EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
made effective as of the 9th day of September, 2002, by and among XXXXXX INC., a
Delaware corporation (the "Borrower"), the LENDERS listed on the signature pages
hereof, SUNTRUST BANK, as Syndication Agent (the "Syndication Agent"), U.S.
BANK, N.A., as Documentation Agent (the "Documentation Agent"), and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Administrative Agent (the "Agent").
R E C I T A L S:
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The Borrower, the Syndication Agent, the Documentation Agent,
the Agent and the Lenders have entered into a certain Credit Agreement dated as
of June 21, 2001, as amended (the "Credit Agreement"). Capitalized terms used in
this Amendment which are not otherwise defined in this Amendment shall have the
respective meanings assigned to them in the Credit Agreement.
The Borrower has requested the Agent and the Lenders to amend
the Credit Agreement as more fully set forth herein. The Lenders, the Agent and
the Borrower desire to amend the Credit Agreement upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the
mutual promises contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Agent and the Lenders, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by
reference and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended
as set forth in this Section 2.
SECTION 2.1. Section 4.18 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
SECTION 4.18 INSURANCE. The Borrower and each of its
Subsidiaries has (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound and
reputable insurance companies, insurance in at least such
amounts and against at least such risks (including on all its
property, and public liability and worker's compensation) as
are usually insured against in the same general area by
companies of established repute engaged in the same or similar
business,
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including insurance provided by an adequately capitalized
company owned or under the control of Borrower or any
Affiliate of Borrower.
SECTION 2.2 Section 5.05 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
SECTION 5.05 INSURANCE. The Borrower will maintain,
and will cause each of its Subsidiaries to maintain (either in
the name of the Borrower or in such Subsidiary's own name),
with financially sound and reputable insurance companies,
insurance on all its property in at least such amounts and
against at least such risks (including on all its property,
and public liability and worker's compensation) as are usually
insured against in the same general area by companies of
established repute engaged in the same or similar business;
provided that the Borrower or any Subsidiary may satisfy the
requirements of this Section through adequate self-insurance
programs, including insurance provided by an adequately
capitalized company owned or under the control of Borrower or
any Affiliate of Borrower.
SECTION 3. Conditions to Effectiveness. The effectiveness of
this Amendment and the obligations of the Lenders hereunder are subject to the
following conditions, unless the Required Lenders waive such conditions:
(a) receipt by the Agent from each of the parties
hereto of a duly executed counterpart of this Amendment signed by such
party; and
(b) the fact that the representations and warranties
of the Borrower contained in Section 5 of this Amendment and Article IV
of the Credit Agreement shall be true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendment set
forth above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single agreement. Nothing herein contained shall waive,
annul, vary or affect any provision, condition, covenant or agreement contained
in the Credit Agreement, except as herein amended, nor affect nor impair any
rights, powers or remedies under the Credit Agreement as hereby amended. The
Lenders and the Agent do hereby reserve all of their rights and remedies against
all parties who may be or may hereafter become secondarily liable for the
repayment of the Notes. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as hereby amended, the Credit Agreement, as hereby amended,
being hereby ratified and affirmed. The Borrower hereby expressly agrees that
the Credit Agreement, as hereby amended, is in full force and effect.
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SECTION 5. Representations and Warranties. The Borrower hereby
represents and warrants to each of the Lenders as follows:
(a) No Default has occurred and is continuing unwaived by the
Lenders on the date hereof.
(b) The Borrower has the power and authority to enter into
this Amendment and to do all acts and things as are required or contemplated
hereunder to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed
and delivered by one or more authorized officers of the Borrower and constitutes
legal, valid and binding obligations of the Borrower enforceable against it in
accordance with its terms, provided that such enforceability is subject to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally.
(d) The execution and delivery of this Amendment and the
Borrower's performance hereunder do not and will not require the consent or
approval of any regulatory authority or governmental authority or agency having
jurisdiction over the Borrower, nor be in contravention of or in conflict with
the articles of incorporation or bylaws of the Borrower, or the provision of any
statute, or (unless any such contravention or conflict would not reasonably be
expected to have a Material Adverse Effect) any judgment, order or indenture,
instrument, agreement or undertaking, to which the Borrower is party or by which
the Borrower's assets or properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered, or have caused their respective duly authorized officers or
representatives to execute and deliver, this Amendment as of the day and year
first above written.
BORROWER:
XXXXXX INC.
By: (SEAL)
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Name:
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Title:
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WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent
and as a Lender
By: (SEAL)
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Name:
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Title:
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5
SUNTRUST BANK, as Syndication Agent and as
a Lender
By: (SEAL)
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Name:
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Title:
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U.S. BANK, N.A., as Documentation Agent and
as a Lender
By: (SEAL)
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Name:
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Title:
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7
ING BARINGS
By: (SEAL)
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Name:
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Title:
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8
COMERICA BANK, as a Lender
By: (SEAL)
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Name:
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Title:
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THE NORTHERN TRUST COMPANY, as a Lender
By: (SEAL)
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Name:
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Title:
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10
MIZUHO CORPORATE BANK, as a Lender
By: (SEAL)
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Name:
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Title:
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Consented and agreed to by:
BELDEN COMMUNICATIONS COMPANY
By: (SEAL)
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Name:
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Title:
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XXXXXX WIRE & CABLE COMPANY
By: (SEAL)
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Name:
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Title:
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