EX-10.18 2 dex1018.htm RECEIVABLES SALE AGREEMENT Execution Version RECEIVABLES SALE AGREEMENT DATED AS OF DECEMBER 10, 2008 BETWEEN JOHNSONDIVERSEY CANADA, INC., as Originator AND JWPR CORPORATION, as Buyer RECEIVABLES SALE AGREEMENT
Exhibit 10.18
Execution Version
DATED AS OF DECEMBER 10, 0000
XXXXXXX
XXXXXXXXXXXXXXX XXXXXX, INC.,
as Originator
AND
JWPR CORPORATION,
as Buyer
THIS RECEIVABLES SALE AGREEMENT, dated as of December 10, 2008 is by and between JohnsonDiversey Canada, Inc., an Ontario corporation (“Originator”), and JWPR Corporation, a Nevada corporation (“Buyer”). Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
Originator now owns, and from time to time hereafter will own, Receivables. Originator wishes to sell and assign to Buyer, and Buyer wishes to purchase from Originator, all of Originator’s right, title and interest in and to such Receivables, together with the Related Security and Collections with respect thereto.
Following the purchase of Receivables from Originator, Buyer will sell undivided interests therein and in the associated Related Security and Collections pursuant to that certain Third Amended and Restated Receivables Purchase Agreement dated as of the date hereof (as the same may from time to time hereafter be amended, supplemented, restated or otherwise modified, the “Purchase Agreement”) among Buyer, the commercial paper conduits from time to time party thereto as “Conduits”, the financial institutions from time to time party thereto as “Financial Institutions”, and The Bank of Nova Scotia (“BNS”) or any successor agent appointed pursuant to the terms of the Purchase Agreement, as agent for the Conduits and such Financial Institutions (in such capacity, the “Agent”).
ARTICLE I
Section 1.1 Purchase of Receivables.
(a) | Effective on the date hereof, in consideration for the Purchase Price and upon the terms and subject to the conditions set forth herein, Originator does hereby sell, assign, transfer, set-over and otherwise convey to Buyer on a non-serviced basis, without recourse (except to the extent expressly provided herein) and without regard to collectibility, and Buyer does hereby purchase |
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from Originator, all of Originator’s right, title and interest in and to (i) all Receivables which are existing as of the close of business on the Business Day immediately prior to the date hereof and (ii) all Receivables thereafter arising through and including December 9, 2010, together, in each case, with all Related Security relating thereto and all Collections thereof; provided, that, Buyer shall be obligated to pay the Purchase Price therefor in accordance with Section 1.2. In connection with the payment of the Purchase Price for any Receivables purchased hereunder, Buyer may request that Originator deliver, and Originator shall deliver, such approvals, opinions, information, reports or documents as Buyer may reasonably request. |
(b) | It is the express intent of the parties hereto that the Purchase of the Receivables made hereunder shall constitute an absolute sale of the Receivables sold under this Agreement by Originator to Buyer and the beneficial interest in and title to the Receivables and the Related Security shall not be part of Originator’s estate in the event of any bankruptcy or insolvency proceeding by or against Originator under any bankruptcy or insolvency law. Except for the Purchase Price Credits owed pursuant to Section 1.3, the sale of Receivables hereunder is made without recourse to Originator; provided, however, that (i) Originator shall be liable to Buyer for all representations, warranties and covenants made by Originator pursuant to the terms of the Transaction Documents to which Originator is a party, and (ii) such sale does not constitute and is not intended to result in an assumption by Buyer or any assignee thereof of any obligation of Originator or any other Person arising in connection with the Receivables and/or the Related Security or any other obligations of Originator. Originator agrees that it will, on or prior to the date hereof and in accordance with Section 4.1(e)(ii), xxxx its master data processing records relating to the Receivables with a legend acceptable to Buyer and to the Agent (as Buyer’s assignee), evidencing that Buyer has purchased such Receivables as provided in this Agreement and to note in its financial statements that its Receivables have been sold to Buyer. Upon the request of Buyer or the Agent (as Buyer’s assignee), Originator will execute and file such financing or financing change statements, certificates of registration or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate to perfect and maintain the perfection of Buyer’s ownership interest in the Receivables and the Related Security and Collections with respect thereto, or as Buyer or the Agent (as Buyer’s assignee) may reasonably request. |
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Section 1.2 Payment for the Purchase.
