consent, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required in
connection with the execution, delivery, performance, validity or
enforceability against any Credit Party of this Amendment No. 5;
(c) This Amendment No. 5 has been duly executed and delivered on
behalf of each Credit Party by a duly authorized officer or
attorney-in-fact of such Credit Party, and constitutes a legal, valid
and binding obligation of each Credit Party enforceable against such
Credit Party in accordance with its terms, except as such enforceability
may be limited by (a) bankruptcy, insolvency, fraudulent conveyance,
preferential transfer, reorganization, moratorium or other similar laws
now or hereafter in effect relating
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to or affecting creditors' rights and remedies generally, (b) general
principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), and by the discretion of the court
before which any proceeding therefor may be brought, or (c) public
policy considerations or court administrative, regulatory or other
governmental decisions that may limit rights to indemnification or
contribution or limit or affect any covenants or agreements relating to
competition or future employment; and
(d) The execution, delivery and performance of this Amendment No.
5 will not violate (i) any provision of law applicable to any Credit
Party or (ii) any contractual obligation of any Credit Party, other than
such violations that would not reasonably be expected to result in,
singly or in the aggregate, a Material Adverse Effect.
SECTION THREE - MISCELLANEOUS
(a) Except as herein expressly amended, the Credit Agreement and
all other agreements, documents, instruments and certificates executed in
connection therewith, except as otherwise provided herein, are ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
(b) This Amendment No. 5 may be executed by the parties hereto in
one or more counterparts, each of which shall be an original and all of which
shall constitute one and the same agreement.
(c) THIS AMENDMENT NO. 5 SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS.
(d) This Amendment No. 5 shall not constitute a consent or waiver
to or modification of any provision, term or condition of the Credit Agreement,
other than such terms, provisions, or conditions that are required to consummate
the transactions contemplated by this Amendment. All terms, provisions,
covenants, representations, warranties, agreements and conditions contained in
the Credit Agreement, as amended hereby, shall remain in full force and effect.
[SIGNATURE PAGES FOLLOW]
