CREDIT AGREEMENT
AMONG
VWR CORPORATION,
VWR SCIENTIFIC OF CANADA LTD.,
SCIENTIFIC HOLDINGS CORP.,
AND
VWR SCIENTIFIC INTERNATIONAL CORPORATION
AS BORROWERS,
THE SEVERAL LENDERS FROM TIME TO TIME
PARTIES HERETO
AND
CORESTATES BANK, N.A.,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS SYNDICATION AGENT
PNC BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
BA SECURITIES, INC.,
AS ARRANGER
SEATTLE-FIRST NATIONAL BANK,
AS LEAD MANAGER
DATED AS OF SEPTEMBER 14, 1995
$285,000,000 CREDIT FACILITIES
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS.................................................... 1
1.1 Defined Terms.................................................... 1
1.2 Other Definitional Provisions.................................... 30
SECTION 2. REVOLVING CREDIT LOANS; LETTERS OF CREDIT; SWING LINE LOANS.... 31
2.1 Revolving Credit Commitments..................................... 31
2.2 Revolving Credit Notes........................................... 32
2.3 Procedure for Revolving Credit Loans............................. 32
2.4 L/C Commitment................................................... 34
2.5 Procedure for Issuance of Letters of Credit...................... 35
2.6 Fees, Commissions and Other Charges.............................. 35
2.7 L/C Participations............................................... 36
2.8 Reimbursement Obligation of the U.S. Dollar Borrowers............ 37
2.9 Obligations Absolute............................................. 37
2.10 Letter of Credit Payments....................................... 38
2.11 Application..................................................... 38
2.12 Existing Letters of Credit...................................... 39
2.13 Swing Line Commitment........................................... 39
2.14 Swing Line Note................................................. 39
2.15 Procedure For Swing Line Loans.................................. 40
2.16 Allocating Swing Line Loans; Swing Line Loan Participations..... 40
2.17 Bridge Loans.................................................... 41
2.18 Bridge Notes.................................................... 42
2.19 Procedure For Bridge Loans...................................... 42
2.20 Allocating Bridge Loans; Bridge Loan Participations............. 45
2.21 Gap Period...................................................... 45
SECTION 3. TERM LOANS..................................................... 45
3.1 Term Loans....................................................... 45
3.2 Term Notes....................................................... 45
3.3 Procedure for Term Loans......................................... 46
3.4 Repayment of Term Loans.......................................... 46
SECTION 4. CANADIAN DOLLAR LOANS.......................................... 47
4.1 Canadian Dollar Commitments...................................... 47
4.2 Canadian Dollar Note............................................. 47
4.3 Procedure for Canadian Dollar Loans.............................. 48
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS......................... 49
5.1 Fees............................................................. 49
5.2 Interest Rates and Payment Dates................................. 50
5.3 Default Interest................................................. 51
5.4 Inability to Determine Interest Rate............................. 52
5.5 Termination and Reduction of Commitments......................... 52
5.6 Optional Prepayment of Loans..................................... 53
5.7 Mandatory Prepayments............................................ 55
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5.8 Illegality....................................................... 57
5.9 Requirements of Law.............................................. 58
5.10 Taxes........................................................... 59
5.11 Indemnity....................................................... 62
5.12 Pro Rata Treatment of Loans, L/C's and Payments; Commitment
Fees............................................................. 62
5.13 Payments........................................................ 63
5.14 Conversion and Continuation Options............................. 64
5.15 Minimum Amounts of Tranches; Maximum Number of Tranches......... 66
5.16 Use of Proceeds................................................. 66
5.17 Limitation on Obligations of VWR Canada......................... 66
SECTION 6. REPRESENTATIONS AND WARRANTIES................................. 67
6.1 Financial Condition.............................................. 67
6.2 No Change........................................................ 67
6.3 Corporate Existence; Compliance with Law......................... 67
6.4 Corporate Power; Authorization; Enforceable Obligations.......... 68
6.5 No Legal Bar..................................................... 68
6.6 No Material Litigation........................................... 68
6.7 No Default....................................................... 69
6.8 Taxes............................................................ 69
6.9 Federal Regulations.............................................. 69
6.10 ERISA........................................................... 69
6.11 Investment Company Act.......................................... 70
6.12 Purpose of Loans................................................ 70
6.13 Environmental Matters........................................... 70
6.14 No Material Misstatements....................................... 72
6.15 Ownership of Properties; Liens.................................. 72
6.16 Intellectual Property........................................... 72
6.17 No Burdensome Restrictions...................................... 73
6.18 Security Interests.............................................. 73
6.19 Baxter Acquisition.............................................. 73
6.20 Senior Debt Status.............................................. 74
