Exhibit 10.5
EXECUTION COPY
PERFORMANCE GUARANTY
AGREEMENT
dated as of
September 8,
2009,
by
JOHNSONDIVERSEY,
INC.
as
Guarantor,
in favor of
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
as Agent
PERFORMANCE GUARANTY
AGREEMENT
This PERFORMANCE GUARANTY AGREEMENT
(this “ Agreement ”), dated as of
September 8, 2009, is made by:
JOHNSONDIVERSEY, INC., a Delaware
corporation and the direct or indirect parent company of each of
the Guaranteed Parties (as defined below) (herein, together with
its successors and permitted assigns, the “
Guarantor ”).
in favor of:
(A) NORDDEUTSCHE LANDESBANK
GIROZENTRALE, as agent for the Purchaser (as defined below) (in
such capacity, together with its successors and assigns, the
“ Agent ”),
(B) Hannover Funding Company LLC, as
purchaser (in such capacity, together with its successors and
assigns, the “ Purchaser ”),
and
(C) the Program Support Providers
from time to time party to any Program Support
Agreement:
1. Recitals.
This Agreement is made in connection
with (i) the Receivables Purchase Agreement, dated as of the
date hereof (herein, as amended and/or restated, or otherwise
modified and/or supplemented from time to time, the “
Receivables Purchase Agreement ”), by and
between JDER Limited (the “ Seller ”),
the Purchaser, the Agent, JohnsonDiversey France, S.A.S. (“
JDI France ”) , JohnsonDiversey
España S.L. (“ JDI Spain ”) and
JohnsonDiversey UK Limited (“ JDI UK ”);
(ii) the Servicing Agreement, dated as of the date hereof
(herein, as amended and/or restated, or otherwise modified and/or
supplemented from time to time, the “ Servicing
Agreement ”), by and between the Seller, JDI France,
JDI Spain and JDI UK (herein, each of JDI France, JDI Spain and JDI
UK, in such capacity, a “ Servicer, ”
and, collectively, the “Servicers” ) and the
Agent; (iii) the sale agreement, dated as of the date hereof,
by and between JDI France (in such capacity, an
“Originator” ) and the Seller (herein, as
amended and/or restated, or otherwise modified and/or supplemented
from time to time, the “ French Sale Agreement
”); (iv) the sale agreement, dated as of the date
hereof, by and between JDI Spain (in such capacity, an
“Originator” ) and the Seller (herein, as
amended and/or restated, or otherwise modified and/or supplemented
from time to time, the “ Spanish Sale Agreement
”); and (v) the sale agreement, dated as of the date
hereof, by and between JDI UK (in such capacity, an
“Originator,” and, collectively, with JDI France
and JDI Spain, the “Originators” ) and the
Seller (herein, as amended and/or restated, or otherwise modified
and/or supplemented from time to time, the “ English
Sale Agreement, ” and, collectively, with the French
Sale Agreement and the Spanish Sale Agreement, the “Sale
Agreement,” and, collectively, with the Servicing
Agreement and the Receivables Purchase Agreement, the “
Guaranteed Agreements ”), providing for the
performance of each of the Originators’ and Servicers’
obligations under the Guaranteed Agreements. This Agreement is made
for the benefit of the Agent, the Purchaser and any Program Support
Provider to guarantee the payment and performance by each of JDI
France, JDI Spain and JDI UK (collectively, the “
Guaranteed Parties ”) of its obligations (the
“ Guaranteed Obligations ”) under the
Guaranteed Agreements. Each of the Guaranteed Parties is a direct
or indirect Subsidiary of the Guarantor and the Guarantor is
expected to receive substantial direct and indirect benefits from
participation by the Guaranteed
Parties in the transaction contemplated in the
Guaranteed Agreements (which benefits are hereby acknowledged).
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Receivables Purchase
Agreement. In the case of any inconsistency between such terms and
the terms defined in this Agreement, the terms defined in this
Agreement shall prevail for the purposes of this
Agreement.
2. Guaranty by the
Guarantor.
