EXHIBIT 10(yy)
THIRD AMENDMENT TO CREDIT AGREEMENT
AND SECOND AMENDMENT TO
US PLEDGE AGREEMENT AND ACKNOWLEDGMENT
THIRD AMENDMENT TO CREDIT AGREEMENT AND SECOND AMENDMENT TO US
PLEDGE AGREEMENT AND ACKNOWLEDGMENT (this "Amendment"), dated as of January 26,
2001, among THE ALPINE GROUP, INC. (the "Borrower"), the lenders party to the
Credit Agreement referred to below (the "Lenders"), FLEET NATIONAL BANK
(formerly known as Fleet Bank, N.A.), as Syndication Agent (the "Syndication
Agent"), BANK OF AMERICA, N.A., as Documentation Agent (the "Documentation
Agent"), and BANKERS TRUST COMPANY ("BTCo"), as Administrative Agent (in such
capacity, the "Administrative Agent"). All capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders, the Documentation Agent, the
Syndication Agent and the Administrative Agent are parties to a Credit
Agreement, dated as of November 23, 1999 (the "Credit Agreement");
WHEREAS, the Borrower and BTCo, as Pledgee, are parties to a US
Pledge Agreement, dated as of November 23, 1999 (the "US Pledge Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend the Credit Agreement and the US Pledge Agreement as
follows;
NOW, THEREFORE, it is agreed:
1. (a) Notwithstanding anything to the contrary contained in Section
9.06 (or elsewhere) of the Credit Agreement or in any Credit Documents, the
Lenders hereby agree that, with respect to the Xxxxxxx Shares owned by the
Borrower on the Third Amendment Effective Date (as defined below) (and any
Xxxxxxx Shares delivered in substitution or replacement thereof, or representing
dividends, distributions or rights issues with respect to said Xxxxxxx Shares),
the Borrower may from time to time enter into one or more Xxxxxxx Derivative
Transactions, and the Lenders hereby agree that, in connection with each Xxxxxxx
Derivative Transaction, a number of Xxxxxxx Shares equal to the Aggregate Put
Number of Xxxxxxx Shares subject to the respective Xxxxxxx Derivative
Transaction shall be released (following a timely request from the Borrower)
from the security interests created pursuant to the UK Pledge Agreement and any
other Lien created by the other Credit Documents in accordance with the
procedures set forth in immediately succeeding clause (b) so long as:
(i) the requirements set forth in the definition of Xxxxxxx
Derivative Transaction are satisfied with respect to the
Xxxxxxx Shares being so released;
(ii) contemporaneously with each such release the Borrower shall
(x) incur Xxxxxxx Facility Loans under the Xxxxxxx Facility in
an aggregate principal amount not less than 85% of the
respective Aggregate Put Strike Price (calculated on the date
of the applicable Xxxxxxx Confirmation, which Xxxxxxx
Confirmation shall be dated no earlier than three Business
Days prior to the incurrence of such Xxxxxxx Facility Loans,
except that such three Business Day period shall be extended
by up to ten additional Business Days to the extent that the
Borrower has not timely delivered to, or timely received from,
Deutsche all ordinary course documentation required in
connection with the incurrence of Xxxxxxx Facility Loans,
i.e., notes, notices of borrowing and the like, or if for any
other reason there is a delay in making the respective Xxxxxxx
Facility Loans; provided that in any event the Xxxxxxx
Facility Loans as contemplated above must be incurred
contemporaneously with the respective release) applicable to
the Xxxxxxx Shares so released and not be in excess of the
Aggregate Put Strike Price applicable to the Xxxxxxx Shares so
released and (y) apply an amount equal to 100% of the Dollar
Equivalent (as determined on such date) of the aggregate
principal amount of such Xxxxxxx Facility Loans to repay then
outstanding Loans as (and to the extent) required pursuant to
Section 4.02(f) of the Credit Agreement;
(iii) the Total Commitment is permanently reduced as (and to the
extent) required pursuant to Section 3.03(b)(ii) of the Credit
Agreement;
(iv) no Event of Default shall be in existence on the date of the
respective release of Xxxxxxx Shares (including immediately
after giving effect to the respective release and any
corresponding repayment of Loans pursuant to Section 4.02(f)
of the Credit Agreement) or, even if there is or would then be
an Event of Default (other than an Event of Default as
described in following clause (v) of this Section 1), such
release date is within 8 Business Days (which 8 Business Day
period shall be extended by up to ten additional Business Days
to the extent that the Borrower has not timely delivered to,
or timely received from, Deutsche all ordinary course
documentation required in connection with the incurrence of
Xxxxxxx Facility Loans, i.e. notes, notice of borrowing and
the like, or if for any other reason there is a delay in
making the respective Xxxxxxx Facility Loans) of the first
date on which Deutsche entered into one or more short sales in
respect of the Xxxxxxx Shares to be released as part of the
respective Xxxxxxx Derivative Transaction, and no Event of
Default shall have been in existence on the date any such
short sale was entered into by Deutsche as part of the
respective Xxxxxxx Derivative Transaction (both before and
immediately after giving effect to the respective short
sales);
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(v) no Default or Event of Default with respect to the Borrower
shall exist pursuant to Section 10.05 of the Credit Agreement
on the date of the respective release of Xxxxxxx Shares;
(vi) on the date of each short sale in connection with a given
