EXHIBIT 10(uu)
US PLEDGE AGREEMENT
US PLEDGE AGREEMENT, dated as of November 23, 1999 (as amended,
modified or supplemented from time to time, this "Agreement"), made by THE
ALPINE GROUP, INC., a Delaware corporation (the "Pledgor"), in favor of BANKERS
TRUST COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of the
Secured Creditors (as defined below). Except as otherwise defined herein, terms
used herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, The Alpine Group, Inc. (the "Borrower"), various lenders
from time to time party thereto (the "Lenders"), Fleet Bank, N.A., as
Syndication Agent, Bank of America, N.A., as Documentation Agent, and Bankers
Trust Company, as Administrative Agent (together with any successor agent, the
"Administrative Agent," and together with the Syndication Agent, the
Documentation Agent, the Pledgee and the Lenders, the "Secured Creditors"), have
entered into a Credit Agreement, dated as of November 23, 1999 (as amended,
modified or supplemented from time to time, the "Credit Agreement"), providing
for the making of Loans to, and the issuance of Letters of Credit for the
account of, the Borrower as contemplated therein;
WHEREAS, it is a condition precedent to the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower under the
Credit Agreement that the Pledgor shall have executed and delivered to the
Pledgee this Agreement; and
WHEREAS, the Pledgor will obtain benefits from the incurrence of
Loans, and the issuance of Letters of Credit, under the Credit Agreement and,
accordingly, desires to execute this Agreement to satisfy the conditions
described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to the
Pledgor, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby makes the following representations and warranties to the Pledgee
and hereby covenants and agrees with the Pledgee as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities of
the Pledgor, now existing or hereafter incurred under, arising out of or in
connection with any Credit Document to which it is a party and the due
performance and compliance by the Pledgor with the terms of each such Credit
Document;
(ii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest in the
Collateral;
(iii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities referred to in
clauses (i) and (ii) above, after an Event of Default shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing or realizing on the Collateral, or of any
exercise by the Pledgee of its rights hereunder, together with reasonable
attorneys' fees and court costs; and
(iv) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 12 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (iv) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the type described above, whether outstanding on
the date of this Agreement or extended from time to time after the date of this
Agreement.
2. DEFINITION OF STOCK. As used herein, the term "Stock" shall mean
the issued and outstanding shares of common stock of Superior Telecom Inc.
("Superior") owned by the Pledgor from time to time.
3. PLEDGE OF STOCK, ETC.
3.1. Pledge. (a) To secure the Obligations of the Pledgor and for
the purposes set forth in Section 1 hereof, the Pledgor hereby: (i) grants to
the Pledgee a security interest in all of the Collateral at any time owned by
the Pledgor; (ii) pledges and deposits as security with the Pledgee all of the
Stock owned by the Pledgor on the date hereof and described on Annex A hereto,
and delivers to the Pledgee certificates or instruments therefor, accompanied by
undated stock powers duly executed in blank by the Pledgor or such other
instruments of transfer as are reasonably acceptable to the Pledgee; (iii)
assigns, transfers, hypothecates, mortgages, charges and sets over to the
Pledgee all of the Pledgor's right, title and interest in and to such Stock (and
in and to all certificates or instruments evidencing such Stock), to be held by
the Pledgee, upon the terms and conditions set forth in this Agreement; and (iv)
pledges, transfers and assigns to the Pledgee for the benefit of the Secured
Creditors, a continuing possessory lien and first priority security interest in
all of the right, title and interest of the Pledgor in and to the Cash
Collateral Account (as defined below), together with all deposits made from time
to time therein, all investments from time to time therein and/or made with
funds therein pursuant to Section 16(b) or any other provision of this
Agreement, and in all cash and non-cash proceeds of any of the foregoing from
the date of the establishment of the Cash Collateral Account until the
termination thereof pursuant to the terms hereof.
(b) Notwithstanding anything to the contrary contained in Section
3.1(a) hereof or any other Section of this Agreement, the security interest
created pursuant to this Agreement shall not extend to (x) an amount of Superior
Shares having a value of $10,000,000 (as determined on the Effective Date) or
(y) the Superior Option Shares and, unless the Pledgor agrees otherwise, the
Pledgor shall not be required to pledge or deliver any such Superior Shares or
Superior Option Shares (or any certificates or instruments evidencing same)
pursuant to the terms hereof.
