EXHIBIT 10.42
EXECUTION COPY
ALTERNATE CURRENCY ANNEX
ITALIAN LIRE
This Alternate Currency Annex (the "ANNEX") is entered into as of May
29, 1997 by and among ▇. ▇. Tower Corporation, a Michigan corporation (the
"COMPANY"), Tower Italia S.r.l. ("TOWER ITALIA") and Interfin S.p.A.
("INTERFIN"), as Alternate Currency Borrowers with respect to Italian Lire
(Tower Italia and Interfin each being a "LIRE BORROWER"), Istituto Bancario
San Paolo di Torino S.p.A., Torino Main Branch, as the Alternate Currency
Lender with respect to Italian Lire (the "LIRE LENDER"), and Bank of America
National Trust and Savings Association, as Agent (in such capacity, the
"AGENT") under the Credit Agreement dated as of April 18, 1997 (as amended,
supplemented, amended and restated or otherwise modified from time to time,
the "CREDIT AGREEMENT") by and among the Company, the various financial
institutions from time to time party thereto, and the Agent. Capitalized
terms not defined herein shall have the meanings specified in the Credit
Agreement.
WHEREAS, the Company desires that Alternate Currency Loans be made in
Italian Lire to each Lire Borrower;
WHEREAS, the Required Lenders have accepted the Company's request that
Alternate Currency Loans be made in Italian Lire to each Lire Borrower; and
WHEREAS, the Lire Lender is willing to make Alternate Currency Loans in
Italian Lire to each Lire Borrower; and
WHEREAS, each Lire Borrower desires to become bound by and subject to
the provisions of the Credit Agreement as an Alternate Currency Borrower with
respect to Italian Lire;
NOW THEREFORE, in consideration of the foregoing, and for the covenants
and agreements contained herein and in the Credit Agreement, the parties
hereto hereby agree as follows:
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1. This Annex shall be an Alternate Currency Annex with respect to
Alternate Currency Loans in Italian Lire pursuant to Section 2.17 of the
Credit Agreement.
2. The Alternate Currency Sublimit with respect to Alternate
Currency Loans in Italian Lire shall be $60,000,000.
3. The Alternate Currency Commitment Termination Date with respect
to Alternate Currency Loans in Italian Lire shall be November 27, 1998.
4. The Company (i) represents and warrants that each Lire Borrower
is a Supermajority-Owned Subsidiary of the Company, (ii) confirms that all of
its obligations under the Credit Agreement are, and upon each Lire Borrower
becoming an Alternate Currency Borrower with respect to Italian Lire shall
continue to be, in full force and effect, and (iii) confirms that upon each
Lire Borrower becoming an Alternate Currency Borrower with respect to Italian
Lire, the term "Obligations," as used in the Credit Agreement, shall include
all Obligations of such Alternate Currency Borrower under the Credit
Agreement and the other Credit Documents.
5. Each Lire Borrower (i) represents and warrants that all the
representations and warranties set forth in Article V of the Credit Agreement
are true and correct to the extent applicable to it, (ii) acknowledges and
confirms that it has received a copy of the Credit Agreement and the
Schedules and Exhibits thereto, and (iii) hereby agrees by its signature
hereunder to be bound by the provisions of the Credit Agreement applicable to
Alternate Currency Borrowers to the same extent as if it had been a direct
signatory thereto.
6. The Agent hereby designates the Lire Lender as the Alternate
Currency Lender with respect to Italian Lire, and the Lire Lender hereby
accepts such designation and all of its rights and obligations as such under
the Credit Agreement and this Annex. The Lire Lender's Lending Office shall
be its Torino Main Branch.
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7. Additional terms and provisions with respect to the Alternate
Currency Loans in Italian Lire are set forth in Schedule 1 hereto.
8. In the event of a conflict between this Annex and the Credit
Agreement, the terms and provisions of this Annex shall control.