Xxxxxxx Derivative Transaction, the Borrower and/or Deutsche
shall have determined that, with respect to all short sales
which have theretofore occurred (including the short sale then
being made) during the relevant Xxxxxxx Derivative Transaction
Period, if an amount equal to the minimum required Aggregate
Put Strike Price (determined in accordance with the definition
of Put Strike Price contained herein) was in fact received by
the Borrower as proceeds of Xxxxxxx Facility Loans with
respect to the number of Xxxxxxx Shares theretofore sold short
during the respective Xxxxxxx Derivative Transaction Period
multiplied by the Relevant Multiplier and if the Dollar
Equivalent thereof had in fact been used to pay down Loans to
the extent required by Section 4.02(f) of the Credit
Agreement, then the Borrower would still have remained in
compliance with Section 9.07 of the Credit Agreement as
calculated on a pro forma basis as if the respective
applications had occurred on the date of the respective short
sale; and
(vii) the Administrative Agent and the Collateral Agent shall have
received an officer's certificate of the Borrower
substantially in the form annexed hereto as Annex A
(appropriately completed to the reasonable satisfaction of the
Administrative Agent and Collateral Agent) certifying to the
Administrative Agent and the Collateral Agent its compliance
with the conditions set forth above in this Section 1 and
attaching a copy of the relevant Xxxxxxx Confirmation with
respect to such Xxxxxxx Derivative Transaction and certifying
the amount of Xxxxxxx Facility Loans being incurred on the
date of release of the related Xxxxxxx Shares and showing in
reasonable detail its compliance with the requirements of
preceding clauses (ii) and (iii).
(b) Subject to the foregoing requirements set forth in preceding
clause (a), the Aggregate Put Number of Xxxxxxx Shares the subject of the
relevant Xxxxxxx Derivative Transaction shall be released from the security
interest created therein pursuant to the UK Pledge Agreement and the other
Credit Documents, in each case in accordance with the following procedures:
(i) Deutsche and the Borrower shall from time to time determine
the maximum number of the Available Xxxxxxx Shares with
respect to which the Borrower and Deutsche may enter into
Xxxxxxx Derivative Transactions, it being understood and
agreed that in no event shall the Aggregate Put Number of
Xxxxxxx Shares subject to all Xxxxxxx Derivative Transactions
exceed the aggregate number of Available Xxxxxxx Shares;
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(ii) thereafter, Deutsche may commence executing short sales in
respect of such Available Xxxxxxx Shares. No later than 5:00
P.M. (New York time) on the next Business Day following any
day on which such short sales have been executed by Deutsche,
Deutsche will notify the Administrative Agent of the number of
Available Xxxxxxx Shares sold short on such day, together with
the aggregate amount of short sales of Available Xxxxxxx
Shares during the applicable Xxxxxxx Derivative Transaction
Period and the Relevant Multiplier for such Xxxxxxx Derivative
Transaction Period. At the end of each Xxxxxxx Derivative
Transaction Period, Deutsche will deliver to the Borrower a
Xxxxxxx Confirmation in respect of all Available Xxxxxxx
Shares the subject of the Xxxxxxx Derivative Transactions
taking place during such Xxxxxxx Derivative Transaction
Period; and
(iii) Deutsche will, so long as there is a contemporaneous release
of the Xxxxxxx Shares subject to the respective Xxxxxxx
Derivative Transaction as contemplated by preceding clause
1(a), within three Business Days (except that such three
Business Days may be extended to the extent that the Borrower
or Deutsche has not completed all ordinary course
documentation required in connection with the incurrence of
Xxxxxxx Facility Loans, i.e. notes, notices of borrowing and
the like) from the date the applicable Xxxxxxx Confirmation is
delivered as contemplated in clause (b)(ii) above, lend an
amount of Pounds Sterling not less than 85% of the applicable
Aggregate Put Strike Price (calculated on the date of the
applicable Xxxxxxx Confirmation). Promptly after such loan is
made by Deutsche, the Collateral Agent will promptly deliver
to Deutsche (to the extent then pledged pursuant to the UK
Pledge Agreement or other relevant Credit Document) a number
of Xxxxxxx Shares equal to the Aggregate Put Number as
determined for the respective Xxxxxxx Derivative Transaction.
So long as the requirements set forth in preceding clauses (a) and
(b) have been satisfied, it is further understood and agreed that,
notwithstanding anything to the contrary contained elsewhere in the Credit
Agreement or the other Credit Documents, the Available Xxxxxxx Shares from time
to time released in accordance with this Section 1 in connection with one or
more Xxxxxxx Derivative Transactions may in fact be sold (or used for
settlement) pursuant to the relevant Put Options and Call Options (each as
defined in the Master Option Agreement) entered into as contemplated by the
definition of Xxxxxxx Derivative Transaction, and such Available Xxxxxxx Shares
may, subject to agreements entered into between Borrower and Deutsche (or its
affiliates), from time to time be loaned to Deutsche (and or one more of its
affiliates) and such Available Xxxxxxx Shares (and any proceeds thereof) may be
pledged, and delivered for pledge, pursuant to the Pledge and Security Annex (as
defined in the Master Option Agreement).