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3.2 Subsequently Acquired Stock. If the Pledgor shall acquire (by
purchase, stock dividend or otherwise) any additional Stock at any time or from
time to time after the date hereof, the Pledgor will promptly thereafter deposit
such Stock (or certificates or instruments representing such Stock) as security
with the Pledgee and deliver to the Pledgee certificates or instruments
therefor, accompanied by undated stock powers (or such other instruments of
transfer as are reasonably acceptable to the Pledgee) duly executed in blank by
the Pledgor (and accompanied by any transfer tax stamps required in connection
with the pledge of such Stock), and will promptly thereafter deliver to the
Pledgee a certificate executed by a principal executive officer of the Pledgor
describing the Stock and certifying that the same has been duly pledged with the
Pledgee hereunder.
3.3. Definition of Pledged Stock, Cash Collateral Account and
Collateral. All Stock at any time pledged or required to be pledged hereunder is
hereinafter called the "Pledged Stock," which together with (i) all proceeds
thereof, including any securities and moneys received and at the time held by
the Pledgee hereunder and (ii) all cash or Cash Equivalents pledged or required
to be pledged hereunder in the Cash Collateral Account, is hereinafter called
the "Collateral".
4. ESTABLISHMENT OF CASH COLLATERAL ACCOUNT; DEPOSITS AND
WITHDRAWALS; INVESTMENT OF FUNDS; ETC. (a) At any time the Pledgor elects to
pledge cash and/or Cash Equivalents as provided in Section 16(b) of this
Agreement, the Pledgor shall, at the time or prior to the first instance any
such pledge is made, establish in the Pledgee's name and for the benefit of the
Secured Creditors an account (the "Cash Collateral Account"), which Cash
Collateral Account shall be maintained at the Pledgee's office located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other office as the Pledgee may
choose. The Cash Collateral Account shall be under the sole dominion and control
of the Pledgee, and the Pledgee shall have the sole right to make withdrawals
from the Cash Collateral Account and to exercise all rights with respect to the
Collateral from time to time therein pursuant to the terms of this Agreement.
All cash or Cash Equivalents delivered to or held by or on behalf of the Pledgee
pursuant hereto shall be held in the Cash Collateral Account in accordance with
the provisions hereof.
(b) The Pledgor may, from time to time in accordance with the terms
of Section 16(b) hereof, deposit cash and/or Cash Equivalents into the Cash
Collateral Account. Withdrawals from the Cash Collateral Account shall be
permitted only to the extent provided for in Section 8 or 20(a) of this
Agreement.
(c) The Pledgee will from time to time, at the request of the
Pledgor, invest funds on deposit in the Cash Collateral Account in Cash
Equivalents selected by the Pledgor and reasonably acceptable to the Pledgee.
All investments made pursuant to this Section 4(c) (and any instruments
evidencing same), and all proceeds thereof, shall be held in the Cash Collateral
Account as part of the Collateral. All such investments shall be made in the
name of the Pledgee. All risk of loss in respect of investments made pursuant to
this Section 4(c) shall be on the Pledgor. Under no circumstances shall the
Pledgee be liable or accountable to the Pledgor or any
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other Person for any decrease in the value of the Cash Collateral Account or for
any loss resulting from the investment of the funds deposited therein.
5. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
have the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Pledged Stock, which may be held (in the discretion
of the Pledgee) in the name of the Pledgor, endorsed or assigned in blank or in
favor of the Pledgee or any nominee or nominees of the Pledgee or a sub-agent
appointed by the Pledgee. The Pledgee agrees to promptly notify the Pledgor
after the appointment of any sub-agent; provided, however, that the failure to
give such notice shall not affect the validity of such appointment.
6. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until an
Event of Default shall have occurred and be continuing, the Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Pledged Stock and to give all consents, waivers or ratifications in
respect thereof; provided, that no vote shall be cast or any consent, waiver or
ratification given or any action taken which would violate or be inconsistent
with any of the terms of this Agreement or any other Credit Document or which
would have the effect of impairing the rights, priorities or remedies of the
Pledgee or any other Secured Creditor under this Agreement or any other Credit
Document. All such rights of the Pledgor to vote and to give consents, waivers
and ratifications shall cease in case an Event of Default shall occur and be
continuing, and Section 8 hereof shall become applicable.
