Exhibit 99.2
GUARANTY
THIS GUARANTY, dated as of May 24, 2002 (together with any
amendments or supplements hereto, this "Guaranty"), by STEELCASE INC., a
Michigan corporation (the "Guarantor"), in favor of General Electric Capital
Corporation, a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Steelcase Financial Services Inc., a Michigan
corporation and a wholly-owned subsidiary of the Guarantor (together with its
successors and permitted assigns, the "Seller"), is entering into that certain
Asset Purchase Agreement dated as of May 24, 2002 (the "Asset Purchase
Agreement"), between Purchaser and Seller; and
WHEREAS, it is a condition precedent to the obligations of
Purchaser to consummate the transactions contemplated by the Asset Purchase
Agreement that the Guarantor execute and deliver this Guaranty.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor does hereby covenant and agree with Purchaser and
Seller from and after the execution and delivery of the Asset Purchase Agreement
as follows (capitalized terms used herein (including those used in the foregoing
preamble and recitals) and not otherwise defined herein have the meanings
ascribed to them in the Asset Purchase Agreement):
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 1.1 Representations and Warranties of the Guarantor.
The Guarantor hereby represents and warrants to Purchaser that, as of the
date hereof:
(1) The Guarantor is duly organized, validly existing and in good
standing (or its equivalent) under the Laws of its jurisdiction of
incorporation or organization and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on
its business as it is now being conducted, except where the failure to
be in good standing would not have a Guarantor Material Adverse Effect
(as defined herein). As used in this Guaranty, "Guarantor Material
Adverse Effect" means any material adverse change or material adverse
effect (i) in or on the business, financial condition or operations of
the Guarantor or (ii) which would materially hinder, impair or delay
the Guarantor's ability to consummate and perform the transactions
contemplated by this Guaranty; provided, however, that, changes and
effects that are generally applicable to (A) the industries and
markets in which the Guarantor operates or (B) the United States and
global economies shall in each case be excluded from the determination
of Guarantor Material Adverse Effect so long as the changes and
effects in (A) and (B) do not adversely affect the Guarantor
disproportionately.
(2) The Guarantor has full corporate power and authority to
execute and deliver this Guaranty and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the
Guarantor of this Guaranty and the consummation of the transactions
contemplated hereby have been duly authorized by the Guarantor and no
other corporate proceedings on the part of the Guarantor are necessary
to authorize the execution, delivery and performance by the Guarantor
of this Guaranty and the consummation of the transactions contemplated
hereby.
(3) This Guaranty has been duly executed and delivered by the
Guarantor and (assuming due and valid authorization, execution and
delivery hereof by Purchaser) is a valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its
terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting creditors' rights
generally and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(4) Neither the execution, delivery or performance by the
Guarantor of this Guaranty nor the consummation by the Guarantor of
the transactions contemplated hereby will (i) violate any provision of
the articles of incorporation or by-laws of the Guarantor; (ii) result
in a violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default under any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which the
Guarantor is a party or by which the Guarantor or any of its
properties or assets may be bound (or give rise to any right of
termination, cancellation or acceleration); (iii) violate any Law
applicable to the Guarantor or any of its properties or assets or (iv)
require on the part of the Guarantor any filing or registration with,
notification to, or authorization, consent or approval of, any
Governmental Entity; except in the case of clauses (ii), (iii) or (iv)
for such violations, breaches or defaults which, or filings,
registrations, notifications, authorizations, consents or approvals
the failure of which to obtain, would not have a Guarantor Material
Adverse Effect.
(5) The Guarantor owns, directly or indirectly, 100% of the
equity interests in Seller.
ARTICLE II
GUARANTEE OF OBLIGATIONS
Section 2.1 Guarantee of Obligations. The Guarantor hereby
guarantees to Purchaser, as primary obligor and not as surety, the full and
prompt payment when due, whether at the stated payment date thereof, by
acceleration or otherwise, of all payment obligations of Seller under the Asset
Purchase Agreement and the agreements related thereto, including without
limitation the Intercreditor Agreement and the Lease Services Agreement, owed to
Purchaser strictly in accordance with the terms thereof, however created,
arising or evidenced, whether
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direct or indirect, primary or secondary, absolute or contingent, joint or
several, and whether now or hereafter existing or due or to become due (such
payment obligations, the "Guaranteed Obligations"). This guarantee is an
absolute, unconditional, irrevocable, present and continuing guarantee of
payment and not of collectability.
Section 2.2 Nature of Guarantee. The obligations, covenants,
agreements and duties of the Guarantor hereunder are absolute, unconditional and
irrevocable under all circumstances and shall remain in full force and effect
until the Guaranteed Obligations are finally, indefeasibly and unconditionally
paid in full in accordance with the terms of the Asset Purchase Agreement and
the agreements related thereto, and, to the maximum extent permitted by
applicable law, shall in no way be affected or impaired by reason of the
happening from time to time of any other event, including, without limitation,
the following, whether or not any such event shall have occurred without notice
to or the consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other
release of the performance or observance by the Guarantor or Seller of any
or all of their respective agreements, covenants, terms or conditions
contained in this Guaranty (other than Section 2.1 hereof) or the Asset
Purchase Agreement and the agreements related thereto;
(b) any failure, omission, delay or lack on the part of
Purchaser to enforce, assert or exercise any right, power or remedy
conferred on Purchaser in the Asset Purchase Agreement and the agreements
related thereto or this Guaranty;
(c) the modification or amendment of any obligation,
covenant or agreement of Seller set forth in the Asset Purchase Agreement
and the agreements related thereto;
(d) the voluntary or involuntary liquidation, dissolution,
sale of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar proceedings affecting
Seller or any of its assets;
(e) any failure of the Guarantor or Seller to perform and
observe any agreement or covenant, or to discharge any duty or obligation,
arising out of or connected with this Guaranty or the Asset Purchase
Agreement or any of the agreements related thereto; or
(f) any other circumstance (other than payment in full of
the Guaranteed Obligations) that might otherwise constitute a legal or
equitable defense or discharge of a guarantor or surety with respect to any
Guaranteed Obligation.
Section 2.3 Waivers by the Guarantor. The Guarantor waives notice
of the acceptance of and reliance on this Guaranty by Purchaser, and the
Guarantor also waives presentment, demand for payment, protest and notice of
nonpayment or dishonor and all other
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notices and demands whatsoever. The Guarantor further waives any right it may
have to (a) require Purchaser to proceed against Seller, or (b) require
Purchaser to pursue any other remedy within the power of Purchaser, and the
Guarantor agrees that all of its obligations under this Guaranty are independent
of the Guaranteed Obligations and that a separate action may be brought against
the Guarantor whether or not an action is commenced against Seller under the
Asset Purchase Agreement.
Section 2.4 Subrogation of the Guarantor; Subordination.
Notwithstanding any payment or payments made by the Guarantor, the Guarantor
shall not be subrogated to any rights of Purchaser against Seller until all of
the Guaranteed Obligations then due shall have been finally, indefeasibly and
unconditionally paid in full. Any claim of the Guarantor against Seller arising
from payments made by the Guarantor by reason of this Guaranty shall be in all
respects subordinated to the final, indefeasible, unconditional, full and
complete payment or discharge of all of the Guaranteed Obligations, and no
payment by the Guarantor shall give rise to any claim of the Guarantor against
Purchaser.
Section 2.5 Reinstatement. This Guaranty shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment, or any part thereof, made by or on behalf of Seller of any of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned by
Purchaser for any reason whatsoever, whether upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Seller, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, Seller or any substantial part of its property, or
otherwise, all as though such payments had not been made.
Section 2.6 Place and Manner of Payments. All payments to be made
by the Guarantor under this Guaranty to Purchaser shall be paid to Purchaser at
the address provided for on the signature page of this Guaranty or, if no
address, at the address and to the account specified in the notice demanding
payment by the Guarantor.
ARTICLE III
DEFAULT AND REMEDIES
Section 3.1 Enforcement Provisions. Purchaser shall have the
right, power and authority to do all things, including instituting or appearing
in any suit or proceeding, not inconsistent with the express provisions of the
Asset Purchase Agreement and the agreements related thereto or this Guaranty,
which it may reasonably deem necessary or advisable to enforce the provisions of
this Guaranty and protect the interests of Purchaser. Each and every default in
the payment of the Guaranteed Obligations shall give rise to a separate cause of
action hereunder, and separate suits may be brought hereunder as each cause of
action arises.
Section 3.2 No Remedy Exclusive. No remedy conferred upon or
reserved to Purchaser herein is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Guaranty or now or
hereafter existing at law or in equity.
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Section 3.3 No Waiver of Rights. No delay in exercising or
omission to exercise any right or power accruing upon any default, omission or
failure of payment hereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
ARTICLE IV
GENERAL
Section 4.1 Entire Agreement; Third Party Beneficiaries. This
Guaranty (including the documents and the instruments referred to herein) (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and (b) except as expressly provided herein, is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
Section 4.2 Headings. Headings of the articles and sections of
this Guaranty are for convenience of the parties only, and shall be given no
substantive or interpretative effect whatsoever.
Section 4.3 Governing Law. This Guaranty shall be governed and
construed in accordance with the laws of the State of New York applicable to
contracts to be made and performed entirely therein without giving effect to the
principles of conflicts of law thereof or of any other jurisdiction.
Section 4.4 Jurisdiction. Each of the parties hereto hereby
expressly and irrevocably submits to the non-exclusive personal jurisdiction of
the United States District Court for the Southern District of New York and to
the jurisdiction of any other competent court of the State of New York.
Section 4.5 Service of Process. Each party irrevocably consents
to the service of process outside the territorial jurisdiction of the courts
referred to in Section 4.4 hereof in any such action or proceeding by mailing
copies thereof by registered United States mail, postage prepaid, return receipt
requested, to its address as specified in or pursuant to Section 4.8 hereof.
However, the foregoing shall not limit the right of a party to effect service of
process on the other party by any other legally available method.
Section 4.6 Waiver of Jury Trial. EACH OF THE PARTIES HERETO
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY EXHIBIT OR OTHER ATTACHMENT
HERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS (WHETHER
VERBAL OR WRITTEN) RELATING TO THE FOREGOING. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS GUARANTY.
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Section 4.7 Further Assurances. The Guarantor will execute and
deliver all such instruments and take all such actions as Purchaser may from
time to time reasonably request in order fully to effectuate the purposes of
this Guaranty.
Section 4.8 Notices. All notices, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given and become effective (a) when delivered by hand or by Federal Express
or a similar overnight courier to, or (b) when successfully transmitted by
telecopier to, the party for whom intended, at the address or telecopier number
for such party set forth beneath their signatures hereto (or at such other
address or telecopier number for a party as shall be specified by like notice,
provided, however, that any notice of change of address or telecopier number
shall be effective only upon receipt).
Definitions.
-----------
Term Section
---- -------
Asset Purchase Agreement Recitals
Guaranteed Obligations (S)2.1
Guarantor Preamble
Guaranty Preamble
Material Adverse Effect (S)1.1
Purchaser Preamble
Seller Recitals
Section 4.9 Counterparts. This Guaranty may be executed in
multiple counterparts, all of which shall together be considered one and the
same agreement.
Section 4.10 Severability. If any term, provision, covenant or
restriction of this Guaranty is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Guaranty shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 4.11 Amendment and Modification. Subject to applicable
law, this Guaranty may be amended, modified and supplemented in any and all
respects only by written agreement of the parties hereto at any time prior to
the Closing Date with respect to any of the terms contained herein.
Section 4.12 Assignment. Neither this Guaranty nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of Law or otherwise) without the prior
written consent of the other parties, provided, that Purchaser may assign this
Guaranty in connection with a permitted assignment of the Asset Purchase
Agreement. Subject to the preceding sentence, this Guaranty will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective permitted successors and assigns.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed in its name and behalf and Purchaser has accepted the same, as of
the date first above written.
STEELCASE INC.
By:__________________________________
Name:________________________________
Title:_______________________________
Steelcase Inc.
000 00xx Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Senior Vice
President, Secretary and Chief Legal
Officer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
Acknowledged by:
General Electric Capital Corporation, as
Purchaser
By:_________________________________
Name:_______________________________
Title:______________________________
General Electric Capital Corporation,
Commercial Equipment Financing
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Attention: Business General Counsel
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Attention: Xxxx X. Xxxxxxx
