EXHIBIT 4.20
Execution Copy
LOAN AGREEMENT
US$220,000,000
STEELCASE SAS,
as
Borrower
STEELCASE INC.
as
Guarantor
SOCIETE GENERALE
Chicago Branch
as
Lender
dated as of
April 9, 1999
Coudert Brothers
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TABLE OF CONTENTS
Page
1. DEFINITIONS ........................................................... 1
2. THE LOAN .............................................................. 8
2.1 Agreement to Lend ............................................... 8
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2.2 Purpose of the Loan ............................................. 9
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2.3 Drawdown ........................................................ 9
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2.4 Repayment of Loan; Equity Repayment Option ...................... 9
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2.5 Prepayment of Loan .............................................. 9
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2.6 Protections with Respect to Repayment Shares .................... 11
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2.7 Interest on the Loan ............................................ 11
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2.8 Default Interest. ............................................... 12
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2.9 General Provisions as to Payments ............................... 12
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3. YIELD PROTECTION ...................................................... 13
3.1 Taxes ........................................................... 13
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3.2 Increased Costs ................................................. 14
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3.3 Illegality of Maintaining the Loan............................... 15
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3.4 Cost Minimization; Adversity Prepayment ......................... 15
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3.5 Funding Losses .................................................. 16
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4. FEES, CHARGES AND INDEMNITY ........................................... 16
4.1 Fees and Expenses ............................................... 16
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4.2 Lender's Costs and Expenses ..................................... 16
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4.3 Indemnification ................................................. 16
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5. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
BORROWER ........................................................ 17
5.1 Incorporation and Qualification ................................. 17
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5.2 Power and Authority ............................................. 17
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5.3 Authorization of Borrowing ...................................... 17
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5.4 Agreement Binding ............................................... 18
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5.5 Registrations and Approvals ..................................... 18
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5.6 Litigation ...................................................... 18
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5.7 Subsidiaries .................................................... 18
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5.8 Title to Properties and Assets .................................. 19
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5.9 Compliance with Law ............................................. 19
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5.10 Other Obligations ............................................... 19
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5.11 Full Disclosure ................................................. 19
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5.12 No Material Adverse Effect ...................................... 19
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6. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
GUARANTOR ....................................................... 20
6.1 Incorporation and Qualification ................................. 20
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6.2 Power and Authority ............................................. 20
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6.3 Authorization of Borrowing ...................................... 20
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6.4 Agreement Binding ............................................... 20
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6.5 Litigation ...................................................... 21
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6.6 Financial Statements ............................................ 21
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6.7 Title to Properties and Assets .................................. 21
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6.8 Compliance with Law ............................................. 21
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6.9 Other Obligations ............................................... 22
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6.10 Capital Structure ............................................... 22
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6.11 Full Disclosure ................................................. 22
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6.12 No Material Adverse Effect ...................................... 22
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6.13 Year 2000 Issue.................................................. 22
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6.14 Employee Benefit Plans........................................... 23
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7. AFFIRMATIVE COVENANTS OF THE BORROWER ................................. 23
7.1 Financial Statements ............................................ 23
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7.2 Other Reporting Requirements. ................................... 24
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7.3 Taxes ........................................................... 24
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7.4 Maintenance and Continuity of Business .......................... 24
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7.5 Continuing Governmental Approvals ............................... 25
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7.6 Further Documents ............................................... 25
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7.7 Inspection ...................................................... 25
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7.8 Payment of Obligations .......................................... 25
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7.9 Pari Passu Ranking............................................... 25
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8. AFFIRMATIVE COVENANTS OF THE GUARANTOR ................................ 26
8.1 Financial Statements; Other Reports ............................. 26
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8.2 Taxes ........................................................... 26
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8.3 Maintenance and Continuity of Business .......................... 26
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8.4 Continuing Governmental Approvals ............................... 27
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8.5 Maintenance of Properties ....................................... 27
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8.6 Year 2000 Issue ................................................. 27
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8.7 ERISA ........................................................... 27
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8.8 Post-Closing Deliveries ......................................... 28
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9. NEGATIVE COVENANTS OF THE BORROWER .................................... 28
9.1 Merger; Sale of Assets .......................................... 28
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9.2 Indebtedness Limitation ......................................... 29
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10. NEGATIVE COVENANTS OF THE GUARANTOR ....................................29
10.1 Negative Pledge ................................................. 29
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10.2 Financial Covenants ............................................. 31
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ii
11. CONDITIONS PRECEDENT TO DRAWDOWN ..................................... 31
11.1 Authorizations ............................................... 31
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11.2 Note ......................................................... 32
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11.3 Governmental Approvals ....................................... 32
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11.4 Opinions ..................................................... 32
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11.5 Drawdown Certificate ......................................... 32
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11.6 Guaranty ..................................................... 32
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11.7 Financial Statements ......................................... 33
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11.8 Receipt of Funds ............................................. 33
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11.9 Fees.......................................................... 33
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11.10 Other Documents .............................................. 33
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12. EVENTS OF DEFAULT .................................................... 33
12.1 Events of Default ............................................ 33
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12.2 Right to Accelerate on Payment Default ....................... 34
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12.3 Right to Accelerate on Event of Default ...................... 35
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13. MISCELLANEOUS ........................................................ 35
13.1 Term ......................................................... 35
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13.2 Entire Agreement ............................................. 35
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13.3 Waiver; Cumulative Rights .................................... 35
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13.4 Assignment and Participation ................................. 36
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13.5 Governing Law ................................................ 36
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13.6 Submission to Jurisdiction ................................... 36
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13.7 Notices ...................................................... 37
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13.8 Severability ................................................. 38
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13.9 Confidentiality .............................................. 38
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13.10 Counterparts ................................................. 38
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13.11 Right of Setoff .............................................. 38
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13.12 Survival of Agreement ........................................ 39
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13.13 WAIVER OF JURY TRIAL ......................................... 39
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iii
ANNEX, EXHIBITS AND SCHEDULES
Resolutions Annex A
Promissory Note Exhibit A
Drawdown Certificate Exhibit B
Corporate Guaranty Exhibit C
Opinion of Counsel to the Borrower Exhibit D
Opinion of Counsel to the Guarantor Exhibit E
Compliance Certificate, Steelcase SAS Exhibit F-1
Form of Compliance Certificate, Steelcase Inc. Exhibit F-2
Repayment Shares Schedule 1.58
Pending or Threatened Litigation of the Guarantor Schedule 6.5
Indebtedness of the Borrower Schedule 9.2
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THIS LOAN AGREEMENT (the "Agreement") made as of April 9, 1999 by and among:
STEELCASE SAS, a Societe par Actions Simplifiee organized and existing under the
laws of the Republic of France, with its registered office at Tour
Aurore 01, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇
(the "Borrower"),
STEELCASE INC., a corporation organized and existing under the laws of the State
of Michigan (the"Guarantor"), and
SOCIETE GENERALE, a bank organized and existing under the laws of the Republic
of France, acting through its Chicago Branch (the "Lender"),
sets forth the binding agreement of the parties.
SECTION 1. DEFINITIONS
The following terms shall have the meanings set forth below:
1.1 "Additions to Capital" shall mean the aggregate net proceeds, including
cash and the fair market value of property other than cash, received by
the Guarantor from the issue or sale of capital stock of the Guarantor
plus the aggregate of 25% of the after tax gains realized from unusual,
extraordinary and major nonrecurring items.
1.2 "Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling
Person") or (ii) any Person (other than the Borrower or a Subsidiary)
which is controlled by or is under common control with a Controlling
Person. As used herein, the term "control" means possession, directly
or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
1.3 "Agreement" shall have the meaning set forth in the preamble.
1.4 "Authorized Representative" shall mean for purposes of this Agreement
the following individuals (it being acknowledged that any such
individual need not be an officer or employee of such person for other
purposes) (a) in respect of any Compliance Certificate, the Secretary,
the Chief Financial Officer, Treasurer or Assistant Treasurer; (b) in
respect of any other delivery by: (i) the Borrower, any of its
Chairman, President Directeur General or Chief Financial Officer or
(ii) the Guarantor, any of its Chief Financial Officer, Treasurer or
Assistant Treasurer; and (c) in respect of all matters relating to this
Agreement, the Note and the Guaranty, another person designated in
writing by any individual specified in clause (a) or clause (b) above
as duly authorized to act on behalf of the (i) Borrower or (ii) the
Guarantor, respectively, under and in respect of this Agreement, the
Note or the Guaranty and any person acting under valid corporate power
and authority as an officer or director of such person or a valid power
of attorney on behalf of the Borrower or the Guarantor, as the case may
be.
1.5 "Banking Day" shall mean a day other than a Saturday or Sunday on which
commercial banks are open for business in Chicago, Illinois, U.S.A. and
Paris, France.
1.6 "Banking Day Adjustment" shall mean, with respect to a day that is not
a Banking Day, the next succeeding Banking Day.
1.7 "Beneficial Owner" or "Beneficial Ownership" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
1.8 "Borrower" shall have the meaning set forth in the preamble.
1.9 "Breakage Cost" shall mean any and all losses and expenses incurred by
the Lender arising from the termination of accrued or actual time
deposits or other long term funding arrangements made in conjunction
with funding the Loan during the Initial Period in the event of a
prepayment of the Loan or acceleration following an Event of Default,
in either case, for any reason.
1.10 "Change in Control" shall mean: (a) with respect to the Guarantor, (i)
any Person or two or more Persons acting in concert (other than members
of the Existing Control Group) shall have acquired Beneficial Ownership
or the right to acquire Beneficial Ownership, directly or indirectly,
of securities of the Guarantor (or other securities convertible into
such securities) representing 35% or more of the combined voting power
of all securities of the Guarantor entitled to vote in the election of
directors, other than securities having such power only by reason of
the happening of a contingency ("Share Acquisition"); or (ii)
individuals who either (x) have been directors of the Guarantor for the
prior 24-month period or (y) were nominated or elected by directors in
office during such period (but prior to any Share Acquisition) shall
cease for any reason to constitute a majority of the board of directors
of the Guarantor, or (b) with respect to the Borrower, the Guarantor
shall cease to hold Beneficial Ownership of a majority equity interest
in the Borrower.
1.11 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.12 "Commitment" shall mean the commitment of the Lender to advance a first
Drawdown in the principal amount of US$100,000,000, plus, subject to
the approval of the Lender acting in its sole discretion, one or more
subsequent drawdowns not in excess of US$120,000,000 as agreed from
time to time among the Borrower, the Lender and the Guarantor.
1.13 "Confidential Information" shall have the meaning set forth in Section
13.9.2.
1.14 "Consolidated Net Tangible Assets" shall mean, as of any particular
time, for the Guarantor, the aggregate amount of assets after deducting
therefrom (a) all current liabilities, (b) any current liability which
has been reclassified as a long-term liability because such liability
by its terms is extendable or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which the
amount thereof is being computed, and (c) all goodwill, excess of cost
over assets acquired, patents,
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copyrights, trademarks, trade names, unamortized debt discount and
expense and other like intangibles, all as shown in the most recent
consolidated financial statements of the Guarantor and its
Subsidiaries prepared in accordance with GAAP.
1.15 "Debt" shall mean (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, (ii) obligations as
lessee under capital leases, or (iii) obligations under guarantees in
respect of indebtedness or in respect of obligations of others of the
kinds referred to in clause (i) or (ii) above.
1.16 "Default Interest" shall have the meaning set forth in Section 2.8.
1.17 "Default Interest Rate" shall have the meaning set forth in Section
2.8.
1.18 "Drawdown" shall mean each borrowing by the Borrower of the Loan or a
portion thereof.
1.19 "Drawdown Certificate" shall mean the drawdown certificate to be
delivered by the Borrower to the Lender in connection with each
Drawdown of the Loan, substantially in the form of Exhibit B attached
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hereto.
1.20 "Drawdown Date" shall mean, with respect to any Drawdown, the date of
the occurrence of such Drawdown, following the fulfillment, to the
satisfaction of the Lender, of each of the conditions precedent set
forth in Section 11 hereof.
1.21 "EBITDA" shall mean, for any period, consolidated net income plus
provision for taxes of the Guarantor and its Subsidiaries (excluding
extraordinary, unusual or nonrecurring gains or losses), plus interest
expense of the Guarantor and its Subsidiaries, plus depreciation
expense of the Guarantor and its Subsidiaries, plus amortization of
intangibles of the Guarantor and its Subsidiaries, as determined on a
consolidated basis in conformity with GAAP.
1.22 "Effective Date" shall mean the date on which this Agreement is duly
executed and delivered by all of the parties hereto.
1.23 "Equity Repayment Option" shall mean the option of the Borrower to
repay the principal portion of the Loan by issuing the Repayment Shares
to the Lender as set forth in Section 2.4.2.
1.24 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
1.25 "ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Guarantor is a
member and which is treated as a single employer under Section 414 of
the Code.
1.26 "Event of Default" shall have the meaning set forth in Section 12.1.
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1.27 "Existing Control Group" shall mean all of the Guarantor's directors
and executive officers and beneficial owners of the Guarantor's Class B
common stock as of the date of this Agreement.
1.28 "Final Maturity Date" shall mean the 30th anniversary of the first
Drawdown Date.
1.29 "financial statements" shall include the consolidated statements of
income, consolidated balance sheets, consolidated statements of cash
flows, consolidated statements of shareholders' equity, and the notes
thereto.
1.30 "First Drawdown Amount" shall mean ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Dollars ($100,000,000), or such other amount as shall be requested by
the Borrower and agreed by the Lender.
1.31 "First Drawdown Date" shall mean the Drawdown Date for the Drawdown of
the First Drawdown Amount.
1.32 "Funding Losses" shall mean all costs, expenses and losses actually
incurred by the Lender as a result of the failure of the Borrower to
draw down funds which have been made available by the Lender for the
Borrower pursuant to this Agreement as a result of the failure of the
satisfaction of any of the conditions precedent to Drawdown after a
Drawdown Certificate has been delivered, including the present value
(discounted at the Lender's funding rate) of the loss arising from
reemployment of such funds for the period from, and including, (i) the
date on which funds would have been made available by the Lender
(excluding, as applicable, the funds that would have been provided by
reason of any participation in the Loan and taking into account the
nature of the participation) specifically in order to fund the Loan at
rates lower than the actual return to the Lender to (ii) the date on
which such funds would have been redeployed by the Lender.
1.33 "GAAP" shall mean generally accepted accounting principles in effect in
the United States of America or in France, as the case may be, from
time to time, applied on a consistent basis.
1.34 "Guarantor" shall have the meaning set forth in the preamble.
1.35 "Guaranty" shall mean that certain corporate guaranty provided by the
Guarantor in favor of the Lender, substantially in the form attached
hereto as Exhibit C.
1.36 "Increased Costs" shall have the meaning set forth in Section 3.2.1.
1.37 "Indebtedness" shall mean (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as
capital leases, and (v) obligations under direct or indirect guaranties
in respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds
4
referred to in clauses (i) through (iv) above. All amounts owed,
directly or indirectly, by a Subsidiary or Affiliate of the Borrower or
of the Guarantor (including without limitation, the Borrower) to
another Subsidiary or Affiliate of the Borrower or of the Guarantor
shall not constitute Indebtedness of such Subsidiary or Affiliate as
long as such Subsidiary or Affiliate continues to remain as a
Subsidiary or Affiliate of the Borrower or of the Guarantor.
1.38 "Initial Period" shall mean the period commencing on the Drawdown Date
and ending on the seventh anniversary of the Drawdown Date, subject to
Banking Day Adjustment; provided, however, that if there shall then be
due and payable any Obligation in respect of the Initial Period Amount,
or any amount payable to the Lender pursuant to Section 3 or Section 4
hereof, the Initial Period shall continue beyond such seventh
anniversary date until such amounts have been paid in full.
1.39 "Initial Period Amount" shall mean, as of any date during the Initial
Period, the sum of (a) the portion of the principal amount of the Loan
equal to the present value of the aggregate amount of interest
scheduled to be paid in respect of the Loan from and including such
date through and including the last scheduled day of the Initial Period
(where such present value shall be determined by discounting such
aggregate amount at the Lender's funding rate), (b) any Default
Interest due and payable and (c) Breakage, if any.