7. DIVIDENDS AND OTHER DISTRIBUTIONS. So long as no Default or Event
of Default is then in existence or would exist immediately after giving effect
thereto, cash proceeds representing regular quarterly dividends paid by Superior
with respect to the Pledged Stock shall be released from this Agreement and paid
to the Pledgor; provided that, (x) all cash dividends payable in respect of the
Pledged Stock which represent in whole or in part an extraordinary, liquidating
or other distribution in return of capital shall be paid, to the extent so
representing an extraordinary, liquidating or other distribution in return of
capital, to the Pledgee and retained by it as part of the Collateral and (y) at
any time when a Default or Event of Default is in existence, all cash dividends
payable in respect of the Pledged Stock shall be paid to the Pledgee and
retained by it as part of the Collateral. So long as no Default or Event of
Default is then in existence under Section 10.01, 10.02 or 10.05 of the Credit
Agreement, all other proceeds from distributions of the type referred to in
clauses (i) and (ii) below shall be released to the Pledgor, but only if the
Pledgor certifies, and establishes to the reasonable satisfaction of the
Pledgee, that the remaining Collateral at such time pledged and deposited
pursuant to this Agreement has an aggregate fair market value (for this purpose
using the Value of any Pledged Stock deposited pursuant to this Agreement) of at
least an amount such that when such fair market value is added to the Value of
the ▇▇▇▇▇▇▇ Shares pledged and deposited pursuant to the UK Pledge Agreement,
the Asset Coverage Ratio is at least 2.00:1.00. Subject to the immediately
preceding sentence, in the case of clauses (i) and (ii) below, the Pledgee shall
also be entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock or other securities or property
(other than cash) paid or distributed by way of dividend or otherwise in respect
of the Pledged Stock;
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(ii) all other or additional stock or other securities or property
(including cash) paid or distributed in respect of the Pledged Stock by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other or additional stock or other securities or property
(including cash) which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets, liquidation or
similar corporate reorganization.
Nothing contained in this Section 7 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by the Pledgor contrary to the provisions of this Section 7
and Section 8 below shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of the Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
8. REMEDIES IN CASE OF EVENTS OF DEFAULT. In case an Event of
Default shall have occurred and be continuing, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in it by this
Agreement or by any other Credit Document or by law) for the protection and
enforcement of its rights in respect of the Collateral, and the Pledgee shall be
entitled to exercise all the rights and remedies of a secured party under the
Uniform Commercial Code as in effect in the various relevant States and also
shall be entitled, without limitation, to exercise the following rights, which
the Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
payable to the Pledgor under Section 7 hereof;
(ii) to transfer all or any part of the Pledged Stock into the
Pledgee's name or the name of its nominee or nominees (the Pledgee agrees to
promptly notify the Pledgor after such transfer; provided, however, that the
failure to give such notice shall not affect the validity of such transfer);
(iii) to vote all or any part of the Pledged Stock (whether or not
transferred into the name of the Pledgee) and give all consents, waivers and
ratifications in respect of the Pledged Stock and otherwise act with respect
thereto as though it were the outright owner thereof (the Pledgor hereby
irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of the Pledgor, with full power of substitution to do so);
(iv) at any time or from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any interest
therein, at any public or private sale, without demand of performance,
advertisement or notice of intention to sell or of the time or place of sale or
adjournment thereof or to redeem or otherwise (all of which are hereby waived by
the Pledgor), for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or prices and
on such terms as the Pledgee in its absolute discretion may determine; provided,
that at least 10 Business Days' notice of the time and place of any such sale
shall be given to the Pledgor. The Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with respect
to the
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Collateral, whether before or after sale hereunder, and all rights, if any, of
marshaling the Collateral and any other security for the Obligations or
otherwise. At any such sale, unless prohibited by applicable law, the Pledgee on
behalf of the Secured Creditors may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption. Neither the
Pledgee nor any Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor shall
any of them be under any obligation to take any action whatsoever with regard
thereto; and
(v) to withdraw any Collateral from the Cash Collateral Account and
apply the same to the Obligations.
9. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of the
Pledgee provided for in this Agreement or any other Credit Document or now or
hereafter existing at law or in equity or by statute shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee or any other Secured
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Credit Document or now or hereafter existing at law
or in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any other Secured Creditor of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. The Secured Creditors agree that this Agreement may
be enforced only by the action of the Administrative Agent or the Pledgee, in
each case acting upon the instructions of the Required Lenders and that no other
Secured Creditor shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent or the Pledgee as the case may be, for the benefit of the
Secured Creditors upon the terms of this Agreement.
10. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other moneys received by the Pledgee
hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent
of the type described in clauses (ii) and (iii) of Section 1 of this
Agreement;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations (as defined below) shall be paid to the Secured
Creditors as provided in Section 10(d) of this Agreement, with each
Secured Creditor receiving an amount equal to its outstanding Primary
Obligations or, if the proceeds are insufficient to pay in full all such
Primary Obligations, its Pro Rata Share (as defined below) of the amount
remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations
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(as defined below) shall be paid to the Secured Creditors as provided in
Section 10(d) of this Agreement, with each Secured Creditor receiving an
amount equal to its outstanding Secondary Obligations or, if the proceeds
are insufficient to pay in full all such Secondary Obligations, its Pro
Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 20(a) of
this Agreement, to the Pledgor or to whomever may be lawfully entitled to
receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean all principal of, and
interest on, all Loans, all Unpaid Drawings and all Fees and (z) "Secondary
Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 10 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made to the
Administrative Agent under the Credit Agreement for the account of the Secured
Creditors.
(e) For purposes of applying payments received in accordance with
this Section 10, the Pledgee shall be entitled to rely upon the Administrative
Agent under the Credit Agreement for a determination (which the Administrative
Agent agrees (or shall agree), to provide upon request of the Collateral Agent)
of the outstanding Primary Obligations and Secondary Obligations owed to the
Secured Creditors. Unless it has actual knowledge (including by way of written
notice from a Secured Creditor to the contrary, the Administrative Agent, in
furnishing information pursuant to the preceding sentence, and the Pledgee, in
acting hereunder, shall be entitled to assume that no Secondary Obligations are
outstanding.
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(f) It is understood and agreed that the Pledgor shall remain liable
to the extent of any deficiency between the amount of the proceeds of the
Collateral hereunder and the aggregate amount of the Obligations.
11. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
12. INDEMNITY. The Pledgor agrees (i) to indemnify and hold harmless
the Pledgee in such capacity and each other Secured Creditor from and against
any and all claims, demands, losses, judgments and liabilities of whatsoever
kind or nature, and (ii) to reimburse the Pledgee and each other Secured
Creditor for all reasonable costs and expenses, including reasonable attorneys'
fees, in each case to the extent growing out of or resulting from the exercise
by the Pledgee of any right or remedy granted to it hereunder or under any other
Credit Document except, with respect to clauses (i) and (ii) above, for those
arising from the Pledgee's or such other Secured Creditor's gross negligence or
willful misconduct. In no event shall the Pledgee be liable, in the absence of
gross negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for moneys actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of the Pledgor under this Section 12 are unenforceable for any
reason, the Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
13. FURTHER ASSURANCES. (a) The Pledgor agrees that it will join
with the Pledgee in executing and, at the Pledgor's own expense, file and refile
under the applicable Uniform Commercial Code or such other law such financing
statements, continuation statements and other documents in such offices as the
Pledgee may reasonably deem necessary or appropriate and wherever required or
permitted by law so that the Pledgee has a perfected security interest in all
Collateral which is perfected by the filing of such financing statements (in
each case to the maximum extent perfection may be obtained under laws of the
relevant States, including, without limitation, Section 9-115(4)(b) of the
Uniform Commercial Code as in effect in the State of New York (the "UCC")), and
hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
the Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements, instruments as the Pledgee may reasonably deem
necessary or advisable to carry into effect the purposes of this Agreement or to
further assure and confirm unto the Pledgee its rights, powers and remedies
hereunder.
