EXHIBIT 4.38
EXECUTION COPY
FOURTH AMENDMENT TO LOAN AGREEMENT AND WAIVER
THIS FOURTH AMENDMENT TO LOAN AGREEMENT AND WAIVER (this
"Amendment"), dated as of April 17, 2003, is by and among Steelcase SAS, a
Societe par Actions Simplifiee organized and existing under the laws of the
Republic of France (the "Borrower"), Steelcase Inc., a Michigan corporation (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").
WHEREAS, the Borrower, the Guarantor and the Lender are
parties to that certain Loan Agreement dated as of April 9, 1999, as amended by
that certain First Amendment to Loan Agreement dated as of June 15, 2001, as
further amended by that certain Second Amendment to Loan Agreement dated as of
November 9, 2001, and as further amended by that certain Third Amendment to Loan
Agreement dated as of November 5, 2002 (as further amended hereby and from time
to time hereafter amended, restated, supplemented or otherwise modified and in
effect, the "Loan Agreement"), pursuant to which the Lender has made certain
loans to the Borrower;
WHEREAS, the Borrower and the Guarantor have advised the
Lender that recently corrected quarterly financial statements of the Guarantor
indicate that the Net Worth of the Guarantor as of the end of its fiscal quarter
ending November 22, 2002 was less than the Net Worth required to be maintained
by the Guarantor as of such date under Section 10.2.1 of the Loan Agreement;
WHEREAS, the Borrower and the Guarantor have requested that
the Lender waive any Event of Default that exists as a result of the Guarantor's
failure to observe Section 10.2.1 as of the end of its fiscal quarter ending
November 22, 2002, waive compliance with Section 10.2.1 for the period from
November 23, 2002 through the date hereof and amend certain provisions of the
Loan Agreement; and
WHEREAS, the Lender is willing to waive any Event of Default
that exists as a result of the Guarantor's failure to observe Section 10.2.1 as
of the end of its fiscal quarter ending November 22, 2002, waive compliance with
Section 10.2.1 for the period from November 23, 2002 through the date hereof and
amend the Loan 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 Loan Agreement.
2. Amendment of Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) Section 1.51. Section 1.51 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"1.51 `Net Worth' means, at any time, minority
interests, preferred stock and common stock and other
equity, as shown on the consolidated balance sheet of
the Guarantor and its Subsidiaries for the then most
recently completed fiscal quarter of the Guarantor;
provided that there shall be excluded from the
calculation of Net Worth (i) any unrealized gains or
losses (net of taxes) on securities available for
sale and (ii) non-recurring non-cash charges
attributable to the implementation of SFAS 142 not in
excess of $230,000,000 in the aggregate for any
fiscal year."
3. Waiver. The Lender hereby waives any Event of Default that
exists as a result of the Guarantor's failure to observe Section 10.2.1 as of
the end of its fiscal quarter ending November 22, 2002 and waives compliance
with Section 10.2.1 for the period from November 23, 2002 through the date
hereof.
4. Financial Covenants. In the event that the financial
covenants in the Credit Agreement (Long-Term Multicurrency Revolving Credit
Facility) dated as of April 5, 2001 among the Guarantor and the banks and agents
party thereto (the "Long Term Facility") are modified or replaced in any
material respect on or prior to September 30, 2003, the parties hereby agree to
negotiate in good faith to amend the financial covenants set forth in Section
10.2 to conform to the financial covenants in the Long Term Facility.
5. Representations and Warranties. In order to induce the
Lender to enter into this Amendment, each of the Borrower and the Guarantor
hereby represents and warrants to the Lender that:
(a) Power; Authority. It is validly existing in the
jurisdiction in which it has been organized; 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.
6. Conditions to Effectiveness. The effectiveness of this
Amendment is expressly conditioned upon: (i) the Borrower delivering to the
Lender this Amendment executed by the Borrower, the Guarantor and the Lender;
and (ii) the payment by, or on behalf of, the Borrower to the Lender of an
amendment fee in an amount equal to 0.05% (five basis points) of the aggregate
principal amount of the Loan outstanding on the date on which this Amendment
becomes effective.
7. Ratification. Each of the Guaranty and, except as
specifically amended hereby, the Loan Agreement shall remain unchanged and
continue in full force and effect and the Borrower and the Guarantor hereby
ratify and confirm the Guaranty and the Loan Agreement, as amended hereby. After
the execution of this Amendment by all parties, any references to the "Loan
Agreement" or the "Agreement" in the Loan Agreement, the Note, the Guaranty, the
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Participation Agreement or any other document in connection therewith shall be
to the Loan Agreement, as amended hereby.
8. Miscellaneous.
(a) Successors and Assigns. This Amendment 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 terms and provisions of this
Amendment are for the purpose of defining the relative rights and obligations of
Borrower and Lender 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.
(c) 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.
(d) 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 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.
(e) 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.
(f) Governing Law. This Amendment 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.
[signature page follows]
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IN WITNESS WHEREOF, this Fourth Amendment to Loan Agreement
has been duly executed as of the date first written above.
STEELCASE SAS,
as Borrower
By: /s/ XXXX XXXXXX
--------------------------
Name: Xxxx Xxxxxx
Title: President
STEELCASE INC.,
as Guarantor
By: /s/ XXXX X. XXXXXXX
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Finance & Treasurer
SOCIETE GENERALE,
as Lender
By: /s/ XXXXXXX XXXXXX
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
[Fourth Amendment to Loan Agreement]