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It is understood and agreed that in connection with any release of
Xxxxxxx Shares from the security interests created pursuant to the UK Pledge
Agreement (and any other Credit Document) as contemplated above, the Collateral
Agent is hereby directed by the Lenders to take such actions as it may determine
are reasonably necessary to effectuate such releases (including by directing any
depositary with whom Xxxxxxx Shares have been deposited on the Relevant System
(as defined in the UK Pledge Agreement) to release such Xxxxxxx Shares), and
that any such release of Xxxxxxx Shares from the pledge pursuant to the UK
Pledge Agreement shall be deemed to have been a release at the direction of the
Lenders within the meaning of Section 20.1(b) of the UK Pledge Agreement.
Without limiting the foregoing, it is understood and agreed that the Collateral
Agent, in its discretion, may agree for the benefit of Deutsche that shares
released in accordance with the foregoing requirements of the this Section 1 are
held by it for the benefit of Deutsche (rather than the Lenders). Neither the
Administrative Agent nor the Collateral Agent shall have any liability to the
Lenders for any actions taken by it (in the absence of gross negligence or
willful misconduct) in connection with the releases pursuant to this Section 1
and, in connection therewith, both the Administrative Agent and the Collateral
Agent shall be entitled to conclusively rely on the officer's certificate
delivered pursuant to Section 1(a)(vii) in releasing any Xxxxxxx Shares.
(c) The Borrower represents, warrants, covenants and agrees that no
release of Xxxxxxx Shares requested by it pursuant to this Section 1 shall cause
any violation (by the Borrower or any Lender) of Regulation U.
2. Clause (b) of Section 3.03 of the Credit Agreement is hereby
deleted in its entirety and the following new clause (b) is inserted in lieu
thereof:
"(b)(i) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each day after the Third Amendment
Effective Date on which the Borrower receives any cash proceeds from any
sale of Shares (other than (x) sales of Superior Option Shares or (y)
sales of Xxxxxxx Shares no longer pledged pursuant to the UK Pledge
Agreement which are the subject of Xxxxxxx Derivative Transactions entered
into in accordance with the requirements of Section 1 of the Third
Amendment) or PolyVision Shares, the Total Commitment shall be permanently
reduced on such date by an amount equal to 100% of the Net (Taxes and
Sales Commissions) Proceeds from such sale.
(ii) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Third Amendment
Effective Date on which the Borrower incurs any Xxxxxxx Facility Loans
under the Xxxxxxx Facility, the Total Commitment shall concurrently be
reduced in an amount equal to the Dollar Equivalent of the aggregate
principal amount of Xxxxxxx Facility Loans so incurred."
3. Clause (c) of Section 3.03 of the Credit Agreement is hereby
amended by deleting the text "Effective Date" appearing in the parenthetical
contained in such clause (c) and inserting in lieu thereof the text "Third
Amendment Effective Date".
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4. Clause (d) of Section 3.03 of the Credit Agreement is hereby
deleted in its entirety and the following new clause (d) is inserted in lieu
thereof:
"(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Third Amendment
Effective Date on which the Borrower receives any cash proceeds from any equity
issuance (including the issuance of any options for equity) or capital
contributions, the Total Commitment shall be permanently reduced on such date by
an amount equal to 100% of the cash proceeds of such capital contribution or
sale or issuance (net of underwriting or placement discounts and commissions and
other costs and expenses associated therewith)."
5. Clause (i) of Section 3.03 of the Credit Agreement is hereby
deleted in its entirety and the following new clause (i) is inserted in lieu
thereof:
(i)(a) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Third
Amendment Effective Date on which the Borrower receives cash proceeds from
any sale of PolyVision Shares, the Total Commitment shall be permanently
reduced on such date by an amount equal to 100% of the Net (Taxes and
Sales Commissions) Proceeds from such sale.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on June 30, 2001, to the extent that any
funds (including the amount of all investments made with funds on deposit
therein) are then on deposit in the Escrow Account (with the aggregate
amount thereof being herein called the "Escrow Residual Amount"), the
Total Commitment shall be permanently reduced on each such date by an
amount equal to 100% of the Escrow Residual Amount."