(b) The Pledgor agrees that with respect to all Collateral of the
Pledgor whereby or with respect to which the Pledgee may obtain "control"
thereof within the meaning of Section 8-106 of the UCC (or under any provision
of the UCC as same may be amended or supplemented
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from time to time, or under the laws of any relevant State other than the State
of New York), the Pledgor shall take all actions as may be reasonably requested
from time to time by the Pledgee so that "control" of such Collateral is
obtained and at all times held by the Pledgee.
14. THE PLEDGEE AS AGENT; RESPONSIBILITY OF THE PLEDGEE. (a) The
Pledgee will hold in accordance with this Agreement all items of the Collateral
at any time received under this Agreement. It is expressly understood and agreed
that the obligations of the Pledgee as holder of the Collateral and interests
therein and with respect to the disposition thereof, and otherwise under this
Agreement, are only those expressly set forth in this Agreement. The Pledgee
shall act hereunder on the terms and conditions set forth herein and in Section
12 of the Credit Agreement.
(b) Neither the Pledgee nor any of its directors, officers, agents,
employees, affiliates, representatives or agents shall be liable (i) for any
failure to invest or reinvest any cash or Cash Equivalents in the Cash
Collateral Account in accordance with the terms of this Agreement, provided that
any such Person shall be liable for its own gross negligence or willful
misconduct, (ii) for any losses incurred by reason of investments made by the
Pledgee pursuant to Section 4(c) of this Agreement or (iii) for any action taken
or omitted to be taken by the Pledgee (x) in good faith in accordance with the
advice of counsel with respect to any question as to the construction of any
provision hereof or any action to be taken by the Pledgee hereunder, (y) in
accordance with any instructions or other notice which the Pledgee believes in
good faith to be properly given by the Pledgor hereunder or (z) in accordance
with the instructions of the Required Lenders.
15. TRANSFER BY PLEDGOR. The Pledgor shall not sell or otherwise
dispose of, grant any option with respect to, or mortgage, assign, pledge or
otherwise encumber any of the Collateral or any interest therein (except in
accordance with the terms of this Agreement or any other Credit Document).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The
Pledgor represents, warrants and covenants that (i) it is the legal, record and
beneficial owner of, and has good title to, all Collateral, subject to no
pledge, lien, mortgage, hypothecation, security interest, charge, option or
other encumbrance whatsoever, except the liens and security interests created by
this Agreement; (ii) it has the requisite power, authority and legal right to
pledge all the Collateral; (iii) this Agreement has been duly authorized,
executed and delivered by the Pledgor and constitutes a legal, valid and binding
obligation of the Pledgor enforceable in accordance with its terms, except to
the extent that the enforceability hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law); (iv) no consent of any other
party (including, without limitation, any stockholder or creditor of the Pledgor
or any of its Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained by the
Pledgor in connection with the execution, delivery or performance of this
Agreement, or in connection with the exercise of its rights and remedies
pursuant to this Agreement, except those which have been obtained or made or as
may be required by laws affecting the offer and sale of
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securities generally in connection with the exercise by the Pledgee of certain
of its remedies hereunder; (v) the execution, delivery and performance of this
Agreement by the Pledgor does not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign, or of the certificate
of incorporation or by-laws (or analogous organizational documents) of the
Pledgor or Superior of any securities issued by the Pledgor or Superior, or of
any mortgage, indenture, lease, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument to which the
Pledgor or Superior is a party or which purports to be binding upon the Pledgor
or Superior or upon any of their respective assets and will not result in the
creation or imposition of any lien or encumbrance on any of the assets of the
Pledgor or Superior except as contemplated by this Agreement; (vi) all the
shares of Stock have been duly and validly issued, are fully paid and
nonassessable and subject to no options to purchase or similar rights; (vii) the
pledge, assignment and delivery of the Pledged Stock, creates a valid and
perfected first security interest in such Stock and the proceeds thereof,
subject to no prior lien or encumbrance or to any agreement purporting to grant
to any third party a lien or encumbrance on the property or assets of the
Pledgor which would include the Pledged Stock; (viii) after the establishment
thereof, the pledge, assignment and granting of a security interest in the Cash
Collateral Account pursuant to this Agreement creates, and upon the deposit in
the Cash Collateral Account of any other Collateral pursuant to this Agreement
will create, a valid and perfected first priority security interest in all of
the Pledgor's right, title and interest in and to the Cash Collateral Account
and the Collateral so deposited, as the case may be, and the proceeds thereof
subject to no other lien or encumbrance or to any other agreement purporting to
grant any third party a lien or encumbrance on property or assets of the Pledgor
which would include such Collateral, and no UCC or other filings are required to
be made in connection with the foregoing or to perfect the security interests
therein created hereby; and (ix) "control" (as defined in Section 8-106 of the
UCC) has been obtained by the Pledgee over all Collateral consisting of
"securities" (as defined in Section 8-102(a)(15) of the UCC) with respect to
which such "control" may be obtained pursuant to Section 8-106 of the UCC. The
Pledgor further covenants and agrees that it will defend the Pledgee's right,
title and security interest in and to the Collateral and the proceeds thereof
against the claims and demands of all persons whomsoever; and the Pledgor
covenants and agrees that it will have like title to and right to pledge any
other property at any time hereafter pledged to the Pledgee as Collateral
hereunder and will likewise defend the right thereto and security interest
therein of the Pledgee and the other Secured Creditors.