1.40 "Insolvency Event" means:
(a) with respect to the Borrower, the application by the Borrower for
the appointment of a conciliator (conciliator), the entering into
by the Borrower of an amicable settlement (accord amiable) with
its creditors or the cessation by the Borrower of its payments or
the issuance of a judgment for the Borrower's judicial
liquidation (liquidation judiciaire) or for a transfer of the
whole of its business (cession totale de l'entreprise) pursuant
to Articles 81 et seq. of the French Law of January 25, 1985, or
the Borrower becoming subject to similar proceedings or, in the
absence of legal proceedings, the Borrower making a conveyance,
assignment or other arrangement for the benefit of its creditors
or entering into a composition with its creditors, or passing a
resolution for its winding-up or dissolution;
(b) with respect to the Guarantor:
(i) the Guarantor commences a proceeding or makes an
application or petition to a court or other judicial or
administrative forum for an order that the Guarantor be
declared bankrupt or insolvent or be wound up or that an
order be entered for the liquidation, reorganization or for
other relief with respect to the debts of such Person or
that a provisional liquidator be appointed;
(ii) any application is made or any involuntary case or
proceeding is commenced against the Guarantor seeking
liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency
5
or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator,
custodian, administrator or other similar official of it or
any substantial part of its property, (unless the
application is withdrawn, struck out or dismissed, or the
case or proceeding is dismissed or terminated, within 60
days of it being made); or
(c) a liquidator is appointed for the Guarantor.
1.41 "Interest Payment Date" shall mean the last day of each Interest
Period.
1.42 "Interest Period" shall mean the semi-annual period commencing on the
date of the first Drawdown and lasting until the date six months
immediately thereafter (subject to any Banking Day Adjustment) and each
successive semi-annual period thereafter commencing on the last day of
the then ending Interest Period and ending on the next date six months
immediately thereafter (subject to any Banking Day Adjustment) or, with
respect to the final Interest Period, ending on the date of repayment
of the Loan, whether by reason of a permitted prepayment, acceleration
of the Loan following the occurrence of an Event of Default, or
otherwise.
1.43 "Interest Rate" shall mean 7.5% per annum.
1.44 "Lender" shall have the meaning set forth in the preamble, and shall
include transferees and assignees, if any, of the Lender pursuant to
Section 13.4.1.
1.45 "Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other) or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement, and any lease having substantially the
same effect as any of the foregoing).
1.46 "Loan" shall mean a loan in the initial principal amount of
US$100,000,000 plus any subsequent drawdowns not in excess of
US$120,000,000, in the aggregate, subject to any prepayment or
repayment by the Borrower from time to time.
1.47 "Material Adverse Effect" shall mean a material adverse effect on (a)
the financial condition or operations of the Guarantor and its
consolidated Subsidiaries taken as a whole, (b) the legality, validity
or enforceability of this Agreement, the Note or the Guaranty or (c)
the ability of the Borrower or the Guarantor to perform their
respective obligations under this Agreement, the Note or the Guaranty,
as the case may be.
1.48 "Monthly Management Reports" shall have the meaning set forth in
Section 6.6.
1.49 "Multiemployer Plan" shall mean a mulitemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Guarantor or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Section 414 of the Code) is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
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1.50 "Net Income" shall mean net income in accordance with GAAP.
1.51 "Net Worth" shall mean minority interests, preferred stock and common
stock and other equity, as shown on the consolidated balance sheet of
the Guarantor and its Subsidiaries, provided, that there shall be
excluded from the calculation of Net Worth any unrealized gains or
losses (net of taxes) on securities available for sale.
1.52 "Note" shall mean a promissory note or promissory notes of the Borrower
evidencing the Loan, being payable to the order of the Lender in the
amount of the Loan, which note or notes shall be in the form of Exhibit
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A attached hereto, or any promissory note(s) delivered by the Borrower
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in extension, renewal or substitution therefor and evidencing all or
part of such Loan.
1.53 "Obligations" shall mean (a) the unpaid principal of and interest on
the Loan (including interest accruing at the then applicable rate
provided in this Agreement (each rate being either the Interest Rate or
the Default Interest Rate, as the case may be)), (b) all other
obligations and liabilities of every nature of the Borrower from time
to time owing to the Lender, in each case whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred (including monetary obligations incurred during the
pendency of any proceeding based upon or arising out of an Insolvency
Event, regardless of whether allowed or allowable in such proceeding),
which may arise under, out of, or in connection with, this Agreement or
the Note or under any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account
of principal, premium, if any, interest, fees, indemnities, costs,
expenses or otherwise (including all reasonable fees and disbursements
of counsel to the Lender) that are required to be paid by the Borrower
pursuant to the terms of this Agreement or the Note and, without
duplication, (c) all obligations of the Guarantor hereunder and under
the Guaranty.
1.54 "Payment Default" shall mean an Event of Default arising under Section
12.1.1 or 12.1.7.
1.55 "Person" or "person" shall mean any natural person, partnership,
corporation, company, joint venture or other business entity.
1.56 "PBGC" shall mean the Pension Benefit Guarantee Corporation referred to
and defined in ERISA and any successor thereto.
1.57 "Plan" shall mean any pension plan (other than an Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code which is maintained for employees of the Guarantor or any ERISA
Affiliate.
1.58 "Repayment Shares" shall mean that number of shares of the Borrower as
is set forth on Schedule 1.58 hereto, subject to Section 2.6.
1.59 "Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with
respect to a Plan (other than a Plan
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maintained by an ERISA Affiliate which is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
1.60 "Subsidiary" shall mean, with respect to any Person, any corporation or
other business entity of which such Person (or any other shareholding
corporation referred to in the context in which the term is used)
directly or indirectly owns more than fifty percent (50%) of the
outstanding capital stock or other ownership interest having ordinary
voting power to elect directors, managers or trustees of such
corporation or other business entity, or any corporation or other
business entity which is otherwise controlled directly or indirectly by
such Person (or such shareholding corporation). Collectively, two or
more subsidiaries of a Person shall be referred to as "Subsidiaries" of
such Person.
1.61 "Taxes" shall mean any and all present or future taxes, duties,
excises, levies, imposts, deductions, charges, or withholdings of any
kind whatsoever levied or imposed by any taxing authority, together
with any interest, penalties and additions to tax with respect thereto.
1.62 "Transaction Taxes" shall mean, with respect to the Borrower and the
Guarantor, any and all present or future taxes, duties, excises,
levies, imposts, deductions, charges, or withholdings of any kind
whatsoever levied or imposed by any taxing authority with respect to
any payment by the Borrower or the Guarantor, as the case may be,
pursuant to this Agreement, the Note, the Guaranty or any other
agreement pursuant or relating thereto, together with any interest,
penalties and additions to tax with respect thereto other than Taxes
imposed on or by reference to the net income of the Lender by any
taxing jurisdiction.
1.63 "Unaudited Financial Statements" shall have the meaning set forth in
Section 6.6.
1.64 "US Dollar" and "US$" shall mean the lawful money of the United States
of America.
1.65 "Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
1.66 "Year 2000 Issue" shall mean the failure of material computer software,
hardware and firmware systems and equipment containing embedded
computer chips to properly receive, transmit, process, manipulate,
store, retrieve, re-transmit or in any other way utilize data and
information due to the occurrence of the year 2000 or the inclusion of
dates on or after January 1, 2000.
SECTION 2. THE LOAN
2.1 Agreement to Lend
-----------------
Subject to the terms and conditions of this Agreement, the Lender
hereby agrees to lend to the Borrower, and the Borrower agrees to
borrow from the Lender, the Loan.
8
2.2 Purpose of the Loan
-------------------
The Borrower agrees that the Loan will be used for general corporate
purposes including, without limitation, the purchase or redemption of
shares.
2.3 Drawdown
--------
The Borrower shall borrow the First Drawdown Amount in a single
Drawdown on the First Drawdown Date and, subject to the approval of the
Lender acting in its sole discretion, may borrow any number of
subsequent Drawdowns at such time or times and in such amounts (but not
to exceed, in the aggregate, the amount of the Commitment) as agreed
from time to time among the Borrower, the Lender and the Guarantor.
2.4 Repayment of Loan; Equity Repayment Option
------------------------------------------
2.4.1 Final Maturity Date. The Loan shall be repaid to the Lender in
-------------------
one installment payable on the Final Maturity Date, accompanied by
payment of all interest accrued to the Final Maturity Date and not
previously paid.
2.4.2 Manner of Repayment; Equity Repayment Option. From and after the
--------------------------------------------
seventh anniversary of the First Drawdown Date (subject to any Banking
Day Adjustment), the Borrower shall have the right to exercise the
Equity Repayment Option to repay the Loan by issuance of the Repayment
Shares in lieu of the repayment of money for the principal portion of
the Loan; provided that repayment of the principal portion of the Loan
shall be accompanied by payment of all interest accrued to the Final
Maturity Date and not previously paid. In the event that the Borrower
elects the Equity Repayment Option, the Borrower shall issue to the
entity entitled thereto the Repayment Shares as duly authorized and
fully-paid and non-assessable shares. The Lender and any affected
participant shall deliver a receipt acknowledging payment in full of
the Loan, and the Lender shall surrender the Note for cancellation, and
the Lender shall take all other actions (at the sole cost and expense
of the Borrower) reasonably necessary or desirable (including without
limitation, execution and delivery of a share subscription instrument
(Bulletin de Souscription)) in order to consummate the Equity Repayment
Option.
2.5 Prepayment of Loan
------------------
2.5.1 Restricted Prepayment Right. Except as set forth in Section 3.4
---------------------------
in the context of adversity prepayment, no prepayment of the Loan shall
be permitted from the First Drawdown Date until the Interest Payment
Date occurring on the seventh anniversary of the First Drawdown Date
subject to any Banking Day Adjustment. Any prepayment (including,
without limitation, upon acceleration following an Event of Default)
prior to the seventh anniversary of the First Drawdown Date subject to
any Banking Day Adjustment shall be accompanied by accrued interest
thereon to the date of prepayment and Breakage Cost (if any) applicable
in respect of such prepayment. Commencing on the Interest Payment Date
occurring on the seventh anniversary of the First Drawdown Date subject
to any Banking Day Adjustment and continuing until the Final Maturity
Date and
9
provided that there shall not then exist on the date of prepayment any default
specified in Section 12.1.1, the Borrower shall have the right at any time to
either (i) prepay the Loan, in whole or in part, in money or (ii) prepay the
Loan in whole, by exercise of the Equity Repayment Option, in either case
without any reimbursement to the Lender for Breakage Cost or any other penalty
or premium whatsoever.
2.5.2 Voluntary Prepayments. All voluntary prepayments by the Borrower shall
---------------------
be subject to the following:
(a) The Borrower will give written notice of prepayment of the
Loan (which notice shall be irrevocable, except as provided in
clause (c) below) to the Lender not less than 30 nor more than
60 days prior to the date fixed for prepayment, specifying (a)
such date and (b) the aggregate principal amount of the Loan
to be prepaid on such date and a statement indicating whether
it is electing to exercise the Equity Repayment Option. Notice
of prepayment having been so given, the aggregate principal
amount of the Loan specified in such notice, together with the
accrued interest thereon shall become due and payable on the
prepayment date specified in such notice. Not less than three
(3) Banking Days before such prepayment date, the Lender shall
deliver to the Borrower a certificate as to the amount of the
interest due and payable through such prepayment date on the
Loan, together with the amount of Lender's Breakage Cost (if
any) due and payable in respect of such prepayment, setting
forth the calculation thereof in reasonable detail, which
certificate shall be conclusive in the absence of manifest
error.
(b) If, on or after the Interest Payment Date occurring on the
seventh anniversary of the First Drawdown Date subject to any
Banking Day Adjustment, the Borrower has elected to exercise
the Equity Repayment Option, the Lender shall advise the
Borrower of the name of the Person entitled to acquire the
Repayment Shares (which shall be (i) the Lender as custodian
for the participant or its nominee or (ii) the participant or
its nominee).
(c) The Borrower shall in no event be required to issue the
Repayment Shares to any Person not acceptable to the Borrower,
in its discretion, and shall have the right to modify its
notice under clause (a) to revoke its election of the Equity
Repayment Option if the shareholders of the Repayment Shares
would be unacceptable to the Borrower.
2.5.3 Equity Repayment Option. In the event the Borrower elects the Equity
-----------------------
Repayment Option (as permitted in Section 2.5.1), the Loan shall be repaid by
issuance of the Repayment Shares in lieu of money for the principal portion of
the Loan, together with accrued interest thereon to the prepayment date. The
Borrower shall issue the Repayment Shares as duly authorized and fully-paid and
non-assessable shares. The Lender and any affected participant shall deliver a
receipt acknowledging payment in full of the Loan, the Lender shall surrender
the Note for cancellation, and the Lender shall take all other actions (at the
sole cost and expense of the Borrower) reasonably necessary or desirable
(including
10
without limitation, execution and delivery of a share subscription
instrument (Bulletin de Souscription) in order to consummate the
Equity Repayment Option.
2.5.4 Failure to Prepay. If the Borrower fails to prepay the Loan after
-----------------
notice has been given to the Lender in accordance with the terms of
Section 2.5.1, the Borrower shall reimburse the Lender within five (5)
days after demand for any resulting loss or expense incurred by the
Lender, including (without limitation) Breakage Cost (if any) for the
period after any such failure to prepay (after taking into account the
nature of any participation in the Loan), provided that the Lender
--------
shall have delivered to the Borrower a certificate as to the amount of
such loss or expense, setting forth the calculation thereof in
reasonable detail, which certificate shall be conclusive in the absence
of manifest error.
2.6 Protections with Respect to Repayment Shares
--------------------------------------------
2.6.1 Antidilution. In the event of any change in the common stock of
------------
the Borrower, or any securities for which the Equity Repayment Option
becomes exercisable as a result of any adjustment hereinafter provided
for, by reason of any stock dividend, combination of shares,
recapitalization (including any extraordinary cash or property dividend
or distribution in the nature of a recapitalization), stock split or
other similar event, the number of Repayment Shares shall be
appropriately and equitably adjusted as may be necessary to prevent
dilution or enlargement of rights. The existence of the Equity
Repayment Option shall not limit or affect in any way the right or
power of the Borrower to engage in any transaction described in this
Section to the extent otherwise permitted by this Agreement.
2.6.2 Consolidations and Mergers. In the case of any permitted
--------------------------
consolidation, amalgamation or merger of the Borrower with any other
company (other than a consolidation, amalgamation or merger in which
the Borrower is the continuing company), the company resulting from
such consolidation, amalgamation or merger, as the case may be, shall
be entitled to issue in lieu of the Repayment Shares such new shares
and other equity securities receivable upon such consolidation,
amalgamation or merger which will be as nearly equivalent as may be
practicable to the value of the Repayment Shares immediately prior to
such consolidation, amalgamation or merger. The existence of the Equity
Repayment Option shall not limit or affect in any way the right or
power of the Borrower to engage in any transaction described in this
Section to the extent otherwise permitted by this Agreement.
2.7 Interest on the Loan.
--------------------
2.7.1 Payment of Interest. Interest on the principal amount of the Loan
-------------------
shall be due and payable on each Interest Payment Date.
2.7.2 Computation of Interest. The Loan shall bear interest at the
-----------------------
Interest Rate. Interest shall accrue on the basis of 30 day months and
a year of 360 days and shall accrue from and including the first day of
an Interest Period to but not including the last day of such Interest
Period.
11
2.8 Default Interest.
----------------
Any principal of or interest on the Loan or any other amount payable by
the Borrower under this Agreement which is not paid when due, whether
on its stated due date, by acceleration, upon demand or otherwise,
shall bear interest, to the extent permitted by applicable law, payable
on demand, for each day from the date any such amount becomes or is
declared due until paid in full at a rate (the "Default Interest Rate")
per annum equal to the sum of the Interest Rate plus two percent (2%)
(the "Default Interest"). Interest accruing under this Section shall be
computed on the basis of 30 day months and a year of 360 days and
actual days elapsed and shall be payable from time to time upon demand
of the Lender.
2.9 General Provisions as to Payments
---------------------------------
2.9.1 Time of Payments. The Borrower shall make each payment of
----------------
interest on, and each payment, if any, of principal of, the Loan and of
fees hereunder, not later than 12:00 Noon (Chicago, Illinois time) on
the date when due, in immediately available funds in Chicago, Illinois,
to the account of the Lender most recently designated by it for such
purpose by notice to the Borrower. Any change by the Lender of such
designation shall require at least five (5) Banking Days prior notice.