2.1. Required Payments; Required
Actions. The Purchaser
and the Program Support Providers, if applicable, are willing to
purchase the Participation and make payments with respect to the
Participation upon the Seller’s irrevocable notice to the
Agent in accordance with the Receivables Purchase Agreement only
upon the condition, among others, that the Guarantor execute and
deliver this Agreement and guaranty each of the Guaranteed
Parties’ payment and performance of the Guaranteed
Obligations. Such guaranty is an absolute, unconditional, present
and continuing guaranty of performance and payment and not of
collectibility and is in no way conditioned or contingent upon any
attempt to collect from any of the Guaranteed Parties, or any other
action, occurrence or circumstance whatsoever. If any of the
Guaranteed Parties shall fail to make any required payment in
respect of the Guaranteed Obligations (“ Required
Payment ”) when and as the same shall become due and
payable following any applicable period of grace, the Guarantor,
upon request of the Agent, shall as soon as reasonably practicable
but in no event later than two (2) Business Days following
such request, make such Required Payment, in immediately available
funds, directly to the Agent, at the address specified in the
Receivables Purchase Agreement, or at such other place as the Agent
shall direct, for application as provided in the Guaranteed
Agreements. If any of the Guaranteed Parties shall fail to perform
any action required by the Guaranteed Obligations (“
Required Action ”) when and as the same shall
become due, the Guarantor, upon request of the Agent, shall as soon
as reasonably practicable but in no event later than two
(2) Business Days following such request, take such Required
Action, as provided for in the Guaranteed Agreements.
2.2. For the purposes of clarification, nothing in
this Agreement shall be construed as a guaranty of the collection
of any of the Receivables and the Guarantor shall not be
responsible for any Guaranteed Obligations to the extent the
failure to perform such obligations results from Receivables being
uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor.
2.3. Payments;
Discount.
(i) Notwithstanding anything
contained herein or any other Transaction Document to the contrary,
all amounts to be paid or deposited by the Guarantor hereunder
shall be paid in a manner such that the amount to be paid or
deposited is actually received by the Person to which such amount
is to be paid or on behalf of which such amount is to be deposited
in accordance with the terms hereof (and of the Guaranteed
Agreements, as applicable) no later than 12:00 noon (local time
where such receiving Person is located) on the day when due in
accordance with Section 2. 1 above in immediately
available funds. If such amounts are payable to the Agent (whether
on behalf of the Purchaser, or any Program Support Provider or
otherwise) they shall be paid or deposited into the relevant
Collection Account, until otherwise notified by the
Agent.
(ii) The Guarantor shall, to the
extent permitted by applicable law, pay to the Agent, for the
benefit of the Purchaser and the Program Support Providers, if
applicable, upon demand, interest on all amounts not paid or
deposited when due and payable hereunder in accordance with
Section 2. 1 above at a rate equal to two percent
(2.00%) per annum, plus the Base Rate.
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2.4. Subrogation.
In the event the Guarantor shall at
any time make any Required Payment or perform any Required Action
in accordance with the terms and provisions of this Agreement, all
rights of the Guarantor for subrogation, reimbursement, indemnity,
contribution or otherwise against any of the Guaranteed Parties in
respect thereof, together with all rights of the Guarantor in any
collateral securing payment or performance obligations of the
Guaranteed Parties, shall in all respects be subordinated and
junior in right of payment to the indefeasible payment in full of
all Required Payments owed to the Agent, the Purchaser and the
Program Support Providers (if any) from time to time; provided,
however , that to the extent any such right of subrogation,
reimbursement, indemnity, contribution or otherwise, or right in
collateral, would constitute the Guarantor a creditor of any of the
Guaranteed Parties in respect thereof within the meaning of
Section 547(b) of the Bankruptcy Code, as now in effect or
hereafter amended, or any comparable provisions of any successor
statute and to the extent that Agent, the Purchaser or any Program
Support Provider is adversely affected thereby, in the event a case
involving any of the Guaranteed Parties shall at any time be
commenced under the Bankruptcy Code, as now in effect or hereafter
amended, or any comparable provision of any successor statute, the
Guarantor hereby agrees that it will not assert, enforce or
otherwise exercise any such right until this Agreement has been
terminated in accordance with its terms.
