Exhibit 99.1
AMENDMENT NO. 1
This AMENDMENT NO. 1 dated as of August 6, 2003 (this "Amendment"), among
JohnsonDiversey, Inc., a Delaware corporation (the "Company"), JohnsonDiversey
Canada, Inc., an Ontario corporation (the "Canadian Borrower"), Xxxxxxx Diversey
Holdings II B.V., a Dutch corporation (the "Euro Borrower"), and Xxxxxxx
Professional Co., Ltd, a Japanese corporation (the "Japanese Borrower" and, with
the Company, the Canadian Borrower and the Euro Borrower, collectively, the
"Borrowers"), JohnsonDiversey Holdings, Inc., a Delaware corporation
("Holdings"), and Citicorp USA, Inc., as Administrative Agent (as defined below)
on behalf each Lender executing a Lender Consent (as defined below) amends
certain provisions of the Credit Agreement, dated as of May 3, 2002 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrowers, Holdings, the Lenders and Issuers
(in each case as defined therein) party thereto, Citicorp USA, Inc., as
administrative agent for the Lenders and the Issuers (in such capacity, and as
agent for the Secured Parties under the other Loan Documents, the
"Administrative Agent"), Xxxxxxx Xxxxx Credit Partners L.P., as Syndication
Agent for the Lenders and the Issuers, and Bank One NA, ABN Amro Bank N.V.,
Royal Bank of Scotland plc, New York Branch, and General Electric Capital
Corporation as Co-Documentation Agents for the lenders and issuers.
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders agree to amend
certain provisions of the Credit Agreement;
WHEREAS, the Borrowers and the Administrative Agent wish to enter into this
Amendment for the purpose of giving effect to such modifications in each case as
more particularly set forth herein;
WHEREAS, pursuant to Section 11.1(a) of the Credit Agreement, the consent
of the Requisite Lenders is required to effect the amendments set forth herein;
provided that the amendments set forth in Section 2.1 (Applicable Margin) below
shall also require the consent of each Lender in respect of which the rate of
interest on any Loan or Reimbursement Obligations outstanding to such Lender is
being decreased by the terms of this Agreement and the amendments relating to
the refinancing of the Tranche C Loan shall also require the consent of each
Tranche C Lender (in each case, such Lenders, the "Affected Lenders").
NOW, THEREFORE, in consideration of the above premises, the Borrowers and
the Administrative Agent, at the direction of the Lenders constituting the
Requisite Lenders, and, in the case of Section 2.9 (Tranche C Commitments),
Section 3.1 (The Tranche C Term Loans), 3.2. (Borrowing Procedures for Tranche C
Loans), 3.3 (Repayment of Tranche C Term Loans) and Article IX (Amendment To
Schedule I) (collectively, the "Tranche C Amendments") and Section 2.1
(Applicable Margin), below, the applicable Affected Lenders, agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Credit Agreement.
ARTICLE II
AMENDMENT TO ARTICLE I (DEFINITIONS)
Section 2.1 Applicable Margin. The definition of "Applicable Margin" shall
be amended and restated in its entirety as set forth below:
"Applicable Margin" means (a) with respect to the Tranche A
Loans, the Tranche C Loans and the Revolving Loans, a per annum rate
equal to the rate set forth below under the applicable type of Loan
and opposite the then applicable Leverage Ratio (determined for the
most recent Financial Covenant Period for which Financial Statements
have been delivered pursuant to Section 6.1 (Financial Statements))
set forth below:
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BASE RATE LOANS BASE RATE LOANS EUROCURRENCY EUROCURRENCY
RATE LOANS RATE LOANS
(TRANCHE C LOANS (TRANCHE A LOANS
LEVERAGE RATIO AND YEN AND DOLLAR/ EURO (TRANCHE C LOANS AND (TRANCHE A LOANS AND
REVOLVING LOANS REVOLVING LOANS YEN REVOLVING LOANS DOLLAR/ EURO
ONLY) ONLY) ONLY) REVOLVING LOANS ONLY)
---------------------------------------------------------------------------------------------------------------
Greater than or equal 1.75% 2.25% 2.75% 3.25%
to 2.5 to 1
---------------------------------------------------------------------------------------------------------------
Less than 2.5 to 1 1.50% 1.50% 2.50% 2.50%
---------------------------------------------------------------------------------------------------------------
(b) with respect to Tranche B Dollar Loans maintained as (i) Base Rate
Loans, a rate equal to 1.75% per annum and (ii) Eurocurrency Rate
Loans, a rate equal to 2.75% per annum, and (c) with respect to
Tranche B Euro Loans maintained as (i) Base Rate Loans, a rate equal
to 2.25% per annum and (ii) Eurocurrency Rate Loans, a rate equal to
3.25% per annum.
Subsequent changes in the Applicable Margin resulting from a
change in the Leverage Ratio shall become effective as to all Loans 3
Business Days after delivery by the Company to the Administrative
Agent of new financial statements pursuant to Section 6.1(a)
(Quarterly Reports) for each of the first three Fiscal Quarters of
each Fiscal Year and Section 6.1(b) (Annual Reports) for each Fiscal
Year. Notwithstanding anything to the contrary set forth in this
Agreement (including the then effective Leverage Ratio), if the
Company shall fail to deliver such financial statements within the
time periods specified in Section 6.1(a) or (b), as applicable, the
Applicable Margin from and including the 49th day after the end of
such Fiscal Quarter or the 94th day after the end of such Fiscal Year,
as the case may be, to but not including the date the Company delivers
to the Administrative Agent such financial
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statements shall equal the highest possible Applicable Margin provided
for by this definition.
Section 2.2 Base Rate. The definition of "Base Rate" shall be amended and
restated in its entirety as set forth below:
"Base Rate" means
(a) with respect to Loans made in Dollars, for any period, a
fluctuating interest rate per annum as shall be in effect from time to
time, which rate per annum shall be equal at all times to the highest
of the following:
(i) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(ii) the sum (adjusted to the nearest .0625% or, if there is
no nearest .0625%, to the next higher .0625%) of (A) 0.5% per
annum, (B) the rate per annum obtained by dividing (x) the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly on each Monday
(or, if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported
by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such
rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, by
(y) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the
Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities)
three-month U.S. dollar nonpersonal time deposits in the United
States and (C) the average during such three-week period of the
maximum annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits in the United States; and
(iii) 0.5% per annum plus the Federal Funds Rate.