9. The obligation of the Lire Lender to make Alternate Currency
Loans in Italian Lire pursuant to the Credit Agreement and this Annex is
subject to the condition that the Agent and the Lire Lender shall have
received on or before the date hereof all of the following in form and
substance reasonably satisfactory to the Agent and the Lire Lender:
(a) ANNEX. This Annex executed by each party thereto;
(b) RESOLUTIONS; INCUMBENCY. (i) Copies of resolutions of the sole
director of each Lire Borrower authorizing the execution and delivery of
this Annex and the other transactions contemplated hereby, certified as
of the date hereof by the sole director of such Lire Borrower;
(ii) A certificate of the sole director of each Lire Borrower
certifying as to the name, true signature and fiscal code ("codice
fiscale") of such sole director;
(c) ORGANIZATIONAL DOCUMENTS; GOOD STANDING. Each of the following
documents:
(i) the articles of incorporation ("Atto Costitutivo") of each
Lire Borrower as in effect on the date hereof, duly authorized and
confirmed by all necessary Governmental Authorities and certified by the
sole director of such Lire Borrower as of the date hereof;
(ii) the bylaws ("Statuto") of each Lire Borrower as in effect
on the date hereof, duly authorized and confirmed by all necessary
Governmental Authorities and certified by the sole director of such Lire
Borrower as of the date hereof;
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(iii) a good standing certificate with VAT tax code
("Certificato della Camera di Commercio con codice IVA") for Interfin
from the applicable Italian Governmental Authority as of a recent date;
(iv) a certificate of the Court of Rome as of a recent date
evidencing that Tower Italia is not subject to any Insolvency
Proceeding; and
(v) a certificate of an Italian public notary as of the date
hereof as to the formation of Tower Italia;
(d) ITALIAN ACQUISITION. Evidence that the Italian Acquisition has
been consummated and is binding upon each of the Lire Borrowers;
(e) OPINIONS. (i) An opinion of Italian counsel to each Lire
Borrower in substantially the form of Exhibit A-1 hereto; and
(ii) An opinion of New York counsel to each Lire Borrower in
substantially the form of Exhibit A-2 hereto; and
(f) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as the Agent or the Lire Lender may reasonably request.
10. ASSIGNMENTS BY LENDERS. The Lire Lender hereby agrees that its
consent is not required in connection with any assignment or delegation by a
Lender of its Assignable Credit Exposure pursuant to Section 10.8 of the
Credit Agreement to an Eligible Assignee that is an Affiliate of such Lender
or to an Existing Lender.
11. CONSENTS WITH RESPECT TO MERGERS INVOLVING THE LIRE BORROWERS.
In the event that any or all of the Lire Borrowers elect to merge or
consolidate with or into each other or other Persons and as a result, the
Lire Lender is requested to provide consent or otherwise take any action with
respect to such merger or consolidation pursuant to Italian Requirements of
Law, (i) the Lire Lender shall promptly provide the Agent with such request
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and such other information regarding such merger or consolidation and such
request as the Agent may reasonably request, and (ii) the Lire Lender shall
not give any such consent or take any such action unless it has been directed
to do so in writing by the Agent.
12. GOVERNING LAW. This Annex shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
conflict of law principles.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Alternate
Currency Annex to be executed and delivered as of the date first above
written.
▇. ▇. TOWER CORPORATION,
a Michigan corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Assistant Secretary
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TOWER ITALIA S.R.L.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Assistant Secretary
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INTERFIN S.P.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Assistant Secretary
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Managing Director
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ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A., TORINO MAIN BRANCH
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By: /s/ ▇▇. ▇▇▇▇▇
-------------------------
Name: ▇▇. ▇▇▇▇▇
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Title:
----------------------
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Schedule 1
ALTERNATE PROCEDURES
ALTERNATE CURRENCY LOANS IN ITALIAN LIRE
1. REQUEST FOR ALTERNATE CURRENCY LOANS (Section 2.17(a)).
To request an Alternate Currency Loan denominated in Italian Lire, a
Lire Borrower shall notify the Lire Lender at its Torino Main Branch,
not later than 11:00 a.m., Torino time, three Business Days before the
date of the proposed Borrowing. The Torino Main Branch of the Lire
Lender shall send to the Agent a copy of such notice via facsimile not
later than 3:00 p.m., Torino time, three Business Days before the date
of the proposed Borrowing.