6. Section 3.03 of the Credit Agreement is hereby further amended by
inserting the following new clauses (j) and (k) immediately following clause (i)
of such Section:
"(j) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the Third Amendment Effective Date, the
Total Commitment shall be permanently reduced by an amount such that
immediately after giving effect to such reduction the Total Unutilized
Commitment shall be equal to $3,500,000. Contemporaneously with the
permanent reduction to the Total Commitment pursuant to the immediately
preceding sentence, each Lender's Commitment shall be permanently reduced
by an amount equal to the product of (x) such Lender's Percentage
(calculated immediately prior to the operation of the immediately
preceding sentence) and (y) an amount equal to the reduction to the Total
Commitment pursuant to the immediately preceding sentence. Promptly
following such permanent reduction to the Total Commitment and such
permanent reductions to each Lender's Commitment, the Administrative Agent
shall notify the Borrower and each Lender of the new Total Commitment and
the new Commitment of each Lender, provided that the reductions to the
Total Commitment and the Commitment of each Lender required pursuant to
this clause (j) shall be made on the Third Amendment Effective Date
regardless of any failure of the Administrative Agent to provide such
notice.
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(k) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date when the Borrower voluntarily
prepays any Loans the Total Commitment shall be reduced on such date by an
amount equal to such prepayment."
7. Section 7.08(a) of the Credit Agreement is hereby amended by
deleting the period appearing at the end of such subsection (a) and inserting in
lieu thereof the text ", provided that no proceeds from Revolving Loans may be
used to repay Indebtedness except for Indebtedness arising under the Credit
Documents."
8. Clauses (e) through (h), inclusive, of Section 4.02 of the Credit
Agreement are hereby deleted in their entirety and the following new clauses (e)
through (i) are inserted in lieu thereof:
"(e) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date on or after the Third Amendment Effective Date
on which the Borrower receives cash proceeds from any sale of any Shares
(other than sales of Xxxxxxx Shares no longer pledged pursuant to the UK
Pledge Agreement which are the subject of Xxxxxxx Derivative Transactions
entered into in accordance with the requirements of Section 1 of the Third
Amendment) or PolyVision Shares, an amount equal to 100% of the Net (Taxes
and Sales Commissions) Proceeds therefrom shall be applied on such date as
a mandatory repayment of principal of Loans and/or to cash collateralize
outstanding Letters of Credit, as provided in Section 4.02(h).
(f) On each day the Borrower actually receives proceeds from Xxxxxxx
Facility Loans, the Borrower shall concurrently with the receipt of such
proceeds prepay the principal of outstanding Loans and/or cash
collateralize outstanding Letters of Credit, as provided in Section
4.02(h), in an amount equal to the Dollar Equivalent of the aggregate
amount of such proceeds.
(g) In addition to any other mandatory repayments pursuant to this
Section 4.02, on June 30, 2001, an amount equal to 100% of the Escrow
Residual Amount, if any, shall be applied as a mandatory repayment of
principal of Loans and/or to cash collateralize outstanding Letters of
Credit as provided in Section 4.02(h).
(h) Any prepayment required by Sections 4.02(c), (e), (f), (g) and
(i) shall be applied (i) first, to prepay outstanding Swingline Loans,
(ii) second, to prepay outstanding Revolving Loans and (iii) third, to the
extent all Loans have been prepaid in full, to cash collaterize
outstanding Letters of Credit."
(i) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date on or after the Third Amendment Effective Date
upon which the Borrower receives any cash proceeds from any equity
issuance (including the issuance of any options for equity) or capital
contributions, an amount equal to 100% of the cash proceeds of such
capital contribution or sale or issuance (net of underwriting or placement
discounts and commissions and other costs and expenses associated
therewith) shall be applied on such date in accordance with the
requirements of Sections 4.02(h).
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9. Section 9.01 of the Credit Agreement is hereby amended by (x)
deleting clause (ii) thereof in its entirety and (y) inserting the following new
clause (ii) in lieu thereof:
"(ii) with respect to any Xxxxxxx Shares released from the UK Pledge
Agreement in accordance with the requirements of Section 1 of the Third
Amendment (and any Xxxxxxx Shares issued in substitution or exchange
therefor, or constituting distributions, dividends or rights issues
received with respect thereto), Liens may exist with respect to such
Xxxxxxx Shares (but not any Xxxxxxx Shares then pledged pursuant to the UK
Pledge Agreement) pursuant to, and in accordance with the terms of, the
Xxxxxxx Derivative Transaction Documents."
10. Section 9.03 of the Credit Agreement is hereby deleted in its
entirety and the following new Section 9.03 is hereby inserted in lieu thereof:
"9.03 Dividends. The Borrower will not authorize, declare or pay any
Dividends (other than Dividends payable solely in common stock of Borrower)."
