Exhibit 6
ALPINE GUARANTY
GUARANTY, dated as of April 15, 1997 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by The Alpine Group,
Inc., a Delaware corporation (the "Guarantor") for the benefit of the Secured
Creditors (as hereinafter defined). Except as otherwise defined herein,
capitalized 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, Refraco Inc. (the "Borrower"), various lenders from time to
time party thereto (the "Banks") and Bankers Trust Company, as Administrative
Agent (together with any successor administrative agent, the "Administrative
Agent"), have entered into a Term Loan Credit Agreement, dated as of April 15,
1997, providing for the making of Loans as contemplated therein (as used herein,
the term "Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement extending the
maturity of, or restructuring all or any portion of the Indebtedness under such
agreement or any successor agreement) (the Banks, the Administrative Agent and
the Collateral Agent are herein called the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements with one or more Banks or any
affiliate thereof (each such Bank or affiliate, even if the respective Bank
subsequently ceases to be a Bank under the Credit Agreement for any reason,
together with such Bank's or affiliate's successors and assigns, if any,
collectively, the "Other Creditors," and together with the Bank Creditors, the
"Secured Creditors");
WHEREAS, the Borrower is a direct Wholly-Owned Subsidiary of the
Guarantor;
WHEREAS, it is a condition precedent to the making of Loans under the
Credit Agreement that the Guarantor shall have executed and delivered this
Guaranty; and
WHEREAS, the Guarantor will obtain benefits from the incurrence of
Loans under the Credit Agreement and the entering into of Interest Rate
Protection Agreements and, accordingly, desires to execute this Guaranty in
order to satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantor, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby makes the following representations and
warranties to the Secured Creditors and hereby covenants and agrees with each
Secured Creditor as follows:
1. The Guarantor irrevocably and unconditionally guarantees: (i) to
the Bank Creditors the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of (x) the principal of and interest on
the Loans made to the Borrower under the Credit Agreement and (y) all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities owing
by the Borrower to the Bank Creditors under the Credit Agreement or any other
Credit Document to which the Borrower is a party (including, without limitation,
indemnities, Fees and interest thereon), whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement or any
such other Credit Document and the due performance and compliance by the
Borrower with all of the terms, conditions and agreements contained in the
Credit Documents (all such principal, interest, liabilities and obligations
being herein collectively called the "Credit Document Obligations"); and (ii) to
each Other Creditor the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities owing by the Borrower under
any Interest Rate Protection Agreement, whether now in existence or hereafter
arising, and the due performance and compliance by the Borrower with all of the
terms, conditions and agreements contained in the Interest Rate Protection
Agreements (all such obligations and liabilities being herein collectively
called the "Other Obligations," and together with the Credit Document
Obligations are herein collectively called the "Guaranteed Obligations"). The
Guarantor understands, agrees and confirms that the Secured Creditors may
enforce this Guaranty up to the full amount of the Guaranteed Obligations
against the Guarantor without proceeding against the Borrower, against any
security for the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations.
2. Additionally, the Guarantor unconditionally and irrevocably
guarantees the payment of any and all Guaranteed Obligations to the Secured
Creditors whether or not due or payable by the Borrower upon the occurrence in
respect of the Borrower of any of the events specified in Section 8.05 or 8.06
of the Credit Agreement, and unconditionally
-2-
and irrevocably promises to pay such Guaranteed Obligations to the Secured
Creditors, or order, on demand, in lawful money of the United States. This
Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of the Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the indebtedness of the
Borrower whether executed by the Guarantor, any other guarantor or by any other
party, and the liability of the Guarantor hereunder shall not be affected or
impaired by any circumstance or occurrence whatsoever, including, without
limitation: (a) any direction as to application of payment by the Borrower or
by any other party, (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations, (c) any payment on or in reduction of any such other guaranty or
undertaking, (d) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, (e) any payment made to any Secured Creditor on the
indebtedness which any Secured Creditor repays the Borrower pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and the Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding, (f)
any action or inaction by the Secured Creditors as contemplated in Section 6
hereof, or (g) any invalidity, irregularity or unenforceability of all or part
of the Guaranteed Obligations or of any security therefor.