2. FUNDING OF BORROWING (Section 2.17(b)).
The Agent shall notify the Lire Lender via facsimile not later than
10:00 a.m., Torino time, two Business Days before the date of the
proposed Borrowing, as to whether the requested Alternate Currency Loan
should be made. Upon receipt from the Agent of confirmation to the
effect that the requested Alternate Currency Loan should be made, the
Lire Lender shall make each Alternate Currency Loan in Italian Lire on
the proposed date thereof by wire transfer of such immediately available
funds by 11:00 a.m., Torino time, to an account located in Italy which
has been specified for such purpose by the relevant Lire Borrower.
3. PREPAYMENT OF LOANS (Section 2.17(d)).
The applicable Lire Borrower shall notify the Lire Lender at its Torino
Main Branch via facsimile of any prepayment of an Alternate Currency
Loan denominated in Italian Lire not later than 11:00 a.m., Torino time,
three Business Days before the date of prepayment. The Torino Main
Branch of the Lire Lender shall send to the Agent a copy of such notice.
Any funding breakage costs related to any such
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prepayment shall be payable by the relevant Lire Borrower pursuant to
the Credit Agreement.
4. INTEREST (Section 2.17(c)).
Each Alternate Currency Loan denominated in Italian Lire shall bear
interest at a rate per annum equal to 30 basis points above the
interbank offered rate for Italian Lire in Torino for the period in
effect for such Alternate Currency Loan. Interest on each such
Alternate Currency Loan shall be payable at the end of the applicable
period and, if such period is longer than three months, at the end of
each calendar quarter.
5. FEES. (Section 2.10(c))
The Company shall remit to the Lire Lender at its Torino Main Branch a
fee in respect of the ability of the Lire Borrowers to borrow Alternate
Currency Loans in Italian Lire payable as of the date hereof and on each
annual anniversary of the date hereof in an amount equal to $45,000.
6. PAYMENTS GENERALLY (Section 2.17(d)).
Each Lire Borrower that borrows an Alternate Currency Loan in Italian
Lire shall make all payments required with respect to such Alternate
Currency Loans (whether of principal, interest or fees) from a payment
location in Italy prior to 11:00 a.m., Torino time, on the date when
due, in immediately available funds, without set-off or counterclaim.
All such payments shall be made in Italian Lire to the Lire Lender at
its Torino Main Branch at the following address:
Istituto Bancario San Paolo di Torino S.p.A.
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Branch Number 700 PSC
Italia
Attention: ▇▇. ▇▇▇▇▇
Telephone: ▇▇-▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇-▇▇▇-▇▇▇▇
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The Lire Lender shall give the Agent prompt notice of all such payments.
7. NOTICES (Section 2.17(b)).
In connection with Alternate Currency Loans denominated in Italian Lire,
notices shall be sent to the Lire Lender at its Torino Main Branch at
the following address:
Istituto Bancario San Paolo di Torino S.p.A.
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Branch Number 700 PSC
Italia
Attention: ▇▇. ▇▇▇▇▇
Telephone: ▇▇-▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇-▇▇▇-▇▇▇▇
or such other address as the Lire Lender shall designate to the Company,
the Lire Borrowers and the Agent. The Torino Main Branch of the Lire
Lender shall send to the Agent a copy of any such notices.
8. RECORDKEEPING; ADVICE TO LENDERS
The Agent shall be responsible for maintaining a record of the Alternate
Currency Loans denominated in Italian Lire made from time to time and
all payments made with respect thereto, whether for interest, fees or
principal payments. The Agent shall also be responsible for advising
all Lenders on a timely basis of their contingent obligations with
respect to any outstanding Alternate Currency Loans denominated in
Italian Lire.
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