11. Section 9.04 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (v) thereof, (ii)
deleting clause (vi) thereof in its entirety and (iii) inserting the following
new clauses (vi), (vii) and (viii) in lieu thereof:
"(vi) Indebtedness of the Borrower constituting Xxxxxxx Facility
Loans incurred from time to time pursuant to the Xxxxxxx Facility, so long
as the aggregate principal amount thereof at no time outstanding exceeds
the lesser of (x) $50 million (it being understood and agreed that, so
long as the Dollar Equivalent of all outstanding Xxxxxxx Facility Loans as
determined on the date of each incurrence of Xxxxxxx Facility Loans
(taking the Dollar Equivalent of all Xxxxxxx Facility Loans theretofore
incurred as well as the Xxxxxxx Facility Loans then being incurred, with
such Dollar Equivalent being determined on the date of the respective
incurrence) does not exceed $50 million, the provisions of preceding
clause (x) shall not be violated as a result of the $50 million threshold
being exceeded solely as a result of subsequent fluctuations in exchange
rates between Dollars and Pounds Sterling) and (y) an amount equal to the
Aggregate Put Strike Prices of all Available Xxxxxxx Shares then subject
to Put Options entered into as part of, and in accordance with the
definition of, Xxxxxxx Derivative Transaction contained herein (with
respect to which the Valuation Dates as defined in the Master Option
Agreement have not yet occurred);
(vii) Indebtedness (not for borrowed money) which may be deemed to
exist as a result of the existence of the Put Options and Call Options
entered into with respect to (and constituting part of) one or more
Xxxxxxx Derivative Transactions, in each case so long as the respective
Xxxxxxx Derivative Transaction constitutes a bona fide hedging activity
and is not speculative in nature; and
(viii) additional unsecured Indebtedness incurred by the Borrower in
an aggregate principal amount not to exceed $3,000,000 at any time
outstanding.
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12. Section 9.05 of the Credit Agreement is hereby amended by (i)
inserting the text "or any Xxxxxxx Derivative Transaction Document (or any
related document), in each case" immediately following the text "Senior Note
Document" appearing therein and (ii) deleting the reference to "(x)" appearing
therein.
13. Clause (a) of Section 9.06 of the Credit Agreement is hereby
deleted in its entirety and the following new clause (a) is inserted in lieu
thereof:
"(a) sell or agree to sell any Shares, in either such case which
would, at the time of any such agreement or after the consummation of any
such sale, result in an Event of Default, provided that (i) in the case of
any sale of Shares (other than sales of Xxxxxxx Shares no longer pledged
pursuant to the UK Pledge Agreement which are the subject of Xxxxxxx
Derivative Transactions entered into in accordance with the requirements
of Section 1 of the Third Amendment) in compliance with this clause (a),
(x) 100% of the consideration therefor shall be in cash, paid to the
Borrower at the closing of such sale and in an amount equal to at least
the fair market value (based on the definition of "Value" contained in
Section 11 or, in the case of a sale of Xxxxxxx Shares, based on the
trading price determined by reference to the London Stock Exchange Daily
Official List) of the Shares the subject of such sale and (y) the Net
(Taxes and Sales Commissions) Proceeds from any such sale shall be applied
as a mandatory permanent reduction to the Total Commitment as (and to the
extent) provided in Section 3.03(b)(i) and to contemporaneously repay
outstanding Loans or cash collateralize outstanding Letters of Credit
pursuant to Section 4.02(e) and (ii) sales of Xxxxxxx Shares no longer
pledged pursuant to the UK Pledge Agreement which are the subject of
Xxxxxxx Derivative Transactions entered into in accordance with the
requirements of Section 1 of the Third Amendment shall be permitted
notwithstanding anything to the contrary contained above in this clause
(a)."
14. Section 9.06 of the Credit Agreement is hereby further amended
by (i) inserting the word "or" at the end of clause (b) thereof, (ii) deleting
the text "; or" at the end of clause (c) thereof and inserting a period in lieu
thereof, (iii) deleting clause (d) in its entirety and (iv) inserting the
following new sentence immediately at the end of said Section 9.06:
"The parties hereto acknowledge and agree that the occurrence of
Xxxxxxx Derivative Transactions in accordance with the requirements of the
Third Amendment are the functional equivalent of a sale of the underlying
Xxxxxxx Shares and hereby agree that, for all purposes of this Agreement
(except for purposes of Section 3.03(b)(i), since such transaction is
subject to the express requirements of Section 3.03(b)(ii)) and each other
Credit Document, at the time of the consummation of each Xxxxxxx
Derivative Transaction in accordance with the requirements of the Third
Amendment, a number of Xxxxxxx Shares equal to the Aggregate Put Number of
Xxxxxxx Shares subject to the respective Xxxxxxx Derivative Transaction
shall be deemed to have been sold by the Borrower in a sale permitted by
this Section 9.06 on the date of its receipt of the Xxxxxxx Facility Loan
proceeds in at least the amount required with respect to such Xxxxxxx
Derivative Transaction pursuant to Section 1(a)(ii) of the Third
Amendment.".
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15. Section 9.07 of the Credit Agreement is hereby deleted in its
entirety and the following new Section 9.07 is inserted in lieu thereof:
"9.07 Asset Coverage Ratio. The Borrower shall not permit the Asset
Coverage Ratio at any time during a period set forth below to fall below the
ratio set forth opposite such period:
Period Ratio
------ -----
From the Third Amendment
Effective Date through and
including January 30, 2001 1.80:1.00
From January 31, 2001 through
and including February 27, 2001 1.90:1.00
Thereafter 2.00:1.00
Notwithstanding anything to the contrary contained above in this Section 9.07,
at all times from and after the date upon which 90% of the Xxxxxxx Shares owned
by the Borrower on the Third Amendment Effective Date have been released
pursuant to Section 1 of the Third Amendment or have otherwise been sold or
disposed of, the Borrower shall not permit the Asset Coverage Ratio to be less
than 2.50:1.00."