4. The obligations of the Guarantor hereunder are independent of the
obligations of any other guarantor of the Borrower or the Borrower, and a
separate action or actions may be brought and prosecuted against the Guarantor
whether or not action is brought against any other guarantor of the Borrower or
the Borrower and whether or not any other guarantor of the Borrower or the
Borrower be joined in any such action or actions. The Guarantor expressly
acknowledges and agrees that any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower shall
operate to toll the statute of limitations as to the Guarantor.
5. The Guarantor hereby waives notice of acceptance of this Guaranty
and notice of any liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the
Administrative Agent or any other Secured Creditor against, and any other notice
to, any party liable thereon (including the Guarantor, any other guarantor or
the Borrower).
6. Any Secured Creditor may at any time and from time to time without
the consent of, or notice to, the Guarantor, without incurring responsibility to
the Guarantor, without impairing or releasing the obligations of the Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
-3-
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to
the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the Borrower
other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Secured Creditors
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, any of the Interest Rate Protection Agreements, the Credit Documents
or any of the instruments or agreements referred to therein, or otherwise
amend, modify or supplement any of the Interest Rate Protection Agreements,
the Credit Documents or any of such other instruments or agreements; and/or
(h) act or fail to act in any manner referred to in this Guaranty
which may deprive the Guarantor of its right to subrogation against the
Borrower to recover full indemnity for any payments made pursuant to this
Guaranty.
7. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to
-4-
this Guaranty, and this Guaranty shall be primary, absolute and unconditional
notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable discharge of a surety
or guarantor except payment in full of the Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Secured Creditor in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
rights or remedies which any Secured Creditor would otherwise have. No notice
to or demand on the Guarantor in any case shall entitle the Guarantor to any
other further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any Secured Creditor to any other or further action in
any circumstances without notice or demand. It is not necessary for any Secured
Creditor to inquire into the capacity or powers of the Borrower or the officers,
directors, partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
9. Any indebtedness of the Borrower now or hereafter held by the
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Secured Creditors, and such indebtedness of the Borrower to the Guarantor, if
the Administrative Agent, after an Event of Default has occurred, so requests,
shall be collected, enforced and received by the Guarantor as trustee for the
Secured Creditors and be paid over to the Secured Creditors on account of the
indebtedness of the Borrower to the Secured Creditors, but without affecting or
impairing in any manner the liability of the Guarantor under the other
provisions of this Guaranty. Prior to the transfer by the Guarantor of any note
or negotiable instrument evidencing any indebtedness of the Borrower to the
Guarantor, the Guarantor shall ▇▇▇▇ such note or negotiable instrument with a
legend that the same is subject to this subordination. Without limiting the
generality of the foregoing, the Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
10. (a) The Guarantor waives any right (except as shall be required
by applicable statute and cannot be waived) to require the Secured Creditors to:
(i) proceed against the Borrower, any other guarantor of the Guaranteed
Obligations or any other party; (ii) proceed against or exhaust any security
held from the Borrower, any other guarantor of the Guaranteed Obligations or any
other party; or (iii) pursue any other remedy in the
-5-
Secured Creditors' power whatsoever. The Guarantor waives any defense based on
or arising out of any defense of the Borrower, any other guarantor of the
Guaranteed Obligations or any other party other than payment in full of the
Guaranteed Obligations, including, without limitation, any defense based on or
arising out of the disability of the Borrower, any other guarantor of the
Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower other than payment in full of the
Guaranteed Obligations. The Secured Creditors may, at their election, foreclose
on any security held by the Administrative Agent, the Collateral Agent or the
other Secured Creditors by one or more judicial or nonjudicial sales, whether or
not every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Secured Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash. The Guarantor waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of the Guarantor against the Borrower or any other party or any security.
(b) The Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. The Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which the Guarantor
assumes and incurs hereunder, and agrees that the Secured Creditors shall have
no duty to advise the Guarantor of information known to them regarding such
circumstances or risks.
11. In order to induce the Banks to make Loans pursuant to the Credit
Agreement, and in order to induce the Other Creditors to execute, deliver and
perform the Interest Rate Protection Agreements, the Guarantor makes the
following representations, warranties and agreements:
(a) CORPORATE STATUS. The Guarantor (i) is a duly organized and
validly existing corporation in good standing under the laws of the
jurisdiction of its organization, (ii) has the requisite power and
authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or
the conduct of its business requires such qualifications, except for
failures to be so qualified which, individually or in the aggregate, could
not reasonably be
-6-
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Guarantor or the Guarantor and its Subsidiaries taken as a
whole.
