EXHIBIT 4.21
Execution Copy
PARTICIPATION AGREEMENT
This Participation Agreement ("Agreement") entered into as of April 9,
1999, by and between STEELCASE EUROPE LLC, a limited liability company organized
under the laws of the State of Michigan ("Participant"), and SOCIETE GENERALE,
Chicago Branch, a banking institution organized under the laws of the Republic
of France acting through its Chicago branch ("Bank"), sets forth the binding
agreement of the parties.
R E C I T A L S
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A. Simultaneously herewith, Bank, as lender, is entering into a Loan
Agreement (as the same may be amended, supplemented and otherwise modified from
time to time, the "Loan Agreement") dated as of the date hereof with Steelcase
SAS, an affiliate of Participant, organized as a Societe par Actions Simplifiee
under the laws of the Republic of France, with its registered office at Tour
Aurore 01, 00 Xxxxx xxx Xxxxxxx, 00000 Xxxxx Xx Xxxxxxx 0 Xxxxx, Xxxxxx (the
"Borrower"), pursuant to which Bank has agreed to advance a loan (the "Loan") to
Borrower in the principal amount of up to US$220,000,000 subject to the terms
and conditions set forth in the Loan Agreement and in this Agreement.
B. Bank and Participant mutually desire that Bank shall grant to
Participant a participation interest (the "Participation Interest") in the Loan
on the terms set forth herein, with each party having an interest in the Loan
such that Participant will be entitled, subject to the terms and conditions
hereof and of the Loan Agreement, to 100% of the Loan Agreement's benefits and
rights during the Participation Period (as defined below).
1. PARTICIPATION
1.1 Definitions
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Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the respective meanings set forth in the Loan Agreement.
1.2 Agreement to Purchase and Sell
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Bank hereby agrees to sell to Participant, and Participant hereby
agrees to purchase from Bank, the Participation Interest (including all related
payments and recoveries to which Participant is entitled pursuant to Section 2
below), and Bank hereby transfers the Participation Interest to Participant in
consideration of the obligation undertaken herein by Participant to pay to Bank
a participation purchase price in the amount set forth on Schedule 1.2 hereto,
to be completed and attached at least two days prior to the First Drawdown Date
(as defined in the Loan Agreement), plus an additional amount with respect to
any drawdown
subsequent to the first Drawdown of the Loan by the Borrower as may be agreed
from time to time among Bank and Participant (the "Participation Purchase
Price"). Participant and Bank acknowledge that Participant is purchasing the
Participation Interest as of the First Drawdown Date.
1.3 Disclosure of Terms of Loan Agreement. Participant acknowledges
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that it has received a copy of the Loan Agreement as executed and in effect as
of the date hereof. Bank agrees that it will furnish to Participant a copy of
each Drawdown Certificate of the Loan promptly after such Drawdown Certificate
is delivered by Borrower.
1.4 Manner of Payment of Participation Purchase Price. Participant
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agrees to provide immediately available funds to the account designated by Bank
in sufficient time to permit such funds to be advanced as part of the relevant
Drawdown in satisfaction of the obligation of Bank pursuant to its Commitment
under the Loan Agreement. The advance of the Participation Purchase Price in
such manner shall constitute payment in full for the Participation Interest.
1.5 Nature of Transaction. The transaction contemplated by this
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Agreement is a purchase and sale of an undivided interest in the Loan in
consideration for Participant's payment of the Participation Purchase Price. The
Participation Interest will be without restriction and Participant will have the
same benefits as the Bank with regard to yield protection and increased costs
and provision of information on the Borrower. The transfer of funds by
Participant to Bank in accordance with Section 1.2 shall not constitute a loan
by Participant to Bank, or constitute the making of a loan agreement between
Borrower and Participant or a sale of securities by Bank to Participant, and
shall not result in the creation of a joint venture between Bank and
Participant. The purchase shall be without recourse to Bank, and Participant
assumes all risks of non-payment and any other default by Borrower. Bank shall
owe Participant no duty except as specifically set forth in this Agreement.
2. PAYMENTS
2.1 Collections and Remittances.
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2.1.1 Payments Held in Trust. During the Participation Period
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(as defined below), Bank shall hold in trust for the benefit of Participant all
amounts paid to Bank by Borrower in respect of the Loan pending payment of such
amounts to Participant in accordance with Section 2.1.2.
2.1.2 Payment Allocation. Commencing on the first day of the
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Interest Period immediately following the Interest Payment Date that occurs on
the seventh anniversary of the first Drawdown Date under the Loan Agreement
subject to any Banking Day Adjustment (the "Payment Commencement Date"), and
continuing until such date on which the Loan is repaid in full in accordance
with its terms (such period being referred to as the "Participation Period"),
Bank shall pay to Participant 100% of all consideration accruing and paid by
Borrower to Bank on the Loan from and after the Payment Commencement Date
including, without limitation, all amounts of principal of and interest on the
Loan; provided, however, that if Bank
has not been paid all amounts due and owing to Bank under the Loan Agreement up
to the Payment Commencement Date, any and all amounts paid on the Loan shall be
retained by Bank to the extent necessary to satisfy such amounts before any
payment is made to Participant hereunder. Prior to the Payment Commencement
Date, Participant shall have no right to receive any payments, except as
provided in this section in the case of permitted prepayments or an acceleration
of the Loan following the occurrence of an Event of Default, with regard to
payments of principal of and interest on the Loan payable to Bank pursuant to
the Loan Agreement. Participant hereby acknowledges and agrees that the yield
protection provisions in favor of Bank set forth in Section 3 of the Loan
Agreement, and the fee payment and indemnification provisions in favor of Bank
set forth in Section 4 of the Loan Agreement, respectively, shall survive the
commencement of the Participation Period with respect to events occurring and
liabilities incurred during the Initial Period, and that prior to the
commencement of the Participation Period Participant shall not have any right or
claim to participate in the benefits thereof. In the event that the Loan is
prepaid prior to the commencement of the Period, whether by acceleration
following an Event of Default or by any permitted prepayment in accordance with
the terms of the Loan Agreement or otherwise, Bank shall pay Participant an
amount equal to the amount received less the Initial Period Amount.
2.1.3 Drawdown. If on any Drawdown Date, Participant shall fail
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to fund its portion of the Drawdown in a timely manner so as to enable Bank to
confirm the availability of funds for the Drawdown prior to the time of the
Drawdown, then Bank shall have no obligation to advance its own funds in respect
of such portion of the Loan. Participant acknowledges its obligation to pay the
relevant portion of the Participation Purchase Price to Bank prior to or
concurrently with the making by Bank of each Drawdown and agrees to indemnify
and hold harmless Bank against any demand, claim or proceeding asserted or
brought by Borrower based upon, arising out of or in connection with
Participant's failure to advance funds as set forth herein and Participant
agrees to reimburse Bank for all costs and expenses (including any costs of
funding Participant's portion of the Drawdown itself and attorneys fees and
expenses) incurred in connection with Participant's failure to advance funds as
set forth herein.
2.2 Payment Returns and Adjustments
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2.2.1 If, for any reason, Bank makes any payment to Participant
of any amounts prior to receiving the related amount from Borrower and
Borrower's related payment is not received by Bank within one Banking Day after
such payment by Bank to Participant, then promptly upon demand by Bank,
Participant shall return the payment to Bank with interest at the Applicable
Rate (as defined below) for the period from (and including) the date Participant
received such payment to (but excluding) the date such payment is returned in
same day funds.
2.2.2 If, as a result of a miscalculation or other mistake, Bank
pays an amount to Participant that is less than or greater than the amount then
payable to Participant in respect of its Participation Interest, then, promptly
upon becoming aware of such discrepancy, Bank shall pay to Participant the
amount of the deficiency or Participant shall return to Bank the amount of the
excess, as the case may be, together with interest at the floating rate
generally available on overnight deposits for funds in the currency received by
Participant or Bank, as
applicable, in the place where such amount was paid, as determined by Bank in
its discretion (the "Applicable Rate").
2.2.3 If Bank determines at any time that any amount received or
collected by Bank in respect of the Loan must be returned to Borrower or paid to
any other person or entity pursuant to any insolvency law or otherwise, then,
notwithstanding any other provision of this Agreement, Bank shall not be
required to distribute any portion thereof to Participant and Participant shall
promptly, on demand by Bank, repay any portion thereof that Bank has distributed
to Participant, together with interest thereon at such rate and for such period,
if any, as and in respect of which Bank is required to pay interest to Borrower
or such other person or entity.
2.2.4 If Bank fails to make any payment to Participant of any
amounts due to Participant within three (3) Banking Days after receiving the
related amount from Borrower or if Bank is subject to any insolvency and/or
bankruptcy related proceedings (which shall include the entering of any decree
or order of a court for the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of Bank or of any of its property, or
for the liquidation or winding-up of Bank), then Bank agrees that Participant
may give notice of such failure of payment or insolvency or bankruptcy
proceedings to Borrower and may direct Borrower, to which direction Bank hereby
irrevocably consents, to set off and reduce the amount of any payments owed and
payable to Bank in respect of the Loan by the amount of the payment owed to
Participant and Participant may direct Borrower to make any further payments in
respect of the Loan, during the continuance of the failure of payment by Bank or
any such insolvency or bankruptcy proceedings, directly to Participant. In the
event that, following the commencement of the Participation Period, Bank is
subject to any insolvency and/or bankruptcy proceedings and Bank receives during
the pendency of such proceedings any funds from Borrower under or in connection
with the Loan Agreement, subject to any restrictions under then applicable laws,
regulations, rules or orders, Bank will use reasonable efforts to place, or
cause to be placed, such funds in a segregated account in trust for the benefit
of Participant. Participant agrees promptly to notify Bank after it has given
such notice and direction to Borrower of the amount demanded from Borrower and
of each direct payment made by Borrower to Participant, provided, however, that
any failure by Participant to give such notice to Bank shall not affect the
validity of such direction by Participant to Borrower. The rights of Participant
under this section are in addition to any other rights and remedies which
Participant may have against Bank by reason of any failure of payment by Bank.
The parties intend that this provision will satisfy the requirements of (i) the
Financial Accounting Standards Board (FASB) Interpretation No. 39 with respect
to off-setting of assets and liabilities for financial statement purposes, and
(ii) the Statement of Financial Accounting Standards No. 125 with respect to
accounting for transfers and servicing of financial assets and extinguishments
of liabilities relating to loan participations.
2.2.5 Bank covenants to Participant that all amounts it receives
from Borrower under the Loan during the Participation Period shall be forwarded
to Participant free and clear of all taxes, levies, deductions or withholdings
imposed on payments from Bank to Participant hereunder and that Bank shall pay
such additional amount to Participant as may be necessary in order that the
actual amount received after payment of taxes, levies, deductions or
withholdings (and after payment of any additional 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 taxes, levies, deductions or withholdings were not
required; provided, however, that Bank shall be entitled to deduct or withhold
all such taxes, levies, deductions and withholdings and shall not be required to
pay such additional amount if amounts paid to Participant hereunder would be
subject to a U.S. tax, levy, deduction or withholding (including without
limitation, pursuant to a change in U.S. tax law) if Bank were a bank chartered
or established under the laws of the United States or any state thereof.
2.2.6 The obligations of Participant and Bank under this Section
2.2 shall survive the termination of this Agreement and the Loan Agreement.
2.3 Place and Manner of Payments. All payments pursuant hereto shall
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be made by wire transfer of immediately available funds, not later than 12:00
p.m. (Chicago, Illinois time) on the day in question (i) in the case of payments
to Bank, to the account of Bank specified to Participant from time to time, (ii)
in the case of payments to Participant, to the account of Participant, the
details of which Participant shall provide to Bank prior to the Payment
Commencement Date and thereafter from time to time or, (iii) to such other
person or place as Participant or Bank, as the case may be, may designate in
writing from time to time.
3. LOAN ADMINISTRATION BY BANK AS AGENT
3.1 Appointment and Authorization of Bank as Agent. Participant
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hereby appoints and authorizes Bank as its agent ("Agent") to take such action
as Agent on its behalf and to exercise such powers under this Agreement as are
delegated to Agent by the terms hereof, together with all such powers as are
reasonably incidental thereto.
3.2 Agent and Affiliates. Notwithstanding its appointment as Agent
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with respect to the Loan and without any obligation to provide notice to
Participant, Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with Borrower or Participant or any
Subsidiary or Affiliate of Borrower or Participant as if it were not Agent.
3.3 Action by Agent. The obligations of Agent hereunder are only
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those expressly set forth herein. Without limiting the generality of the
foregoing, Agent shall not be required to take any action with respect to any
Event of Default, except as expressly provided in section 2.1.1.
3.4 Sole Administration by Agent.
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3.4.1 During the term of this Agreement, Agent shall maintain in
accordance with its usual practice records and accounts in respect of the
amounts paid by, and the amounts distributed to, Participant hereunder, and the
computation of interest payable to Participant, which records and accounts shall
be available for inspection by Participant during customary banking hours upon
not less than three (3) Banking Days prior notice, and which shall be binding
upon Participant absent manifest error.
3.4.2 Except as expressly set forth in Section 3.4.3, Agent,
will administer and manage the Loan in accordance with the Loan Agreement in the
ordinary course of business and in accordance with Agent's usual practices,
modified from time to time as Agent deems appropriate under the circumstances.
Except as expressly set forth in Section 3.4.3, Agent shall be entitled, at any
time prior to the Payment Commencement Date, to use its discretion in taking or
refraining from taking any actions in connection with the Loan and any related
documents, including, without limitation, actions relating to any waiver or
amendment of any term thereof, as if Agent were the sole party involved in the
Loan and no participation existed; provided, however, to the extent possible
under the circumstances, Agent will use its best efforts to give prior notice to
Participant pursuant to Section 6.1 hereof and to consult with Participant
before taking such action. Notwithstanding the foregoing, Agent shall be fully
justified in failing or refusing to take any action in connection with the Loan
and any related documents unless Agent shall first receive such advice or
concurrence of Participant as Agent shall deem appropriate.
3.4.3 Notwithstanding the foregoing, Agent, shall not, at any
time prior to the Payment Commencement Date, without the prior consent of
Participant, (i) waive any default by Borrower involving the payment of money to
Bank pursuant to the Loan Agreement; (ii) extend the time of payment of any of
Borrower's obligations with respect to the Loan; (iii) increase the principal
amount of the Loan; (iv) reduce the principal amount of, or the rate at which
interest accrues on, the Loan or (v) change the manner of payment of the Loan.
If Agent requests Participant's consent to any such action and does not receive
a written approval thereof from Participant within ten (10) Banking Days (or
such shorter period as may be requested or required by Borrower) after making
such request, then Participant shall be deemed to have not given such consent.
From and after the Payment Commencement Date, Agent agrees that it shall act
solely on behalf of Participant in administering the Loan and shall, if
requested by Participant, from time to time, enter into with Borrower any
amendment, modification or waiver of any terms or provisions of the Loan
Agreement or the Note, or any other related agreement or instrument reasonably
requested by Participant; provided, however, that Participant agrees to
reimburse Agent for all reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) of Agent incurred
by Agent in connection with a request by Participant to enter into any such
amendment, modification or waiver. During the Participation Period, the Agent
hereby agrees that it will not amend the Loan, waive any provision thereof,
accelerate the Loan or otherwise exercise any remedies without the prior written
consent of Participant.
3.4.4 If Bank is subject to any insolvency and/or bankruptcy
related proceedings (which shall include the entering of any decree or order of
a court for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of Bank or of any of its property, or for the
liquidation or winding-up of Bank), Bank agrees that Participant may either
direct Bank (i) to assign all its rights and interest under the Loan Agreement
(including, without limitation, all rights with respect to the Repayment Shares)
relating to the Participation Period (but not its rights and interest under the
Loan Agreement arising before the Participation Period) or (ii) in consideration
of payment by Participant of the then outstanding Initial Period Amount, to
assign all its rights and interest under the Loan Agreement (including, without
limitation, all rights with respect to the Repayment Shares), in
each case, either directly to Participant or to another financial institution of
Participant's choice, to which assignment Bank hereby irrevocably consents and
waives all right of setoff, and upon which assignment Bank's obligations as
Agent under this Agreement shall cease.
3.4.5 In no event shall Bank be entitled to own or hold the
Repayment Shares and, concurrently with the issuance of the Repayment Shares,
shall immediately take all action necessary, including, without limitation,
notice to Borrower, to cause the Repayment Shares to be registered in the name
of Participant or its nominee. So long as Bank has been paid all amounts due and
owing to it under the Loan Agreement, at no time shall Bank hold or exercise any
rights in the Repayment Shares, whether in the nature of dividends, voting
rights or other rights; all such rights shall be and remain rights of
Participant or its nominee.
3.5 Agency Fee. During the Participation Period, Participant shall
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pay to Bank in consideration of services Bank provides in its capacity as Agent
under this Section 3 a fee (the "Agency Fee"), such fee to be paid annually on
the Payment Commencement Date (as defined in Section 2.1.2 herein) and every
anniversary thereof. The Agency Fee shall be US$25,000 for the first year of the
Participation Period and for succeeding years shall be subject to an adjustment
for inflation by an amount determined by reference to the Producer Price Index
published by the Bureau of Labor Statistics of the United States Department of
Labor (the "PPI"), or a successor index appropriately adjusted. The adjustment
of the Agency Fee in each year following the first year of the Participation
Period shall be calculated by multiplying the amount of the Agency Fee for the
immediately preceding year by a fraction the numerator of which is the PPI of
the then current year and the denominator of which is the PPI of the immediately
preceding year. Participant's obligation to pay the Agency Fee under this
Section shall terminate upon either (i) termination or prepayment of the Loan
pursuant to the Loan Agreement or (ii) assignment of the rights and benefits of
Bank pursuant to Section 3.4.4.
3.6 Agent Not Liable to Participant in Administering the Loan;
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Representations of Bank.
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3.6.1 Except as expressly provided herein, Agent shall have no
liability or responsibility to Participant for any action or inaction by Agent
in connection with the administration of the Loan other than to act in good
faith and to exercise the same care in the administration of the Loan as Agent
exercises with respect to loans for its own account. Except as expressly
provided herein, Agent shall not be liable to Participant for any action taken
or not taken by Agent in connection with the enforcement of the Loan or any
related documents, except for any actual losses (other than consequential
damages) suffered or incurred by Participant that are determined by a final
court of competent jurisdiction to have resulted from Agent's gross negligence
or willful misconduct. Without limiting the foregoing, Agent (i) may consult
with legal counsel, independent public accountants, appraisers and other
experts, selected by Agent, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
persons, (ii) shall be entitled to rely on, and shall incur no liability by
acting upon, any conversation, notice, consent, certificate, statement, order,
or any document or other writing (including, without limitation, telegraph,
telex, facsimile, or other telecommunication device) believed by Agent to be
genuine and correct and to have been signed, sent, or made by the proper person,
(iii) except as expressly stated herein, makes no
representation or warranty of any kind or character relating to Borrower and
shall not be responsible for any representation or warranty made in or in
connection with the Loan, (iv) makes no representation or warranty as to, and
shall not be responsible for the correctness as to form, the due execution,
legality, validity, enforceability, genuineness, sufficiency, or collectibility
of the Loan or any other document relating thereto, or for any failure by
Borrower to perform its obligations thereunder, or for Borrower's use of the
proceeds therefrom, (v) makes no representation or warranty as to, and assumes
no responsibility for, the authenticity, validity, accuracy, or completeness of
any notice, financial statement, or other document or information received by
Agent in connection with, or otherwise referred to in, the Loan Agreement and
(vi) shall not be required to make any inquiry concerning the observance or
performance of any agreements contained in, or conditions of, the Loan Agreement
or the Note or to inspect the property, books or records of Borrower.
3.6.2 Bank, as Agent, represents and warrants to Participant
that, except insofar as Bank has previously notified Participant pursuant to
Section 6.1, as of the date hereof and each Drawdown Date (i) the sale of the
Participation Interest in the Loan by Bank to Participant has been duly
authorized and approved by all necessary action on the part of Bank, (ii) Bank
is entitled to the rights and benefits granted to it under the Loan Agreement
free and clear of all consensual liens and encumbrances, and Bank has the right,
power and authority to sell such Participation Interest to Participant and (iii)
Bank has not consented to any amendment or modification in any respect of any of
the Loan Agreement, the Note and Drawdown Certificate supplied to Participant.
3.7 Notices to Participant. Bank, as Agent, shall use reasonable
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efforts to:
(i) notify Participant of any Event of Default (as defined in
and under the Loan Agreement) or any material breach of any representation,
covenant, warranty, or obligation of Borrower coming to the attention of the
officers of Bank responsible for the administration of the Loan Agreement
whether pursuant to written notice by Borrower to Bank under the Loan Agreement
or otherwise; provided, however, no failure to give Participant such notice
shall result in any liability of Bank to Participant or relieve Participant of
any obligation hereunder;
(ii) except as otherwise required by law or by an obligation of
confidentiality to which Bank is subject, periodically provide Participant with
copies of all material written reports, notices, and other documents that Bank
receives pursuant to the terms of the Loan Agreement, provided that Bank shall
have no responsibility for the authenticity, validity, accuracy or completeness
of any such document; and
(iii) notify Participant of each request for any modification to
the terms of the Loan Agreement that requires Participant's consent pursuant to
3.4.3 hereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTICIPANT
4.1 Authorization; Binding Nature. Participant hereby represents and
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warrants that this Agreement (i) has been duly authorized by all necessary
corporate and other action, (ii)
constitutes the legal, valid and binding obligation of Participant, enforceable
in accordance with its terms, and (iii) does not violate or contravene the
certificate of incorporation or by-laws or other constitutive documents of
Participant or any law, rule, regulation, order or judgment applicable to it.
4.2 Independent Investigation by Participant. Participant
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acknowledges (a) that Participant has received a copy of the Loan Agreement and
has been provided with related documentation and access to all such financial
data and other information pertaining to Borrower and all other related Persons
that Participant has requested in order to enable it to make an independent and
informed judgment with respect to the desirability of purchasing the
Participation Interest, (b) that, except as expressly stated herein, neither
Bank nor any Person on its behalf has made any representations or warranties to
Participant and that no prior or future act by Bank or any Person on its behalf,
including, without limitation, any review of the affairs of Borrower or any
other related Persons shall be deemed to constitute a representation or warranty
of Bank or any such Person and (c) that Participant has independently, without
reliance upon Bank, and based on such information as Participant has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial condition, and general credit worthiness of
Borrower and all other Persons it deemed necessary and made its own decision to
execute this Agreement and thereby purchase the Participation Interest.
Participant agrees that, independently and without reliance upon Bank or any
representations or statements of Bank, and based on such information as
Participant deems appropriate at the time, Participant will continue to make and
rely upon its own credit analysis and decisions in taking or not taking any
action in connection with this Agreement, the Loan Agreement or the related
documents.
4.3 Status of Participant's Interest in the Loan. Participant hereby
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represents and warrants to Bank that the purchase of Participant's participation
in the Loan is made for investment for Participant's own account and not with a
view to any resale, distribution, transfer or conveyance thereof.
4.4 Indemnification of Certain Costs and Expenses. Participant agrees
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to indemnify (and Bank is authorized to debit Participant's account, if any,
with Bank, or set off against any payments due to Participant from Bank
hereunder for the same) Bank 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 or any of the transactions
contemplated herein; provided that none of the 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, 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 Participant 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, Participant 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. The
covenants contained in this Section shall survive the termination of this
Agreement.
5. CONFIDENTIALITY
5.1 Bank covenants and agrees not to disclose to any Person any
Confidential Information (as defined below), except (i) as may be necessary or
advisable under or required by law, rule or regulation or legal process or order
or request of any governmental authority, (ii) to its officers, directors,
employees, attorneys and other advisors and (iii) in connection with any action
or proceeding arising out of or in connection with this Agreement, the Note, the
Loan Agreement or the Guaranty or in connection with the enforcement or
collection of the Obligations or the exercise of any right and remedy under any
such agreement or instrument.
5.2 "Confidential Information" shall mean any information with
respect to Borrower, the Loan Agreement and the existence of this Agreement
other than (i) information previously filed with any governmental agency and
available to the public, (ii) information previously published in any public
medium and (iii) information previously disclosed by Borrower or Participant to
any Person not associated with Borrower or Participant free of any restrictions
as to further disclosure.
6. MISCELLANEOUS
6.1 Notices. Any notice required or permitted to be given hereunder
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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 Participant: Steelcase Europe LLC
c/o Steelcase Inc.
000 00xx Xxxxxx, X.X.
Xxxxx Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
To Bank: Societe Generale, Chicago Branch
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxx, Vice President
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.
6.2 Headings. Headings are for reference only and are not to be used
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in interpreting this Agreement.
6.3 Governing Law. This Agreement shall be governed by and construed
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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.
6.4 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
6.5 Amendment and Termination. This Agreement may not be modified,
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amended or terminated except upon the written consent of both parties.
6.6 Severability. Any provision of this Agreement that is invalid or
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unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining provisions of this Agreement or affecting the
validity or enforceability of any provisions of this Agreement in any other
jurisdiction.
6.7 Successors and Assigns.
----------------------
(a) This Agreement and all its provisions shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns.
(b) Participant shall be permitted to transfer and assign some
or all of its rights and benefits, but not its obligations, under this Agreement
(including without limitation, a subparticipation), to any Subsidiary or
Affiliate and agrees that prior to or concurrently with such transfer,
assignment or subparticipation, Participant shall notify Bank in writing of the
same and provide Bank with the name of the transferee and the account to which
the transferee will receive payments hereunder; provided that (i) no such
assignment shall subject Bank to any increased costs in connection with this
Agreement and (ii) such transferee shall first agree to be bound by the terms of
this Agreement in a written instrument delivered to Participant and Bank in form
and
substance satisfactory to Bank. Bank shall be permitted to transfer and assign
its rights, benefits and obligations under this Agreement to a Person only if
(i) Bank concurrently therewith assigns all of its rights, benefits and
obligations under the Loan, the Loan Agreement, the Note, the Guaranty and
related documentation to the same Person and provided that it is permitted to do
so by the terms of the Loan Agreement, (ii) no such assignment shall subject
Participant to any increased cost in connection with this Agreement and (iii)
such Person shall agree to be bound by the terms of this Agreement in a written
instrument delivered to Bank in form and substance satisfactory to Participant.
6.8 Consent to New York Courts; Waiver of Forum Non-Conveniens.
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(a) Participant and Bank hereby irrevocably consent that any
legal action or proceedings against them or any of their property with respect
to this Agreement may be brought in any state or Federal court located in the
City of New York, United States of America or both, as Bank may elect, and by
execution and delivery of this Agreement, Participant and Bank hereby each
submit to and accept 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. Participant and Bank irrevocably consent 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 them at the address set
forth in Section 6.1 above. Such service of process shall be effective upon
receipt. The foregoing, however, shall not limit the rights of Participant and
Bank 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.
(b) Participant and Bank hereby irrevocably waive any objection
which they 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 in the State
of New York and hereby further irrevocably waive any claim that the State of New
York is not a convenient forum for any such suit, action or proceedings.
6.9 Process Agent. Participant hereby appoints the Guarantor as its
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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. Participant 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.
6.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES,
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the day and
year first written above.
PARTICIPANT: STEELCASE EUROPE, L.L.C.
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
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Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Manager
BANK: SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