16. The definition of "Interim Period" appearing in Section 11.01 of
the Credit Agreement and Section 2 of the Second Amendment is hereby amended by
deleting the date "February 28, 2001" appearing therein and inserting the text
"the Third Amendment Effective Date" in lieu thereof.
17. Section 11.01 of the Credit Agreement is hereby amended by
inserting therein the following new definitions in the appropriate alphabetical
order:
"Aggregate Put Number" shall mean, with respect to each Xxxxxxx
Derivative Transaction, the number of Available Xxxxxxx Shares subject to the
Put Option entered into with respect thereto, which number must be consistent
with the requirements of clause (ii) of the definition of Xxxxxxx Derivative
Transaction contained herein.
"Aggregate Put Strike Price" shall mean, with respect to any
Available Xxxxxxx Shares the subject of any Xxxxxxx Derivative Transaction, the
per share Put Strike Price applicable to such Available Xxxxxxx Shares
multiplied by the number of Available Xxxxxxx Shares (in no event to exceed the
number of Available Xxxxxxx Shares actually released in connection with the
respective Xxxxxxx Derivative Transaction) subject to such Xxxxxxx Derivative
Transaction.
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"Available Xxxxxxx Shares" shall mean, at any time, all or any
portion of the Xxxxxxx Shares owned by the Borrower on the Third Amendment
Effective Date (and any Xxxxxxx Shares thereafter issued in substitution
therefor, or as dividends, distributions or rights issues with respect to such
Xxxxxxx Shares) less the amount of Xxxxxxx Shares thereafter sold, transferred
or disposed of by the Borrower other than in connection with one or more Xxxxxxx
Derivative Transactions.
"Xxxxxxx Confirmation" shall mean, with respect to each Xxxxxxx
Derivative Transaction, the related Confirmation pursuant to, and as defined in,
the Master Option Agreement, which confirmation in any event shall include a
written confirmation from Deutsche setting forth the details (including without
limitation the number of shares sold short in the respective Xxxxxxx Derivative
Transaction, the Aggregate Put Number for the respective Xxxxxxx Derivative
Transaction, the Put Strike Price and Aggregate Put Strike Price for the
respective Xxxxxxx Derivative Transaction and a description of any Call Options
entered into as part of the respective Xxxxxxx Derivative Transaction) of the
respective Xxxxxxx Derivative Transaction.
"Xxxxxxx Derivative Transaction" shall mean, (i) the short sale (at
fair market value as reasonably determined by Deutsche) of any number of
Available Xxxxxxx Shares so long as such number is consistent with the
requirements of Section 1(b)(i) of the Third Amendment, during a given Xxxxxxx
Derivative Transaction Period, (ii) the entering into by the Borrower and
Deutsche, in accordance with the Xxxxxxx Derivative Transaction Documents, of a
Put Option with respect to a number of Xxxxxxx Shares equal to the number of
Available Xxxxxxx Shares sold short during the respective Xxxxxxx Derivative
Transaction Period as contemplated by preceding clause (i) multiplied by the
Relevant Multiplier, whereby the Borrower will have the right to put such number
of Xxxxxxx Shares to Deutsche on the applicable Valuation Date at the Put Strike
Price, (iii) in connection with such Put Option, the entering into by the
Borrower of a Call Option entitling Deutsche to purchase from the Borrower the
same number of Xxxxxxx Shares as is subject to the respective Put Option as
described in preceding clause (ii) at a price which is not less than the Value
of such Xxxxxxx Shares on the date of the respective Xxxxxxx Confirmation and
(iv) following the occurrence of the transactions described in preceding clauses
(i) through (iii), the incurrence by the Borrower of Xxxxxxx Facility Loans in
the principal amount contemplated by Section 1(a)(ii) of the Third Amendment.
"Xxxxxxx Derivative Transaction Documents" shall mean the Master
Option Agreement, the Xxxxxxx Facility, any note issued pursuant thereto, any
other credit arrangements entered into in connection with the Master Option
Agreement, the Pledge and Security Annex (as defined in the Master Option
Agreement), any account control agreement related thereto and all Xxxxxxx
Confirmations, in each case as same may be from time to time in effect.
"Xxxxxxx Derivative Transaction Period" shall mean, with respect to
each Xxxxxxx Derivative Transaction, the weekly period (beginning on a Monday
and ending on a Friday) during which one or more short sales of Available
Xxxxxxx Shares occurs, in each case so long as Xxxxxxx Facility Loans relating
thereto are incurred during the immediately succeeding week.
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"Xxxxxxx Facility" shall mean the Credit Annex, dated as of January
26, 2001 among the Borrower and Deutsche, as same may be amended, modified or
supplemented from time to time.