(b) POWER AND AUTHORITY. The Guarantor has the requisite power and
authority to execute, deliver and perform the terms and provisions of
this Guaranty and each other Credit Document to which it is a party and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Guaranty and each such other Credit Document.
The Guarantor has duly executed and delivered this Guaranty and each other
Credit Document to which it is a party, and this Guaranty and each such
other Credit Document constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except to the extent that the
enforceability hereof or thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
(c) NO VIOLATION. Neither the execution, delivery or performance by
the Guarantor of this Guaranty or any other Credit Document to which it is
a party, nor compliance by it with the terms and provisions hereof or
thereof, (i) will contravene any provision of any law, statute, rule or
regulation or any order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or
assets of the Guarantor or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement or loan agreement,
or any other material agreement, contract or instrument, to which the
Guarantor or any of its Subsidiaries is a party or by which it or any of
its property or assets is bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation, partnership
agreement, by-laws or equivalent organizational or charter documents of the
Guarantor or any of its Subsidiaries.
(d) GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the Closing Date), or
exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Guaranty or any
other Credit Document to which the Guarantor is a party or (ii) the
legality, validity, binding effect or enforceability of this Guaranty or
any such other Credit Document.
-7-
(e) FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; FINANCIAL PROJECTIONS; CONSTRUCTION BUDGETS; CONSTRUCTION
SCHEDULE; PLANS AND SPECIFICATIONS. (i) The consolidated statements of
financial condition of the Guarantor and its consolidated subsidiaries at
each of April 30, 1996 and January 31, 1997 (the "January Balance Sheet"),
and the related consolidated statements of income and cash flow and changes
in shareholders' equity of the Guarantor and its consolidated subsidiaries
for the fiscal year or nine months, as the case may be, ended on such date,
and furnished to the Banks by the Guarantor prior to the Closing Date
present fairly the consolidated financial condition of the Guarantor and
its consolidated subsidiaries at the date of such statements of financial
condition and the consolidated results of the operations of the Guarantor
and its consolidated subsidiaries for such fiscal year or nine months, as
the case may be. All such financial statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied, subject, in the case of the financial statements as
at, and for the nine months ending on, January 31, 1997, to normal year-end
audit adjustments and the absence of footnotes. Since January 31, 1997,
there has been no material adverse change in the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Guarantor or of the Guarantor and its Subsidiaries taken
as a whole.
(ii) On and as of the Closing Date, after giving effect to all
Indebtedness (including the Loans) being guaranteed by the Guarantor
hereunder, (a) the sum of the assets, at a fair valuation, of the Guarantor
will exceed its debts; (b) the Guarantor has not incurred, nor does it
intend to incur or believe that it will incur, debts beyond its ability to
pay such debts as such debts mature; and (c) the Guarantor has, and will
have, sufficient capital with which to conduct its business. For purposes
of this clause (ii), "debt" means any liability on a claim, and "claim"
means (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right
to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
(iii) Except as disclosed in the financial statements delivered
pursuant to preceding clause (i), there were as of the Closing Date no
liabilities or obligations with respect to the Guarantor of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether
or not due) which, either individually or in aggregate, would be material
to the Guarantor or the Guarantor and its Subsidiaries taken as a whole,
other than obligations incurred under contracts entered into in the normal
course of business since January 31, 1997 and the obligations pursuant to
the Acquisition Documents (collectively the "Additional Obligations"). As
of the
-8-
Closing Date, the Guarantor knows of no basis for the assertion against the
Guarantor or any of its Subsidiaries of any liability or obligation of any
nature whatsoever (other than any Additional Obligations) that is not
disclosed in the financial statements delivered pursuant to preceding
clause (i) which, either individually or in the aggregate, is material to
the Guarantor or the Guarantor and its Subsidiaries taken as a whole.
(f) LITIGATION. There are no actions, suits or proceedings pending
or, to the best knowledge of the Guarantor, overtly threatened (i) with
respect to this Guaranty or any other Credit Document to which the
Guarantor is a party, (ii) with respect to any material Indebtedness of the
Guarantor or any of its Subsidiaries or (iii) that could reasonably be
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Guarantor or the Guarantor and its Subsidiaries taken as a
whole.