2.5. Reinstatement.
This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of, or in respect of, any Required
Payment or any Required Action is rescinded or must otherwise be
reinstated by the Agent, the Purchaser, any Program Support
Provider from time to time upon the bankruptcy or reorganization of
any of the Guaranteed Parties or otherwise.
2.6. Guarantor Familiar with the
Guaranteed Parties’ Affairs. The Guarantor confirms that it has executed and
delivered this Agreement after reviewing the terms and conditions
of the Guaranteed Agreements, this Agreement, and the other
Transaction Documents and such other information as it has deemed
appropriate in order to make its own credit analysis and decision
to execute and deliver this Agreement. The Guarantor confirms that
it has made its own independent investigation with respect to each
of the Guaranteed Parties’ creditworthiness and is not
executing and delivering this Agreement in reliance on any
representation or warranty by the Agent, the Purchaser or any
Program Support Provider or any other person acting on behalf of
the Agent, the Purchaser or any Program Support Provider as to such
creditworthiness. The Guarantor expressly assumes all
responsibilities to remain informed of the financial condition of
each of the Guaranteed Parties and any circumstances affecting
(a) each of the Guaranteed Parties’ ability to perform
its obligations under the Guaranteed Agreements, this Agreement,
and the other Transaction Documents to which it is a party, or
(b) any collateral securing all or any part of any of the
Guaranteed Parties’ payment and performance obligations
thereunder.
2.7. Solvency.
As of the date the Guarantor has
become a party to this Agreement, (i) the Guarantor has
received consideration that is the reasonable equivalent value of
the obligations and liabilities that the Guarantor has incurred to
the Agent, the Purchaser and any Program Support Provider from time
to time under this Agreement and the other Transaction Documents to
which the Guarantor is a party; (ii) the Guarantor has capital
sufficient to carry on its business and transactions and all
business and transactions in which it is about to engage and is
solvent and able to pay its debts as they mature; (iii) the
Guarantor owns property having a value, both at fair valuation and
at present fair salable value, greater than the amount required to
pay its debts; and (iv) the Guarantor is not
entering
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into the Transaction Documents to which it is a
party with the intent to hinder, delay or defraud its creditors.
For purposes of this Section 2.7 , references to the
Guarantor shall be deemed to include the Guarantor and its
consolidated Subsidiaries, taken as a whole.
3. Subordination.
The Guarantor hereby agrees that
during the term of this Agreement any indebtedness of any of the
Guaranteed Parties now or hereafter owing to the Guarantor, whether
heretofore, now or hereafter created (the “ Guarantor
Subordinated Debt ”), is hereby subordinated to all
of the Guaranteed Obligations, and that after the occurrence and
during the continuance of any default in the payment or performance
of any of the Guaranteed Obligations, the Guarantor Subordinated
Debt shall not be paid in whole or in part until the Guaranteed
Obligations have been paid in full and this Agreement is terminated
and of no further force or effect. The Guarantor shall not accept
any payment of or on account of any Guarantor Subordinated Debt at
any time in contravention of the foregoing sentence. If,
notwithstanding the foregoing, after the occurrence and during the
continuance of any default in the payment or performance of any of
the Guaranteed Obligations, the Guarantor shall receive any payment
on the Guarantor Subordinated Debt, each payment on the Guarantor
Subordinated Debt received in violation of this
Section 3 or of any other provision hereof shall be
deemed to have been received by the Guarantor as trustee for the
Agent, the Purchaser and the Program Support Providers and shall be
paid over to the Agent immediately on account of the Guaranteed
Obligations, but without otherwise affecting in any manner the
Guarantor’s liability hereof.