(b) The Pledgor further covenants and agrees that in the event the
Value of the Stock pledged, and delivered for pledge, pursuant to this
Agreement, when added to the Value of the ▇▇▇▇▇▇▇ Shares pledged, and delivered
for pledge, pursuant to the UK Pledge Agreement is at any time not sufficient
such that the Asset Coverage Ratio is at least 2.00:1.00, then the Pledgor shall
(x) pledge and deposit with the Collateral Agent cash and Cash Equivalents in an
amount sufficient to increase the Asset Coverage Ratio to at least 2.00:1.00;
provided, that such cash or Cash Equivalents shall be pledged and deposited in
the Cash Collateral Account established pursuant to the terms of this Agreement
and all actions shall be taken in connection therewith which are necessary or
which the Pledgee may reasonably request in order to ensure that the security
interest of the Pledgee in all such cash and Cash Equivalents deposited in the
Cash Collateral Account constitutes a first priority perfected security
interest, and/or (y) repay the
10
Loans and/or cash collateralize Letters of Credit in an amount sufficient to
increase the Asset Coverage Ratio to at least 2.00:1.00.
17. CHIEF EXECUTIVE OFFICE. The chief executive office of the
Pledgor is located at the address specified in Annex B hereto. The Pledgor will
not move its chief executive office except to such new location as the Pledgor
may establish in accordance with the immediately succeeding sentence. The
Pledgor shall not establish a new location for such office until (i) it shall
have given to the Pledgee at least 10 days' prior written notice of its
intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Pledgee may reasonably request
and (ii) with respect to such new location, it shall have taken all action,
reasonably satisfactory to the Pledgee, to maintain the security interest of the
Pledgee in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. Promptly after establishing a new
location for such office in accordance with the immediately preceding sentence,
the Pledgor shall deliver to the Pledgee a supplement to Annex B hereto so as to
cause such Annex B hereto to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of the
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Credit Document or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument or this Agreement; (iii) any furnishing of any
additional security to the Pledgee or its assignee or any acceptance thereof or
any release of any security by the Pledgee or its assignee; (iv) any limitation
on any party's liability or obligations under any such instrument or agreement
or any invalidity or unenforceability, in whole or in part, of any such
instrument or agreement or any term thereof; or (v) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to the Pledgor or any Subsidiary of the Pledgor, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not the Pledgor shall have notice
or knowledge of any of the foregoing.