(g) TRUE AND COMPLETE DISCLOSURE. All factual information (other
than the Projections) (taken as a whole) furnished by the Guarantor in
writing to the Administrative Agent or any Bank for purposes of or in
connection with this Guaranty, the other Credit Documents or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by the Guarantor in
writing to the Administrative Agent or any Bank will be, true and accurate
in all material respects on the date as of which such information is dated
or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such
information was provided.
(h) TAX RETURNS AND PAYMENTS. Except as set forth on Schedule I
hereto, the Guarantor and each Person for whose tax the Guarantor is liable
under applicable law has filed or caused to be filed with the appropriate
taxing authority, all Federal and all other material returns, statements,
forms and reports for all taxes (the "Returns") required to be filed by it
and has paid or caused to be paid (i) all material taxes due for the
periods covered thereby and (ii) all taxes pursuant to any assessment
received by the Guarantor or any such Person, excluding, in each case, any
such taxes that have been contested in good faith and for which adequate
reserves have been established in accordance with generally accepted
accounting principles. Except as disclosed on Schedule I hereto, as of the
Closing Date, there is no action, suit, proceeding, investigation, audit,
or claim now pending or, to the knowledge of the Guarantor, overtly
threatened by any governmental or taxing authority regarding any material
taxes relating to the Guarantor or any of its Subsidiaries. Except as
disclosed on Schedule I hereto, as of the Closing Date, neither the
Guarantor nor any of its Subsidiaries has entered into an agreement or
waiver
-9-
extending any statute of limitations relating to the payment or collection
of any material taxes of the Guarantor or any of its Subsidiaries.
(i) COMPLIANCE WITH STATUTES, ETC. The Guarantor is in compliance
with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Guarantor or of the Guarantor and its Subsidiaries taken
as a whole.
(j) INVESTMENT COMPANY ACT. The Guarantor is not an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
(k) PUBLIC UTILITY HOLDING COMPANY ACT. The Guarantor is not a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(l) EXISTING INDEBTEDNESS. Schedule II hereto sets forth a true and
complete list of all Indebtedness of Alpine (excluding indebtedness which,
in the aggregate, does not exceed $1,000,000) as of the Closing Date, in
each case showing the amount outstanding on the Closing Date and the direct
borrower thereof.
(m) ASSETS OF GUARANTOR. On the Closing Date, the only significant
assets directly owned by the Guarantor are (w) 100% of the capital stock of
the Borrower, (x) 6,474,048 shares of common stock of Superior Telecom Inc.
("Superior"; and with all capital stock of Superior at any time owned by
Alpine being herein called the "Superior Stock"), (y) approximately
$35,292,500 in cash, Cash Equivalents and other investments in marketable
securities and (z) such other assets as are reflected in the January
Balance Sheet or listed on Schedule III hereto.
12. The Guarantor covenants and agrees that on and after the
Effective Date and for so long as the Credit Agreement is in effect and until
the Total Commitment and all Interest Rate Protection Agreements have terminated
and the Loans, together with interest, Fees and all other Guaranteed Obligations
incurred hereunder and thereunder are paid in full, it will:
-10-
(a) LIENS. Not create, assume or suffer to exist any Lien upon any
of the shares of capital stock of Superior at any time owned by the
Guarantor, except for Liens created pursuant to the Alpine Pledge
Agreement. Notwithstanding anything to the contrary contained above, the
covenant contained in the immediately preceding sentence shall cease to
apply to the Non-Pledged Superior Stock (as defined below) only, on the
first date occurring after the Initial Borrowing Date upon which both (x)
no Default or Event of Default exists pursuant to the Credit Agreement and
(y) the Administrative Agent receives a certificate pursuant to Section
6.01(d) of the Credit Agreement establishing, to the reasonable
satisfaction of the Administrative Agent, that the Leverage Ratio (as
defined in the Credit Agreement) as calculated on the last day of any
fiscal quarter ended on or after April 30, 1998, is less than 3.25:1.
(b) DISTRIBUTIONS. Not declare or make any Distribution to its
shareholders in the form of Superior Stock or proceeds representing a
liquidation or other distribution in return of capital of Superior Stock.
(c) INDEBTEDNESS. Not create, incur, assume or suffer to exist any
Indebtedness except (i) Indebtedness under this Guaranty, (ii) Indebtedness
listed on Schedule II hereto so long as the outstanding principal amount
thereof is not increased, and so long as no additional security is
furnished by the Guarantor therefor and (iii) additional Indebtedness of
the Guarantor not otherwise permitted under this Section 12(c) in an
aggregate principal amount not to exceed $30,000,000 at any time
outstanding.