4. Guarantor’s’
Obligations Absolute. Subject to the limitations set forth in
Section 2.2 and any other applicable law, the
obligations of the Guarantor under Section 2.1 of this
Agreement shall be absolute and unconditional, shall not be subject
to any counterclaim, setoff, deduction or defense based on any
claim the Guarantor may have against any of the Guaranteed Parties,
the Agent, the Purchaser, or any Program Support Provider, or any
of their respective Affiliates, and shall remain in full force and
effect without regard to, and shall not be released, suspended,
abated, deferred, reduced, discharged, terminated or otherwise
affected by any circumstance or occurrence whatsoever (other than
the termination of this Agreement in accordance with its terms)
(whether or not the Guarantor or any of its Affiliates shall have
any knowledge or notice thereof), including, without limitation:
(a) any renewal, extension, amendment or modification of or
addition or supplement to or deletion from the Guaranteed
Agreements, this Agreement, any other Transaction Document, or any
other instrument or agreement applicable to the Guarantor, the
Guaranteed Parties, or any part thereof, or any assignment,
transfer or other disposition of any thereof; (b) any failure
on the part of any of the Guaranteed Parties or any other person to
perform or comply with any term of any such instrument or
agreement; (c) any waiver, consent, extension, indulgence or
other action or inaction (including, without limitation, any lack
of diligence or failure to mitigate damages) under or in respect of
any such instrument or agreement or any obligation or liability of
any of the Guaranteed Parties or any other person, or any exercise
or non-exercise of any right, power or remedy under or in respect
of any such instrument or agreement or any such obligation or
liability; (d) any furnishing of any additional security to
the Agent, the Purchaser or any Program Support Provider or any
acceptance thereof or any release of any security by the Agent, the
Purchaser or any Program Support Provider; (e) any limitation
on any person’s liability or obligation under any such
instrument or agreement or any such obligation or liability or any
termination, cancellation, commercial or other frustration,
invalidity or unenforceability, in whole or in part, of any such
instrument or agreement or any such obligation or liability or any
term of any thereof; (f) any insolvency, bankruptcy,
receivership, liquidation, reorganization, readjustment,
composition, arrangement or other similar proceeding relating to
any of the Guaranteed Parties or to any of their properties or
assets, or any such proceeding by, among or on behalf of any of
their creditors, as such, or any proceeding for the voluntary
liquidation or dissolution or other winding up of any of the
Guaranteed Parties, whether or not insolvency or
bankruptcy
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proceedings, or any assignment for the benefit
of their creditors, or any other marshalling of their assets, or
any action taken by any trustee or receiver or by any court in any
such proceeding; (g) any change in the ownership of all or any
part of the capital stock of any of the Guaranteed Parties;
(h) any assignment, transfer or other disposition, in whole or
in part, by any of the Guaranteed Parties of its interest in the
Pool Receivables subjected to the liens and security interests
created by the Transaction Documents; (i) any taking of or any
encumbrance on or interference with any use of or any damage to or
destruction of such property, or any part thereof or interest
therein; or (j) any other circumstance or occurrence, whether
similar or dissimilar to any of the foregoing (other than the
termination of this Agreement in accordance with its terms).
Notwithstanding the foregoing, this Agreement is not a guarantee of
the collection of any of the Receivables and the Guarantor shall
not be responsible for any Guaranteed Obligations to the extent the
failure to perform such Guaranteed Obligations by any Guaranteed
Party results from Receivables being uncollectible on account of
the insolvency, bankruptcy or lack of creditworthiness of the
related Obligor.
5. Representations and
Warranties. Intending
that the Agent, the Purchaser and any Program Support Provider rely
upon the following representations and warranties, the Guarantor
represents and warrants to the Agent, the Purchaser and any Program
Support Provider that as of the date of this Agreement:
5.1. The Guarantor is a corporation duly incorporated
and validly existing under the laws of the State of Delaware, and
is duly qualified to do business in every jurisdiction where the
nature of its businesses requires it to be so qualified if any
failure to be so qualified would be reasonably likely to have a
Material Adverse Effect.
5.2. The execution, delivery and performance by the
Guarantor of this Agreement, (a) are within the
Guarantor’s corporate powers, (b) have been duly
authorized by all necessary corporate action on the part of the
Guarantor, (c) do not contravene or result in a default under
or conflict with (1) the Guarantor’s constitutional
documents, (2) any law, rule or regulation applicable to the
Guarantor, (3) any contractual restriction binding on or
affecting the Guarantor or its property or (4) any order,
writ, judgment, award, injunction or decree binding on or affecting
the Guarantor or its property