"Xxxxxxx Facility Loan" shall mean all "Loans" under, and as defined
in, the Xxxxxxx Facility, all of which Xxxxxxx Facility Loans shall be incurred
(and denominated) in Pounds Sterling.
"Deutsche" shall mean Deutsche Bank AG, London Branch, Deutsche Bank
AG, New York Branch or Deutsche Banc Alex. Xxxxx, Inc.
"Dollar Equivalent" of an amount denominated in Pounds Sterling
shall mean, at any time for the determination thereof, the amount of Dollars
which could be purchased with the amount of Pounds Sterling involved in such
computation at the spot exchange rate therefor as quoted by the Administrative
Agent as of 11:00 a.m. (London time) on the date of any determination thereof
for purchase on such date.
"Master Option Agreement" shall mean the Master Option Agreement,
dated as of January 26, 2001 between Deutsche and the Borrower, as counterparty,
as amended, modified or supplemented from time to time.
"Pounds Sterling" shall mean lawful currency of Great Britain
denominated in pounds sterling.
"Put Strike Price" shall mean, for any definitive Xxxxxxx Derivative
Transaction, the per share Put Strike Price set forth in the applicable Xxxxxxx
Confirmation which shall be no less than 85% of the weighted average price of
Available Xxxxxxx Shares sold short by Deutsche (which short sales must be at
fair market value as reasonably determined from time to time by Deutsche) during
the respective Xxxxxxx Derivative Transaction Period.
"Relevant Multiplier" shall mean, with respect to each Xxxxxxx
Derivative Transaction, a multiplier established by Deutsche at the beginning of
the respective Xxxxxxx Derivative Transaction Period, which multiplier shall
apply for the respective Xxxxxxx Derivative Transaction Period and must be a
number not less than 1.0 and not greater than 1.5.
"Third Amendment" shall mean the Third Amendment to Credit Agreement
and Second Amendment to US Pledge Agreement, dated as of January 26, 2001.
"Third Amendment Effective Date" shall mean the Third Amendment
Effective Date under, and as defined in, the Third Amendment.
18. Section 7 of the US Pledge Agreement is hereby amended by (i)
deleting the second sentence of the introductory paragraph of such Section 7 in
its entirety and (ii) deleting the text "Subject to the immediately preceding
sentence, in the case of clauses (i) and (ii) below, the" appearing at the
beginning of the third sentence of the introductory paragraph of such Section 7
and inserting the text "The" in lieu thereof.
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19. The Lenders and the Borrower hereby agree that (i) from and
after the date upon which 90% of the Xxxxxxx Shares owned by the Borrower on the
Third Amendment Effective Date have been released from the security interests
created pursuant to the UK Pledge Agreement (and/or the other relevant Credit
Documents) as contemplated by Section 1 of this Amendment or have otherwise been
sold or disposed pursuant to Section 9.06(a) of the Credit Agreement, each
reference to the ratio "2.00:1.00" appearing in Section 16 of the US Pledge
Agreement shall be deleted and the reference "2.50:1.00" shall be inserted in
lieu thereof and (ii) if at such time the Borrower is not in compliance with the
provisions of such Section 16 of the US Pledge Agreement, the Borrower shall
immediately take actions necessary to comply with such Section as modified
pursuant to this Section 19.
20. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that (i) the representations, warranties
and agreements contained in Section 7 of the Credit Agreement are true and
correct in all material respects on and as of the date hereof, both before and
after giving effect to this Amendment (except with respect to any
representations and warranties limited by their terms to a specific date hereof,
which shall be true and correct in all material respects as of such date) and
(ii) there exists no Default or Event of Default on and as of the date hereof,
both before and after giving effect to this Amendment.
21. This Amendment is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provision of the Credit
Agreement or other Credit Document.
22. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
23. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
24. This Amendment shall become effective on the date (the "Third
Amendment Effective Date") when (i) the Borrower and the Supermajority Lenders
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile) the same
to the Administrative Agent at the Notice Office, (ii) each Deutsche signatory
listed on the attached Acknowledgment and Agreement shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile) the same to the Administrative Agent
at the Notice Office and (iii) the Administrative Agent shall have received from
Proskauer Rose LLP, counsel to the Borrower, an opinion addressed to the
Administrative Agent, the Syndication Agent, the Documentation Agent and each of
the Lenders, and dated the Third Amendment Effective Date, which opinion shall
be in form and substance satisfactory to the Administrative Agent, and cover
such matters incident to this Amendment and the transactions contemplated herein
and as the
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Administrative Agent may reasonably request (including, but not limited to, the
compliance by the Borrower with Regulation U).
25. Upon the occurrence of the Third Amendment Effective Date, the
Credit Agreement and the US Pledge Agreement shall be amended as set forth
herein.
26. From and after the Third Amendment Effective Date, all
references in the Credit Agreement and the other Credit Documents to the Credit
Agreement and the US Pledge Agreement shall be deemed to be references to the
Credit Agreement and the US Pledge Agreement as modified hereby.
27. Each of the parties hereto hereby acknowledge and agree that
only the provisions of Section 1 (and the related defined terms) shall inure to
the benefit of Deutsche (so long as Deutsche complies with its obligations set
forth in said Section 1).