(d) SUPERIOR STOCK. The Guarantor shall take all action as is needed
so that, on the Closing Date, Superior Stock with a fair market value of
$30 million is pledged, and delivered for pledge, pursuant to the Alpine
Pledge Agreement (with the pledged stock described above in this sentence,
together with any additional shares of stock, certificates or other
instruments of Superior received in respect thereof after the Closing Date,
being herein called the "Superior Pledged Stock", and with any Superior
Stock owned by the Guarantor which is not required to be pledged pursuant
to the Alpine Pledge Agreement being herein called the "Non-Pledged
Superior Stock"). To the extent any proceeds are received in respect of
the Superior Pledged Stock (including, without limitation, cash
distributions or dividends, distributions of assets and additional shares
of stock, and any stock received in connection with stock splits, exchanges
or otherwise), such proceeds shall be delivered immediately to the
Collateral Agent in accordance with the requirements of the Alpine Pledge
Agreement and continue to be held as security thereunder; provided that (x)
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
-11-
Superior Pledged Stock (in each case so long as such dividends do not
constitute an extraordinary, liquidating or other distribution in return of
capital) shall be released from the Alpine Pledge Agreement in accordance
with the terms thereof and paid over to the Guarantor and (y) and all other
cash proceeds so received (to which preceding clause (x) does not apply)
shall, if the Guarantor so directs the Collateral Agent, be directly
applied by the Collateral Agent to repay outstanding principal of Loans in
accordance with the requirements of the Credit Agreement, in which case the
amount of cash so applied shall be deemed to constitute a common equity
capital contribution by the Guarantor to the Borrower. With respect to the
Non-Pledged Superior Stock, the Guarantor will not sell, transfer or
dispose of same except (i) for sales of such stock for cash at fair market
value (as determined in good faith by the Guarantor), to Persons other than
the Borrower and Subsidiaries of the Borrower, so long as the net cash
proceeds received from each such sale are immediately used to pay amounts
owing pursuant to this Guarantee or to make a cash common equity
contribution to the Borrower, who in turn immediately uses such proceeds to
pay amounts owing pursuant to the Credit Agreement and (ii) at a time when
no Default under Section 8.01 or 8.05 and no Event of Default is in
existence or would exist immediately after giving effect thereto,
Non-Pledged Superior Stock may be sold for cash at fair market value (as
determined in good faith by the Guarantor), to Persons other than the
Borrower and Subsidiaries of the Borrower, in each case so long as the net
cash proceeds received therefrom are invested in the business of the
Guarantor and its Subsidiaries (including by making acquisitions), or held
by the Guarantor as cash or Cash Equivalents pending such investments.
(e) DISSOLUTION AND SALE OF ASSETS. Except for sales of assets
expressly permitted pursuant to preceding clause (d), not wind up,
liquidate or dissolve its affairs or convey, sell, lease or otherwise
dispose of (or agree to do any of the foregoing at any future time) all or
substantially all of its property or assets.
(f) INFORMATION COVENANTS. Furnish to each Bank copies of (i) all
financial information, proxy materials and other information and reports,
if any, (A) which the Guarantor shall file with the SEC, or (B) which the
Guarantor shall deliver to the holders of its capital stock, and (ii) such
other information or documents (financial or otherwise) in the possession
of, or otherwise available without material cost to, the Guarantor, as the
Administrative Agent or the Required Banks may from time to time reasonably
request.
(g) TAXES. Pay when due all taxes which, if not paid when due, would
materially and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Guarantor or of the Guarantor and its Subsidiaries taken as a whole, except
as contested in good faith and by
-12-
appropriate proceedings if adequate reserves (in the good faith judgment of
the management of the Guarantor) have been established with respect
thereto.
(h) ALPINE. Not at any time own less than 75% of the outstanding
capital stock (and at least 75% of the outstanding voting stock) of the
Borrower.
(i) COMPLIANCE WITH CREDIT AGREEMENT. Cause the Borrower and its
Subsidiaries to comply with the provisions of Section 7.01 of the Credit
Agreement. Without limiting the requirements of the immediately preceding
sentence, the Guarantor agrees that if at any time, and for any reason
whatsoever, it receives a Restricted Payment which is in violation of the
provisions of the Credit Agreement, it shall, immediately after it becomes
aware of same, return such excess Restricted Payment to the Borrower. The
Guarantor shall also return any refunds in respect of tax payment to the
Borrower to the extent required by the provisions of Section 7.01 of the
Credit Agreement.