(b) with respect to Loans made in Canadian Dollars, the higher
of:
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(i) the rate determined by the Administrative Agent as the
rate displayed at or about 10:30 a.m. (Toronto time) on display
page CAPRIME of the Reuters Screen as the prime rate for Loans
made in Canadian Dollars by Canadian banks to borrowers in
Canada; provided, however, that, if for any reason there is no
such rate displayed on the Reuters Screen on such day or if the
basis of calculation of such rate is changed after the date
hereof and in the reasonable judgment of the Administrative Agent
it ceases to reflect each Canadian Lender's cost of funding to
the same extent as the date hereof, then such rate shall be the
per annum floating rate of interest (commercially known as the
"prime rate") established from time to time by three Canadian
banks selected by the Administrative Agent as the prime rate they
will use to determine the rates of interest on Loans made in
Canadian Dollars; and
(ii) the sum of (A) the then effective one month
Eurocurrency Rate for Loans made in Canadian Dollars plus (B)
0.75% per annum.
Section 2.3 Concentration Account. The definition of "Concentration
Account" shall be amended and restated in its entirety as set forth below:
"Concentration Account" means any Deposit Account (other than
payroll, withholding tax and other fiduciary accounts) maintained by
any Material Loan Party that maintains, during any calendar month, an
average aggregate overnight balance in excess of the Dollar Equivalent
of $1,000,000, unless otherwise consented to by the Administrative
Agent.
Section 2.4 Eurocurrency Base Rate. The definition of "Eurocurrency Rate"
shall be amended and restated in its entirety as set forth below:
"Eurocurrency Base Rate" means, with respect to any Interest
Period for any Eurocurrency Rate Loan, the rate determined by the
Administrative Agent to be the offered rate for deposits in Dollars,
Euros or Yen, as applicable, for the applicable Interest Period
appearing on the Screen as of 11:00 a.m., local time, on the second
full Business Day next preceding the first day of each Interest
Period. In the event that such rate does not appear on the Screen, the
Eurocurrency Base Rate for the purposes of this definition shall be
the Eurocurrency Base Rate for the immediately previous Business Day
for which a Eurocurrency Base Rate is appears on the Screen, or, in
the absence of such availability, the Eurocurrency Base Rate shall be
the rate of interest determined by the Administrative Agent to be the
rate per annum at which deposits in Dollars, Euros or Yen, as
applicable, are offered by, in the case of Dollars or Euros, the
principal office of Citibank in London or, in the case of Yen, the
principal office of Citibank in Hong Kong to major banks in the
London, Hong Kong or Tokyo (as the case may be) interbank market at
11:00 a.m. Local Time two Business Days before the first day of such
Interest Period in an amount substantially equal to the
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Eurocurrency Rate Loan of Citibank for a period equal to such Interest
Period.
Section 2.5 Eurocurrency Rate. The definition of "Eurocurrency Rate" shall
be amended and restated in its entirety as set forth below:
"Eurocurrency Rate" means:
(a) with respect to Loans denominated in Dollars, Euros or Yen,
any Interest Period for any Eurocurrency Rate Loan, an interest rate
per annum equal to the rate per annum obtained by dividing (a) the
Eurocurrency Base Rate by (b)(i) a percentage equal to 100% minus (ii)
the reserve percentage applicable two Business Days before the first
day of such Interest Period under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System
in New York with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the Eurocurrency Rate is determined) having a term equal to such
Interest Period; and
(b) with respect to Loans denominated in Canadian Dollars, the
rate per annum determined as being the arithmetic average (rounded
upwards, if necessary, to the nearest .01%) of the rates quoted for
bankers' acceptances having a term equal to the Interest Period
selected by the Canadian Borrower in its Notice of Borrowing or Notice
of Conversion or Continuation given to the Administrative Agent
pursuant to Section 2.2 (Borrowing Procedures) or 2.11
(Conversion/Continuation Option) as appear on the Reuters Screen CDOR
(Certificate of Deposit Offered Rate) page under the heading
CAD-BA-CDOR, as determined as at 10:00 a.m. (Toronto time) on the
relevant Business Day (for non-Business Days, and if no CAD-BA-CDOR
rate is available for a given Business Day, the CAD-BA-CDOR rate for
the immediately previous Business Day for which a CAD-BA-CDOR rate is
available shall be used).
Section 2.6 Interbank Rate. The definition of "Interbank Rate" shall be
amended by inserting the words ", Canadian Dollars" immediately after "Euros."
Section 2.7 Minimum Currency Threshold. The definition of "Minimum Currency
Threshold" shall be amended by inserting the following clause at the end
thereof, immediately prior to the period:
and (iv) in the case of Loans denominated in Canadian Dollars,
CA$5,000,000 or an integral multiple of CA$1,000,000 in excess
thereof.
Section 2.8 Secured Obligations. The definition of "Secured Obligations"
shall be amended and restated in its entirety as set forth below:
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"Secured Obligations" means: (a) in the case of each Borrower, the
Obligations of such Borrower, (b) in the case of each Loan Party
(including each Borrower), (i) the obligations of such Loan Party
under each Guaranty and the other Loan Documents to which it is a
party, and (ii) the obligations of such Loan Party under any Hedging
Contract entered into with any Lender or any Affiliate thereof in
connection herewith, after the Closing Date and prior to the Amendment
No. 1 Effective Date, (c) in the case of each Material Loan Party
(including each Borrower), (i) the obligations of such Material Loan
Party under (A) any Hedging Contract entered into with any Lender or
any Affiliate thereof after the Amendment No. 1 Effective Date which
Hedging Contract has an original tenor that is not less than six
months and (B) any Hedging Contract entered into with any Lender or
any Affiliate thereof after the Closing Date in connection herewith,
and (ii) any Cash Management Obligations of the Material Loan Parties,
and (d) in the case of the Company and solely for the purposes of
sharing Collateral with the holders thereof, the Joint Liabilities.
Section 2.9 Tranche C Commitments. The definition of "Tranche C
Commitments"" shall be amended by deleting the last sentence thereof and
replacing it with the following sentence:
The aggregate principal amount of all Tranche C Commitments on the
Tranche C Amendment Effective Date shall be CA$30,559,790.79.
Section 2.10 New Definitions. The following definitions shall be inserted
in the correct alphabetical order in Section 1.1:
"Amendment No. 1" means Amendment No. 1 to the Agreement dated as
of August 6, 2003 among the Borrowers, Holdings and the Administrative
Agent on behalf each Lender that delivered to the Administrative Agent
an executed Acknowledgment and Consent in the form attached as Exhibit
B to the Amendment No. 1.