Whenever any payment of principal of, or interest on, the Loan or of
fees or other amounts shall be due on a day which is not a Banking Day,
the date for payment thereof shall be extended to the next succeeding
Banking Day unless such Banking Day falls in another calendar month, in
which case the date for payment thereof, shall be the next preceding
Banking Day.
2.9.2 Payments in United States Dollars. The Borrower shall make all
---------------------------------
payments of principal, interest, fees and any other amount due to the
Lender under this Agreement in United States Dollars in immediately
available funds on the date such amounts are due.
2.9.3 Other Currencies. The tender or payment of any amount payable
----------------
under this Agreement (whether or not by recovery under a judgment) in
any currency other than United States Dollars shall not novate,
discharge or satisfy the obligation of the Borrower to pay in United
States Dollars all amounts payable under this Agreement, except to the
extent the Lender actually receives United States Dollars in its
account in Chicago.
2.9.4 Exchange Rate Shortfall. If a currency other than United States
-----------------------
Dollars is tendered or paid (or recovered under any judgment) and the
amount the Lender receives in Chicago, acting in a commercially
reasonable manner in purchasing United States Dollars with the amount
of the other currency actually received at a rate of exchange that
includes any premiums and costs of exchange payable in connection with
such purchase, falls short of the full amount of United States Dollars
owed to the Lender, then the Borrower shall continue to owe the Lender
the amount of such shortfall (regardless of any judgment for any other
amounts due under this Agreement). To the extent permitted by
applicable law, this indemnity constitutes a separate and independent
obligation from the other obligations in this Agreement, will be
enforceable as a separate and independent cause of action, will apply
notwithstanding any indulgence granted by the Lender and will not be
affected by
12
judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement together with interest (at the
Default Interest Rate) in respect of which payment is due.
SECTION 3. YIELD PROTECTION
3.1 Taxes
-----
3.1.1 Gross-Up Requirements. Provided that the Lender has delivered the
---------------------
forms specified in Section 3.1.4, all sums payable by the Borrower and
the Guarantor hereunder or pursuant to the Guaranty, whether of
principal, interest, fees, expenses or otherwise, shall be paid in
full, free of any Transaction Taxes, all of which shall be paid
directly to the appropriate taxing authority by the Borrower or the
Guarantor, as the case may be, for the account of the Lender, and
subject to Section 3.2.1(d) the Borrower or the Guarantor, as the case
may be, shall pay such additional amount to or for the benefit of the
Lender as may be necessary in order that the actual amount received
after payment of Transaction Taxes (and after payment of any additional
Transaction Taxes or other charges due as a consequence of the payment
of such additional amount) shall equal the amount that would have been
received if such payment of Transaction Taxes were not required.
Notwithstanding the foregoing, if the Lender is exempt from or subject
to a reduced rate of withholding tax and becomes subject to Taxes
because of its failure to deliver the forms specified in Section 3.1.4,
the Borrower shall take such steps as the Lender may reasonably request
to assist the Lender to recover such Taxes.
3.1.2 Payment of Legally Required Taxes. The Borrower and the Guarantor
---------------------------------
shall pay directly to the appropriate taxing authority any and all
present and future Taxes imposed by law or by any taxing authority on
or with regard to any aspect of the transaction contemplated by this
Agreement or the execution and delivery of this Agreement or other
documentation hereunder. Subject to Section 3.2.1(d), this obligation
shall not extend to any Taxes imposed on or by reference to the net
income of the Lender by any taxing jurisdiction. Regardless of who is
deemed obligated for any Taxes referred to in the first sentence of
this Section 3.1.2 by a taxing authority, the Borrower and the
Guarantor shall have the right to actively participate in and control
the challenge to any such Taxes, subject to the Borrower and the
Guarantor providing prior written confirmation of their joint and
several indemnification obligation as provided herein to the Lender.
The Borrower and the Guarantor shall indemnify and hold the Lender
harmless from any liability with respect to the delay or failure by the
Borrower or the Guarantor to pay any such Taxes for which they are
responsible.
3.1.3 Tax Receipts. If the Borrower or the Guarantor shall pay any
------------
Transaction Taxes, the Borrower or the Guarantor, as the case may be,
shall promptly forward to the Lender official receipts or other
evidence reasonably acceptable to the Lender establishing payment of
such amounts.
3.1.4 United States Tax Forms. At or prior to the First Drawdown (and
-----------------------
from time to time thereafter if requested in writing by the Borrower or
the Guarantor to do so, but only
13
so long as the Lender remains lawfully able to do so) the Lender shall
provide the Borrower and the Guarantor with Internal Revenue Service
form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that the Lender is entitled to
benefits under an income tax treaty to which the United States is a
party which exempts the Lender from United States withholding tax or
reduces the rate of withholding tax on the payment of interest for the
account of the Lender or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade
or business in the United States.
3.2 Increased Costs
---------------
3.2.1 Indemnity. If, by reason of (a) any change in law, rule or
---------
regulation or in its interpretation or administration and/or (b)
compliance with any future request from or requirement of any central
bank or other fiscal, monetary or other authority whether or not having
the force of law (including, without limitation, a request or
requirement which affects the manner in which the Lender is required to
maintain capital resources and, if not having the force of law, only if
compliance is customary) with regard to the Lender's obligations
hereunder and to amounts owing to it hereunder:
(a) the Lender incurs a cost as a result of the Lender's having
entered into and/or performing its obligations under this
Agreement;
(b) the Lender incurs a cost by reason of an increase in the amount of
capital required or expected to be maintained by the Lender and
the Lender has reasonably determined that a portion of such
increase is allocable to the Loan or the Commitment;
(c) there is any increase in the cost to the Lender of funding or
maintaining all or any part of the Loan made or to be made by the
Lender hereunder (excluding amounts participated out); or
(d) the Lender becomes liable to make any payment on account of Taxes
or otherwise (not being a Tax on the net income of the Lender (i)
imposed by the jurisdiction in which it is incorporated or in
which its lending office is located or (ii) imposed by a taxing
authority of France as a direct result of the Lender's business
activities in France other than the making of the Loan or the
receipt of payments with respect thereto) on or calculated by
reference to the amount of the Loan made by the Lender hereunder
and/or to any sum received or receivable by it hereunder (other
than as a result of the Lender's failure to deliver the forms
specified in Section 3.1.4);
then the Borrower shall, from time to time on demand of the Lender,
promptly pay to the Lender amounts sufficient to indemnify the Lender
against, as the case may be, (1) any such cost, (2) any such allocable
cost, as certified by the Lender in reasonable detail (which shall be
binding absent manifest error), (3) such increased cost (or such
proportion of such increased cost as is, in the reasonable opinion of
the Lender, attributable to its
14
funding or maintaining the Loan hereunder) and/or (4) such liability,
as the case may be, (collectively, "Increased Costs") provided, however
that Borrower shall not be obligated to indemnify the Lender for any
Increased Costs to the extent the Lender has actual knowledge of such
Increased Costs and fails to give the Borrower notice of such amount
within 90 days of the date the Lender acquires such actual knowledge.
3.2.2 Payment of Increased Costs. The Borrower shall pay to the Lender,
--------------------------
upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as the Lender shall reasonably determine after consultation
with the Borrower) as shall be required to compensate the Lender for
such Increased Costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to the
Lender, showing the basis for the calculation thereof, submitted to the
Borrower by the Lender in good faith shall be conclusive absent
manifest error) provided, however that Borrower shall not be obligated
to indemnify the Lender for any Increased Costs to the extent the
Lender has actual knowledge of such Increased Costs and fails to give
the Borrower notice of such amount within 120 days of the date the
Lender acquires such actual knowledge.
3.3 Illegality of Maintaining the Loan.
----------------------------------
If, on or after the date of this Agreement, the adoption of any
applicable law, rule or regulation, or any change in any applicable
law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Lender with any request or directive of
any such authority, central bank or comparable agency shall make it
unlawful or impossible to maintain the Loan, then the Lender shall be
entitled to require the Borrower to prepay the Loan upon at least ten
(10) days notice to the Borrower (or such shorter period as may be
required in order to allow the Lender to comply with relevant law). The
Lender shall promptly notify the Borrower of any change in the law of
which it becomes aware that would result in the Loan becoming illegal
and, if requested in writing, shall deliver to the Borrower an opinion
of legal counsel supporting such determination not later than thirty
(30) days after the date of prepayment. The Borrower shall pay for any
and all legal fees and expenses incurred by the Lender in obtaining
such opinion pursuant to this Section.
3.4 Cost Minimization; Adversity Prepayment
---------------------------------------
If, at any time, the Borrower is required to make a payment to the
Lender or any tax authority pursuant to the provisions of any of
Sections 3.1, 3.2 or 3.3 and without in any way limiting, reducing or
otherwise qualifying the Borrower's obligations under such Sections and
provided that the Lender, in its sole discretion, is satisfied that it
will not suffer any material economic, legal, regulatory or other
disadvantage in taking such action, the Lender agrees that it will act
in good faith to minimize the amount of such payment, provided, that if
the requirement for such payment is not eliminated, the Borrower shall
have the right to prepay the Loan in accordance with Section 2.5.1,
15
provided, further, that in case of any prepayment pursuant to this
Section, the Borrower shall not be entitled to the Equity Repayment
Option.
3.5 Funding Losses
--------------
In the event that a Drawdown does not occur as a result of a failure to
satisfy the conditions precedent to Drawdown or the Borrower declines
to borrow after delivery of a Drawdown Certificate, the Borrower shall
reimburse the Lender on demand for all Funding Losses incurred by the
Lender. The Lender shall act in good faith to minimize its Funding
Losses and shall certify the amount and a reasonable description
thereof to the Borrower in the event that Funding Losses are incurred
for which reimbursement from the Borrower is due hereunder, which
certificate shall be binding upon the Borrower in the absence of
manifest error.
SECTION 4. FEES, CHARGES AND INDEMNITY
4.1 Fees and Expenses
-----------------
The parties agree that the Lender and any of its affiliates, as the
case may be, will be paid the fees and expenses specified in, and under
the terms and conditions of, this Agreement, the Note, the Guaranty or
any other agreement pursuant or relating thereto, and that the
Guarantor shall pay all fees and expenses of the professional advisors
to the Lender and any of its affiliates as provided for in such
agreements.
4.2 Lender's Costs and Expenses
---------------------------
The Borrower shall reimburse the Lender on demand for all costs and
expenses, including without limitation, fees and expenses of counsel
and fees and expenses of other professional advisers and all other
out-of-pocket costs and expenses of the Lender, incurred (i) including
the reasonable fees and expenses of counsel in connection with the
preparation, execution and delivery of this Agreement and the other
agreements entered into in connection herewith any future amendment,
modification or supplement hereto, (ii) in the enforcement of this
Agreement, the Note or the Guaranty, (iii) the collection of any of the
Obligations, (iv) the workout or restructuring thereof and (v) the
administration of the Loan after the occurrence of an Event of Default,
whether or not the Lender gives notice of such Event of Default or
demands acceleration of the Loan or takes other action to enforce this
Agreement, the Note or the Guaranty.
4.3 Indemnification
---------------
The Borrower agrees to indemnify the Lender and its Subsidiaries and
their respective directors, officers, employees, advisors,
representatives, agents and controlling persons (collectively the
"Indemnified Parties") from and against any and all losses, claims,
damages, expenses and liabilities, joint or several, to which any of
the Indemnified Parties may become subject related to, arising out of,
or in connection with this Agreement, the Note or the Guaranty or any
of the transactions contemplated herein or therein or any use of the
proceeds of the Loan by the Borrower; provided that none of the
16
Indemnified Parties shall be entitled to any indemnification for any of
the foregoing that are finally judicially determined to have resulted
primarily from an Indemnified Party's gross negligence or willful
misconduct.
The Borrower further agrees to reimburse each Indemnified Party
immediately upon request for all expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the
investigation of, preparation for, defense of, or providing evidence
in, any commenced or threatened action, claim, proceeding or
investigation (including, without limitation, usual and customary per
diem compensation for any Indemnified Party's involvement in discovery
proceedings or testimony), relating to or arising out of any matter
referred to in this Agreement, including, without limitation, the
performance by the Indemnified Parties of the services contemplated in
this Agreement, the Note or the Guaranty, whether or not such
Indemnified Party is a party and whether or not such action, claim,
proceeding or investigation is initiated or brought by or on behalf of
the Borrower or any of its affiliates, except that the Indemnified
Parties shall not be entitled to any reimbursement for any expenses
that result from an Indemnified Party's gross negligence or willful
misconduct.
If and to the extent that the indemnity or reimbursement obligations of
the Borrower under this Section may be unenforceable for any reason,
the Borrower agrees to make the maximum contribution to the payment and
satisfaction of each of such indemnity or reimbursement obligations
which is permissible under applicable law.
SECTION 5. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE BORROWER
The Borrower and the Guarantor each hereby represent and warrant to the
Lender as of the Effective Date with respect to the Borrower as follows:
5.1 Incorporation and Qualification
-------------------------------
The Borrower has been duly created as a Societe par Actions Simplifiee
in accordance with the laws of France, is validly existing under those
laws and has power and authority to carry on its business as it is now
being conducted.
5.2 Power and Authority
-------------------
The Borrower has power to enter into and observe its obligations under
this Agreement and the Note. The Borrower has in full force and effect
the authorizations necessary to enter into this Agreement and the Note,
observe obligations under them and allow them to be enforced.
5.3 Authorization of Borrowing
--------------------------
This Agreement and the Note and the transactions under them do not
contravene the Borrower's constituent documents or any law, regulation
or official directive or any of its
17
obligations or undertakings by which it is bound or cause a limitation
on its powers or the powers of its directors to be exceeded.
5.4 Agreement Binding
-----------------
This Agreement constitutes, and the Note when executed and delivered
pursuant hereto will constitute, the legal, valid and binding
obligations of the Borrower enforceable in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity. The
execution, delivery and performance of this Agreement and the Note and
the monetary payment of all amounts due on the dates and in the
currency provided for herein and therein (a) will not violate any
provision of law or other governmental directive having the force of
law, (b) will not conflict with the By-Laws or other governing
documents of the Borrower, (c) will not contravene any material
governmental guideline or policy statement applicable to the Borrower,
(d) will not conflict with the By-laws (Statuts) or other governing
documents of the Borrower, (e) will not conflict with or result in the
breach of any provision of any material agreement under which the
Borrower has incurred Indebtedness and will not conflict with or result
in the breach of any provision of any other material agreement to which
the Borrower is a party or by which it or any of its properties or
assets is bound, (f) will not constitute a default or an event that
with the giving of notice or the passing of time, or both, would
constitute a default under any such agreement, and (g) will not result
in the creation or imposition of any lien, charge or encumbrance on any
of the assets or the property of the Borrower.
5.5 Registrations and Approvals
---------------------------
All governmental approvals, authorizations, consents, licenses,
opinions, filings or registrations with any government agency in France
required prior to the execution and delivery of this Agreement and the
Note and the consummation of the transactions contemplated hereby and
thereby have been obtained and are in full force and effect. All
governmental approvals, authorizations, consents, licenses, opinions,
filings or registrations with any government agency in France necessary
for the performance by the Borrower of its obligations under this
Agreement (including, without limitation, foreign exchange permits, if
any, regarding US Dollar payments due or payable hereunder) shall have
been obtained and shall be in full force and effect prior to the First
Drawdown Date.
5.6 Litigation
-----------
There are no arbitration or litigation proceedings pending or
threatened against the Borrower and no proceedings before any court or
government agency pending or threatened against the Borrower or
relating to this Agreement or the Note or any of the transactions
contemplated hereby or thereby which if adversely determined could
singly or in the aggregate have a Material Adverse Effect.
5.7 Subsidiaries
------------
18
The Borrower has no Subsidiaries other than Steelcase Strafor S.A., (an
ownership interest in which will be acquired contemporaneously with the
First Drawdown Date) and its Subsidiaries.
5.8 Title to Properties and Assets
------------------------------
The Borrower has good and marketable title (whether ownership or
leasehold) to all the material properties and assets used in its
business.