13. As used herein, the term "Guarantor Event of Default" shall mean
the occurrence of any of the following specified events:
(a) PAYMENTS. The Guarantor shall fail to make any payment required
to be made by it hereunder, and such failure has continued, in the case of
payments other than principal, for three or more Business Days; or
(b) REPRESENTATIONS, ETC. Any representation, warranty or statement
made by the Guarantor herein or in any certificate delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the
date as of which made or deemed made; or
(c) COVENANTS. The Guarantor shall (i) default in the due
performance or observance by it of any term, covenant or agreement
contained in 12(a), (c) or (d) or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained herein
and such default, in the case of this clause (ii), shall continue
unremedied for a period of 30 days after written notice to the Guarantor by
the Administrative Agent or the 25% Banks; or
(d) DEFAULT UNDER OTHER AGREEMENTS. There shall be a default under
any Indebtedness (other than pursuant to this Guaranty) of the Guarantor,
whether such Indebtedness now exists or shall hereafter be created, if (A)
such default either (1) results from the failure to pay any such
Indebtedness at its stated final maturity or (2) relates to an obligation
other than the obligation to pay such Indebtedness at its stated final
maturity and results in the holder or holders of such Indebtedness causing
such Indebtedness to become due prior to its stated final maturity, and (B)
-13-
the amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay the principal at
stated final maturity or the maturity of which has been so accelerated,
aggregate $5 million or more at any time outstanding; or
(e) BANKRUPTCY, ETC. The Guarantor or Superior shall commence a
voluntary case concerning itself under the Bankruptcy Code; or an
involuntary case is commenced against the Guarantor or Superior and the
petition is not controverted within 10 days, or is not dismissed within 60
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of the Guarantor or Superior or the Guarantor or
Superior commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency
or liquidation or similar law of any jurisdiction whether now or hereafter
in effect relating to the Guarantor or Superior or there is commenced
against the Guarantor or Superior any such proceeding which remains
undismissed for a period of 60 days, or the Guarantor or Superior is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or the Guarantor or
Superior suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the Guarantor or Superior makes a general assignment
for the benefit of creditors; or any corporate action is taken by Guarantor
or Superior for the purpose of effecting any of the foregoing; or
(f) JUDGMENTS. One or more judgments or decrees shall be entered
against the Guarantor involving in the aggregate for the Guarantor a
liability (not paid or fully covered by a reputable insurance company) and
such judgments and decrees either shall be final and non-appealable or
shall not be vacated, discharged or stayed or bonded pending appeal for any
period of 30 consecutive days, and the aggregate amount of all such
judgments exceeds $5,000,000; or
(g) CHANGE OF CONTROL. Any Change of Control shall have occurred.
14. Upon the occurrence and during the continuance of any Event of
Default (such term to mean and include any "Event of Default" as defined in the
Credit Agreement or any payment default under any Interest Rate Protection
Agreement continuing after any applicable grace period) or any Guarantor Event
of Default, the Required Banks shall have the right to take all action permitted
pursuant to Section 8 of the Credit Agreement as a result thereof and to require
the Guarantor to pay to the Administrative Agent and the Banks in cash any
amounts then owed to them pursuant to the terms of this Guaranty.
-14-
15. The Guarantors hereby jointly and severally agree to pay all
out-of-pocket costs and expenses of the Administrative Agent in connection with
any amendment, waiver or consent relating hereto and of the Administrative Agent
and each of the other Secured Creditors in connection with any enforcement of
this Guaranty (including in each case, without limitation, the fees and
disbursements of counsel employed by the Administrative Agent and each other
Secured Creditor).
16. This Guaranty shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
17. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of the
Guarantor and with the written consent of either (x) the Required Banks (or to
the extent required by Section 11.12 of the Credit Agreement, with the written
consent of each Bank) at all times prior to the time on which all Credit
Document Obligations have been paid in full or (y) the holders of at least a
majority of the outstanding Other Obligations at all times after the time on
which all Credit Document Obligations have been paid in full; PROVIDED, that any
change, waiver, modification or variance affecting the rights and benefits of a
single Class (as defined below) of Secured Creditors (and not all Secured
Creditors in a like or similar manner) shall also require the written consent of
the Requisite Creditors (as defined below) of such Class of Secured Creditors.