"Amendment No. 1 Effective Date" means August 6, 2003.
"Canadian Dollars" and the sign "CA$" each mean the lawful money
of Canada.
"Mandatory Prepayment Account" means a Cash Collateral Account in
the name of the Agent in which Net Cash Proceeds shall be held pending
application in accordance with Section 2.9 (Mandatory Repayment) or,
following an Event of Default, Section 2.13(g) Payments and
Computations.
"Tranche C Amendment Effective Date" shall mean the date on which
the Tranche C Amendments (as defined in Amendment No. 1) become
effective pursuant to the terms of Amendment No. 1.
Section 2.11 Loan Document Definitions. The following Section 1.5 (Loan
Document Definitions) shall be inserted immediately after Section 1.4 (Certain
Terms):
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Section 1.5 Loan Document Definitions. The parties
hereto agree that, unless otherwise defined or stated therein,
capitalized terms used in each Loan Document shall have the
meanings ascribed to such terms in the Credit Agreement (as
may be amended from time to time).
ARTICLE III
AMENDMENT TO ARTICLE II (THE FACILITIES)
Section 3.1 The Tranche C Term Loans. Section 2.1(d) (Commitments) shall
be amended and restated in its entirety as follows:
(d) Tranche C Term Loan Commitments. On the terms and
subject to the conditions contained in this Agreement, each
Tranche C Lender severally agrees to make a term loan
denominated in Canadian Dollars (each a "Tranche C Loan") to
the Canadian Borrower on the Tranche C Amendment Effective
Date in an amount not to exceed such Lender's Tranche C
Commitment. Amounts of Tranche C Loans repaid or prepaid may
not be reborrowed.
Section 3.2 Borrowing Procedures for Tranche C Loans. Section 2.2(b)
(Borrowing Procedures) shall be amended and restated in its entirety as follows:
(b) Term Loan Borrowings. All Borrowings of Term
Loans shall be made upon receipt of a Notice of Borrowing
given by the applicable Borrower to the Administrative Agent
not later than 11:00 a.m. (New York Time) (i) on the Closing
Date (or, in the case of the Tranche C Loans made pursuant to
Amendment No. 1, the Tranche C Amendment Effective Date), in
the case of a Borrowing of Base Rate Loans and (ii) three
Business Days prior to the Closing Date (or, in the case of
the Tranche C Loans made pursuant to Amendment No. 1, the
Tranche C Amendment Effective Date), in the case of a
Borrowing of Eurocurrency Rate Loans. The Notice of Borrowing
shall specify (A) the Closing Date (or, in the case of the
Tranche C Loans made pursuant to Amendment No. 1, the Tranche
C Amendment Effective Date), (B) the aggregate amount and, in
the case of Tranche B Borrowings, the currency, of such
proposed Borrowings (C) whether any portion of the proposed
Borrowings will be of Base Rate Loans or Eurocurrency Rate
Loans, and (D) the initial Interest Period or Periods for any
such Eurocurrency Rate Loans. Term Loans denominated in
Dollars or Canadian Dollars shall be made as Base Rate Loans
unless (subject to Section 2.14 (Special Provisions Governing
Eurocurrency Rate Loans)) the Notice of Borrowing specifies
that all or a portion thereof shall be Eurocurrency Rate
Loans. Tranche B Euro Loans shall be made as Eurocurrency Rate
Loans and shall not be available as Base Rate Loans.
Section 3.3 Repayment of Tranche C Term Loans. Section 2.6 (e) (Repayment
of Loans) shall be amended and restated in its entirety as follows to reflect
repayments made through the Amendment Effective Date:
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(e) The Canadian Borrower promises to repay the Tranche C Loans
in semi-annual installments payable on each date set forth below, each
in an amount equal to the amount set for opposite such date:
Date Amount of Principal
(CA$)
November 3, 2003 2,291,984.30
May 3, 2004 2,291,984.30
November 3, 2004 3,055,979.07
May 3, 2005 3,055,979.07
November 3, 2005 3,055,979.07
May 3, 2006 3,055,979.07
November 3, 2006 3,055,979.07
May 3, 2007 3,055,979.07
November 3, 2007 3,819,973.83
Tranche C Maturity Date 3,819,973.97
provided, however, that the Canadian Borrower shall repay the entire unpaid
principal amount of the Tranche C Loans on the Tranche C Maturity Date.
Section 3.4 Mandatory Prepayments. Subsection 2.9(a) (Mandatory Repayments)
shall be amended and restated in its entirety as set forth below:
(a) Upon receipt by:
(i) a Borrower or a Domestic Loan Party of Net Cash
Proceeds arising from an Asset Sale, or any JD Entity of Net
Cash Proceeds arising from a Debt Issuance or repayment of
any Intercompany Term Note, the Borrowers shall promptly pay
to the Administrative Agent an amount equal to 100% of such
Net Cash Proceeds to be held in the Mandatory Prepayment
Account;
(ii) a JD Entity (that is not a Borrower or a Domestic
Loan Party) of Net Cash Proceeds arising from an Asset Sale,
the Borrowers shall promptly pay to the Administrative
Agent, within fifteen (15) days of receipt thereof, an
amount equal to 100% of such Net Cash Proceeds to be held in
the Mandatory Prepayment Account;
(iii) a JD Entity of Net Cash Proceeds arising from a
Property Loss Event, Debt/Cash Balance Adjustment, Working
Capital Adjustment, Delayed Closing Adjustment or
Acquisition Indemnity Reimbursement, the Borrowers shall
promptly pay to the Administrative Agent, within three (3)
days of receipt thereof, an amount equal to 100% of such Net
Cash Proceeds to be held in the Mandatory Prepayment
Account; and
(iv) by a JD Entity of Net Cash Proceeds from an Equity
Issuance, the Borrowers shall promptly prepay the Loans in
an amount equal to (A) 75% of such Net Cash Proceeds if the
Leverage Ratio is greater than 3.5 to 1 (determined for the
most recent Financial
8
Covenant Period for which Financial Statements have been
delivered pursuant to Section 6.1 (Financial Statements)) or
(B) 50% of such Net Cash Proceeds if such Leverage Ratio is
less than or equal to 3.5 to 1 (determined for the most recent
Financial Covenant Period for which Financial Statements have
been delivered pursuant to Section 6.1 (Financial
Statements));
provided, however, that (A) in the case of any Net
Cash Proceeds arising from a Reinvestment Event, the Borrowers
shall prepay the Loans (or provide cash collateral in respect
of Letters of Credit) in an amount equal to the Reinvestment
Prepayment Amount applicable to such Reinvestment Event, if
any, on the Reinvestment Prepayment Date with respect to such
Reinvestment Event, and (B) except during the continuance of
an Event of Default, up to $3,000,000 of Net Cash Proceeds
received by the JD Entities from Asset Sales in each Fiscal
Year shall be exempt from the provisions of this Section 2.9.
All Net Cash Proceeds on deposit in the Mandatory Prepayment
Account shall be applied by the Administrative Agent to prepay
the Loans (or to provide cash collateral in respect of Letters
of Credit) in an amount equal to 100% of such Net Cash
Proceeds on the last day of each Interest Period. Any
mandatory prepayment pursuant to this clause (a), shall be
applied to the Loans by the Administrative Agent in accordance
with clause (c) below.
Section 3.5 Payments and Computations. Section 2.13(b) (Payments and
Computations) shall be amended by inserting the words "and Tranche C Loans which
are Eurocurrency Rate Loans" immediately after the words "Base Rate Loans".
Section 3.6 Conversion/Continuation Option; Payments and Computations;
Special Provisions Governing Eurocurrency Rate Loans. Sections 2.11(a) and (b)
(Conversion/Continuation Option), Section 2.13(d) (Payments and Computations)
and Section 2.14(b) and (d)(i) (Special Provisions Governing Eurocurrency Rate
Loans) shall each be amended by inserting the words "or Canadian Dollars"
immediately after the word "Dollars" wherever it appears within each such
Section other than the "Dollars" in the last line of Section 2.14(d)(i) (Special
Provisions Governing Eurocurrency Rate Loans).
ARTICLE IV
AMENDMENT TO ARTICLE IV (REPRESENTATIONS AND WARRANTIES)
Section 4.1 Use of Proceeds. Clause (a)(ii) of Section 4.16 (Use of
Proceeds) shall be amended and restated in its entirety as follows:
(ii) to refinance existing Indebtedness to be Paid as more
fully set forth on Schedule 4.16 (Use of Proceeds) and, in the
case of the Tranche C Loans made on the Tranche C Amendment
Effective Date, to refinance the Tranche C Loans made on the
Closing Date,
ARTICLE V
AMENDMENT TO ARTICLE VI (REPORTING COVENANTS)
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Section 5.1 Quarterly Financial Statements. Subsection 6.1(a) (Financial
Statements) shall be amended by replacing the clause "Within 45 days after the
end of each Fiscal Quarter" with the clause "Within 45 days after the end of
each of the first 3 Fiscal Quarters in each Fiscal Year."
Section 5.2 Intercompany Loan Balances. Subsection 6.1(f) (Intercompany
Loan Balances) shall be amended and restated in its entirety as set forth below:
(f) Together with each delivery of any financial statement
pursuant to clause (a) or clause (c) above, a summary of the
outstanding balance of all Intercompany Term Loans as of the last
day of the Fiscal Quarter or Fiscal Year, as the case may be,
covered by such financial statement, certified by a Responsible
Officer of the Company.
ARTICLE VI
AMENDMENT TO ARTICLE VIII (NEGATIVE COVENANTS)
Section 6.1 Indebtedness.
(a) Subsection 8.1(e) shall be amended and restated in its entirety as
set forth below:
(e) Guaranty Obligations incurred by (i) a JD Entity in
respect of Indebtedness of a Material Loan Party that is
permitted by this Section 8.1, (ii) a Material Loan Party in
respect of Indebtedness of a JD Entity that is not a Material
Loan Party up to a maximum aggregate amount not to exceed the
Dollar Equivalent of $100,000,000 at any time and (iii) a JD
Entity that is not a Material Loan Party in respect of
Indebtedness of another JD Entity that is permitted by this
Section 8.1;
(b) Subsection 8.1(h) shall be amended and restated in its entirety as
set forth below:
(h) Indebtedness of Foreign Subsidiaries of the Company in
support of working capital needs up to an aggregate amount of the
Dollar Equivalent of $150,000,000 at one time outstanding;
(c) Subsection 8.1(l) shall be amended and restated in its entirety as
set forth below:
(l) (i) Indebtedness of any Borrower or a Subsidiary of any
Borrower arising under any performance or surety bond entered
into in the ordinary course of business and (ii) Indebtedness of
any Domestic Loan Party arising under letters of credit (not
issued under this Agreement) entered into in the ordinary course
of business, provided that the aggregate undrawn amount plus the
aggregate reimbursement obligations under all such letters of
credit shall not exceed $10,000,000 at any time;
Section 6.2 Investments.
(a) Subsection 8.3(a) shall be amended and restated in its entirety as
set forth below:
(a) (i) Investments existing on the date of this Agreement
(other than intercompany loans) and disclosed on Schedule
8.3(a)(Existing
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Investments) and Subsidiaries existing on the Closing Date as
disclosed on Schedule 4.2 (Ownership of Subsidiaries), and (ii)
Investments by way of capital contributions in Wholly Owned
Subsidiaries to the extent necessary to (A) properly reflect changes
to the Purchase Price (as defined in the Acquisition Agreement) of
such Subsidiary, (B) comply with Applicable Law, or (C) avoid
potential insolvency of such Subsidiary, provided that no Event of
Default shall have occurred and be continuing at the time such
Investment is made or would result therefrom.
(b) Subsection 8.3(e) shall be amended and restated in its entirety as set
forth below:
(e) Investments by way of Intercompany Loans existing on the date
of this Agreement and disclosed on Schedule 8.3(e) (Existing
Intercompany Loans), and other investments by way of Intercompany
Loans, in each case, evidenced by an Intercompany Note made by any
Loan Party to any other Loan Party; provided that (i) with respect to
Intercompany Loans that remain outstanding for a period in excess of
21 days, the Administrative Agent has a perfected security interest in
(A) such Intercompany Note and any related Intercompany Guaranties as
may be requested by the Administrative Agent and (B) assets of the
Intercompany Loan Parties to the extent necessary to maintain
compliance by the Borrowers with the provisions of Section 7.11
(Additional Collateral and Guaranties), and (ii) no Event of Default
has occurred and is continuing at the time such Investment is made or
would result therefrom.
(c) Subsection 8.3(f) shall be amended and restated in its entirety as set
forth below:
(f) Investments in non-Wholly Owned Subsidiaries (i) existing on
the date of this Agreement and disclosed on Schedule 8.3(f) (Existing
Loans to Non Wholly Owned Subsidiaries), and (ii) future Investments
in non-Wholly Owned Subsidiaries made by way of loans in a maximum
aggregate amount not to exceed the Dollar Equivalent of $5,000,000 at
any one time outstanding; provided, that in each case such Investment
is evidenced by a promissory note in which the Administrative Agent
has a perfected security interest and no Event of Default has occurred
and is continuing at the time such Investment is made or would result
therefrom.
(d) Subsection 8.3(k) shall be amended and restated in its entirety as set
forth below:
(k) loans or advances made to employees of any Borrower or any of
their respective Subsidiaries and Guaranty Obligations of any Borrower
or any of their respective Subsidiaries in respect of obligations of
employees of any Borrower or any of their respective Subsidiaries, in
each case in the ordinary course of business and in an aggregate
amount that does not exceed $10,000,000 at any one time outstanding,
in each case other than any loans or advances to any director or
executive officer (or equivalent thereof) that would be in violation
of Section 402 of the United States Xxxxxxxx-Xxxxx Act of 2002;
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(e) Subsection 8.3(o) shall be amended and restated in its entirety as set
forth below:
(o) Investments by any Borrower or any of their respective
Subsidiaries not otherwise permitted hereby; provided, however, that the
aggregate outstanding amount of all such Investments shall not exceed the
Dollar Equivalent of $20,000,000 at any time.
(v) Payment of Debt; Modification of Debt Agreements. Clause (a)(v) in
Section 8.12 (Payment of Debt; Modification of Debt Agreements) shall be
amended and restated in its entirety as set forth below:
(v) the prepayment of any Indebtedness payable to any
JD Entity by any other JD Entity; provided that no Loan Party
shall make any payment or prepayment of principal of any
Intercompany Term Loan other than (A) in connection with any
repayment of the Term Facilities pursuant to Section 2.6
(Repayment of Loans), a permanent reduction of the Revolving
Credit Commitments pursuant to Section 2.5(b) (Reduction and
Termination of Revolving Credit Commitments), in each case, in
the aggregate amount equal to such principal repayment or
Revolving Credit Commitment reduction or a payment under
Section 2.9 (Mandatory Prepayments) or (B) pursuant to Section
10.7(a)(iv) (Concerning the Collateral and the Collateral Documents).
Section 6.3 Cancellation of Indebtedness Owed to It Section 8.16
(Cancellation of Indebtedness Owed to It) shall be amended and restated in its
entirety as set forth below:
Neither Holdings nor the Borrowers shall, or shall
permit any of their respective Subsidiaries to, cancel any
claim or Indebtedness owed to any of them except in the
ordinary course of business consistent with past practice or
as permitted by Section 8.12(a) (Payment of Debt; Modification
of Debt Agreements) or Section 10.7(a)(iv) (Concerning the
Collateral and the Collateral Documents).
ARTICLE VIII
AMENDMENTS TO ARTICLE X
Section 7.1 Concerning the Collateral and the Collateral Documents.
Subsection 10.7(a) shall be amended by inserting the following clause (iv)
immediately after clause (iii) (and appropriately renumbering each of the
subsequent subclauses in Section 10.7(a)):
(iv) consent to the modification, prepayment,
redemption, purchase, defeasance or other satisfaction of any
Intercompany Term Note or any Intercompany Revolving Note,
provided, that, without the consent of the Requisite Lenders,
the Administrative Agent shall not consent to the
modification, prepayment, redemption, purchase, defeasance or
other satisfaction of any Intercompany Term Note or any
Intercompany Revolving Note if, after giving effect to such
modification, prepayment, redemption, purchase, defeasance or
other satisfaction the net decrease in the aggregate value of
all outstanding Intercompany Term Notes since the Amendment
No. 1 Effective Date exceeds $10,000,000.
12
ARTICLE VIII
AMENDMENT TO ARTICLE XI (MISCELLANEOUS)
Section 8.1 Submission to Jurisdiction; Service of Process. Section
11.12(d) (Submission to Jurisdiction; Service of Process.) shall be amended by
inserting the words ", Canadian Dollars" immediately after the word "Dollars"
wherever it appears within such Section.
Section 8.2 Section 11.19 Confidentiality. Subsection 11.19
(Confidentiality) shall be amended and restated in its entirety as set forth
below:
Neither the Lenders, the Issuers nor any of the Agents may disclose to
any Person any confidential, proprietary or non-public information of any
JD Entity either furnished to the Lenders, the Issuers or the Agents by any
JD Entity (such information being referred to collectively herein as the
"Company Information"), except that each of the Lenders, the Issuers and
the Agents may disclose Company Information (i) to its and its Affiliates'
employees, officers, directors, agents and advisors that are or are
expected to be involved in the evaluation of such information in connection
with the transactions contemplated by this Agreement (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Company Information and instructed to keep such
Company Information confidential on substantially the same terms as
provided herein), (ii) to the extent requested by bank regulators, auditors
or rating agencies, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other
party to this Agreement, (v) if reasonably necessary in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (vi) subject
to an agreement containing provisions substantially the same as those of
this Section 11.19, to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations
under this Agreement, (vii) to the extent such Company Information (A) is
or becomes generally available to the public on a non-confidential basis
other than as a result of a breach of this Section 11.19, by such Agent or
such Lender or such Issuer, or (B) is or becomes available to such Agent or
such Lender or such Issuer on a non-confidential basis from a source other
than a JD Entity or another party to this Agreement and (viii) with the
prior written consent of Holdings or a Borrower. No JD Entity may disclose
to any Person the amount or terms of any fees payable to any of the Agents
or any Lender or any Issuer (such information being collectively referred
to herein as the "Facility Information"), except that any JD Entity may
disclose the Facility Information (i) to its and its respective Affiliates'
employees, officers, directors, agents and advisors who have a need to know
the Facility Information in connection with this Agreement and the
transactions contemplated hereby or (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
or if reasonably necessary in connection with the exercise of any remedies
hereunder or under any other Loan Document or any suit,
13
action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder. Notwithstanding any
other provision in this Agreement, all parties hereto hereby agree that
each party (and each of their respective employees, representatives and
agents and each of the officers, directors, employees, accountants,
attorneys and other advisors of any of them) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax
structure of the Facilities and the transactions contemplated hereby and
all materials of any kind (including opinions and other tax analyses) that
are provided to any of them relating to such tax treatment and tax
structure.
ARTICLE IX
AMENDMENT TO SCHEDULE I
Section 9.1 Schedule I (Commitments). The column titled "Tranche C
Commitments ($)" on Schedule I (Commitments) to the Credit Agreement is hereby
deleted in its entirety and replaced with Schedule I hereto.
ARTICLE X
CONSENT
Section 10.1 Intercompany Notes. Each of the Lenders party hereto hereby
consent to the modification, redemption, or other satisfaction of each
outstanding Intercompany Note set forth on Schedule A hereto in the amount set
forth on Schedule A hereto and hereby waive compliance with in Section
8.12(a)(v) (Payment of Debt; Modification of Debt Agreements) and Section 8.16
(Cancellation of Indebtedness Owed to It) of the Credit Agreement solely in
connection therewith.
Section 10.2 Amendments to Collateral Documents. Each of the Lenders party
hereto hereby consents to the Administrative Agent and the applicable Loan Party
entering into any amendment to any Collateral Document to the extent such
amendment may be necessary or reasonably advisable in order to conform the terms
of such Collateral Document to the terms of the Credit Agreement or to otherwise
maintain the perfection and priority of the security interests and Liens created
or purported to be created by the Collateral Documents.
ARTICLE XI
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT NO. 1.
Section 11.1 General Effectiveness. This Amendment No. 1 shall become
effective (other than with respect to Section 2.1 (Applicable Margin) and the
Tranche C Amendments) as of the above referenced date (the "Amendment Effective
Date"), on the date each of the following conditions precedent is satisfied or
duly waived by the Requisite Lenders:
(a) Documentation. The Administrative Agent shall have received on or
prior to the Amendment Effective Date each of the following, each dated the
Amendment Effective Date unless otherwise indicated or agreed to by the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent:
(i) this Amendment No. 1 executed by the Borrowers and Holdings;
14
(ii) the Consent and Agreement in the form attached hereto as
Exhibit A, executed by each of the Guarantors;
(iii) Acknowledgment and Consents, in the form set forth hereto
as Exhibit B (each, a "Lender Consent"), executed by the Lenders
constituting the Requisite Lenders;
(iv) a certificate of a Responsible Officer of each Borrower
certifying that both before and after giving effect to this
Amendment No. 1:
(A) the representations and warranties set forth in Article
IV (Representations and Warranties) of the Credit Agreement
and in the other Loan Documents shall be true and correct in
all material respects on and as of the Amendment Effective
Date with the same effect as though made on and as of such
date, except to the extent such representations and
warranties expressly relate to an earlier date, in which
case such representation and warranties shall have been true
and correct in all material respects as of such earlier date
and except that the representations and warranties made in
Section 4.12 (Environmental Matters) of the Credit Agreement
shall be true and correct in all material respects except
for any exceptions thereto that would not be reasonably
expected to result in Environmental Liabilities and Costs
that would have a Material Adverse Effect; and
(B) no Default or Event of Default shall have occurred and
be continuing.
(v) a favorable opinion of counsel to the Loan Parties in form
and substance satisfactory to the Administrative Agent, in each
case addressed to the Administrative Agent and the Lenders and
addressing such matters as any Lender through the Administrative
Agent may reasonably request but in any event including an
opinion that the consummation of the transactions contemplated by
this Amendment do not conflict with any material Contractual
Obligations of the Domestic Loan Parties; and
(vi) such additional documentation as the Administrative Agent
may reasonably require.
(b) Fees and Expenses. The Borrowers have paid to the Administrative Agent:
(i) on behalf of each Lender approving this Amendment No. 1, on
or prior to 6:00 pm on August 6, 2003, an amendment fee equal to
one tenth of one percent (0.10%) of the aggregate amount of such
Lender's Commitments, and each other fee payable in connection
with this Amendment; and
(ii) all outstanding costs and expenses of the Administrative
Agent, including the reasonable fees, expenses and disbursements
of all legal counsel for the Administrative Agent.
(c) Deposit Accounts. The Borrowers shall have delivered to the
Administrative Agent a perfected first priority security interest (subject to
liens permitted to exist pursuant to Section 8.2
15
(Liens, Etc.) of the Credit Agreement) in the Concentration Accounts, the
Material Securities Accounts, and securities entitlements of the Material Loan
Parties and all futures commission agents and clearing houses with respect to
all commodities contracts and commodities accounts held by any Material Loan
Party as required by Subsection 7.17(a) (Deposit Accounts; Securities Accounts)
of the Credit Agreement, unless otherwise consented to by the Administrative
Agent.
Section 11.2 Effectiveness of Section 2.1 (Applicable Margin) and Tranche
C Amendments.
(a) Section 2.1 (Applicable Margin) of this Amendment No. 1 shall
become effective:
(i) with respect to each Tranche A Lender, on the date the
Administrative Agent has received an executed Lender Consent from
each Tranche A Lender;
(ii) with respect to each Tranche B Dollar Lender, on the date
the Administrative Agent has received an executed Lender Consent
from each Tranche B Dollar Lender;
(iii) with respect to each Tranche B Euro Lender, on the date the
Administrative Agent has received an executed Lender Consent from
each Tranche B Euro Lender;
(iv) with respect to each Tranche C Lender, on the date the
Administrative Agent has received an executed Lender Consent from
each Tranche C Lender;
(v) with respect to each Dollar/Euro Revolving Credit Lender, on
the date the Administrative Agent has received an executed Lender
Consent from each Dollar/Euro Revolving Credit Lender; and
(vi) with respect to each Yen Revolving Credit Lender, on the
date the Administrative Agent has received an executed Lender
Consent from each Yen Revolving Credit Lender;
provided, however, that in each case, the applicable portion of Section 2.1
(Applicable Margin) shall not become effective prior to the Amendment No. 1
Effective Date; and
(b) The Tranche C Amendments shall become effective on the fifth
Business Day (or such later date as consented to by the Administrative Agent and
the Canadian Borrower) after the Administrative Agent has received an executed
Lender Consent from each Tranche C Lender; provided, however, that the Tranche C
Amendments shall not become effective prior to (i) the fifth Business Day after
the Amendment Effective Date and (ii) the date on which the Canadian Borrower
shall have repaid in full the principal amount of the Tranche C Term Loans.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Subsidiary Guarantors. Each Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that as of the date hereof
the Consent and Agreement in the form attached hereto as Exhibit A sets forth
the true and correct name of each Subsidiary Guarantor.
16
Section 12.2 Reference to and Effect on the Loan Documents.
(a) Except as specifically amended above, all of the terms of the
Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect and all obligations and liabilities of the Loan
Parties thereunder shall remain in full force and effect and each of which
is hereby reaffirmed.
(b) The execution, delivery and effectiveness of this Amendment No. 1
shall not, except as expressly provided herein, operate as an amendment of
any right, power or remedy of any Lender, any Issuer, or the Administrative
Agent under the Credit Agreement or any of the Loan Documents nor
constitute an amendment of any provision of the Credit Agreement or any of
the Loan Documents.
(c) This Amendment No. 1 is a Loan Document.
Section 12.3 Costs and Expenses. The Borrowers agree to pay on demand in
accordance with the terms of Section 11.3 of the Credit Agreement all costs and
expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment No. 1, and all other Loan
Documents entered into in connection herewith, including the reasonable fees,
expenses and disbursements of Weil, Gotshal & Xxxxxx LLP and other counsel for
the Administrative Agent with respect thereto.
Section 12.4 Titles. The Section titles contained in this Amendment No. 1
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
Section 12.5 Execution in Counterparts. This Amendment No. 1 may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
Section 12.6 Notices. All communications and notices to the Administrative
Agent hereunder shall be given as provided in the Credit Agreement.
Section 12.7 Severability. If any term or provision set forth in this
Amendment No. 1 shall be invalid or unenforceable, the remainder of this
Amendment No. 1, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held unenforceable, shall not in
any way be affected or impaired thereby.
Section 12.8 Successors. The terms of this Amendment No. 1 shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors or assigns.
Section 12.9 Governing Law. This Amendment No. 1 shall be interpreted, and
the rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
[SIGNATURE PAGES FOLLOW]
17
IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed on the date
set forth above.
JOHNSONDIVERSEY, INC.,
as Borrower
By: /S/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President & CFO
JOHNSONDIVERSEY CANADA, INC.,
as Borrower
By: /S/ XXX XXXX
------------------------------------------
Name: Xxx Xxxx
Title: Treasurer
JOHNSONDIVERSEY NETHERLANDS II B.V.,
as Borrowers
By: /S/ XXXX XXXXXXX
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
XXXXXXX PROFESSIONAL CO., LTD.
as Borrowers
By: /S/ XXXXX XXXXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Regional President Japan
JOHNSONDIVERSEY HOLDINGS, INC.,
as Holdings
By: /S/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CITICORP USA INC.,
as Administrative Agent
By: /S/ MILES KASSIN
------------------------------------------
Name: Miles Kassin
Title: Vice President
19
SCHEDULE A
Changes to Intercompany Term Notes: The following is a list of the
Intercompany Term Notes that require revision in connection with Purchase
Price Adjustments or other changes.
Proposed Proposed Revised
Original Loan Change Change Note
Currency Amount USD RATE(1) Local Currency Value
------------------------------------------------------------------------------------------------------
Australia AUD $17,128,858 $2,406,200 0.539 $4,460,882 $21,589,740
Austria EUR 20,092,154 (5,146,000) 0.880 (5,849,057) 14,243,097
Auto C-LLC USD 35,260,000 (35,260,000) 1.000 (35,260,000) 0
Belgium EUR 32,068,651 (10,028,498) 0.880 (11,398,611) 20,670,040
Czech Republic CZK 173,466,703 (2,315,836) 34.693 (80,343,993) 93,122,710
Egypt EGP 25,686,011 (3,169,050) 4.630 (14,673,315) 11,012,696
Finnish Branch EUR 23,626,961 (1,819,392) 0.880 (2,067,961) 21,559,000
France EUR 96,925,437 (6,021,219) 0.880 (6,843,850) 90,081,587
Germany EUR 33,263,241 (29,264,999) 0.880 (33,263,241) 0
Hungary HUF 3,074,241,078 1,161,336 277.802 322,621,200 3,396,862,278
JohnsonDiversey Europe BV EUR 357,508,000 (19,471,864) 0.880 (22,132,148) 335,375,852
Kenya KES 271,152,900 (2,000,000) 78.300 (156,600,000) 114,552,900
Netherlands EUR 116,548,743 (2,438,806) 0.880 (2,772,000) 113,776,743
Philippines PHP 143,330,252 (2,846,000) 50.362 (143,330,252) 0
Sweden SEK 214,245,293 (5,017,940) 10.556 (52,969,553) 161,275,740
Switzerland CHF 145,069,918 (8,996,919) 1.654 (14,876,927) 130,192,991
Taiwan NTD 124,906,572 1,282,401 34.077 43,700,379 168,606,951
Thailand THB 383,397,630 1,486,591 43.198 64,217,271 447,614,901
------------------------------------------------------------------------------------------------------
(1) As of May 2002.
SCHEDULE I
TRANCHE C COMMITMENTS
--------------------------------------------------------------------------------
Tranche C Commitments
(CA$)
--------------------------------------------------------------------------------
Citicorp USA, Inc. 10,272,198.58
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx Credit Partners L.P. n/a
--------------------------------------------------------------------------------
Bank One, NA n/a
--------------------------------------------------------------------------------
ABN AMRO Bank 10,015,393.63
--------------------------------------------------------------------------------
The Royal Bank of Scotland plc n/a
--------------------------------------------------------------------------------
General Electric Capital Corporation n/a
--------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Ltd. n/a
--------------------------------------------------------------------------------
BNP Paribas 10,272,198.58
--------------------------------------------------------------------------------
Lloyds Bank n/a
--------------------------------------------------------------------------------
Rabobank n/a
--------------------------------------------------------------------------------
ING Bank n/a
--------------------------------------------------------------------------------
KBC Bank N.V. n/a
--------------------------------------------------------------------------------
Mizuho Corporate Bank n/a
--------------------------------------------------------------------------------
The Bank of New York n/a
--------------------------------------------------------------------------------
Harbourmaster Loan Corporation n/a
--------------------------------------------------------------------------------
The Prudential Assurance Company Limited n/a
--------------------------------------------------------------------------------
Panther CDO II BV n/a
--------------------------------------------------------------------------------
TOTAL $30,559,790.79
--------------------------------------------------------------------------------
AMENDMENT NO. 1
EXHIBIT A
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY.
Each of the undersigned Guarantors hereby consents to the terms of the foregoing
Amendment No. 1 and agrees that the terms of this Amendment No. 1 shall not
affect in any way its obligations and liabilities under any Loan Document, all
of which obligations and liabilities shall remain in full force and effect and
each of which is hereby reaffirmed.
U.S. GUARANTORS
Xxxxxxx Polymer, LLC
By:
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Chemical Methods Associates, Inc.
Chemical Methods Leasco, Inc.
By:
------------------------------------------
Name: Xxxxx Xxxxx
Title: Secretary
Integrated Sanitation Management, Inc.
Xxxxxxx Diversey Puerto Rico, Inc.
Xxxxxxx Diversey Shareholdings, Inc.
Xxxxxxx Diversey Subsidiary #1 LLC
JD Real Estate Subsidiary, LLC
Xxxxxxx Wax Diversey Shareholdings, Inc.
Professional Shareholdings, Inc.
The Butcher Company
By:
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
NexGen Floor Care Solutions Company, LLC
By:
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Secretary
JDI CEE, Inc
By:
------------------------------------------
Name: Xxxx X. Xxxxxxx
GUARANTORS' CONSENT TO AMENDMENT NO. 1
Title: Treasurer
Prism Sanitation Management, LLC
XxXxxx International, Inc.
US Chemical Corporation
By:__________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary
Xxxxxxxx Micro-Gen Research Laboratories, Inc.
JWPR Corporation
By:
------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
Auto-C, LLC
JWP Investments, Inc.
By:
------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Assistant Treasurer
NON U.S.GUARANTORS:
Argentina:
JohnsonDiversey de Argentina
By:
------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Director
Australia:
JohnsonDiversey Australia Pty. Limited
Xxxxxxx Wax Professional Australia Pty. Ltd.
New Zealand:
JohnsonDiversey New Zealand Limited
By:
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Regional Finance Director/ Australia & New
Zealand
Brazil:
23
DiverseyLever Brasil Ltda.
By:______________________
Name: Xxxx Xxxxx
Title: Managing Director
France:
Xxxxxxx Professional Holdings S.A.S.
JohnsonDiversey (France) S.A.S.
By:______________________
Name: Xxxxxx Xxxxxx
Title: Managing Director
Germany:
XxXxxx Chemie GmbH
JohnsonDiversey Deutschland Management GmbH
JohnsonDiversey Deautschland GmbH & Co OHG
By:______________________
Name: Herwarth Xxxxx
Title: Managing Director
Hungary:
JohnsonDiversey Acting Off-shore Capital Management
Limited Liability Company
By:______________________
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
Japan:
Diversey Co. Ltd.
Xxxxxxx Professional Co. Ltd.
JohnsonDiversey Co., Ltd.
Teepol, Ltd.
By:______________________
Name: Xxxxx Xxxxxxxxx
Title: Regional President Japan
Netherlands:
JohnsonDiversey B.V.
Xxxxxxx Diversey Europe B.V.
24
By:______________________
Name: Xxxxx Xxxxxxxxx
Title: Director
Netherlands:
Diversey IP International B.V.
By:______________________
Name: Xxxxxx Xxxxx
Title: Managing Director
Netherlands:
JohnsonPolymer B.V.
By:______________________
Name: Jaap Wierink
Title: Managing Director
Spain:
JohnsonDiversey Espana S.L.
By:______________________
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
Canada:
JohnsonDiversey Canada, Inc.
Turkey:
Kimya Sanayi ve Ticaret A.S.
By:______________________
Name: Xxxxx Xxxxx
Title: Director
United Kingdom:
Diversey (Europe) Limited
Diversey (UK) Limited
JohnsonDiversey UK Holdings, Ltd.
JohnsonDiversey UK Ltd.
Lever Industrial Limited
By:______________________
Name: Xxxx Xxxxxx
Title: Finance Director
25
United Kingdom:
JohnsonDiversey Equipment Limited
By:______________________
Name: Xxx Xxxx
Title: Managing Director
Hungary:
JohnsonDiversey Hungary Ltd.
Netherlands:
JohnsonDiversey Holdings II B.V.
By:______________________
Name: Xxxx Xxxxxxx
Title: Managing Director
Italy:
JohnsonDiversey S.p.A.
Mexico:
JohnsonDiversey Mexico, S.A. de C.V.
Netherlands:
Xxxxxxx Wax Professional B.V.
Portugal:
JohnsonDiversey Portugal S.A.
S.C. Xxxxxxx Professional Productos Quimicos Lda.
By:______________________
Name: Xxxx Xxxxxxx
Title: Director
26
EXHIBIT B
ACKNOWLEDGEMENT AND CONSENT
To: Citicorp USA, Inc.
x/x Xxxxxxxx Xxxxx Xxxxxxx, Inc.
Sears Tower
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention Mr. Xxxxxxx Xxxxx:
RE: JOHNSONDIVERSEY, INC.
Reference is made to the Credit Agreement, dated as of May 3, 2002 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among JohnsonDiversey, Inc., a Delaware
corporation, JohnsonDiversey Canada, Inc., an Ontario corporation, Xxxxxxx
Diversey Holdings II B.V., a Dutch corporation, and Xxxxxxx Professional Co.,
Ltd, a Japanese corporation, JohnsonDiversey Holdings, Inc., a Delaware
corporation, the Lenders (as defined therein), the Issuers (as defined therein),
Citicorp USA, Inc., as administrative agent for the Lenders and the Issuers (in
such capacity, and as agent for the Secured Parties under the other Loan
Documents, the "Administrative Agent"), Xxxxxxx Xxxxx Credit Partners L.P., as
syndication agent for the Lenders and the Issuers and ABN Amro Bank N.A., Bank
One N.A., Royal Bank of Scotland plc, New York Branch, and General Electric
Capital Corporation as co-documentation agents for the Lenders and Issuers.
Capitalized terms used herein and not otherwise defined herein are used herein
as defined in the Credit Agreement.
The Borrowers have requested that the Lenders consent to an Amendment
to the Credit Agreement on the terms described in Amendment No. 1 to the Credit
Agreement ("Amendment No. 1"), the form of which is attached hereto.
Pursuant to Section 11.1(a) of the Credit Agreement, the undersigned
Lender hereby consents to the terms of Amendment No. 1 and authorizes the
Administrative Agent to execute and deliver Amendment No. 1 on its behalf.
Very truly yours,
---------------------------
(NAME OF LENDER)
By:
------------------------
Name:
Title:
Dated as of July __, 2003
Acknowledgement And Consent