5.9 Compliance with Law
-------------------
The Borrower is conducting its business and operations in compliance
with all material applicable laws, rules and regulations and directives
of governmental authorities having the force of law applicable to it or
its properties and assets, including but not limited to employment,
employee benefit, occupational health and safety, superannuation and
environmental laws, rules and regulations and is in compliance with all
material applicable government guidelines and policy statements. The
Borrower has filed all tax returns other than those for which the
deadline for filing, as may have been extended, has not yet passed, and
paid all Taxes due in respect of the ownership of its properties and
assets or the conduct of its business and operations, except to the
extent that the payment of such Taxes is being contested in good faith
and by appropriate proceedings, adequate reserves having been provided
for the payment thereof in accordance with generally accepted
accounting principles in France, consistently applied. The Borrower is
not currently subject to audit by any governmental tax authority, which
could reasonably be expected to result in an assessment for unpaid
Taxes which would, singly or in the aggregate, have a Material Adverse
Effect.
5.10 Other Obligations
-----------------
The Borrower is not in material default under any agreement relating
to, or instrument evidencing, Indebtedness to which it is a party or by
which it is bound.
5.11 Full Disclosure
---------------
The information, reports, exhibits and schedules furnished in writing
to, by or on behalf of the Borrower to the Lender in connection with
the negotiation, preparation or delivery of this Agreement and the
other loan documents referred to or included herein or therein or
delivered pursuant hereto or thereto, when taken as a whole, do not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading.
5.12 No Material Adverse Effect
--------------------------
Since the date of the information, reports, exhibits and schedules
referred to in Section 5.11, no event has occurred, which could be
expected to have a Material Adverse Effect.
19
SECTION 6. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE GUARANTOR
The Guarantor hereby represents and warrants to the Lender as of the
Effective Date with respect to the Guarantor as follows:
6.1 Incorporation and Qualification
-------------------------------
The Guarantor is a company duly organized, validly existing and in good
standing under the laws of the State of Michigan. The Guarantor is
qualified or registered to do business in every jurisdiction where the
failure to be so qualified or registered, singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
6.2 Power and Authority
-------------------
The Guarantor has full legal right, power and authority, including all
approvals, consents, licenses, permits, opinions, filings,
registrations and other authorizations of each government agency
(collectively, "Authorizations") necessary or advisable to carry on its
business as it is presently conducted and to own its properties and
assets, except where the failure to possess such Authorizations would
not have a Material Adverse Effect. All Authorizations necessary for
the performance by the Guarantor of its obligations under this
Agreement shall have been obtained and shall be in full force and
effect prior to the First Drawdown Date. The Guarantor has full legal
right, power and authority to execute and deliver this Agreement and
the Guaranty, and to perform its obligations hereunder and under the
Guaranty.
6.3 Authorization of Borrowing
--------------------------
The Guarantor has taken all necessary and appropriate action to
authorize the execution and delivery of this Agreement and the Guaranty
and to authorize the performance and observance of the terms hereof and
thereof.
6.4 Agreement Binding
-----------------
This Agreement constitutes, and the Guaranty when executed and
delivered pursuant hereto will constitute, the legal, valid and binding
obligations of the Guarantor enforceable in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity. The
execution, delivery and performance of this Agreement and the Guaranty
and the monetary payment of all amounts due on the dates and in the
currency provided for herein and therein (a) will not violate any
provision of law or other governmental directive having the force of
law, (b) will not conflict with the Certificate of Incorporation or
By-laws or other governing documents of the Guarantor, (c) will not
conflict with or result in the breach of any provision of any material
agreement under which the Guarantor has incurred Indebtedness and will
not conflict with or result in the breach of any provision of any other
material agreement to which the Guarantor is a party or by which it or
any of its properties or
20
assets is bound, (d) will not constitute a default or an event that
with the giving of notice or the passing of time, or both, would
constitute a default under any such agreement, and (e) will not result
in the creation or imposition of any lien, charge or encumbrance on any
of the assets or the property of the Guarantor.
6.5 Litigation
-----------
Except as described in Schedule 6.5 hereto, there are no arbitration,
------------
litigation, governmental, administrative or other proceedings pending
or threatened against the Guarantor or relating to this Agreement and
the Guaranty or any of the transactions contemplated hereby or thereby
which, if adversely determined, could singly or in the aggregate have a
Material Adverse Effect.
6.6 Financial Statements
--------------------
The Guarantor has heretofore delivered to the Lender (i) the audited
consolidated financial statements of the Guarantor for the fiscal year
ended February 27, 1998 (the "Audited Financial Statements"), the
unaudited consolidated financial statements of the Guarantor for the
fiscal year ended February 26, 1999 (the "Unaudited Financial
Statements"), and (iii) the consolidated monthly management reports of
the Guarantor for each of January and February 1999 (the "Monthly
Management Reports"). The Audited Financial Statements are complete and
correct and fairly present the financial condition and the results of
operations of the Guarantor on the date thereof and for the period then
ended in accordance with GAAP, subject to normal year-end adjustments
in the case of the Unaudited Financial Statements. There are no
material liabilities, direct or indirect, fixed or contingent, of the
Guarantor as of the date of this Agreement that are not reflected or
reserved against in the Audited Financial Statements, the Unaudited
Financial Statements or in the notes thereto.
6.7 Title to Properties and Assets
------------------------------
The Guarantor has good and marketable title (whether ownership or
leasehold) to all the material properties and assets used in its
business, ownership of which is reflected in its most recent balance
sheet contained in the Audited Financial Statements and the Unaudited
Financial Statements referred to in Section 6.6, except for properties
or assets that have been disposed of in the ordinary course of
business.
6.8 Compliance with Law
-------------------
The Guarantor and each of its Subsidiaries is and are conducting their
respective businesses and operations in compliance with all applicable
laws, rules and regulations and directives of governmental authorities
having the force of law applicable to such Person or its properties and
assets, including but not limited to employment, employee benefit,
occupational health and safety, superannuation and environmental laws,
rules and regulations and are in compliance with all applicable
government guidelines and policy statements. The Guarantor and each of
its Subsidiaries have filed all tax returns other
21
than those for which the deadline for filing, as may have been
extended, has not yet passed, and paid all Taxes due in respect of the
ownership of their respective properties and assets or the conduct of
their operations except to the extent that the payment of such Taxes is
being contested in good faith and by appropriate proceedings, adequate
reserves having been provided for the payment thereof in accordance
with GAAP, consistently applied. Neither the Guarantor nor any of its
Subsidiaries is currently subject to audit by any governmental tax
authority, which could reasonably be expected to result in an
assessment for unpaid Taxes which could, singly or in the aggregate,
have a Material Adverse Effect.
6.9 Other Obligations
-----------------
Neither the Guarantor nor any of its Subsidiaries is in material
default under any agreement relating to, or instrument evidencing,
Indebtedness to which it is a party or by which it is bound.
6.10 Capital Structure
-----------------
The Guarantor is the owner, directly or indirectly, of 100% of the
issued and outstanding equity of the Borrower.
6.11 Full Disclosure
---------------
(a) The annual report of the Guarantor for the year ended February 27,
1998, (b) the financial statements delivered to the Lender in
accordance with Section 6.6, and (c) all filings of the Guarantor with
the Securities and Exchange Commission preceding the date hereof, do
not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading.
6.12 No Material Adverse Effect
--------------------------
Since the date of the most recent financial statements or Monthly
Management Reports referred to in Section 6.6, no event has occurred,
which could reasonably be expected to have a Material Adverse Effect.
6.13 Year 2000 Issue.
---------------
The Guarantor and its Subsidiaries have reviewed the effect of the Year
2000 Issue on the computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for
the Guarantor and its Subsidiaries or used or relied upon in the
conduct of their business (including systems and equipment supplied by
others or with which such computer systems of the Guarantor and its
Subsidiaries interface). The costs to the Guarantor and its
Subsidiaries of any reprogramming required as a result of the Year 2000
Issue to permit the proper functioning of such systems and equipment
and the proper processing of data, and the testing of such
reprogramming, and of the reasonably foreseeable consequences of the
Year 2000 Issue to the Guarantor or
22
any of its Subsidiaries (including reprogramming errors and the failure
of systems or equipment supplied by others) are not reasonably expected
to result in an Event of Default or to have a Material Adverse Effect.
6.14 Employee Benefit Plans.
----------------------
The Guarantor and each of its ERISA Affiliates is in compliance in all
material respect with the applicable provisions of ERISA and the
regulations and published interpretations thereunder. No Reportable
Event has occurred as to which the Guarantor or any ERISA Affiliate was
required to file a report with the PBGC, and the present value of all
benefit liabilities under each Plan (based on those assumptions used to
fund such Plan) did not, as of the last annual valuation date
applicable thereto, exceed by a material amount the value of the assets
of such Plan. Neither the Guarantor nor any ERISA Affiliate has
incurred any Withdrawal Liability that could result in a Material
Adverse Effect. Neither the Guarantor nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of
ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated where such reorganization has
resulted or could reasonably be expected to result, through increases
in the contributions required to be made to such Plan, in a Material
Adverse Effect.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER
In addition to the other undertakings herein contained, the Borrower hereby
covenants to the Lender that during the term of this Agreement and until all of
the Obligations are paid in full, the Borrower shall perform the following
obligations:
7.1 Financial Statements
--------------------
7.1.1 Delivery of Statutory Accounts. As soon as available but not
------------------------------
later than 120 days after the end of each of its fiscal years, the
Borrower shall deliver to the Lender a copy of its statutory accounts,
as at and for the accounting period then ended (prepared in accordance
with the requirements for such accounts under French law).
7.1.2 Delivery of Quarterly GAAP Financial Statements. Within 120 days
-----------------------------------------------
after the end of each fiscal quarter that is not a fiscal year end, the
Borrower shall deliver to the Lender a copy of unaudited quarterly
financial statements for such quarter which shall be based on the
Steelcase Inc. consolidated unaudited quarterly financial statements
prepared in accordance with GAAP, appropriately adjusted to reflect the
operations of the Borrower.
7.1.3 Compliance Certificate. At the time the statutory accounts are
----------------------
delivered under Section 7.1.1, the Borrower shall deliver to the Lender
a Compliance Certificate substantially in the form of Exhibit F-1
hereto, signed by an Authorized Representative of the Borrower
certifying that the Borrower was during the prior fiscal period in
compliance with all provisions hereof applicable to the Borrower and
that no Event of Default or event that with passage of time or notice
or both would constitute an Event of Default occurred
23
during such period and is not continuing on the date of such
certificate or if any Event of Default or such other event occurred or
is continuing, a statement to that effect and a statement of the
actions taken and proposed to be taken with respect thereto.
7.2 Other Reporting Requirements. The Borrower shall furnish the Lender:
----------------------------
7.2.1 as soon as possible and in any event within five (5) days after
the occurrence of each Event of Default set forth in Section 12 (other
than Section 12.1.1) and each event which, with the giving of notice or
lapse of time, or both, would constitute such an Event of Default, a
statement of the chief financial officer of the Borrower setting forth
details of such Event of Default or event and the action which the
Borrower has taken and proposes to take with respect thereto;
7.2.2 promptly after the sending or filing thereof, copies of any
other documents or reports relating to the conduct of its business and
the results of its operations which are distributed to other creditors
of the Borrower or which they shall reasonably request from time to
time;
7.2.3 promptly after (a) the occurrence thereof, notice of the
institution of or any material adverse development in any material
action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against the Borrower or any of
its material property, or (b) actual knowledge thereof, notice of the
threat of any such action, suit, proceeding, investigation or
arbitration; and
7.2.4 any other documents or reports relating to the conduct of the
Borrower's business and the results of its operations which the Lender
shall reasonably request from time to time.
7.3 Taxes
-----
The Borrower shall, and shall cause each of its Subsidiaries to, pay
and discharge all Taxes and other governmental charges upon it or
against any of its properties or assets prior to the date after which
penalties attach for failure to pay, except to the extent that the
Borrower or such Subsidiary shall be contesting in good faith by
appropriate proceedings its obligation to pay such Taxes or charges,
adequate reserves having been set aside for the payment thereof in
accordance with customary practice in France. The Borrower shall, and
shall cause each of its Subsidiaries to, make timely filings of all
material tax returns and governmental reports required to be filed or
submitted under any applicable laws or regulations. The Borrower shall
give written notice to the Lender in accordance with Section 13.7
hereof within five Banking Days of any (i) tax audit or (ii) notice of
deficiency with respect to any French tax payable that may concern the
Loan.
7.4 Maintenance and Continuity of Business
--------------------------------------
24
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain its valid existence under, and in compliance with, all
applicable laws, rules and regulations and shall maintain all necessary
licenses and the present character of its business, except where such
noncompliance or failure to maintain licenses or the present character
of business could not have a Material Adverse Effect. The Borrower
shall, and shall cause its Subsidiaries to, conduct its business in
compliance with all applicable laws, rules and regulations binding on
it or any of its operations or properties, including but not limited to
employment, employee benefit, occupational health and safety,
superannuation and environmental laws, rules and regulations, except
where such noncompliance could not have a Material Adverse Effect.
7.5 Continuing Governmental Approvals
---------------------------------
The Borrower agrees to take all measures which are necessary to
continue in full force and effect all governmental approvals, filings
or registrations, if any, obtained or made in connection with this
Agreement and the Note. The Borrower further agrees to take all
necessary or advisable measures to obtain any new or additional
governmental approvals as become necessary or advisable for the
performance of all of the terms and conditions of this Agreement and
the Note.
7.6 Further Documents
-----------------
The Borrower shall execute all such other documents and instruments and
perform all such other acts as the Lender may reasonably require to
carry out the transactions contemplated herein or in the documents
required to be delivered hereunder.
7.7 Inspection
----------
The Borrower shall from time to time upon receipt of at least five (5)
Banking Days advance written notice, with reasonable promptness, for
purposes pertinent to this Agreement or to a credit decision relating
to this Agreement, permit the Lender or any agents or representatives
thereof, at their own expense, to visit the properties of the Borrower
and its Subsidiaries during normal business hours and to discuss the
affairs, finances and accounts of the Borrower with any of its
appropriate officials. Any information obtained by the Lender shall be
kept confidential as required by Section 13.9 hereof.
7.8 Payment of Obligations
----------------------
The Borrower shall generally pay and discharge all its monetary
obligations of whatever nature and kind as and when due in accordance
with their terms, where the failure to pay any one or more such
obligations individually or in the aggregate would have a Material
Adverse Effect, unless such obligations are being contested in good
faith in appropriate legal proceedings.
7.9 Pari Passu Ranking.
------------------
25
The Borrower covenants that the Obligations, including the Note, does and
will rank at all times during the term of the Loan as direct, senior
obligations of the Borrower, at least pari passu with all of the Borrower's
other present and future senior Indebtedness.
SECTION 8. AFFIRMATIVE COVENANTS OF THE GUARANTOR
For so long as the Guaranty shall remain in effect, the Guarantor shall
comply with the covenants set forth in this Section 8.
8.1 Financial Statements; Other Reports
-----------------------------------
8.1.1 Delivery of Financial Statements. As soon as available (a) but not
--------------------------------
later than 120 days after the end of each of the Guarantor's fiscal years,
the Guarantor shall deliver to the Lender a copy of the Guarantor's audited
financial statements, as at and for the fiscal year then ended (prepared in
accordance with the requirements of GAAP) and (b) no later than 60 days
after the end of each of the first three quarters of the fiscal year of the
Guarantor, the Guarantor shall deliver a copy of the Guarantor's unaudited
quarterly financial statements for the quarter then ended to the Lender.
8.1.2 Compliance Certificate. At the time the financial statements are
----------------------
delivered under Section 8.1.1, the Guarantor shall deliver to the Lender a
Compliance Certificate substantially in the form of Exhibit F-2 hereto,
signed by an Authorized Representative of the Guarantor certifying that the
Guarantor and the Borrower were during the prior period in compliance with
all provisions hereof applicable and that no Event of Default or event that
with passage of time or notice or both would constitute an Event of Default
occurred during such period and is not continuing on the date of such
certificate or if any Event of Default or such other event occurred or is
continuing, a statement to that effect and a statement of the actions taken
and proposed to be taken with respect thereto. The compliance certificate
shall be accompanied by calculations in reasonable detail showing
compliance (or non-compliance) with the covenant in Section 10.2, during
such period of the term of the Loan as such covenants remain in effect.
8.2 Taxes
-----
The Guarantor shall pay and discharge all Taxes and governmental charges
upon it or against any of its properties or assets prior to the date after
which penalties attach for failure to pay, except to the extent that the
Guarantor shall be contesting in good faith by appropriate proceedings its
obligations to pay such Taxes or charges, adequate reserves having been set
aside for the payment thereof in accordance with GAAP. The Guarantor shall
further make timely filings of all material tax returns and governmental
reports required to be filed or submitted under any applicable laws or
regulations.
8.3 Maintenance and Continuity of Business
--------------------------------------
The Guarantor shall maintain its existence in good standing under, and in
compliance with, all applicable laws, rules and regulations and shall
maintain all necessary licenses and the present character of its business,
except where such noncompliance or failure to
26
maintain licenses or the present character of business would not have a
Material Adverse Effect. The Guarantor shall conduct its business in
compliance with all applicable laws, rules and regulations binding on it or
any of its operations or properties, including but not limited to
employment, employee benefit, occupational health and safety,
superannuation and environmental laws, rules and regulations, except where
such noncompliance could not have a Material Adverse Effect.
8.4 Continuing Governmental Approvals
---------------------------------
The Guarantor shall take all measures which are necessary to continue in
full force and effect all governmental approvals, filings or registrations,
if any, obtained or made in connection with its businesses and operations,
except where the failure to do so could not have a Material Adverse Effect.
8.5 Maintenance of Properties
-------------------------
The Guarantor shall cause all of its properties used or useful in the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Guarantor may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent the Guarantor from discontinuing the operation
or maintenance of any such properties if such discontinuance is, in the
judgment of the Guarantor, desirable in the conduct of its business and not
disadvantageous in any material respect to the Lender.
8.6 Year 2000 Issue.
---------------
The Guarantor shall take, and shall cause each of its Subsidiaries to take,
all necessary action to complete in all material respects, the
reprogramming of computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for the
Guarantor and its Subsidiaries or used or relied upon in the conduct of
their business (including systems and equipment supplied by others or with
which such systems of the Guarantor or any of its Subsidiaries interface)
required as a result of the Year 2000 Issue to permit the proper
functioning of such computer systems and other equipment and the testing of
such systems and equipment, as so reprogrammed, except where the failure to
take such action could not reasonably be expected to have a Material
Adverse Effect. At the request of the Lender, the Guarantor shall provide,
and shall cause each of its Subsidiaries to provide, to the Lender
reasonable assurance of its compliance with this Section.
8.7 ERISA.
-----
(a) The Guarantor shall comply in all material respects with the applicable
provisions of ERISA and (b) furnish the Lender (i) as soon as possible, and
in any event within 30 days
27
after any Authorized Representative of the Guarantor or any ERISA Affiliate
either knows or has reason to know that any Reportable Event has occurred
that alone or together with any other Reportable Event could reasonably be
expected to result in liability of the Guarantor and its ERISA Affiliates
to the PBGC in an aggregate amount exceeding US$500,000, a statement of an
Authorized Representative setting forth details as to such Reportable Event
and the action proposed to be taken with respect thereto, together with a
copy of the notice, if any, of such Reportable Event given to the PBGC,
(ii) promptly after receipt thereof, a copy of any notice the Borrower or
any ERISA Affiliate may receive from the PBGC relating to the intention of
the PBGC to terminate any Plan or Plans (other than a Plan maintained by an
ERISA Affiliate which is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 412 of the Code) or to appoint a trustee
to administer any Plan or Plans, (iii) within 30 days after a filing with
the PBGC pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a Plan, a
statement of an Authorized Representative setting forth details as to such
failure and the action proposed to be taken with respect thereto, together
with a copy of such notice given to the PBGC and (iv) promptly and in any
event within 30 days after receipt thereof by the Guarantor or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice
received by the Guarantor or any ERISA Affiliate concerning (A) the
imposition of Withdrawal Liability by a Multiemployer Plan in an amount
exceeding US$500,000 or (B) a determination that a Multiemployer Plan is,
or is expected to be, terminated or in reorganization, in each case within
the meaning of Title IV of ERISA, an which, in each case, is expected to
result in an increase in annual contributions of the Guarantor or an ERISA
Affiliate to such Multiemployer Plan in an amount exceeding US$500,000.
8.8 Post-Closing Deliveries.
-----------------------
The Guarantor hereby covenants that not later than ten (10) days after the
Guarantor's next Board of Directors' meeting (currently scheduled for June
23, 1999), the Guarantor shall deliver, and cause the Borrower to deliver,
a certificate of an Authorized Representative of each party certifying that
the Guarantor's Board of Directors and the Borrower's shareholders,
respectively, have adopted and approved resolutions substantially in the
form of Annex A hereto.
SECTION 9. NEGATIVE COVENANTS OF THE BORROWER
In addition to the other undertakings in this Agreement the Borrower hereby
covenants to the Lender that during the term of this Agreement and until all of
the Obligations are paid in full, the Borrower shall not permit any of the
following to occur:
9.1 Merger; Sale of Assets
----------------------
The Borrower shall not effect any merger, consolidation or reorganization
(whether in one transaction or in a series of transactions) with any other
person unless (i) either the Borrower is the surviving entity or the
surviving entity, if other than the Borrower, shall have expressly assumed
in writing all of the obligations of the Borrower under this
28
Agreement and (ii) at the time of effecting the merger, consolidation or
reorganization no Event of Default shall have occurred or be continuing
or would result therefrom.
9.2 Indebtedness Limitation
-----------------------
The Borrower shall not create, incur, assume or suffer to exist any
Indebtedness other than:
(i) Indebtedness under this Agreement;
(ii) unsecured Indebtedness resulting from accounts payable and
accrued liabilities for goods and services, incurred in the
ordinary course of business;
(iii) Indebtedness in existence on the date hereof and listed on
Schedule 9.2 hereto;
------------
(iv) Indebtedness owed to Affiliates of the Borrower; and
(v) Indebtedness which does not, without the prior written approval
of the Lender (such approval not to be unreasonably withheld)
exceed such debt-to-equity ratios as are, from time to time,
permitted under applicable French law and thin capitalization
rules.
SECTION 10. NEGATIVE COVENANTS OF THE GUARANTOR
For so long as the Guaranty shall remain in effect and except to the
extent expressly consented to in writing by the Lender, the Guarantor shall
comply with the negative covenants set forth in this Section 10.
10.1 Negative Pledge
---------------
10.1.1 Liens, Etc. The Guarantor shall not create or suffer to exist, or
----------
permit any of its Subsidiaries to create or suffer to exist, any Lien
upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure or provide
for the payment of any Indebtedness of any Person, if the aggregate
amount of the Indebtedness so secured (or for which payment has been
provided) would at any time exceed an amount equal to 10% of Consolidated
Net Tangible Assets of the Guarantor, provided, however, that the
foregoing shall not apply to: (i) Liens for current Taxes not delinquent
or for Taxes being contested in good faith and by appropriate
proceedings, adequate reserves having been provided for the payment
thereof in accordance with GAAP, consistently applied, (ii) Liens arising
in the ordinary course of business or by operation of law for sums being
contested in good faith and by appropriate proceedings, adequate reserves
having been provided for the payment thereof in accordance with GAAP,
consistently applied, or for sums not due, and in either case not
involving any deposits or advances for borrowed money or the deferred
purchase price of property or services, (iii) Liens in connection with
the acquisition of fixed assets after the date hereof and attaching only
to the property being acquired, (iv) Liens incurred in the ordinary
course of business in connection with workers' compensation, unemployment
insurance or other forms of governmental insurance or benefits, (v)
mechanics', workers', materialmen's and other like Liens arising in the
ordinary
29
course of business in respect of obligations which are not delinquent or
which are being contested in good faith and by appropriate proceedings,
adequate reserves having been provided for the payment thereof in
accordance with GAAP, consistently applied, (vi) Liens on assets of any
Subsidiary of the Borrower existing at the time such Person becomes a
Subsidiary (other than any such Lien created in contemplation of becoming
a Subsidiary); (vii) any Lien securing Indebtedness that was incurred
prior to or during construction or improvement of property for the
purpose of financing all or part of the cost of such construction or
improvement, provided that the amount of Indebtedness secured by such
Lien does not exceed 100% of the fair market value of such property after
giving effect to such construction or improvement; (viii) any Lien
securing Indebtedness of a Subsidiary owing to the Borrower, (ix) Liens
resulting from any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Indebtedness secured by any Lien referred to in clauses (vi) and (vii)
above so long as (A) the aggregate principal amount of such Indebtedness
shall not increase as a result of such extension, renewal or replacement
and (B) Liens resulting from any such extension, renewal or replacement
shall cover only such property which secured the Indebtedness that is
being extended, renewed or replaced, or (x) Liens on accounts receivable
resulting from the sale of such accounts receivable by the Borrower or a
Subsidiary of the Borrower, so long as, at any time, the aggregate
outstanding amount of such cash advanced to the Borrower or such
Subsidiary, as the case may be, and attributable to the sale of such
accounts receivable does not exceed: (A) in fiscal year 2000,
US$200,000,000 or (B) in fiscal years after 2000, such greater amount as
the Lender and the Guarantor may agree from time to time.
10.1.2 Mergers, Etc. The Guarantor shall not (i) merge or consolidate
------------
with or into any Person, or permit any of its Subsidiaries to do so, or
(ii) convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to any Person, or
(iii) together with one or more of its consolidated Subsidiaries, convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of the assets of the
Guarantor and its consolidated Subsidiaries (whether now owned or
hereafter acquired) to any Person; except that any Subsidiary of the
Guarantor may merge or consolidate with or into, or transfer assets to,
or acquire assets of, any other Subsidiary of the Guarantor and except
that any Subsidiary of the Guarantor may merge into or transfer assets to
the Guarantor and except that the Guarantor may effect any merger,
consolidation or reorganization (whether in one transaction or in a
series of transactions) with any other Person if: (A) either the
Guarantor is the surviving entity or (B) (i) the surviving entity, if
other than the Guarantor, shall have expressly assumed in writing all of
the obligations of the Guarantor under this Agreement and the Guaranty,
pursuant to documentation in form and substance satisfactory to the
Lender (ii) such surviving entity shall meet or exceed the financial
covenants set forth in Section 10.2.3 (as conformed to take account of
the fiscal year of such surviving entity) and (iii) immediately after
giving effect to such merger, consolidation or reorganization, no Event
of Default or
30
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default, would exist.
10.2 Financial Covenants
-------------------
10.2.1 Minimum Net Worth. The Guarantor shall not permit at any time
-----------------
Net Worth to be less than the sum of (i) Net Worth as of February 27,
1998, plus (ii) 25% of Net Income (if a positive number) from February
27, 1998 to the then most recent August 31 or February 28, plus (iii)
all Additions to Capital from February 27, 1998 to the then most recent
August 31 or February 28.
10.2.2 Maximum Debt Ratio. The Guarantor will not permit at any time
------------------
the ratio of (i) Debt to (ii) EBITDA, for each period consisting of the
most recently ended four consecutive fiscal quarters of the Borrower,
to exceed 3.00 to 1.00.
10.2.3 Minimum Interest Coverage Ratio. The Guarantor shall not permit
-------------------------------
at any time the ratio of (a) EBITDA to (B) interest expense of the
Guarantor and its Subsidiaries, in each case for the four fiscal
quarters ending on the last day of any fiscal quarter of the Guarantor
to be less than 5.00 to 1.00.
SECTION 11. CONDITIONS PRECEDENT TO DRAWDOWN
The obligation of the Lender to make available the Loan at each
Drawdown Date is subject to the fulfillment, as determined by the Lender and its
counsel, of the following conditions precedent:
11.1 Authorizations
--------------
The Lender shall have received (except to the extent previously
delivered to the Lender), for the benefit of the Lender in form and
substance satisfactory to the Lender, the following:
(a) copies of the constituent documents as then in effect of the
Borrower and the Guarantor certified by an Authorized
Representative to be true copies and currently in full force and
effect;
(b) a certificate of an Authorized Representative certifying the
resolutions (i) of the Borrower's shareholders authorizing the
execution, delivery and performance of this Agreement and the
Note and (ii) the Guarantor's Board of Directors authorizing the
execution, delivery and performance of this Agreement and the
Guaranty;
(c) a certified copy of the K-Bis for the Borrower recently issued by
the appropriate Registry of Commerce;
(d) an incumbency certificate setting forth the true and correct
signatures of the officers or other persons executing this
Agreement and the other documents to be
31
delivered in connection herewith and in connection with each
Drawdown for each of the Borrower and the Guarantor, in each
case certified by an Authorized Representative; and
(e) a copy of the power of attorney of the Borrower, if applicable,
appointing an attorney-in-fact of the Borrower for purposes of
executing and delivering this Agreement, the Note, the Drawdown
Certificate and other documents and certificates to be given by
the Borrower in connection with the making of the Loan and each
Drawdown; and
(f) such other documents of authority as shall be reasonably
requested by, and in form and substance satisfactory to, the
Lender and its counsel.
11.2 Note
----
The Lender shall have received a duly executed copy of the Note,
substantially in the form of Exhibit A attached hereto, evidencing the
amount of such Drawdown. ---------
11.3 Governmental Approvals
----------------------
The Lender shall have received copies certified by an Authorized
Representative of the Borrower (together with English translations
thereof) of any governmental consent or approval necessary in
connection with the execution and delivery of this Agreement and the
Note and all related documentation.
11.4 Opinions
--------
The Lender shall have received, for the benefit of and addressed to the
Lender, in each case dated the Drawdown Date, the favorable opinions
(a) under New York and French law of Coudert Brothers, counsel to the
Lender, in form and substance satisfactory to the Lender and (b) (i)
under New York and French law of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Borrower and (ii) under New York and Michigan law of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the Guarantor, addressed to the
Lender and dated the Drawdown Date, substantially in the form attached
hereto as Exhibit D and Exhibits E-1 and E-2, respectively.
--------- ------------ ---
11.5 Drawdown Certificate
--------------------
The Lender shall have received, for the benefit of the Lender, on or
prior to the Drawdown Date, a Drawdown Certificate of the Borrower
substantially in the form of Exhibit B attached hereto.
--------
11.6 Guaranty
--------
The Lender shall have received a duly executed copy of the Guaranty
with respect to the Loan and the Note, which the Borrower shall cause
the Guarantor to deliver substantially in the form attached hereto as
Exhibit C.
----------
32
11.7 Financial Statements
--------------------
The Lender shall have received a copy of the Borrower's most recently
filed statutory accounts.
11.8 Receipt of Funds
----------------
The Lender shall have received in immediately available funds any
monies to be advanced to the Lender on or prior to the Drawdown Date
pursuant to the terms of any participation agreement entered into by
the Lender in connection with the Loan and the terms and conditions of
any such participation agreement shall be unconditional and binding on
the parties thereto in all respects.
11.9 Fees.
----
All fees payable pursuant to Section 4 hereof and any amounts due and
payable under Section 3 hereof shall have been received by the Person
entitled thereto.
11.10 Other Documents
---------------
The Lender shall have received such other approvals, opinions and
documents as it may have reasonably requested in writing prior to
Drawdown.
SECTION 12. EVENTS OF DEFAULT
12.1 Events of Default
-----------------
Each of the following events shall constitute an Event of Default under
this Agreement:
12.1.1 Payment Default. The Borrower fails to make payment (a) on the
---------------
date when due and payable of any amount of principal of the Loan or (b)
of any interest on the Loan within three (3) Banking Days after such
item has become due or (c) of any other fee or other amount payable by
it hereunder within ten (10) Banking Days after such item has become
due.
12.1.2 Representation and Warranty Default. Any representation or
-----------------------------------
warranty made by or on behalf of the Borrower or the Guarantor or in
this Agreement, the Guaranty or any other document executed and
delivered in connection with the Loan shall have been incorrect in any
material respect when made or confirmed, or any certificate furnished
under this Agreement or the Guaranty proves to have been incorrect as
of its date in any material respect.
12.1.3 Other Defaults. (a) The Borrower shall violate or fail to
--------------
perform any covenant or other undertaking of this Agreement (other than
a default or a violation referred to elsewhere in this Section), (b)
the Guarantor shall violate or fail to perform any covenant or other
undertaking hereunder or under the Guaranty, in either case where such
failure or violation is not remediable or, if remediable, continues
unremedied for a period of 30 days
33
after notice from the Lender delivered according to Section 13.7 hereof
or (c) there shall occur a Change in Control of the Borrower or the
Guarantor.
12.1.4 Government Permits. Any governmental registration, license or
------------------
approval required in connection with the entering into of this
Agreement or the maintenance or repayment of the Loan expires and is
not renewed or is terminated or revoked or modified in any manner and
is not reinstated:(i) within 30 days, or (ii) the next succeeding
Interest Payment Date, whichever is sooner unless such expiration,
nonrenewal, termination, revocation, modification or failure of
reinstatement does not, or could not reasonably be expected to, have a
Material Adverse Effect.
12.1.5 Illegality. It becomes unlawful for the Borrower to perform any
----------
material obligation hereunder or for the Guarantor to perform any
material obligation under the Guaranty.
12.1.6 Cross Defaults. (a) The Borrower fails to pay when due any
--------------
amount due in excess of US$ 50,000,000 individually or in the
aggregate, or its equivalent in any other currency, in respect of
Indebtedness of the Borrower (other than amounts due under this
Agreement and the Note) or there occurs any other event of default
under any agreement or instrument relating to Indebtedness in excess of
US$50,000,000 individually or in the aggregate, or its equivalent in
any other currency, of the Borrower, which results in the acceleration
of payment in respect of such Indebtedness and such acceleration is not
revoked within three (3) Banking Days or (b) the Guarantor fails to pay
when due any amount due in excess of US$50,000,000 individually or in
the aggregate, or its equivalent in any other currency, in respect of
Indebtedness of the Guarantor or there occurs any other event of
default under any agreement or instrument relating to Indebtedness in
excess of US$50,000,000 individually or in the aggregate, or its
equivalent in any other currency, of the Guarantor, which results in
the acceleration of payment in respect of such Indebtedness and in each
case such acceleration is not revoked within three (3) Banking Days.
12.1.7 Insolvency. The occurrence of an Insolvency Event with respect
----------
to either the Borrower or the Guarantor.
12.1.8 Judgment Default. (a) Any final non-appealable judgments or
----------------
decrees for money damages or for fines or penalties individually or in
the aggregate at any one time outstanding in excess of US$1,000,000 or
its equivalent in any other currency, which are not covered by
insurance are entered against the Borrower and are not paid, discharged
or stayed within 30 days or (b) any final non-appealable judgments or
decrees for money damages or for fines or penalties individually or in
the aggregate at any one time outstanding in excess of US$5,000,000 or
its equivalent in any other currency, which are not covered by
insurance are entered against the Guarantor and are not paid,
discharged or stayed within 30 days
12.2 Right to Accelerate on Payment Default
--------------------------------------
If a Payment Default shall occur, the Lender shall have the right, by
notice delivered in accordance with Section 13.7 hereof to (i) the
Borrower, or if the Lender so elects, (ii) the
34
Guarantor, to declare the entire Loan together with accrued interest
(including any interest payable at the Default Interest Rate) and all
other sums payable hereunder (including, without limitation, Breakage
Costs) and under the Guaranty to be immediately due and payable and the
Loan shall thereupon become due and payable without presentment,
demand, protest or notice of any kind, other than the notice
specifically required by this Section or the terms of the Guaranty, all
of which are expressly waived by the Borrower and the Guarantor.
12.3 Right to Accelerate on Event of Default
---------------------------------------
If an Event of Default (other than a Payment Default) shall occur
during the Initial Period, the Lender shall have the right, by notice
to either the Borrower or the Guarantor delivered in accordance with
Section 13.7 hereof to declare the Initial Period Amount to be
immediately due and payable in cash, and such amount shall thereupon
become immediately due and payable without presentment, demand, protest
or notice of any kind other than the notice specifically required by
this section, all of which are expressly waived by the Borrower and the
Guarantor.
SECTION 13. MISCELLANEOUS
13.1 Term
----
The term of this Agreement shall commence on the date first set forth
above and shall end on the date of payment in full of all principal,
interest and other sums payable by the Borrower hereunder and under the
Note in accordance with the terms of this Agreement and the Note.
13.2 Entire Agreement
----------------
This Agreement and the documents referred to herein constitute the
entire agreement of the parties hereto with respect to the subject
matter hereof and supersede any prior expressions of intent or
understandings with respect to this transaction. Any amendment hereto
shall be in writing, signed by or on behalf of the parties to this
Agreement.
13.3 Waiver; Cumulative Rights
-------------------------
13.3.1 Generally. No failure or delay on the part of the Lender to
--------
exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
13.3.2 Effect of Waiver. Failure by the Lender at any time or times
----------------
hereafter to require strict performance by the Borrower or the
Guarantor or any other person of any of the provisions, warranties,
terms and conditions contained in the Loan Agreement, the Note, the
Guaranty or any other related documents now or at any time or times
hereafter executed by the Borrower, the Guarantor or any other person
and delivered to the Lender
35
shall not waive, affect or diminish any right of the Lender at any time
or times hereafter to demand strict performance thereof, and such right
shall not be deemed to have been modified or waived by any act, course
of conduct or knowledge of the Lender, its agents, officers or
employees, unless such waiver is contained in an instrument in writing
specifying such waiver signed by the Lender and directed and delivered
to the Borrower. No waiver by the Lender of any default shall operate
as a waiver of any other default or the same default on a future
occasion, and no action by the Lender permitted hereunder shall in any
way effect or impair any of their rights or the obligations of the
Guarantor under the Guaranty or of the Borrower hereunder.
13.4 Assignment and Participation
----------------------------
13.4.1 Assignment. This Agreement shall be binding upon and shall be
----------
enforceable by the Borrower, the Lender and their respective permitted
successors and assigns; provided that the Borrower shall have no right
to assign or transfer its rights or obligations hereunder without the
prior written consent of the Lender. The Lender may assign, transfer or
participate all or any portion of its rights or entitlements hereunder
without the consent of the Borrower or Guarantor. Upon any transfer or
assignment by the Lender, the term "Lender" as used herein shall be
deemed to refer to such new transferee or assignee, respectively.
13.4.2 Rights of Participants. Except as otherwise expressly provided
----------------------
herein, all participants shall be entitled to share the benefits of all
indemnities, tax reimbursements, and other rights of the Lender
pursuant to this Agreement as fully as if a party hereto to the extent
of their indirect interest in the Loan provided through the
participation.
13.5 Governing Law
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (including without limitation
Sections 5-1401 and 5-1402 of the New York General Obligations Law),
without giving effect to the principles of conflicts of law.
13.6 Submission to Jurisdiction
--------------------------
13.6.1 Consent to the New York Courts. Each of the Borrower and the
------------------------------
Guarantor hereby irrevocably consents that any legal action or
proceedings against it or any of its property with respect to this
Agreement, the Note or the Guaranty may be brought in any state or
Federal court located in the City of New York, United States of America
or both, as the Lender may elect, and by execution and delivery of this
Agreement each of the Borrower and the Guarantor hereby submits to and
accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the Borrower and the
Guarantor irrevocably consents to the service of process in any such
action or proceeding by the mailing of copies thereof by registered or
certified airmail, postage prepaid, to the Borrower or the Guarantor at
its address set forth in Section 13.7 or its Process Agent specified in
this
36
Section. Such service of process shall be effective upon receipt. The
foregoing, however, shall not limit the rights of the Lender to serve
process in any other manner permitted by law or to bring any legal
action or proceeding or to obtain execution of judgment in any
jurisdiction, including without limitation, France. The Borrower hereby
appoints the Guarantor as its agent for service of process in New York
and hereby covenants and agrees to maintain the effectiveness of such
appointment throughout the term of this Agreement. The Borrower hereby
agrees that service of process on the Guarantor shall constitute good
and sufficient service of process for the purpose of any action or
proceeding in the State of New York in connection with this Agreement,
the Note or the Guaranty.
13.6.2 Waiver of Forum Non-Conveniens. Each of the Borrower and the
------------------------------
Guarantor hereby irrevocably waives any objection which it may now or
hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement, the Note or
the Guaranty in the State of New York and hereby further irrevocably
waives any claim that the State of New York is not a convenient forum
for any such suit, action or proceedings.
13.7 Notices
-------
Any notice required or permitted to be given hereunder shall be in
writing and shall be (a) personally delivered, (b) delivered by a
recognized courier service, (c) transmitted by postage prepaid
registered mail (airmail if international), or (d) transmitted by
telecopier (with postage prepaid mail confirmation-airmail if
international) to the parties as follows (as elected by the party
giving such notice):
To the Borrower: Steelcase SAS
c/o Steelcase Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
To the Guarantor: Steelcase Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
To the Lender: Societe Generale, Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
37
Except as otherwise specified herein, all notices and other
communications shall be deemed to have been duly given on (a) the date
of receipt if delivered personally or by courier service, (b) the date
five days after posting if transmitted by mail or (c) the date of
transmission if transmitted by telecopier, whichever shall first occur.
Any party may change its address for purposes hereof by notice to the
other party.
13.8 Severability
------------
If any one or more of the provisions contained in this Agreement or the
Note shall be invalid, illegal or unenforceable in any respect under
any applicable law, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way
be affected or impaired. Anything in this Agreement to the contrary
notwithstanding, the obligation of the Borrower to pay interest on the
Loan and the Note shall be subject to the limitation that no payment of
such interest shall be required to the extent that receipt of such
payment would be contrary to the applicable penal laws of the State of
New York relating to usury.
13.9 Confidentiality
---------------
13.9.1 Generally. The Lender covenants and agrees not to disclose to
---------
any person or entity any Confidential Information (as defined below),
except (a) as may be necessary or required by law, rule, regulation or
court order or legal process or order or request of any banking
authority having jurisdiction over the Lender, (b) to its officers,
directors, employees, attorneys and other advisors and (c) in
connection with any action or proceeding arising out of or in
connection with this Agreement, the Note or the Guaranty or in
connection with the enforcement or collection of the Obligations or the
exercise of any right or remedy under any such agreement or instrument.
13.9.2 Definition of Confidential Information. "Confidential
--------------------------------------
Information" shall mean any information with respect to the Borrower
and the Guarantor, this Agreement, the Note, the Guaranty, any
participation agreement or other related document or matter other than
(a) information previously filed, or required to be filed with any
governmental agency and available to the public; (b) information
previously published in any public medium and (c) information
previously disclosed by the Borrower or the Guarantor to any person or
entity not associated with the Borrower or the Guarantor free of any
restrictions as to further disclosure.
13.10 Counterparts
------------
This Agreement may be signed in any number of counterparts. Any single
counterpart or set of counterparts signed, in either case, by all the
parties hereto shall constitute a full and original agreement for all
purposes.
13.11 Right of Setoff
---------------
38
If an Event of Default shall have occurred and be continuing, the
Lender is hereby authorized at any time and from time to time, without
notice to the Borrower or the Guarantor, to the fullest extent
permitted by law, to set off and apply any and all deposits and any and
all indebtedness or other amounts at any time owing by the Lender to or
for the credit or the account of the Borrower or the Guarantor against
any of and all the Obligations now or hereafter existing under this
Agreement, the Guaranty or the Note held by the Lender, irrespective of
whether or not the Lender shall have made any demand under this
Agreement, the Guaranty or the Note and although such obligations may
be unmatured. The rights of the Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff) which the Lender may have.
13.12 Survival of Agreement
---------------------
All covenants, agreements, representations and warranties made by the
Borrower and the Guarantor herein, in the Note and in the certificates
or other instruments prepared or delivered in connection with or
pursuant to this Agreement or the Note shall be considered to have been
relied upon by the Lender and shall survive the making by the Lender of
the Loan, the execution and delivery to the Lender of this Agreement
and the Note regardless of any investigation made by the Lender, and
shall continue in full force and effect as long as any Obligation is
outstanding. Without prejudice to the survival of any other agreements
contained herein and related agreements and instruments, the
obligations under Sections 3 and 4 hereof shall survive payment in full
of the Obligations and termination of this Agreement, unless otherwise
agreed.
13.13 WAIVER OF JURY TRIAL
--------------------
EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE GUARANTY OR THE NOTE.
39
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be executed by their respective duly authorized representatives as of the day
and year first written above.
BORROWER STEELCASE SAS
By: /s/ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
being duly authorized to enter into this Loan
Agreement on behalf of Steelcase SAS pursuant
to a resolution of the shareholders of
Steelcase SAS adopted by such shareholders at
an ordinary shareholders' meeting thereof in
April 1999.
GUARANTOR STEELCASE INC.
By: /s/ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Senior Vice President-Finance, Chief
Financial Officer and Treasurer
LENDER SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
40
ANNEX A
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF THE GUARANTOR
RESOLVED, that the Company hereby ratifies and approves in all respects the
guaranty dated as of April 9, 1999 (the "Guaranty"), made by the Company in
favor of Societe Generale (the "Lender") in connection with the loan agreement
dated as of April 9, 1999 (the Loan Agreement") evidencing indebtedness in the
aggregate principal amount not exceeding Two Hundred Twenty Million United
States Dollars ($220,000,000) among Steelcase SAS, as borrower, the Company, as
guarantor and the Lender, as lender.
RESOLUTIONS OF THE SHAREHOLDERS
OF THE BORROWER
[To be mutually agreed]
A-1
EXHIBIT A
PROMISSORY NOTE
Amount: US$[ ] Date:
Chicago, Illinois
FOR VALUE RECEIVED, STEELCASE SAS (the "Borrower"), hereby promises to pay to
the order of Societe Generale, Chicago Branch (the "Lender"), at Societe
Generale, Chicago Branch, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the
principal sum of [ ] Million United States Dollars (US$[ ]) (the "Loan"),
pursuant to the terms of a Loan Agreement dated as of April 9, 1999 (the "Loan
Agreement") by and among the Borrower, the Lender and Steelcase Inc. (the
"Guarantor"), and to which reference is hereby made and which is incorporated
herein by reference, in one installment on the Final Maturity Date (as defined
in the Loan Agreement), subject to the penultimate paragraph of this Note.
Capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Loan Agreement.
The Borrower further promises to pay interest to the Lender on the Loan until
paid in full at the rates, at the times, in the manner and calculated in
accordance with the provisions of the Loan Agreement.
The interest on this Loan shall be payable in United States Dollars in same day
funds and without set-off or counterclaim, free and clear of and without
deduction for any present or future Taxes, restrictions or conditions of any
nature, except as provided in the Loan Agreement. If the Borrower is required to
make any such deduction or withholding from any such payment, the Borrower shall
pay such additional amounts in the manner set forth in the Loan Agreement.
In case an Event of Default (including a Payment Default) shall occur, the
outstanding principal of, and accrued interest on, this Loan may be declared due
and payable in the manner and with the effect provided in the Loan Agreement,
presentment, demand, protest or notice of any kind being expressly waived by the
Borrower, except as provided in the Loan Agreement.
The Borrower has the right to prepay this Note in whole or in part in accordance
with the terms of the Loan Agreement. Commencing on the Interest Payment Date
occurring on the seventh anniversary of the First Drawdown Date subject to any
Banking Day Adjustment as provided in the Loan Agreement, the Borrower, at the
Borrower's option, shall have the right to prepay (and repay at the Final
Maturity Date) all of the principal of the Loan with the Repayment Shares as set
forth in the Loan Agreement; provided, however, that there shall not exist on
the date of prepayment any default specified in Section 12.1.1 of the Loan
Agreement of a monetary amount owed to the Lender under the Loan Agreement
accruing up to and including the seventh anniversary of the First Drawdown Date,
subject to any Banking Day Adjustment.
This Note shall be governed by and construed in accordance with the laws of the
State of New York (including without limitation Sections 5-1401 and 5-1402 of
the New York General Obligations Law), without giving effect to the principles
of conflicts of law.
A-1
STEELCASE SAS
By: ____________________________________
Name:
being duly authorized to execute this
Promissory Note on behalf of Steelcase
SAS pursuant to a resolution of the
shareholders of Steelcase SAS adopted by
such shareholders at an ordinary
shareholders' meeting thereof in April
1999.
A-2
EXHIBIT B
DRAWDOWN CERTIFICATE
Date:
Societe Generale
Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
STEELCASE SAS
Loan Agreement dated as of April 9, 1999
Ladies and Gentlemen:
STEELCASE SAS (the "Borrower") hereby requests that the principal amount of
[] United States Dollars (US$ ) be advanced to the Borrower on [ ] (the
"Drawdown Date") under the Loan (as defined in the Loan Agreement referred to
below) and certifies that as of the date hereof and as of the Drawdown Date:
1. No event has occurred which constitutes, or which, with the giving of
notice or the passing of time, or both, would constitute, an Event of
Default under the Loan Agreement dated as of April 9, 1999 (the "Loan
Agreement") among the Borrower, Steelcase Inc., as Guarantor and
yourselves, as Lender.
2. All the representations and warranties of the Borrower and the Guarantor
contained in the Loan Agreement are true and correct as if restated in
their entirety on the date hereof.
3. The Borrower and the Guarantor have complied, and are in compliance, with
all of their respective covenants set forth in the Loan Agreement.
4. All of the conditions precedent specified in Section 11 of the Loan
Agreement have been (or will be as of the Drawdown Date) satisfied and all
documents heretofore delivered in satisfaction of the conditions precedent
remain accurate and correct and continue in full force and effect.
5. The Borrower hereby requests that Lender wire transfer the proceeds of the
Loan requested hereby as follows:
For:
Amount:
To:
Account:
Account No.:
B-1
STEELCASE SAS
By: _____________________________
Name:
[being duly authorized to execute this
Drawdown Certificate on behalf of
Steelcase SAS pursuant to a resolution
of the shareholders of Steelcase SAS
adopted by such shareholders at an
ordinary shareholders' meeting thereof
in April 1999.]
CONFIRMED:
STEELCASE INC.
By: ___________________________
Name:
Title:
B-2
EXHIBIT C
CORPORATE GUARANTY
CORPORATE GUARANTY, dated as of April 9, 1999, (the "Guaranty") made by
Steelcase Inc., a Michigan corporation (the "Guarantor"), in favor of Societe
Generale, Chicago Branch (the "Lender").
W I T N E S S E T H :
WHEREAS, the Lender is entering into a Loan Agreement dated as of April
9, 1999 (the "Loan Agreement") with Steelcase SAS, as borrower (the "Borrower")
and the Guarantor, as guarantor, pursuant to which the Lender agreed to lend
US$220,000,000 to the Borrower, subject to the terms and conditions thereof (the
"Loan");
WHEREAS, it is a condition to the Lender's obligation to make the Loan
under the Loan Agreement that the Guarantor execute this Guaranty in favor of
the Lender; and
WHEREAS, all capitalized terms not otherwise defined herein shall have
the respective meanings set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Lender to enter into the Loan Agreement and as a condition of the advance of the
Loan, the Guarantor hereby agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby unconditionally and
--------
irrevocably guarantees the punctual, full and prompt payment when due, whether
by acceleration or otherwise, of all obligations of the Borrower under the Loan
Agreement in respect of the period from and including the First Drawdown Date
through and including the end of the Initial Period (the "Guaranty Period"),
together with any obligations of the Borrower in respect of the Guaranty Period
which survive the expiration thereof (collectively, the "Guaranteed
Obligations") owed to the Lender. This Guaranty is an absolute guaranty of
payment and performance and is not a guaranty of collection.
SECTION 2. Guaranty Absolute. The Guarantor guarantees that the
-----------------
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Agreement, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Lender with respect thereto. The liability of the Guarantor under this Guaranty
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Loan
Agreement or any other agreement or instrument relating thereto
(whether executed by the Borrower, the Guarantor or any other party) or
avoidance or subordination of any of the Guaranteed Obligations;
C-1
(b) any change in the time, manner or place of payment of, or in
any other term of, or any increase in the amount of, all or any of the
Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from the Loan Agreement or any other agreement or
instrument relating thereto (whether executed by the Borrower, the
Guarantor or any other party);
(c) the absence of any attempt to collect the Guaranteed
Obligations from the Borrower or any other action to enforce the same
or the election of any remedy by the Lender;
(d) the bankruptcy, insolvency, winding-up, or reorganization
of, or similar proceeding involving, the Borrower or the Guarantor;
(e) the disallowance under the relevant provisions of any
applicable law of all or any portion of the claims of the Lender for
payment or performance of the Guaranteed Obligations;
(f) the waiver, consent, extension, forbearance or granting of
any indulgence by the Lender with respect to any provision of the Loan
Agreement or any other agreement or instrument relating thereto
(whether executed by the Borrower, the Guarantor or any other party);
or
(g) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Borrower, the Guarantor
or any other guarantor (other than indefeasible payment in full of the
Guaranteed Obligations and in respect of any applicable statute of
limitations).
SECTION 3. Waiver; No Duties of Lender.
---------------------------
(a) The Guarantor hereby waives (i) promptness, diligence, notice of
acceptance and any and all other notices with respect to any of the Guaranteed
Obligations and this Guaranty, (ii) any requirement that the Lender protect,
secure, perfect or insure any security interest in or other lien on any property
subject thereto or exhaust any right or take any action against the Borrower or
any other person or entity or any collateral, (iii) filing of claims with a
court in the event of receivership or bankruptcy of the Borrower, (iv) protest
or notice with respect to nonpayment of any or all of the Guaranteed
Obligations, and (v) all demands whatsoever (and any requirement that the same
be made on the Borrower as a condition precedent to the Guarantor's obligations
hereunder). The Guarantor hereby covenants that this Guaranty will not be
discharged, except according to the provisions of Section 11 hereof.
(b) The Guarantor hereby assumes responsibility for keeping itself
informed of the financial condition of the Borrower, and of all other
circumstances bearing upon the right of nonpayment of the Guaranteed Obligations
or any part thereof, that diligent inquiry would reveal. The Guarantor hereby
agrees that the Lender shall have no duty to advise the Guarantor of information
known to the Lender regarding such condition or any such circumstances. In the
event the Lender in its sole discretion undertakes at any time or from time to
time to provide any
C-2
such information to the Guarantor, the Lender shall be under no obligation (i)
to undertake any investigation not a part of its regular business routine, (ii)
to disclose any information which, pursuant to accepted or reasonable banking or
commercial finance practices, the Lender chooses to maintain as confidential or
(iii) to make any other or future disclosures of such information or any other
information to the Guarantor.
If, in the exercise of any of its rights and remedies, the Lender shall
forfeit any of its rights or remedies, including its right to enter a deficiency
judgment against the Borrower or any other Person, whether because of any
applicable laws pertaining to "election of remedies" or the like, the Guarantor
hereby consents to such action by the Lender and waives any claim based upon
such action, even if such action by and of the Lender shall result in a full or
partial loss of any rights of subrogation, contribution or reimbursement which
the Guarantor might otherwise have had but for such action by the Lender.
SECTION 4. Amendments. No amendment or waiver of any provision of this
----------
Guaranty nor consent to any departure by the Guarantor herefrom shall in any
event be effective unless the same shall be in writing and signed by the Lender.
No amendment, waiver or consent shall, unless in writing and signed by the
Lender, limit the liability of the Guarantor hereunder or postpone any date
fixed for payment hereunder, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 5. No Waiver; Remedies; Subrogation.
--------------------------------
(a) No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
(b) Failure by the Lender at any time or times hereafter to require
strict performance by the Borrower or the Guarantor or any other person of any
of the provisions, warranties, terms and conditions contained in any of the Loan
Agreement, the Note or any of the agreements entered into in connection
therewith now or at any time or times hereafter executed by the Borrower, the
Guarantor or any other person and delivered to the Lender shall not waive,
affect or diminish any right of the Lender at any time or times hereafter to
demand strict performance thereof, and such right shall not be deemed to have
been modified or waived by any act, course of conduct or knowledge of the
Lender, its respective agents, officers or employees, unless such waiver is
contained in an instrument in writing specifying such waiver signed by the
Lender and directed and delivered to the Borrower. No waiver by the Lender of
any default shall operate as a waiver of any other default or the same default
on a future occasion, and no action by the Lender permitted hereunder shall in
any way affect or impair any of its rights or the obligations of the Guarantor
under this Guaranty. Any determination by a court of competent jurisdiction of
the amount of any of the Guaranteed Obligations shall be conclusive and binding
on the Guarantor irrespective of whether the Guarantor was party to the suit or
action in which such determination was made.
C-3
(c) Until all Guaranteed Obligations have been paid in full, the
Guarantor shall not exercise any right of subrogation which it may acquire with
respect to amounts paid hereunder. In the event that the Guarantor shall receive
any payment on account of any such right of subrogation while any Guaranteed
Obligations remain outstanding, the Guarantor agrees to pay all such amounts so
received to the Lender to be applied to payment of the Guaranteed Obligations
then due and owing in accordance with the terms of the Loan Agreement.
SECTION 6. Continuing Guaranty. This Guaranty is a continuing guaranty
-------------------
and shall (a) remain in full force and effect until terminated in accordance
with Section 11, (b) be binding upon the Guarantor, and its permitted successors
and assigns, and (c) inure to the benefit of and be enforceable by the Lender
and its permitted successors, transferees, and assigns who shall be permitted
to, and who shall, become an assignee of the Lender's interest under the Loan
Agreement.
SECTION 7. Reinstatement. This Guaranty shall remain in full force and
-------------
effect and continue to be effective should any petition be filed by or against
the Guarantor or the Borrower (each a "Loan Party" and, collectively, the "Loan
Parties") for liquidation or reorganization, should any Loan Party become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of any Loan
Party's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Guaranteed Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Guaranteed Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored, or returned, the Guaranteed
Obligations shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
SECTION 8. Governing Law. This Guaranty shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York (including,
without limitation, Sections 5-1401 and 5-1402 of the New York General
Obligations Law), without regard to the provisions thereof relating to conflicts
of laws.
SECTION 9. Severability. Whenever possible, each provision of this
------------
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 10. Consent to Jurisdiction. The Guarantor hereby consents to
-----------------------
the non-exclusive jurisdiction of any state court or any federal court located
in New York City and agrees that all service of process may be made by
registered mail directed to the Guarantor at the address and in the manner
specified in the Loan Agreement. The Guarantor waives any objection based on
forum non conveniens and any objection to venue of any action instituted
----- --- ----------
hereunder and consents to the granting of such legal or equitable relief as is
deemed appropriate by the
C-4
court. Nothing contained in this paragraph shall affect the right of the Lender
to serve legal process in any other manner permitted by law or affect its right
to bring any action or proceeding against the Guarantor or its property in the
courts of any other competent jurisdiction.
SECTION 11. Termination. So long as no Event of Default shall have
-----------
occurred and then be continuing, this Guaranty shall terminate and, except to
the extent expressly provided in Section 1 above with respect to survival of
Guaranteed Obligations, all obligations hereunder shall be discharged and
released upon the earlier to occur of: (a) the payment in full of all of the
Guaranteed Obligations or (b) the expiration of the Guaranty Period.
SECTION 12. Currency. The Guarantor shall pay all amounts due hereunder
--------
in Dollars in immediately available funds to the Lender, at such account as the
Lender may designate to the Guarantor from time to time (the "Designated Place
of Payment") and shall be solely responsible for obtaining all required foreign
exchange and other approvals required for the making of such payments in such
currency. The Guarantor's failure to obtain any such approvals shall not relieve
it of its obligation to make payments in Dollars. In the event the Guarantor
makes a payment in any currency other than Dollars or at any place other than
the Designated Place of Payment, such payment shall not constitute payment for
purposes of calculation of interest or otherwise constitute satisfaction of the
requirements set forth herein unless and until the sums so paid are converted
into Dollars and transferred to the Designated Place of Payment. The Guarantor
shall bear all risk of currency fluctuation which occurs at any time between the
date the non-conforming payments are made by the Guarantor and the date when
such payments are converted into Dollars and transferred to the Designated Place
of Payment. The Lender shall have a separate cause of action for any shortfall
in the amount of Dollars when transferred to the Designated Place of Payment. To
the extent permitted by applicable law, the Guarantor hereby further undertakes
to maintain such foreign currency holdings and/or conversion availability from
time to time as is necessary to meet the Guarantor's obligations hereunder.
SECTION 13. Miscellaneous. All references herein to the Borrower and to
-------------
the Guarantor shall be deemed to include their respective permitted successors
and assigns, including, without limitation, a receiver, trustee or
debtor-in-possession of or for the Borrower or the Guarantor. All references to
the singular shall be deemed to include the plural where the context so
requires.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
STEELCASE INC.
By: __________________________
Name:
Title:
C-5
EXHIBIT D
[Opinion under New York and French law of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Borrower]
[date]
Societe Generale, Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Loan Agreement dated as of [ ], 1999 among
Steelcase SAS, Steelcase Inc., and
Societe Generale, Chicago Branch
--------------------------------
Ladies and Gentlemen:
We have acted as counsel to Steelcase SAS, a Societe par Actions
Simplifiee organized under the laws of the Republic of France, in connection
with the preparation, execution and delivery of the Loan Agreement dated as of
[ ], 1999 (the "Loan Agreement") among Steelcase SAS, as borrower (the
"Borrower"), Steelcase Inc., as guarantor (the "Guarantor") and Societe
Generale, Chicago Branch, as lender (the "Lender"). Capitalized terms used and
not otherwise defined herein shall have the respective meanings ascribed to such
terms in the Loan Agreement.
In rendering this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents:
(i) the Loan Agreement;
(ii) the Note to be dated the First Drawdown Date;
(iii) the Guaranty (collectively with the Loan Agreement and the Note
hereinafter referred to as the "Loan Documents");
(iv) the Participation Agreement dated of even date with the Loan
Agreement between Steelcase Europe LLC as participant (the "Participant") and
the Lender (the "Participation Agreement");
and such other instruments and documents, and we have made such other inquiries
and investigations, as we have deemed necessary or appropriate for rendering the
opinions set forth herein. In rendering this opinion we have also, with your
permission, relied upon, among
D-1
other things, the legal opinion dated on or about the date hereof of ▇▇▇ ▇.
▇▇▇▇▇▇▇▇, General Counsel of the Guarantor and Participant with respect to
certain Michigan law matters.
In rendering this opinion, we have assumed, other than with respect to
the Borrower [, the Guarantor and the Participant]:
(a) the capacity, power and authority of each of the parties to the
Loan Documents and Participation Agreement to enter into, execute,
deliver and perform their respective obligations under each of
such documents;
(b) the due authorization of each signatory to the Loan Documents and
Participation Agreement to execute and deliver such documents on
behalf of the parties thereto and the due execution and delivery
of each of such documents;
(c) that each party to the Loan Documents and Participation Agreement
has taken all necessary action to authorize the execution,
delivery and performance of each of such documents to which it is
a party;
(d) that each party to the Loan Documents and Participation Agreement
is duly organized and validly existing under the laws of its place
of organization;
(e) the authenticity of all Loan Documents, the Participation
Agreement and other documents submitted to us as originals and
the conformity with the originals of all documents submitted
to us as copies or certified copies thereof;
(f) the genuineness of all signatures and seals on all of the Loan
Documents, the Participation Agreement and other documents
submitted to us, and that all such documents have been duly
executed by the persons authorized.
Nothing has come to our attention that would lead us to conclude that reliance
on any of the foregoing assumptions is not reasonable.
Based upon the foregoing examinations and assumptions, and subject to
the other qualifications and limitations set forth below, we are of the opinion
that:
1. The Borrower has been duly created as a Societe par Actions Simplifiee
in accordance with the laws of France, is validly existing under those
laws and has power and authority to carry on its business as it is now
being conducted.
2. No approval, consent, license, permit, opinion, filing, registration
with or other authorization of any governmental authority of the United
States of America, the State of New York or the Republic of France is
required on the part of the Borrower for the
D-2
executionor delivery by the Borrower of, or the performance or
incurrence by the Borrower of any obligations or liabilities under, the
Loan Agreement.
3. The Borrower has taken all necessary and appropriate action to
authorize the execution and delivery of the Loan Agreement and to
authorize the performance and observance of the terms thereof.
4. The Loan Agreement constitutes the legal, valid and binding obligation
of the Borrower enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity.
5. The execution, delivery and performance of the Loan Agreement and the
monetary payment of all amounts due on the dates and in the currency
provided for therein (a) will not violate any provision of law or other
governmental directive having the force of law to which the Borrower is
subject, (a) will not conflict with the By-Laws (Statuts) or other
governing documents of the Borrower, (b) to the best of our knowledge,
will not conflict with or result in the breach of any provision of any
material agreement under which the Borrower has incurred Indebtedness
and will not conflict with or result in the breach of any provision of
any other material agreement to which the Borrower is a party or by
which it or any of its properties or assets is bound, (c) to the best
of our knowledge, will not constitute a default or an event that with
the giving of notice or the passing of time, or both, would constitute
a default under any such agreement, and (d) to the best of our
knowledge, will not result in the creation or imposition of any lien,
charge or encumbrance on any of the assets or the property of the
Borrower.
6. To the best of our knowledge, there are no arbitration, litigation,
governmental, administrative or other proceedings pending or threatened
against the Borrower or relating to the Loan Documents or any of the
transactions contemplated thereby.
