EXECUTION VERSION
EXHIBIT 4.46
FIRST AMENDMENT
(STEELCASE TRUST NO. 2000-1)
THIS FIRST AMENDMENT TO PARTICIPATION AGREEMENT (Steelcase
Trust No. 2000-1) (this "Amendment"), dated as of June 8, 2001, is by and among
Steelcase Inc., a Michigan corporation ("Lessee"), ▇▇▇▇▇ Fargo Bank Northwest,
N.A. (formerly known as First Security Bank, National Association), a national
banking association, not in its individual capacity, but solely as Certificate
Trustee ("Certificate Trustee"), First Security Trust Company of Nevada, not in
its individual capacity, but solely as Administrative Agent (the "Administrative
Agent"), Hatteras Funding Corporation, a Delaware corporation ("CP Lender"), the
parties signatory hereto as Certificate Holders (collectively, the "Certificate
Holders") and the parties signatory hereto as Facility Lenders (collectively,
the "Facility Lenders").
RECITALS
WHEREAS, Lessee, Certificate Trustee, Administrative Agent, CP
Lender, the persons named on Schedule I thereto, the persons named on Schedule
II thereto and Bank of America, National Association, not in its individual
capacity but solely as Administrator, are parties to that certain Participation
Agreement (Steelcase Trust No. 2000-1) dated as of May 26, 2000 (as amended
hereby and as from time to time further amended, restated, supplemented or
otherwise modified and in effect, the "Participation Agreement"), pursuant to
which Certificate Trustee has purchased the Aircraft and has concurrently leased
the Aircraft to Lessee; and
WHEREAS, Lessee has requested that the parties to this
Amendment amend certain provisions of the Participation Agreement, and the
parties hereto are willing to so amend the Participation Agreement pursuant to
the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Participation
Agreement.
2. Amendment of Participation Agreement. The
Participation Agreement is hereby amended as follows:
(a) Section 5.1(o). The phrase "Section 5.02(d),
(e) and (f)" that appears twice in Section 5.1(o) of the Participation Agreement
is hereby deleted in each place in which it appears and replaced in each place
with the phrase "Section 5.02(c), (d) and (e)."
(b) Section 5.1(p). Section 5.1(p) is hereby
deleted in its entirety and replaced with the following new Section 5.1(p):
"(p) Liens, Etc. The Lessee will 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 the properties, income or assets of the
Lessee or such Subsidiary, whether now owned or hereafter acquired, in each case
to secure or provide for the payment of any Debt of any Person, unless the
obligations of the Lessee hereunder shall be secured equally and ratably with,
or prior to, any such Debt; provided however that the foregoing restriction
shall not apply to the following Liens which are permitted:
(i) Liens on any property, income or asset of
any Subsidiary of the Lessee existing at the time such Person becomes a
Subsidiary (other than any such Lien created in contemplation of becoming a
Subsidiary);
(ii) purchase money Liens upon or in any property
or asset acquired or held by the Lessee or any Subsidiary in the ordinary course
of business to secure the purchase price of such property or asset or to secure
Debt incurred solely for the purpose of financing the acquisition of such
property or asset (provided that the amount of Debt secured by such Lien does
not exceed 100% of the purchase price of such property and transaction costs
relating to such acquisition) and Liens existing on such property or asset at
the time of its acquisition (other than any such Lien created in contemplation
of such acquisition); and the interest of the lessor thereof in any property
that is subject to a Capital Lease;
(iii) any Lien securing Debt that was incurred
prior to or during construction or improvement of property or within 365 days
after the completion of such construction or improvement for the purpose of
financing all or part of the cost of such construction or improvement, provided
that (A) any such Lien shall extend solely to such property constructed or
improved and (B) the amount of Debt secured by such Lien does not exceed 100% of
the fair market value of such property after giving effect to such construction
or improvement;
(iv) any Lien securing Debt that was incurred for
the purpose of financing all or part of the manufacturing facility currently
under construction in Kent County, Michigan, provided that (A) any such Lien
shall extend solely to such facility and the property related thereto and (B)
the amount of Debt secured by such Lien does not exceed an amount equal to the
lesser of $70,000,000 and 100% of the fair market value of such facility and
property after giving effect to completion of such construction;
(v) any Lien securing Debt of a Subsidiary owing
to the Lessee;
(vi) Liens resulting from any extension, renewal
or replacement (or successive extensions, renewals or replacements), in whole or
in part, of any Debt secured by any Lien referred to in clauses (i), (ii), (iii)
and (iv) above so long as (x) the aggregate principal amount of such Debt shall
not exceed the amount otherwise permitted in clauses (i), (ii), (iii) or (iv),
as relevant, as a result of such extension, renewal or replacement and (y) Liens
resulting from any such extension, renewal or replacement
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shall cover only such property which secured the Debt that is being extended,
renewed or replaced;
(vii) Liens on receivables securing Debt of
Steelcase Financial Services Inc., a Michigan corporation ("SFSI") or any
Subsidiary of SFSI, so long as the obligations of SFSI or such Subsidiary
secured by such Liens are nonrecourse to the Lessee or any of its Subsidiaries
other than SFSI or such Subsidiary, provided that the Lessee may enter into, and
be liable in respect to, a limited performance guaranty regarding the accuracy
of any customary representations and warranties made by SFSI or such Subsidiary
in respect of such receivables and the billing, monitoring and collection
functions of SFSI or such Subsidiary, as servicer, in respect of such
receivables, and provided further that at any time, the aggregate outstanding
amount of Debt of SFSI and its Subsidiaries that is secured by such receivables
does not exceed $500,000,000;
(viii) Liens permitted under Section 7 of the
Lease; and
(ix) Liens other than Liens permitted in clauses
(i) through (viii) hereof, whether now existing or hereafter arising, securing
Debt in an aggregate amount not exceeding $75,000,000.
For purposes of this Section 5.1(p) the following
terms have the following meanings:
"Capital Lease" means, with respect to any Person,
any lease of any property by that Person as lessee which would, in
conformity with GAAP, be required to be accounted for as a capital
lease on the balance sheet of that Person.
"Debt" means (i) indebtedness for borrowed money or
for the deferred purchase price of property or services (other than
trade accounts payable arising in the ordinary course of business no
more than 60 days past due), (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."
(c) Appendix A. The definition of "Credit
Agreement" in Appendix A to the Participation Agreement is hereby deleted in its
entirety and replaced with the following definition:
"Credit Agreement" means that certain Credit
Agreement (Long Term Multicurrency Revolving Credit Facility) dated as
of April 5, 2001 among Lessee, the banks named therein as Lenders and
Citicorp USA, Inc., as administrative agent."
3. Representations and Warranties of Lessee. In order to
induce the parties hereto to enter into this Amendment, Lessee hereby represents
and warrants to the parties hereto that:
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(a) Power; Authority. It is validly existing
under the laws of the State of Michigan; it has the power and authority to enter
into this Amendment; and this Amendment constitutes its legal, valid and binding
obligations and is enforceable against it in accordance with its terms.
(b) No Default. After giving effect to this
Amendment, no Event of Default shall have occurred and be continuing.
4. Ratification. Except as specifically amended hereby,
each of the Participation Agreement and the other Operative Documents shall
remain unchanged and continue in full force and effect. After the execution of
this Amendment by the Lessee, the Certificate Trustee and the Required
Participants, any reference to the Participation Agreement (including Appendix A
thereto) in any Operative Document shall be to the Participation Agreement, as
amended hereby.
5. Release. In consideration of entering into this
Amendment, except with respect to obligations expressly set forth in the
Operative Documents, the Lessee releases the other parties hereto and each of
their respective Affiliates, Subsidiaries, officers, employees, representatives,
agents, counsel and directors from any and all actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or
in equity, now known or unknown, suspected or unsuspected to the extent that any
of the foregoing arises from any action or failure to act with respect to this
Amendment or any other Operative Document, on or prior to the date hereof.
6. Miscellaneous.
(a) Successors and Assigns. This Amendment shall be
binding upon and shall be enforceable by the parties hereto and their respective
permitted successors and assigns. The terms and provisions of this Amendment are
for the purpose of defining the relative rights and obligations of Lessee,
Certificate Trustee and the Required Participants with respect to the
transactions contemplated hereby and there shall be no third party beneficiaries
of any of the terms and provisions of this Amendment.
(b) Entire Agreement. This Amendment and all 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 Amendment.
(d) Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
(e) Severability. Wherever possible, each provision of
this Amendment shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable
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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 Amendment.
(g) Counterparts. This Amendment may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed counterpart of a signature
page to this Amendment by telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment.
(h) Direction. The Certificate Holders hereby direct the
Certificate Trustee and the Facility Lenders hereby direct the Administrative
Agent to enter into this Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, this First Amendment to Participation
Agreement has been duly executed as of the date first written above.
STEELCASE INC.,
as Lessee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP, Finance and Treasurer
▇▇▇▇▇ FARGO BANK NORTHWEST, N.A.,
not in its individual capacity but solely
as Certificate Trustee
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FIRST SECURITY TRUST COMPANY OF NEVADA,
not in its individual capacity but solely
as Administrative Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Trust Officer
HATTERAS FUNDING CORPORATION,
as CP Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
[First Amendment to Participation Agreement]
BANC OF AMERICA LEASING & CAPITAL, LLC,
as a Certificate Holder
By: /s/ ▇▇▇▇▇▇ ▇. Nofona
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. Nofona
Title: Vice President
SCOTIABANC INC.,
as a Certificate Holder
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Facility Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
OLD KENT BANK,
as a Facility Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Title: Vice President
THE NORTHERN TRUST COMPANY,
as a Facility Lender
By:
---------------------------------------
Name:
Title:
[First Amendment to Participation Agreement]
THE BANK OF NOVA SCOTIA,
as a Facility Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
[First Amendment to Participation Agreement]