19. REGISTRATION, ETC. (a) If an Event of Default shall have
occurred and be continuing and the Pledgor shall have received from the Pledgee
a written request or requests that the Pledgor cause any registration,
qualification or compliance under any Federal or state securities law or laws to
be effected with respect to all or any part of the Pledged Stock, the Pledgor as
soon as practicable and at its expense will use its best efforts to cause such
registration to be effected (and be kept effective) and will use its best
efforts to cause such qualification and compliance to be effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Pledged Stock, including, without limitation, registration
under the Securities Act of 1933 as then in effect (or any similar statute then
in effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements; provided, that the Pledgee shall furnish to the Pledgor such
information regarding the Pledgee as the Pledgor may request in writing and as
shall be required in connection with any such registration, qualification or
11
compliance. The Pledgor will cause the Pledgee to be kept reasonably advised in
writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of the Pledged Stock against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to the
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Pledged Stock pursuant to Section 8 hereof,
such Pledged Stock or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Securities Act of 1933, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Pledged Stock or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable in order that such
sale may legally be effected without such registration; provided, that at least
10 Business Days' notice of the time and place of any such sale shall be given
to the Pledgor. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion: (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Pledged Stock or part thereof shall have been filed under
such Securities Act; (ii) may approach and negotiate with a single possible
purchaser to effect such sale; and (iii) may restrict such sale to a purchaser
who will represent and agree that such purchaser is purchasing for its own
account, for investment, and not with a view to the distribution or sale of such
Pledged Stock or part thereof. In the event of any such sale, the Pledgee shall
incur no responsibility or liability for selling all or any part of the Pledged
Stock at a price which the Pledgee, in its sole and absolute discretion, may in
good ▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the sale were
deferred until after registration as aforesaid.
20. TERMINATION, RELEASE. (a) After the Termination Date (as defined
below), this Agreement shall terminate (provided that all indemnities set forth
herein including, without limitation, in Section 12 of this Agreement shall
survive any such termination) and the Pledgee, at the request and expense of the
Pledgor, will promptly execute and deliver to the Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and will duly assign, transfer and deliver to the Pledgor (without recourse and
without any representation or warranty) such of the Collateral as may be in the
possession of the Pledgee and as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement. As used in this Agreement,
"Termination Date" shall mean the date upon which the Total Commitment has been
terminated, no Note is outstanding and all Obligations then due and payable have
been indefeasibly paid in full.
12
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 9.06 of the Credit Agreement or is
otherwise released at the direction of the Lenders, the Pledgee, at the request
and expense of the Pledgor will duly assign, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
possession of the Pledgee and has not theretofore been released pursuant to this
Agreement.
(c) Notwithstanding anything to the contrary contained in preceding
clause (b), the Pledgor shall not permit any release (or substitution) of
Collateral pursuant to this Agreement unless same complies with the applicable
rules set forth in Regulation U (with the amount of the credit pursuant to the
Credit Agreement at any time for purposes of Regulation U to be the amount
determined in accordance with the requirements of said Regulation U or, if
greater, the greater of (x) the Total Commitment as then in effect or (y) the
aggregate principal amount of all outstanding Loans and the amount of Letter of
Credit Outstandings at such time).
(d) At any time that the Pledgor desires that Collateral be released
as provided in the foregoing Section 20(b), upon the request of the Pledgee, it
shall furnish to the Pledgee an opinion of counsel in form and substance
reasonably satisfactory to the Pledgee to the effect that such release complies
with the applicable rules set forth in Regulation U.
(e) At any time that the Pledgor desires that Collateral be released
as provided in the foregoing Section 20(a) or (b), it shall deliver to the
Pledgee a certificate signed by an Authorized Officer of the Pledgor stating
that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b).
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been given or made when delivered to the party to
which such notice, request, demand or other communications is required or
permitted to be given or made under this Agreement, addressed as follows:
(a) if to the Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone No.:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.:(▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Lender (other than the Pledgee), at such address as
such Lender shall have specified in the Credit Agreement;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
13
22. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Pledgor and the Pledgee (with the written
consent of the Required Lenders (or all the Lenders if required by Section 13.12
of the Credit Agreement).
23. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. THIS AGREEMENT SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. The headings in this Agreement are for purposes of reference
only and shall not limit or define the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument.
24. RECOURSE. This Agreement is made with full recourse to the
Pledgor and pursuant to and upon all representations, warranties, covenants and
agreements on the part of the Pledgor contained herein and in the other Credit
Documents and otherwise in writing in connection herewith or therewith.
14
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address: THE ALPINE GROUP, INC.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Senior Vice President and General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ Bragi ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ -----------------------------------
Title: Executive Vice President
BANKERS TRUST COMPANY,
as Pledgee
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Principal
15
ANNEX A
to
PLEDGE AGREEMENT
LIST OF STOCK
I. The Alpine Group, Inc.
Name of Issuing Certificate Type of Number of
Corporation Number Shares Shares
----------- ------ ------ ------
Superior Telecom
Inc.
ANNEX A
to
PLEDGE AGREEMENT
CHIEF EXECUTIVE ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