Exhibit 10.21
EXECUTION COPY
AMENDMENT NO. 2
Dated as of December 10, 2008
to
INTERCREDITOR
AGREEMENT
Dated as of May 3, 2002
This AMENDMENT NO. 2 (this “
Amendment ”) is made as of this 10th day of December,
2008 among:
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(i)
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JohnsonDiversey, Inc. (f/k/a S.C. Johnson
Commercial Markets, Inc.), a Delaware corporation (“
Johnson ”),
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(ii)
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Johnson
Polymer, LLC, a Wisconsin limited liability company (“
JPI ”),
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(iii)
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The Butcher
Company, a Delaware corporation (“ Butcher
”),
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(iv)
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JohnsonDiversey
UK Limited, a limited liability company incorporated under the laws
of England and Wales (“ JD-UK ”),
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(v)
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JohnsonDiversey
SpA, a company organized under the laws of the Republic of Italy
(“ JD-Italy ”),
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(vi)
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JWPR
Corporation, a Nevada corporation (“ JWPR
”),
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(vii)
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JohnsonDiversey
Canada, Inc. (“ JD Canada ”),
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(viii)
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The Bank of
Nova Scotia (as successor to JPMorgan Chase Bank, N.A. (successor
by merger to Bank One, NA (Main Office Chicago)), as the “
Receivables Agent ” (as defined in the Intercreditor
Agreement referred to below),
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(ix)
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Each of the
“ Purchasers ” (as defined in the Intercreditor
Agreement referred to below), and
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(x)
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Citicorp USA,
Inc., as the “ Senior Credit Agent ” (as defined
in the Intercreditor Agreement referred to below).
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PRELIMINARY STATEMENTS
A. Each of the parties hereto (other
than JD Canada) and U S Chemical Corporation are parties to that
certain Intercreditor Agreement dated as of May 3, 2002 (as
amended, the “ Intercreditor Agreement ”). Terms
used herein and not otherwise defined herein shall have the
meanings assigned in the Intercreditor Agreement. U S Chemical
Corporation dissolved prior to the date hereof.
B. The purchase program contemplated
in the Receivables Documents has been expanded to include JD Canada
as an “Originator” thereunder. The parties hereto enter
into this Amendment to recognize such expansion and to introduce JD
Canada as a new party to the Intercreditor Agreement.
NOW THEREFORE, in consideration of
the premises herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Amendments. Subject to the
satisfaction of the condition precedent set forth in
Section 2 hereof, the parties hereto agree to amend the
Intercreditor Agreement as follows:
(a) The term “
Originator ” as used in the Intercreditor Agreement
shall include JD Canada.
(b) The term “ Sale
Agreements ” as used in the Intercreditor Agreement shall
include the Receivables Sale Agreement dated as of
December 10, 2008 between JWPR and JD Canada, as the same may
be amended, restated, supplemented or otherwise modified from time
to time.
(c) The term “ Collection
Account ” as used in the Intercreditor Agreement shall
include each of the accounts identified on Schedule A to this
Amendment.
(d) The term “ Performance
Undertaking ” as used in the Intercreditor Agreement
shall include the Amended and Restated Performance Undertaking
dated as of December 10, 2008 made by Johnson in respect of
the obligations of the Originators, as the same may be amended,
restated, supplemented or otherwise modified from time to
time.
(e) The term “ Purchased
Receivables ” as used in the Intercreditor Agreement
shall include all Receivables, and all equitable or other interests
in Receivables, sold or conveyed (or purported to have been sold or
conveyed) by any Originator to JWPR directly under any Sale
Agreement.
(f) JD-Italy, Butcher and JPI shall
cease to (i) be parties to the Intercreditor Agreement and
(ii) have any rights or obligations under the Intercreditor
Agreement (other than any rights or obligations which expressly
survive the termination thereof).
2. Condition Precedent . This
Amendm