28. Each of the parties hereto hereby acknowledges that Deutsche is
an affiliate of Bankers Trust Company.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
THE ALPINE GROUP, INC.
By:
-------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By:
-------------------------------------
Name:
Title:
FLEET NATIONAL BANK, Individually and as
Syndication Agent
By:
-------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
Individually and as Documentation Agent
By:
-------------------------------------
Name:
Title:
-00-
XXX XXXX XX XXXX XXXXXX
By:
-----------------------------------
Name:
Title:
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ACKNOWLEDGEMENT AND AGREEMENT
Each of undersigned hereby agrees for the benefit of the Lenders to
be bound by the provisions applicable to Deutsche as set forth in Section 1 of
this Amendment, and further agrees that other than as expressly set forth in
such Section 1, the provisions of this Amendment shall not inure to the benefit
of Deutsche and the provisions set forth in such Section 1 shall only inure to
the benefit of Deutsche so long as it complies with its obligations under said
Section 1.
DEUTSCHE BANK AG,
LONDON BRANCH
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG,
NEW YORK BRANCH
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANC ALEX. XXXXX, INC.
By:
-------------------------------------
Name:
Title:
ANNEX A
FORM OF OFFICER'S CERTIFICATE
I, the undersigned, [Title of Authorized Officer] of THE ALPINE
GROUP, INC., a corporation organized and existing under the laws of the State of
Delaware (the "Borrower"), DO HEREBY CERTIFY that:
1. This Certificate is being delivered pursuant to Section of
1(a)(vii) of the Third Amendment (the "Third Amendment") to Credit Agreement and
Second Amendment to US Pledge Agreement and Second Amendment and Acknowledgment,
dated as of January __, 2001, among the Borrower, the lenders from time to time
party thereto, Fleet National Bank (formerly known as Fleet Bank, N.A.), as
Syndication Agent, Bank of America, N.A., as Documentation Agent, Bankers Trust
Company, as Administrative Agent, Deutsche Bank AG, London Branch, Deutsche Bank
AG, New York Branch and Deutsche Banc Alex. Xxxxx, Inc. Reference is hereby made
to the Credit Agreement dated as of November 23, 1999, among The Alpine Group,
Inc., various lenders from time to time party thereto, Fleet National Bank
(formerly known as Fleet Bank, N.A.), as Syndication Agent, Bank of America,
N.A., as Documentation Agent, and Bankers Trust Company, as Administrative
Agent, as amended, modified or supplemented from time to time (as so amended,
modified or supplemented from time to time, the "Credit Agreement"). Unless
otherwise defined herein, terms defined in the Credit Agreement or the Third
Amendment shall have the same meaning when used herein.
2. The undersigned hereby requests the release from the UK Pledge
Agreement and other Credit Documents of _______ Xxxxxxx Shares, which number is
equal to the Aggregate Put Number of Xxxxxxx Shares in connection with the
respective Xxxxxxx Derivative Transaction and is the same as the number of
Xxxxxxx Shares subject to Put Options as specified in clause (i) of following
section numbered 3.
3. With respect to the Available Xxxxxxx Shares being released on
the date hereof (such release hereinafter referred to as the "Release"), the
Borrower certifies that it has entered into, in accordance with the Xxxxxxx
Derivative Transaction Documents, (i) Put Options whereby the Borrower has the
right to put _______ Xxxxxxx Shares to Deutsche on _____ [Valuation Date for
such Put Options] at a Put Strike Price of _____ and (ii) Call Options, whereby
Deutsche is entitled to purchase such Available Xxxxxxx Shares at a price of not
less than the Value of such Available Xxxxxxx Shares on the date of the attached
Xxxxxxx Confirmation.
4. Attached hereto is a true and correct copy of the Xxxxxxx
Confirmation dated _____, 20__ relating to Xxxxxxx Derivative Transactions
entered into between [name relevant Deutsche entity] and the Borrower.
5. The Borrower hereby certifies that it has complied with all
conditions contained in Section 1 of the Third Amendment with respect to the
Release requested hereby.
Page 2
6. Contemporaneously with the Release, the Borrower shall (x) incur
Xxxxxxx Facility Loans under the Xxxxxxx Facility in an aggregate principal
amount of (pound)___________, which is at least 85% of the Aggregate Put Strike
Price applicable to the Xxxxxxx Shares to be Released and is not in excess of
the Aggregate Put Strike Price applicable to the Xxxxxxx Shares to be Released
and (y) apply an amount equal to the Dollar Equivalent of the aggregate
principal amount of such Xxxxxxx Facility Loans to repay then outstanding Loans
as (and to the extent) required pursuant to Section 4.02(f) of the Credit
Agreement.
7. Contemporaneously with the Release, the Total Commitment shall be
permanently reduced to the extent required pursuant to Section 3.03(b)(ii) of
the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this ___ day of _________, 20__.
THE ALPINE GROUP, INC.
By:________________________
Name:
Title:
