EXECUTION VERSION EXHIBIT 4.43
THIRD AMENDMENT TO PARTICIPATION AGREEMENT
(STEELCASE TRUST NO. 2000-1)
THIS THIRD AMENDMENT TO PARTICIPATION AGREEMENT (Steelcase Trust No.
2000-1), dated as of August 1, 2003 (this "Amendment"), is by and among (i)
STEELCASE INC., a Michigan corporation (herein, together with its successors and
assigns permitted hereunder, called "Lessee"), (ii) WELLS FARGO BANK NORTHWEST,
N.A. (formerly known as First Security Bank, National Association), a national
banking association (the "Trust Company"), not in its individual capacity except
as expressly provided herein, but solely as Certificate Trustee under the Trust
Agreement (herein in such capacity, together with its successors and permitted
assigns, called the "Certificate Trustee"), (iii) WELLS FARGO BANK NEVADA, N.A.
(formerly known as First Security Trust Company of Nevada), not in its
individual capacity, except as expressly stated herein, but solely as
Administrative Agent ("Administrative Agent"), (iv) BANC OF AMERICA LEASING &
CAPITAL, LLC and SCOTIABANC INC. (each herein, together with its successors and
permitted assigns, called a "Certificate Holder" and collectively, the
"Certificate Holders"), (v) HATTERAS FUNDING CORPORATION, a Delaware corporation
(the "CP Lender") and (vi) BANK OF AMERICA, NATIONAL ASSOCIATION, FIFTH THIRD
BANK (f/k/a Old Kent Bank), THE NORTHERN TRUST COMPANY, and THE BANK OF NOVA
SCOTIA (each herein, together with its successors and permitted assigns, as a
Facility Lender called a "Facility Lender" and collectively, the "Facility
Lenders" and as a Liquidity Bank under the LAPA, a "Liquidity Bank" and
collectively, the "Liquidity Banks").
W I T N E S S E T H:
WHEREAS, Lessee, Certificate Trustee, Administrative Agent, the
Certificate Holders, the CP Lender, the Facility Lenders 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, 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;
WHEREAS, the parties hereto desire to amend the Participation Agreement
in certain respects;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 Definitions. Capitalized terms used herein but not otherwise
defined herein shall have the meaning set forth in the Participation Agreement.
In the case of any conflict between the provisions of this Amendment and the
provisions of the Operative Documents, the provisions of this Amendment shall
control construction of the terms.
SECTION 2. AMENDMENT TO PARTICIPATION AGREEMENT.
2.1 Amendment to Section 5.1(o). The phrase "Section 5.02(c), (d) and
(e)" 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 7.4(A), (B) and (C)."
2.2 Amendment to Section 5.1(p).
(a) Clause (vii) of Section 5.1(p) is hereby deleted in its
entirety and replaced with the following new clause (vii):
"(vii) (A) Liens on receivables and related security securing
a Permitted Receivables Financing (as defined below) and (B) Liens
securing Debt of the Lessee or any Subsidiary of Lessee in favor of
Bank One, NA (Main Office Chicago), as administrative agent, and the
lenders under the Credit Agreement; and"
(b) Section 5.1(p) is further amended by adding the following
new term after the definition of "Debt" at the end thereof:
"Permitted Receivables Financing" means any
transaction or series of transactions that may be
entered into by Lessee or any Subsidiary of Lessee
pursuant to which Lessee and/or any Subsidiary of
Lessee may, directly or indirectly, sell, convey or
otherwise transfer its receivables (including related
security and collections) to a special purpose entity
(an "SPV") established solely for the purpose of
purchasing such receivables (including related
security and collections); provided that (i) the
amount of obligations of Lessee or any such
Subsidiary that would be characterized as principal
if such transaction or series of transactions were
structured as a secured lending transaction rather
than as a purchase does not exceed $100,000,000 in
the aggregate and (ii) such obligations are
non-recourse to Lessee and its Subsidiaries (other
than an SPV) other than limited recourse customary
for receivables financings of the same kind.
2.3 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 dated
as of July 29, 2003 among Lessee, as borrower, the financial
institutions party thereto, Bank One, NA (Main Office Chicago), as
administrative agent, and Bank of America, N.A., as syndication agent."
SECTION 3. REPRESENTATIONS AND WARRANTIES OF LESSEE.
3.1 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:
(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
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Amendment constitutes its legal, valid and binding obligations and is
enforceable against it in accordance with its terms.
(b) No Default. No Event of Default has occurred and is
continuing.
SECTION 4. MISCELLANEOUS.
4.1 Continued Effectiveness of Operative Documents. 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 parties hereto, any
reference to the Participation Agreement (including Appendix A thereto) in any
Operative Document shall be to the Participation Agreement, as amended hereby.
4.2 Release. In consideration of entering into this Amendment, except
with respect to obligations expressly set forth in the Operative Documents,
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.
4.3 Governing Law. THIS AMENDMENT SHALL HAS BEEN DELIVERED IN, AND
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF, THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES OF SUCH STATE (EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
4.4 Counterparts. This Amendment may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and the
same agreement.
4.5 Direction. The Certificate Holders direct the Certificate Trustee
and the Facility Lenders hereby direct the Administrative Agent to enter into
this Amendment.
4.6 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 other parties hereto 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.
4.7 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.
4.8 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.
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4.9 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.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
STEELCASE INC.,
as Lessee
By: /s/ Gary P. Malburg
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Name: Gary P. Malburg
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Title: Vice President, Finance and
Treasurer
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WELLS FARGO BANK NORTHWEST, N.A.,
not in its individual capacity but
solely as Certificate Trustee
By: /s/ Val T. Orton_
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Name: Val T. Orton
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Title: Trust Officer
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WELLS FARGO BANK NEVADA, N.A.,
not in its individual capacity but
solely as Administrative Agent
By: /s/ Val T. Orton
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Name: Val T. Orton
--------------------------------
Title: Trust Officer
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HATTERAS FUNDING CORPORATION,
as CP Lender
By: /s/ Christopher T. Burt
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Name: Christopher T. Burt
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Title: Vice President
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BANC OF AMERICA LEASING & CAPITAL,
LLC, as a Certificate Holder
By: /s/ Anita L. Garfagnoli
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Name: Anita L. Garfagnoli
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Title: Vice President
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SCOTIABANC INC.,
as a Certificate Holder
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Facility Lender
By: /s/ Robert Mauriello
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Name: Robert Mauriello
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Title: Principal
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FIFTH THIRD BANK (f/k/a Old Kent
Bank), as a Facility Lender
By: /s/ Seth W. Watson, III
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Name: Seth W. Watson, III
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Title: Vice President
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THE NORTHERN TRUST COMPANY,
as a Facility Lender
By: /s/ Peter R. Martinets
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Name: Peter R. Martinets
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Title: Vice President
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THE BANK OF NOVA SCOTIA,
as a Facility Lender
By:
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Name:
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Title:
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