(a) | The Purchase Price for the Purchase of Receivables which are in existence on the close of business on the Business Day immediate preceding the date hereof (the “Initial Cutoff Date”) shall be payable in full by Buyer to Originator on the date hereof, and shall be paid to Originator by delivery of immediately available funds. |
(b) | The Purchase Price for each Receivable coming into existence after the Initial Cutoff Date shall be due and owing in full by Buyer to Originator or its designee on the date each such Receivable came into existence and shall be paid to Originator in the manner provided in the following paragraph (c). |
(c) | Although the Purchase Price for each Receivable coming into existence after the date hereof shall be due and payable in full by Buyer to Originator on the date such Receivable came into existence, and although Buyer intends in the ordinary course to remit to Originator on a daily basis amounts (to the extent available therefor under the Purchase Agreement) from collections on the Receivables for application to the Purchase Price obligation then outstanding, settlement of the Purchase Price between Buyer and Originator shall be effected on a monthly basis on each Settlement Date with respect to all Receivables coming into existence during the same Calculation Period as reported by Originator to Buyer, and Buyer shall pay to Originator in immediately available funds the aggregate Purchase Price owing with respect to such Receivables which remains outstanding on such Settlement Date. |
Section 1.3 Purchase Price Adjustments. If on any day:
(a) | the Outstanding Balance of a Receivable is: |
(i) reduced as a result of any defective or rejected goods or services, any discount or any adjustment or otherwise by Originator (other than cash Collections on account of the Receivables),
(ii) reduced or canceled as a result of a setoff in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), or
(b) | any of the representations and warranties set forth in Article II are no longer true with respect to any Receivable, then, in such |
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event, (i) in the case of clause (a), Buyer shall be entitled to a credit against the Purchase Price otherwise payable hereunder in an amount equal to the amount of such reduction or cancellation, and (ii) in the case of clause (b), Buyer shall be entitled to a credit against the Purchase Price otherwise payable hereunder in an amount equal to the full amount of the Outstanding Balance of such Receivable and, on the following Settlement Date after application of any payment required to be made by the Originator on such Settlement Date pursuant to the next sentence, such Receivable, its Related Security, and any future Collections, any Records, Contracts and other rights and documents relating thereto (the “Reconveyed Assets”), shall hereby be conveyed by Buyer to Originator, free and clear of any Adverse Claim on the part of the Buyer or any assignee of the Buyer. If the aggregate amount of all Purchase Price Credits during any Calculation Period shall exceed the aggregate amount of Purchase Price payable in respect of Receivables coming into existence during such Calculation Period, the Originator shall pay an amount in cash equal to such excess to Buyer on the Settlement Date following the end of such Calculation Period or on such earlier date as the Agent may direct. Buyer hereby grants to Originator a power of attorney, coupled with an interest, to act as its attorney for the purpose of doing anything which Buyer may lawfully do by attorney solely for the purpose of effecting any reconveyance of Reconveyed Assets to be effected in accordance with this Section 1.3. |
Section 1.5 Transfer of Records.
(a) | In connection with the Purchase of Receivables hereunder, Originator hereby sells, transfers, assigns and otherwise conveys to Buyer all of Originator’s right and title to and interest in the Records relating to all Receivables sold hereunder, without the need |
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for any further documentation in connection with the Purchase. In connection with such transfer, Originator hereby grants to the Buyer (and authorizes the Buyer to grant to the Agent) and the Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by Originator to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by Originator or is owned by others and used by Originator under license agreements with respect thereto, provided that should the consent of any licensor of Originator to such grant of the license described herein be required, Originator hereby agrees that upon the request of Buyer (or the Agent as Buyer’s assignee), such consent shall be a condition to the grant of the foregoing license with respect to the applicable software and Originator will use its reasonable efforts to obtain the consent of such third-party licensor. The license granted hereby shall be irrevocable, and shall terminate on the date this Agreement terminates in accordance with its terms. |
(b) | Originator (i) shall take such action requested by Buyer and/or the Agent (as Buyer’s assignee), from time to time hereafter, that may be necessary or appropriate to ensure that Buyer and its assigns under the Purchase Agreement have an enforceable ownership interest in the Records relating to the Receivables purchased from Originator hereunder, and (ii) shall use its reasonable efforts to ensure that Buyer, the Agent and the Servicer each has an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Receivables and/or to recreate such Records. |
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
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(g) |
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will be, true and accurate in every material respect on the date such information is stated or certified and does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading. |
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(m) | Material Adverse Effect. Since September 30, 2008, no event has occurred that would have a Material Adverse Effect. |
(n) | Names. In the past five (5) years, Originator has not used any corporate names, trade names or assumed names other than as listed on Exhibit II. |
(o) | Not an Investment Company. Originator is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or any successor statute. |
(q) | Compliance with Credit and Collection Policy. Originator has complied in all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract, and has not made any material change to such Credit and Collection Policy. |
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(t) | Eligible Receivables. Each Receivable included in the Net Receivables Balance as an Eligible Receivable on the date it came into existence was an Eligible Receivable on such date. |
ARTICLE III
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ARTICLE IV
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(ii) Judgment and Proceedings. (1) The entry of any judgment or decree against Originator or any of its Subsidiaries which is reasonably likely to have a Material Adverse Effect; or (2) the institution of any material litigation, arbitration proceeding or governmental proceeding against Originator.