For the purpose of this Guaranty the term "Class" shall mean each class of
Secured Creditors, I.E., whether (x) the Bank Creditors as holders of the Credit
Document Obligations or (y) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Guaranty, the term "Requisite Creditors"
of any Class shall mean (x) with respect to the Credit Document Obligations, the
Required Banks (or to the extent required by Section 11.12 of the Credit
Agreement, each Bank) and (y) with respect to the Other Obligations, the holders
of at least a majority of all obligations outstanding from time to time under
the Interest Rate Protection Agreements.
18. The Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents and Interest Rate Protection Agreements has been
made available to it and it is familiar with the contents thereof.
19. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default or
a Guarantor Event of Default, each Secured Creditor is hereby authorized at any
time or from time to time, without notice to the Guarantor or to any other
Person, any such notice being expressly waived, to set off and to appropriate
and apply any and all deposits (general or special) and any other indebtedness
at any time held or owing by such Secured Creditor to or for the credit or the
account of the Guarantor,
-15-
against and on account of the obligations and liabilities of the Guarantor to
such Secured Creditor under this Guaranty, irrespective of whether or not such
Secured Creditor shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured. Each Secured Creditor acknowledges and agrees that the
provisions of this Section 19 are subject to the sharing provisions set forth in
Section 11.06(b) of the Credit Agreement.
20. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Bank Creditor, as provided in the Credit Agreement, (ii)
in the case of the Guarantor, at its address set forth opposite its signature
below and (iii) in the case of any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Guarantor; or in any case at
such other address as any of the Persons listed above may hereafter notify the
others in writing.
21. If claim is ever made upon any Secured Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower), then and in such event the
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon the Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and the Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
22. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Guaranty or any other Credit Document to which
the Guarantor is a party may be brought in the courts of the State of New York
or of the United States of America for the Southern District of New York, and,
by execution and delivery of this Guaranty, the Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Guarantor hereby
further irrevocably waives any claim that any such courts lack jurisdiction over
the Guarantor, and agrees not to plead or claim, in any legal action or
proceeding with respect to this Guaranty brought in any of the aforesaid courts,
that any such court lacks jurisdiction over such
-16-
Guarantor. The Guarantor hereby irrevocably designates, appoints and empowers
CT Corporation System, with offices on a date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents which may be served in
any such action or proceeding. If for any reason such designee, appointee and
agent shall cease to be available to act as such, the Guarantor agrees to
designate a new designee, appointee and agent in New York City on the terms and
for the purposes of this provision reasonably satisfactory to the Administrative
Agent. The Guarantor further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Guarantor at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing. Nothing herein shall
affect the right of any of the Secured Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Guarantor in any other jurisdiction.
(B) The Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Guaranty or any other
Credit Document to which the Guarantor is a party brought in the courts referred
to in clause (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(C) THE GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH THE GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
23. It is the desire and intent of the Guarantor and the Secured
Creditors that this Guaranty shall be enforced against the Guarantor to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of the Guarantor under this Guaranty shall be adjudicated
to be invalid or unenforceable for any reason, then the amount of the Guaranteed
Obligations of the Guarantor shall be deemed to be reduced and the Guarantor
shall pay the maximum amount of the Guaranteed Obligations which would be
permissible under applicable law.
24. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and
-17-
delivered shall be an original, but all of which shall together constitute one
and the same instrument. A set of counterparts executed by all the parties
hereto shall be lodged with the Guarantor and the Administrative Agent.
25. All payments made by the Guarantor hereunder will be made without
setoff, counterclaim or other defense and on the same basis as payments are made
by the Borrower under Sections 3.03 and 3.04 of the Credit Agreement.
26. This Guaranty is made for the benefit of the Administrative Agent,
the Banks and the other Secured Creditors (and their respective successors and
assigns), and may be enforced by them in accordance with the terms hereof.
Except for the parties described in the immediately preceding sentence, no other
person shall be entitled to the benefits of, or be entitled to enforce the
provisions of, this Guaranty.
* * *
-18-
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Addresses: THE ALPINE GROUP, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Secretary By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------------------
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Secretary
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent for the Banks
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President