7. The Guarantor is the owner, directly or indirectly, of 100% of the
issued and outstanding equity of the Borrower.
8. The execution and delivery by the Borrower of, the performance and
incurrence by the Borrower of its obligations and liabilities under,
and the consummation by the Borrower of the transactions contemplated
by, the Loan Agreement do not and will not violate any law, rule or
regulation of the United States of America, the State of New York or
the Republic of France applicable to the Borrower.
9. The Borrower is subject to French civil and commercial law with respect
to its obligations under the Loan Agreement. The entry into and
performance of the Loan Agreement by the Borrower constitute private
and commercial acts and neither the Borrower nor any of its assets
enjoy any right of immunity from set-off or execution or other legal
process in respect of its obligations under the Loan Agreement.
D-3
10. The choice of New York law to govern the Loan Agreement would be
recognized and upheld by courts of the State of New York and Federal
courts located in the State of New York and by courts of the Republic of
France, and the submission by the Borrower to the jurisdiction of such
New York courts is valid and binding on the Borrower.
11. The submission by the Borrower to the jurisdiction of the courts of the
State of New York provided for in the Loan Agreement would be recognized
by the courts of France as valid and binding on the Borrower and not
subject to revocation.
12. A final and binding judgement obtained in the courts of the State of New
York in respect of the Loan Agreement would be enforced by the courts of
France without re-examination of the merits of the case.
We are attorneys admitted to the Bar of the State of New York and the
Republic of France. The opinions set forth herein are limited to matters
governed by the laws of the State of New York, the Federal laws of the United
States of America, and the laws of the Republic of France and we express no
opinion as to any other laws.
Very truly yours,
D-4
EXHIBIT E-1
[Opinion under New York law of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Guarantor]
[date]
Societe Generale, Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Loan Agreement dated as of [ ], 1999
among Steelcase SAS, Steelcase Inc., as
Guarantor and Societe Generale, Chicago Branch
----------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Steelcase Inc., a Michigan corporation, and
Steelcase Europe LLC, a limited liability company organized under the laws of
the State of Michigan, in connection with the preparation, execution and
delivery of the Loan Agreement dated as of [ ], 1999 (the "Loan Agreement")
among Steelcase SAS, as borrower (the "Borrower"), Steelcase Inc., as guarantor
(the "Guarantor") and Societe Generale, Chicago Branch, as lender (the
"Lender"). Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Loan Agreement.
In rendering this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents:
(i) the Loan Agreement;
(ii) the Note to be dated the First Drawdown Date;
(iii) the Guaranty (collectively with the Loan Agreement and the Note
hereinafter referred to as the "Loan Documents");
(iv) the Participation Agreement dated of even date with the Loan
Agreement between Steelcase Europe LLC as participant (the "Participant") and
the Lender (the "Participation Agreement");
and such other instruments and documents, and we have made such other inquiries
and investigations, as we have deemed necessary or appropriate for rendering the
opinions set forth herein. In rendering this opinion we have also, with your
permission, relied upon, among other things, the legal opinion dated on or about
the date hereof of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the Guarantor and
Participant with respect to certain Michigan law matters.
E1-1
In rendering this opinion, we have assumed, other than with respect to the
Guarantor and Participant:
(a) the capacity, power and authority of each of the parties to the Loan
Documents and Participation Agreement to enter into, execute, deliver
and perform their respective obligations under each of such documents;
(b) the due authorization of each signatory to the Loan Documents and
Participation Agreement to execute and deliver such documents on
behalf of the parties thereto and the due execution and delivery of
each of such documents;
(c) that each party to the Loan Documents and Participation Agreement has
taken all necessary action to authorize the execution, delivery and
performance of each of such documents to which it is a party;
(d) that each party to the Loan Documents and Participation Agreement is
duly organized and validly existing under the laws of its place of
organization;
(e) the authenticity of all Loan Documents, the Participation Agreement
and other documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies or
certified copies thereof;
(f) the genuineness of all signatures and seals on all of the Loan
Documents, the Participation Agreement and other documents submitted
to us, and that all such documents have been duly executed by the
persons authorized.
Nothing has come to our attention that would lead us to conclude that reliance
on any of the foregoing assumptions is not reasonable.
Based upon the foregoing examinations and assumptions, and subject to the
other qualifications and limitations set forth below, we are of the opinion
that:
1. No approval, consent, license, permit, opinion, filing, registration with
or other authorization of any governmental authority of the United States
of America or the State of New York is required on the part of the
Guarantor or the Participant for the execution or delivery by the Guarantor
or Participant, of, or the performance or incurrence by the Guarantor or
Participant, as the case may be, of any obligations or liabilities under,
any of the Loan Documents or Participation Agreement.
2. The Loan Documents constitute, the legal, valid and binding obligations of
the Guarantor enforceable in accordance with their respective terms, except
as
E1-2
enforcement may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity.
3. The Participation Agreement constitutes the legal, valid and binding
obligation of the Participant enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, or other
similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity.
4. The execution, delivery and performance of the Loan Documents and the
Participation Agreement and the monetary payment of all amounts due on the
dates and in the currency provided for therein (a) will not violate any
provision of law or other governmental directive having the force of law to
which the Guarantor or Participant are subject, (b) to the best of our
knowledge, will not conflict with or result in the breach of any provision
of any material agreement under which the Guarantor or Participant has
incurred Indebtedness and will not conflict with or result in the breach of
any provision of any other material agreement to which the Guarantor or
Participant is a party or by which they or any of their properties or
assets is bound, (c) to the best of our knowledge, will not constitute a
default or an event that with the giving of notice or the passing of time,
or both, would constitute a default under any such agreement, and (d) to
the best of our knowledge, will not result in the creation or imposition of
any lien, charge or encumbrance on any of the assets or the property of the
Guarantor.
5. Except as described in Schedule 6.5 to the Loan Agreement and to the best
------------
of our knowledge, there are no arbitration, litigation, governmental,
administrative or other proceedings pending or threatened against the
Guarantor or the Participant or relating to the Loan Documents, the
Participation Agreement or any of the transactions contemplated thereby.
6. The Guarantor is the owner, directly or indirectly, of 100% of the issued
and outstanding equity of the Borrower and the Participant, to the best of
our knowledge, free and clear of all liens.
7. To the best of our knowledge, the annual report of the Guarantor for the
year ended February 27, 1998, (b) the financial statements delivered to the
Lender in accordance with Section 6.6, and (c) all filings of the Guarantor
with the Securities and Exchange Commission preceding the date hereof, do
not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
8. The execution and delivery by each of the Guarantor and the Participant of,
the performance and incurrence by each of the Guarantor or the Participant,
as the case may be, of its obligations and liabilities under, and the
consummation by each of the Guarantor or the Participant, as the case may
be, of the transactions contemplated by, the Loan Documents and the
Participation Agreement do not and will not violate any
E1-3
law, rule or regulation of the United States of America or the State of New
York applicable to the Guarantor or the Participant.
9. The choice of New York law to govern the Loan Documents and the
Participation Agreement would be recognized and upheld by courts of the
State of New York and Federal courts located in the State of New York, and
the submission by the Guarantor and the Participant to the jurisdiction of
those courts is valid and binding on the Guarantor and the Participant.
We are attorneys admitted to the Bar of the State of New York. The opinions
set forth herein are limited to matters governed by the laws of the State of New
York and the Federal laws of the United States of America, and we express no
opinion as to any other laws.
Very truly yours,
E1-4
EXHIBIT E-2
[Opinion under Michigan law of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the
Guarantor]
[date]
Societe Generale, Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Loan Agreement dated as of [ ], 1999
among Steelcase SAS, Steelcase Inc., as
Guarantor and Societe Generale,
Chicago Branch
-----------------------------------------
Ladies and Gentlemen:
I have acted as counsel to Steelcase Inc., a Michigan corporation, and
Steelcase Europe LLC, a limited liability company organized under the laws of
the State of Michigan, in connection with the preparation, execution and
delivery of the Loan Agreement dated as of [ ], 1999 (the "Loan Agreement")
among Steelcase SAS, as borrower (the "Borrower"), Steelcase Inc., as guarantor
(the "Guarantor") and Societe Generale, Chicago Branch, as lender (the
"Lender"). Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Loan Agreement.
In rendering this opinion, I have examined originals or copies, certified
or otherwise identified to my satisfaction, of the following documents:
(i) the Loan Agreement;
(ii) the Note to be dated the First Drawdown Date;
(iii) the Guaranty (collectively with the Loan Agreement and the Note
hereinafter referred to as the "Loan Documents");
(iv) the Participation Agreement dated of even date with the Loan
Agreement between Steelcase Europe LLC as participant (the "Participant") and
the Lender (the "Participation Agreement");
and such other instruments and documents, and I have made such other inquiries
and investigations, as I have deemed necessary or appropriate for rendering the
opinions set forth herein. In rendering this opinion I have also, with your
permission, relied upon, among other
E2-1
things, legal opinions dated on or about the date hereof from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Borrower, Guarantor and Participant with respect to certain New
York and French law matters.
In rendering this opinion, I have assumed, other than with respect to the
Guarantor and Participant:
(a) the capacity, power and authority of each of the parties to the Loan
Documents and Participation Agreement to enter into, execute, deliver
and perform their respective obligations under each of such documents;
(b) the due authorization of each signatory to the Loan Documents and
Participation Agreement to execute and deliver such documents on
behalf of the parties thereto and the due execution and delivery of
each of such documents;
(c) that each party to the Loan Documents and Participation Agreement has
taken all necessary action to authorize the execution, delivery and
performance of each of such documents to which it is a party;
(d) that each party to the Loan Documents and Participation Agreement is
duly organized and validly existing under the laws of its place of
organization;
(e) the authenticity of all Loan Documents, the Participation Agreement
and other documents submitted to me as originals and the conformity
with the originals of all documents submitted to me as copies or
certified copies thereof;
(f) the genuineness of all signatures and seals on all of the Loan
Documents, the Participation Agreement and other documents submitted
to me, and that all such documents have been duly executed by the
persons authorized.
Nothing has come to my attention that would lead us to conclude that reliance on
any of the foregoing assumptions is not reasonable.
Based upon the foregoing examinations and assumptions, and subject to the
other qualifications and limitations set forth below, I am of the opinion that:
1. The Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of the State of Michigan. The Guarantor is
qualified or registered to do business in every jurisdiction where the
failure to be so qualified or registered, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
E2-2
2. The Participant is a limited liability company duly organized and in
good standing under the laws of the State of Michigan.
3. No approval, consent, license, permit, opinion, filing, registration
with or other authorization of any governmental authority of the United
States of America or the State of Michigan is required on the part of
the Guarantor or the Participant for the execution or delivery by the
Guarantor or Participant, of, or the performance or incurrence by the
Guarantor or Participant, as the case may be, of any obligations or
liabilities under, any of the Loan Documents or Participation
Agreement.
4. The Guarantor and Participant have taken all necessary and appropriate
action to authorize the execution and delivery of the Loan Documents
and the Participation Agreement and to authorize the performance and
observance of the terms thereof.
5. The execution, delivery and performance of the Loan Documents and the
Participation Agreement and the monetary payment of all amounts due on
the dates and in the currency provided for therein (a) will not violate
any provision of law or other governmental directive having the force
of law to which the Guarantor or Participant are subject, (b) to the
best of our knowledge, will not conflict with the Certificate of
Incorporation or By-laws or other governing documents of the Guarantor
or the Participant, (c) to the best of our knowledge, will not conflict
with or result in the breach of any provision of any material agreement
under which the Guarantor or Participant has incurred Indebtedness and
will not conflict with or result in the breach of any provision of any
other material agreement to which the Guarantor or Participant is a
party or by which they or any of their properties or assets is bound,
(d) will not constitute a default or an event that with the giving of
notice or the passing of time, or both, would constitute a default
under any such agreement, and (e) to the best of my knowledge, will not
result in the creation or imposition of any lien, charge or encumbrance
on any of the assets or the property of the Guarantor.
6. Except as described in Schedule 6.5 to the Loan Agreement and to the
------------
best of my knowledge, there are no arbitration, litigation,
governmental, administrative or other proceedings pending or threatened
against the Guarantor or relating to the Loan Documents or any of the
transactions contemplated thereby.
7. The Guarantor is the owner, directly or indirectly, of 100% of the
issued and outstanding equity of the Borrower and the Participant.
8. To the best of my knowledge, the annual report of the Guarantor for the
year ended February 27, 1998, (b) the financial statements delivered to
the Lender in accordance with Section 6.6, and (c) all filings of the
Guarantor with the Securities and Exchange Commission preceding the
date hereof, do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made,
not misleading.
E2-3
9. The execution and delivery by the Guarantor and the Participant of, the
performance and incurrence by the Guarantor or the Participant, as the
case may be, of its obligations and liabilities under, and the
consummation by the Guarantor or the Participant, as the case may be,
of the transactions contemplated by, the Loan Documents and the
Participation Agreement do not and will not violate any law, rule or
regulation of the United States of America or the State of Michigan
applicable to the Guarantor or the Participant.
10. The choice of New York law to govern the Loan Documents and the
Participation Agreement would be recognized and upheld by courts of the
State of Michigan and Federal courts located in the State of Michigan,
and the submission by the Guarantor and the Participant to the
jurisdiction of those courts is valid and binding on the Guarantor and
the Participant.
I am an attorney admitted to the Bar of the State of Michigan. The
opinions set forth herein are limited to matters governed by the laws of the
State of Michigan and the Federal laws of the United States of America, and I
express no opinion as to any other laws.
This opinion is specific to the transactions and documents referred to
herein and may not be relied upon, used, published, quoted or referred to by you
for any other purpose and should not be assumed to express general principles of
law applicable to transactions of this kind.
Very truly yours,
E2-4
EXHIBIT F-1
COMPLIANCE CERTIFICATE
STEELCASE SAS
Date:
To: Societe Generale, Chicago Branch
This Compliance Certificate is furnished pursuant to that certain Loan
Agreement dated as of April 9, 1999 (the "Loan Agreement") among Steelcase SAS
(the "Borrower"), Steelcase Inc., as Guarantor (the "Guarantor") and Societe
Generale, Chicago Branch (the "Lender"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Loan Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [________] of the Borrower and an Authorized
Representative of the Borrower.
2. I have reviewed the terms of the Loan Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the business
and financial condition of the Borrower [and its Subsidiaries] during the fiscal
period from _____ through and including ________ covered by the attached
statutory accounts.
3. During the fiscal period covered by the attached statutory accounts,
the Borrower was in compliance with all provisions of the Loan Agreement
applicable to the Borrower and as of the end of such period there occurred no
Event of Default or event that with passage of time or notice or both would
constitute an Event of Default and no such Event of Default or event is
continuing on the date hereof. [If any Event of Default or such other event
occurred or is continuing, a statement to that effect and a statement of the
actions taken and proposed to be taken with respect thereto.]
The foregoing certifications are hereby certified to be true and
correct and the statutory accounts delivered with this Certificate in support
hereof are delivered as of the date first written above.
STEELCASE SAS
By: _______________________________________
Name:
Title:
F1-1
EXHIBIT F-2
COMPLIANCE CERTIFICATE
STEELCASE INC.
Date:
To: Societe Generale, Chicago Branch
This Compliance Certificate is furnished pursuant to that certain Loan
Agreement dated as of April 9, 1999 (the "Loan Agreement") among Steelcase SAS
(the "Borrower"), Steelcase Inc., as Guarantor (the "Guarantor") and Societe
Generale, Chicago Branch (the "Lender"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Loan Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [________] of the Guarantor and an Authorized
Representative of the Guarantor.
2. I have reviewed the terms of the Loan Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the business
and financial condition of the Guarantor and its Subsidiaries during the fiscal
period from ________ through and including _______ covered by the attached
financial statements.
3. During the fiscal period covered by the attached financial
statements, the Guarantor was in compliance with all provisions of the Loan
Agreement applicable to the Guarantor and as of the end of such period there
occurred no Event of Default or event that with passage of time or notice or
both would constitute an Event of Default and no such Event of Default or event
is continuing on the date hereof. [If any Event of Default or such other event
occurred or is continuing, a statement to that effect and a statement of the
actions taken and proposed to be taken with respect thereto.]
The foregoing certifications are hereby certified to be true and
correct and the financial statements delivered with this Certificate in support
hereof are delivered as of the date first written above.
STEELCASE INC.
By: _____________________________________
Name:
Title:
F2-1