(c) | Compliance with Laws and Preservation of Corporate Existence. Originator will comply in all respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject except to the extent that |
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any failure to do so could not be reasonably expected to have a Material Adverse Effect. Originator will preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction (other than its jurisdiction of incorporation) where its business is conducted except to the extent that any failure to do so could not be reasonably expected to have a Material Adverse Effect. |
(e) | Keeping and Marking of Records and Books. |
(i) Originator will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the timely identification of each new Receivable and all Collections of and adjustments to each existing Receivable). Originator will give Buyer (or its assigns) notice of any material change in the administrative and operating procedures referred to in the previous sentence.
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(ii) Originator will (A) on or prior to the date hereof, xxxx its master data processing records and other books and records relating to the Receivables with a legend, acceptable to Buyer (or its assigns), describing Buyer’s ownership interests in the Receivables and further describing the Purchaser Interests of the Agent (on behalf of the Purchasers) under the Purchase Agreement and (B) upon the request of Buyer or the Agent, (x) at any time, following the occurrence of a Termination Event, at which the Agent is considering the termination of JDI as Servicer for purposes of the Purchase Agreement, xxxx each Contract with a legend describing Buyer’s ownership interests in the Receivables and further describing the Purchaser Interests of the Agent (on behalf of the Purchasers) and (y) after the termination of JDI as Servicer, deliver to Buyer or, if so directed by Buyer, the Agent all Contracts (including, without limitation, all multiple originals of any such Contract) relating to the Receivables.
(h) |
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including, without limitation, all steps that Buyer or any assignee of Buyer may from time to time reasonably request to maintain Buyer’s identity as a separate legal entity and to make it manifest to third parties that Buyer is an entity with assets and liabilities distinct from those of Originator and any Affiliates thereof and not just a division of Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Originator (i) will not hold itself out to third parties as liable for the debts of Buyer nor purport to own the Receivables and other assets acquired by Buyer, (ii) will take all other actions necessary on its part to maintain itself as a separate legal entity distinct from Buyer, including by giving consideration to the obligations of Buyer to comply with the covenants set forth in Section 7.1(i) of the Purchase Agreement and (iii) will cause all tax liabilities arising in connection with the transactions contemplated herein or otherwise to be allocated between Originator and Buyer on an arm’s-length basis. |
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Section 4.2 Negative Covenants of Originator. Until the date on which this Agreement terminates in accordance with its terms, Originator hereby covenants that:
(a) | Name Change, Offices and Records. Originator will not change its name or change the location of its chief executive office, principal place of business or registered office or the location where any Records are kept unless it shall have: (i) given Buyer (or its assigns) at least forty-five (45) days’ prior written notice thereof and (ii) delivered to Buyer (or its assigns) all financing statements, instruments and other documents requested by Buyer (or its assigns) in connection with such change or relocation. |
(b) | Change in Payment Instructions to Obligors. For so long as any Lock-Box Account or Collection Account is in the name of or under the control of Originator, Originator will not add or terminate any bank as a Collection Bank, or make any change in the instructions to Obligors regarding payments to be made to any Lock-Box or Collection Account, unless Buyer (or its assigns) shall have received, at least ten (10) days before the proposed effective date therefor, (i) written notice of such addition, termination or change and (ii) with respect to the addition of a Collection Bank or a Collection Account or Lock-Box, an executed Collection Account Agreement with respect to the new Collection Account or Lock-Box; provided, however, that Originator may make changes in instructions to Obligors regarding payments if such new instructions require such Obligor to make payments to another existing Collection Account. |
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(c) | Modifications to Contracts and Credit and Collection Policy. Originator will not make any change to the Credit and Collection Policy that could adversely affect the collectibility of the Receivables or decrease the credit quality of any newly created Receivables. Originator will not extend, amend or otherwise materially modify the terms of any Receivable or any Contract related thereto other than in accordance with the Credit and Collection Policy. |
(d) | Sales, Liens. Originator will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Adverse Claim (other than Permitted Liens) upon (including, without limitation, the filing of any financing statement other than the filings by Citicorp USA Inc., for itself or as agent made on or prior to the date hereof) or with respect to, any Receivable, Related Security or Collections, or upon or with respect to any Contract under which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of the interests therein in favor of Buyer provided for herein), and Originator will defend the right, title and interest of Buyer in, to and under any of the foregoing property, against all claims of third parties claiming through or under Originator. Originator shall not create or suffer to exist any mortgage, pledge, security interest, encumbrance, lien, charge or other similar arrangement on any of its inventory unless (i) in the case of any inventory, either (A) such Adverse Claim by its express terms is extinguished or released upon the sale, transfer or other disposition of such inventory or (B) such Adverse Claim is a nonconsensual lien arising by operation of law and the indebtedness or obligations secured thereby are not then due and payable, and (ii) if requested by the Agent, the applicable lienholder shall have entered into an intercreditor agreement with the Agent in the form and substance satisfactory to the Agent promptly following such request. |
(e) | Accounting for Purchase. Originator will not, and will not permit any Affiliate over which Originator has control to, account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than the sale of the Receivables and the Related Security by Originator to Buyer or in any other respect account for or treat the transactions contemplated hereby in any manner other than as a sale of the Receivables and the Related Security by Originator to Buyer except to the extent that such transactions are not recognized on account of consolidated financial reporting in accordance with generally accepted accounting principles. |
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ARTICLE V
(a) | Originator shall fail (i) to make any payment or deposit required hereunder when due, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) or any other Transaction Document to which it is a party, and such failure shall continue for five (5) consecutive Business Days. |
(b) | Any representation, warranty, certification or statement made by Originator in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material way when made or deemed made. Notwithstanding the foregoing, a breach of any representation or warranty which relates solely to the eligibility or characteristics of any Receivable shall not constitute a Termination Event hereunder if a Purchase Price Credit Adjustment (and any related payment by Originator) is duly and timely made in accordance with Section 1.3 hereof. |
(c) | Failure of Originator or any of its Subsidiaries or Affiliates to pay any Indebtedness when due in an aggregate amount in excess of $10,000,000; or the default by Originator or any of its Subsidiaries or Affiliates in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated |
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maturity; or any such Indebtedness of Originator or any of its Subsidiaries or Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof. |
(d) | (i) Originator or any of its Subsidiaries or Affiliates shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Originator or any of its Subsidiaries or Affiliates seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property, provided, that in the case of an involuntary proceeding instituted against Originator or any of its Subsidiaries or Affiliates, the Termination Date shall not occur or be declared for 60 days after such proceeding is instituted unless Originator shall at any time during such period consent to or acquiesce in the continuance or maintenance of such proceeding or (ii) Originator or any of its Affiliates shall take any corporate action to authorize any of the actions set forth in the foregoing clause (i) of this subsection (d). |
(e) | A Change of Control shall occur. |
(f) | One or more final judgments for the payment of money shall be entered against Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall (i) individually or in the aggregate for all judgments then outstanding against the Originator and any of its Affiliates exceed an amount equal to $10,000,000, and (ii) continue unsatisfied and in effect for fifteen (15) consecutive days without a stay of execution. |
(g) | Termination of the Purchase Agreement in accordance with its terms. |
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an actual or deemed entry of an order for relief with respect to Originator under any applicable law relating to bankruptcy, insolvency or reorganization or relief of debtors, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by Originator and (ii) to the fullest extent permitted by applicable law, declare that the Default Fee shall accrue with respect to any amounts then due and owing by Buyer to Originator. The aforementioned rights and remedies shall be in addition to all other rights and remedies of Buyer and its assigns available under this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including, without limitation, all rights and remedies provided under the PPSA, all of which rights shall be cumulative.
ARTICLE VI
(i) any representation or warranty made by Originator (or any officers of Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Originator, to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
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(iii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(iv) any products liability or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services, in any such case either (i) as a result of any event, fact or circumstance that arose or existed at a time before such Receivable was purchased by Buyer, or (ii) at any time after such purchase, resulting from any action taken by Originator, or any failure to act by Originator where required, with respect to such Receivable;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to (i) this Agreement or any of the other Transaction Documents as a result of Originator’s participation therein, (ii) the use of proceeds of sales by Originator, (iii) the ownership of the Receivables by Originator prior to their sale to Buyer or, (iv) the ownership of the Receivables by Buyer after the purchase thereof by Buyer and resulting from any action by Originator, or any failure to act by Originator where required;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding, in each case as a result of circumstances that existed on or prior to the date of purchase of such Receivable by Buyer;
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(ix) any Termination Event described in Section 5.1(d);
(x) the failure to vest in Buyer at the time of sale to Buyer a first priority, perfected ownership interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents and except in respect of Permitted Liens);
(xi) any action or omission by Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (unless taken in accordance with the Transaction Documents);
(xii) any attempt by any Person to void the Purchase hereunder under statutory provisions or common law or equitable action; and
(xiii) the failure to pay when due any taxes which are Originator’s responsibility to pay, including without limitation, GST, PST or other sales, excise or personal property taxes payable in connection with the Receivables.
Notwithstanding anything contained herein to the contrary, Originator shall have no obligation to indemnify any Indemnified Party from and against:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or failure to pay of or by the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the U.S. Tax Characterization.
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ARTICLE VII
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ARTICLE VIII
Section 8.1 Waivers and Amendments.
(a) | No failure or delay on the part of Buyer (or its assigns) in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given. |
(b) | No provision of this Agreement may be amended, supplemented, modified or waived except in writing signed by Originator and Buyer and, to the extent required under the Purchase Agreement, the Agent and the Financial Institutions or the Required Financial Institutions. |
(c) | Buyer shall provide prior written notice to Originator of any amendments or waivers to the Purchase Agreement that may effect any rights and obligations of Originator hereunder. |
Section 8.3 Protection of Ownership Interests of Buyer.
(a) | Originator agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents, and take all actions, that may be necessary, or that Buyer (or its assigns) may reasonably request, to perfect, protect or more fully evidence the Purchaser Interests with respect to Receivables, the Collections and the Related Security, or to enable Buyer (or its |
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assigns) to exercise and enforce their rights and remedies hereunder. At any time upon the occurrence of a Termination Event and during the continuation thereof, Buyer (or its assigns) may, at Originator’s sole cost and expense, direct Originator to notify the Obligors of Receivables of the ownership interests of Buyer under this Agreement and may also direct that payments of all amounts due or that become due under any or all Receivables be made directly to Buyer or its designee. Buyer acknowledges and agrees that Originator may elect not to provide such notice to Obligors until such time as it is so directed by Buyer. |
(b) | If Originator fails to perform any of its obligations hereunder, Buyer (or its assigns) may (but shall not be required to) perform, or cause performance of, such obligation, and Buyer’s (or such assigns’) reasonable out-of-pocket costs and expenses incurred in connection therewith shall be payable by Originator as provided in Section 6.2. Originator irrevocably authorizes Buyer (and its assigns) at any time and from time to time in the sole discretion of Buyer (or its assigns), and appoints Buyer (and its assigns) as its attorney(s)-in-fact, to act on behalf of Originator (i) following a failure on the part of Originator to execute the financing statements referred to below on its own behalf, to execute on behalf of Originator as debtor and to file financing statements necessary or desirable in Buyer’s (or its assigns’) sole discretion to perfect and to maintain the perfection of the ownership interest of Buyer in the Receivables and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Receivables as a financing statement in such offices as Buyer (or its assigns) in their sole discretion deem necessary or desirable to perfect and to maintain the perfection of Buyer’s ownership interests in the Receivables. This appointment is coupled with an interest and is irrevocable. |
(a) Originator shall maintain and shall cause each of its employees and officers to maintain the confidentiality of this Agreement and the other confidential proprietary information with respect to the Agent and the Conduits and their respective businesses obtained by it or them in connection with the structuring, negotiating and execution of the transactions contemplated herein, except that Originator and its officers and employees may disclose such information to Originator’s external accountants and attorneys and as required by any applicable law or order of any judicial or administrative proceeding.
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(b) The Buyer shall (and the Buyer shall cause the Purchasers, the Managing Agents and the Agent to) maintain and cause each of its employees and officers to maintain the confidentiality of nonpublic proprietary information with respect to Originator and its business obtained by it in connection with the structuring, negotiating and execution of the transactions contemplated herein. Anything herein to the contrary notwithstanding, Originator hereby consents to the disclosure of any nonpublic information with respect to it (i) to Buyer, the Agent, the Purchasers, the Managing Agents, the Financial Institutions or the Conduits by each other or (ii) by the Agent to any rating agency or provider of a surety, guaranty or credit or liquidity enhancement to the Conduits or any entity organized for the purpose of purchasing, or making loans secured by, financial assets for which BNS acts as the administrative agent and to any officers, directors, employees, outside accountants and attorneys of any of the foregoing. In addition, the Purchasers, the Managing Agents and the Agent may disclose any such nonpublic information pursuant to any applicable law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings (having the force or effect of law). The Agent, the Managing Agents or the Purchasers may disclose any nonpublic information with respect to the Originator to any prospective or actual assignee or participant of any of them or to any Commercial Paper dealer, with the prior written consent of Originator, provided that the Agent and the Purchasers may disclose any nonpublic information to any such Person, without the consent of Originator, any other Originator or any other Person, if such information is presented on a portfolio basis, does not explicitly refer to Originator and does not disclose specific financial information in respect of the Originator.
(c) Anything herein to the contrary notwithstanding, Buyer, Originator, each Purchaser, each Managing Agent, the Agent, each Indemnified Party and any successor or assign of any of the foregoing (and each employee, representative or other agent of any of the foregoing) may disclose to any and all Persons, without limitation of any kind, the “tax treatment” and “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated herein and all materials of any kind (including opinions or other tax analyses) that are or have been provided to any of the foregoing relating to such tax treatment or tax structure, and it is hereby confirmed that each of the foregoing have been so authorized since the commencement of discussions regarding the transactions.
Section 8.5 Bankruptcy Petition.
(a) | Originator and Buyer each hereby covenants and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding senior Indebtedness of any Conduit it will not institute against, or join any other Person in instituting |
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against, any Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or any other similar proceeding under the laws of Canada, any province of Canada, the United States or any state of the United States. |
(b) | Originator hereby covenants and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding obligations of JWPR Corporation under the Purchase Agreement, it will not institute against, or join in any other Person in instituting against, JWPR Corporation any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or any other similar proceeding under the laws of Canada, any province of Canada, the United States or any state of the United States. |
Section 8.6 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO THE CONFLICT OF LAW RULES.
Section 8.7 CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE PROVINCE OF ONTARIO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED PURSUANT TO THIS AGREEMENT AND (II) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF BUYER (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 8.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
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Section 8.9 Integration; Binding Effect; Survival of Terms.
(a) | This Agreement, the Purchase Agreement and each Collection Account Agreement contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. |
(b) | This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by Originator pursuant to Article II, (ii) the indemnification and payment provisions of Article VI, and Section 8.5 shall be continuing and shall survive any termination of this Agreement. |
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JOHNSONDIVERSEY CANADA, INC. | ||
By: | /s/ Xxxx X. Xxxxx | |
Name: | Xxxx X. Xxxxx | |
Title: | VP and Corporate Treasurer | |
Address: | ||
c/o JohnsonDiversey, Inc. Attn: Corporate Treasurer 0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000 | ||
JWPR CORPORATION | ||
By: | /s/ Xxxx X. Xxxxxxxx | |
Name: | Xxxx X. Xxxxxxxx | |
Title: | Vice President | |
Address: | ||
c/o M&I Portfolio Services Inc. 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000 Xxx Xxxxx, XX 00000 |
Signature Page to
Execution Version
Exhibit I
Definitions
This is Exhibit I to the Agreement (as hereinafter defined). As used in the Agreement and the Exhibits, Schedules and Annexes thereto, capitalized terms have the meanings set forth in this Exhibit I (such meanings to be equally applicable to the singular and plural forms thereof). If a capitalized term is used in the Agreement, or any Exhibit, Schedule or Annex thereto, and not otherwise defined therein or in this Exhibit I, such term shall have the meaning assigned thereto in Exhibit I to the Purchase Agreement.
“Agent” has the meaning set forth in the Preliminary Statements to the Agreement.
“Agreement” means the Receivables Sale Agreement, dated as of December 10, 2008, between Originator and Buyer, as the same may be amended, restated or otherwise modified.
“Authorized Officer” means, with respect to Originator, its corporate president, secretary, controller, treasurer or chief financial officer or any vice president.
“Business Day” means any day on which banks are not authorized or required to close in Toronto, Canada or Chicago, Illinois and The Depository Trust Company of New York is open for business.
“Buyer” has the meaning set forth in the preamble to the Agreement.
“Calculation Period” means each “Reporting Period” (as defined in the Purchase Agreement) or portion thereof which elapses during the term of the Agreement. The first Calculation Period shall commence on the date of the Purchase of Receivables hereunder and the final Calculation Period shall terminate on the Termination Date.
“Conduit” has the meaning set forth in the Preliminary Statements to the Agreement.
“Credit and Collection Policy” means Originator’s credit and collection policies and practices relating to Contracts and Receivables existing on the date hereof and summarized in Exhibit V, as modified from time to time in accordance with the Agreement.
“Default Fee” means a per annum rate of interest equal to the sum of (i) the Prime Rate, plus (ii) 2% per annum.
“Dilutions” means, at any time, the aggregate amount of reductions or cancellations described in Section 1.3(a) of the Agreement.
“Discount Factor” means at any time a percentage calculated to provide Buyer with a reasonable return on its investment in the Receivables after taking account of (i) the time value of money based upon the anticipated dates of collection of the Receivables and the cost to Buyer of financing its investment in the Receivables during such period and (ii) the risk of nonpayment by the Obligors. Originator and Buyer may agree from time to time to change the Discount Factor based on changes in one or more of the items affecting the calculation thereof, provided that any change to the Discount Factor shall take effect as of the commencement of a Calculation Period, shall apply only prospectively and shall not affect the Purchase Price payment in respect of the transfer of Receivables hereunder which occurred during any Calculation Period ending prior to the Calculation Period during which Originator and Buyer agree to make such change.
“GST” means all goods and services tax payable under Part IX of the Excise Tax Act (Canada), all QST and all harmonized sales tax in the Provinces of Nova Scotia, Newfoundland and New Brunswick payable under the Excise Tax Act (Canada), as such statutes may be amended, modified, supplemented or replaced from time to time, including any successor statute.
“ITA” means, the Income Tax Act (Canada), and the Regulations thereunder, as such statute may be amended, modified, supplemented or replaced from time to time, including any successor statute.
“Material Adverse Effect” means a material adverse effect on (i) the financial condition or operations of Originator, (ii) the ability of Originator to perform its obligations under the Agreement or any other Transaction Document, (iii) the legality, validity or enforceability of the Agreement or any other Transaction Document, (iv) Originator’s, Buyer’s, the Agent’s or any Purchaser’s interest in the Receivables generally or in any significant portion of the Receivables, the Related Security or Collections with respect thereto, or (v) the collectibility of the Receivables generally or of any material portion of the Receivables.
“Original Balance” means, with respect to any Receivable, the Outstanding Balance of such Receivable on the date it was purchased by Buyer. For the avoidance of doubt, sales, use or any other taxes (other than GST) which may be billed in connection with a Receivable are not included in the Original Balance.
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“Originator” has the meaning set forth in the preamble to the Agreement.
“Permitted Liens” means undetermined, inchoate or statutory deemed trust and/or liens imposed or potentially imposed by application of Law for source deductions, employee claims, taxes or other governmental assessments, charges or levies (i) of which notice has not yet been given or which have not at the relevant time been filed or registered in accordance with applicable Law, or (ii) that are not yet past due or that are being contested in good faith by appropriate proceedings.
“Potential Termination Event” means an event which, with the passage of time or the giving of notice, or both, would constitute a Termination Event.
“PPSA” means (i) the UCC, (ii) the Personal Property Security Act in effect from time to time in each Province of Canada other than the Province of Quebec, and (iii) the Civil Code of Quebec.
“PST” means all taxes payable under the Retail Sales Tax Act (Ontario), R.S.O. 1990, c. R-31, or any similar statute of another jurisdiction of Canada, as such statute may be amended, modified, supplemented or replaced from time to time, including any successor statute, other than GST.
“Purchase” means the purchase under the Agreement by Buyer from Originator of the Receivables, the Related Security and the Collections related thereto, together with all related rights in connection therewith.
“Purchase Agreement” has the meaning set forth in the Preliminary Statements to the Agreement.
“Purchase Price” means, with respect to the Purchase, the aggregate price to be paid by Buyer to Originator for such Purchase in accordance with Section 1.2 of the Agreement for the Receivables, Collections and Related Security being sold to Buyer on such date, which price shall equal, with respect to any Receivables, (i) the product of (x) the aggregate Original Balance of such Receivables, multiplied by (y) one minus the Discount Factor then in effect, minus (ii) any Purchase Price Credits remaining to be credited against the Purchase Price otherwise payable in accordance with Section 1.3 of the Agreement.
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“Purchase Price Credit” means any credit against the Purchase Price pursuant to Section 1.3 of the Agreement.
“Purchaser” means a Conduit or a Financial Institution.
“QST” means the tax payable under the Act Respecting the Quebec Sales Tax, R.S.Q. c.T-01, as such statute may be amended, modified, supplemented or replaced from time to time, including any successor statute.
“Receivable” means all indebtedness and other obligations owed by an Obligor to Originator which does not arise as a result of the provision of services to the Obligor thereof in Canada, whether constituting an account, contract right, payment intangible, promissory note, chattel paper, claim, instrument document, investment property, financial asset or general intangible, arising in connection with the sale of goods by Originator and further includes, without limitation, the obligation to pay any Finance Charges and GST with respect thereto but specifically excludes any obligation to pay PST with respect thereto. Indebtedness and other rights and obligations arising from any one transaction, including, without limitation, indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided further, that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a Receivable regardless of whether the Obligor or Originator treats such indebtedness, rights or obligations as a separate payment obligation.
“Reconveyed Assets” has the meaning set forth in Section 1.3 of the Agreement.
“Related Security” means, with respect to any Receivable:
(i) all of Originator’s interest in the inventory and goods (including returned or repossessed inventory or goods), if any, the sale, financing or lease of which by Originator gave rise to such Receivable, and all insurance contracts with respect thereto,
(ii) all other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable,
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(iii) all guaranties, letters of credit, letter-of-credit rights, supporting obligations, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and agreements associated with such Receivable,
(v) all Records related to such Receivable, and
(vi) all proceeds of any of the foregoing.
“Subsidiary” of a Person means any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 50% of the voting stock, membership interests or other equity interests (in the case of Persons other than corporations) is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of Originator.
“Termination Date” means the earliest to occur of (i) the Facility Termination Date, (ii) the Business Day immediately prior to the occurrence of a Termination Event set forth in Section 5.1(d) (subject to the proviso therein with regard to involuntary proceedings), (iii) the Business Day specified in a written notice from Buyer to Originator following the occurrence of any other Termination Event, and (iv) the date which is 60 Business Days after Buyer’s (and, if the Purchase Agreement shall then be in effect, the Agent’s) receipt of written notice from Originator that it wishes to terminate the facility evidenced by this Agreement.
“Termination Event” has the meaning set forth in Section 5.1 of the Agreement.
“Transaction Documents” means, collectively, the Purchase Agreement, this Agreement, each Collection Account Agreement and all other instruments, documents and agreements executed and delivered in connection herewith.
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“U.S. Tax Characterization” means, for United States federal income tax purposes, the characterization of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by the Receivables, the Related Security and the Collections.
All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles. All terms used in the PPSA in the Province of Ontario, and not specifically defined herein, are used herein as defined in such PPSA.
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Exhibit II
Places of Business; Locations of Records; Other Names
Places of Business:
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0
Locations of Records:
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0
Corporate, Partnership Trade and Assumed Names:
JohnsonDiverseyCanada, Inc.
Xxxxxxx WaxProfessional, Inc.
S.C. Xxxxxxx Professional, Inc.
1214115 Ontario Inc.
EXHIBIT III
Lock-Boxes; Collection Accounts; Collection Banks
Original Account Holder | Bank Name & Address | Account Number | Name & Address of Associated Lock-Box | |||
JohnsonDiversey Canada, Inc. | Citibank Toronto 000 Xxxxx Xxxxxx Xxxx Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx | 2014258007 | N/A | |||
JohnsonDiversey Canada, Inc. | Royal Bank of Canada XX Xxx 0000 Xxxxxx Xxxxxxx X Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx | 1012988 | XX Xxx 0000 Xxxxxx Xxxxxxx X Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx | |||
Butcher Company., as bare trustee for JohnsonDiversey Canada, Inc. | Toronto Dominion Bank XX Xxx 0000 Xxxxxx Xxxxxxx X Xxxxxxx, Xxxxxxx X0X 0X0 Canada | 6200303654 | XX Xxx 0000 Xxxxxx Xxxxxxx X Xxxxxxx, Xxxxxxx X0X 0X0 Canada |
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Exhibit IV
Form of Compliance Certificate
This Compliance Certificate is furnished pursuant to that certain Receivables Sale Agreement dated as of December 10, 0000, xxxxxxx XxxxxxxXxxxxxxx Xxxxxx Inc. (“Originator”) and JWPR Corporation (the “Agreement”). Capitalized terms used and not otherwise defined herein are used with the meanings attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of Originator.
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of Originator during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Termination Event or a Potential Termination Event, as each such term is defined under the Agreement, during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below.
4. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Originator has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this day of , 20 .
|
[Name] |
-1-
Exhibit V
Credit and Collection Policy
(See attached.)
-2-
Schedule A
DOCUMENTS TO BE DELIVERED TO BUYER
ON OR PRIOR TO THE PURCHASE
(See attached.)
TABLE OF CONTENTS
Page | ||||
ARTICLE I | AMOUNTS AND TERMS | 2 | ||
Section 1.1 | Purchase of Receivables | 2 | ||
Section 1.2 | Payment for the Purchase | 4 | ||
Section 1.3 | Purchase Price Adjustments | 4 | ||
Section 1.4 | Payments and Computations, Etc | 5 | ||
Section 1.5 | Transfer of Records | 5 | ||
Section 1.6 | Reconveyance of Receivables on Termination Date | 6 | ||
Section 1.7 | Re-characterization | 7 | ||
Section 1.8 | Reconveyed Assets | 7 | ||
ARTICLE II | REPRESENTATIONS AND WARRANTIES | 7 | ||
Section 2.1 | Representations and Warranties of Originator | 7 | ||
ARTICLE III | CONDITIONS OF PURCHASE | 11 | ||
Section 3.1 | Conditions Precedent to Purchase | 11 | ||
Section 3.2 | Conditions Precedent to Subsequent Transfers and Payments | 11 | ||
ARTICLE IV | COVENANTS | 12 | ||
Section 4.1 | Affirmative Covenants of Originator | 12 | ||
Section 4.2 | Negative Covenants of Originator | 17 | ||
Section 4.3 | Covenants of Buyer | 19 | ||
ARTICLE V | TERMINATION EVENTS | 19 | ||
Section 5.1 | Termination Events | 19 | ||
Section 5.2 | Remedies | 20 | ||
ARTICLE VI | INDEMNIFICATION | 21 | ||
Section 6.1 | Indemnities by Originator | 21 | ||
Section 6.2 | Other Costs and Expenses | 24 | ||
ARTICLE VII | ADMINISTRATION AND COLLECTION | 24 | ||
Section 7.1 | Collection Accounts | 24 | ||
Section 7.2 | Responsibilities of Originator | 24 | ||
ARTICLE VIII | MISCELLANEOUS | 25 | ||
Section 8.1 | Waivers and Amendments | 25 | ||
Section 8.2 | Notices | 25 | ||
Section 8.3 | Protection of Ownership Interests of Buyer | 25 | ||
Section 8.4 | Confidentiality | 26 | ||
Section 8.5 | Bankruptcy Petition | 27 | ||
Section 8.6 | CHOICE OF LAW | 28 | ||
Section 8.7 | CONSENT TO JURISDICTION | 28 | ||
Section 8.8 | WAIVER OF JURY TRIAL | 28 | ||
Section 8.9 | Integration; Binding Effect; Survival of Terms | 29 |
i
TABLE OF CONTENTS
(continued)
Page | ||||
Section 8.10 | Counterparts; Severability; Section References | 29 |
ii
Exhibits and Schedules
EXHIBIT I | — | Definitions | ||
EXHIBIT II | — | Principal Place of Business; Location(s) of Records; Other Names | ||
EXHIBIT III | — | Lock-Boxes; Collection Accounts; Collection Banks | ||
EXHIBIT IV | — | Form of Compliance Certificate | ||
EXHIBIT V | — | Credit and Collection Policy | ||
SCHEDULE A | — | List of Documents to Be Delivered to Buyer Prior to the Purchase |
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