6.21 Solvency........................................................ 74
6.22 Public Utility Holding Company Act.............................. 74
SECTION 7. CONDITIONS PRECEDENT........................................... 75
7.1 Conditions to Initial Extension of Credit........................ 75
7.2 Conditions to Each Extension of Credit........................... 78
SECTION 8. AFFIRMATIVE COVENANTS.......................................... 79
8.1 Financial Statements............................................. 79
8.2 Certificates; Other Information.................................. 80
8.3 Payment of Obligations........................................... 81
8.4 Conduct of Business and Maintenance of Existence................. 82
8.5 Maintenance of Property; Insurance............................... 82
8.6 Inspection of Property; Books and Records; Discussions........... 82
8.7 Notices.......................................................... 83
8.8 Environmental Laws............................................... 83
8.9 Pledge of Real Property.......................................... 84
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8.10 Management Changes.............................................. 85
8.11 Interest Rate Protection........................................ 85
SECTION 9. NEGATIVE COVENANTS............................................. 85
9.1 Financial Condition Covenants.................................... 85
9.2 Limitation on Liens.............................................. 87
9.3 Limitation of Indebtedness....................................... 89
9.4 Limitations on Fundamental Changes............................... 90
9.5 Limitation on Sale of Assets..................................... 91
9.6 Limitation on Distributions...................................... 92
9.7 Transactions with Affiliates..................................... 92
9.8 Sale and Leaseback............................................... 92
9.9 Landlord Waivers................................................. 92
9.10 Limitation on Contingent Obligations............................ 93
9.11 Limitation on Investments, Loans and Advances................... 93
9.12 Limitation on Optional Payments and Modifications of Debt
Instruments...................................................... 94
9.13 Limitation on Negative Pledge Clauses........................... 94
9.14 Fiscal Year..................................................... 94
9.15 Limitation on Conduct of Business............................... 94
SECTION 10. EVENTS OF DEFAULT............................................. 94
10.1 Events of Default............................................... 94
10.2 Priority of Application of Proceeds............................. 99
10.3 Turnover of Proceeds............................................ 101
SECTION 11. THE AGENTS.................................................... 102
11.1 Appointment..................................................... 102
11.2 Delegation of Duties............................................ 102
11.3 Exculpatory Provisions.......................................... 102
11.4 Reliance by Agents.............................................. 103
11.5 Notice of Default............................................... 103
11.6 Non-Reliance on Agent and Other Banks........................... 103
11.7 Indemnification................................................. 104
11.8 Agents in Their Individual Capacities........................... 105
11.9 Successor Administrative Agent.................................. 105
11.10 Beneficiaries.................................................. 105
11.11 Co-Agents, Arranger and Lead Manager........................... 105
SECTION 12. MISCELLANEOUS................................................. 106
12.1 Amendments and Waivers.......................................... 106
12.2 Notices......................................................... 106
12.3 No Waiver; Cumulative Remedies.................................. 108
12.4 Survival of Representations and Warranties...................... 108
12.5 Payment of Expenses and Taxes................................... 108
12.6 Successors and Assigns.......................................... 110
12.7 Disclosure of Information....................................... 115
12.8 Adjustments; Set-off............................................ 115
12.9 Counterparts.................................................... 116
12.10 Severability................................................... 116
12.11 Power of Attorney.............................................. 117
12.12 Judgment....................................................... 117
12.13 Integration.................................................... 118
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12.14 GOVERNING LAW.................................................. 118
12.15 Submission To Jurisdiction; Waivers............................ 118
12.16 Acknowledgements............................................... 119
12.17 Name Change.................................................... 119
12.18 No Right of Contribution....................................... 119
12.19 WAIVERS OF JURY TRIAL.......................................... 119
SCHEDULES
SCHEDULE I Bank and Commitment Information
SCHEDULE II List of Subsidiaries
SCHEDULE III List of Existing Letters of Credit
SCHEDULE IV List of Permitted Exceptions
SCHEDULE V Exiting Indebtedness
SCHEDULE VI List of Filing Locations
SCHEDULE VII Existing Contingent Obligations
SCHEDULE VIII Existing Litigation
EXHIBITS
EXHIBIT A-1 Form of Revolving Credit Note
EXHIBIT A-2 Form of Term Note
EXHIBIT A-3 Form of Canadian Dollar Note
EXHIBIT A-4 Form of Swing Line Note
EXHIBIT A-5 Form of Bridge Note
EXHIBIT B Form of Assignment and Assumption Agreement
EXHIBIT C Form of Guaranty from U.S. Dollar Borrowers
EXHIBIT D-1 Form of Pledge Agreement by VWR
EXHIBIT D-2 Form of Pledge Agreement by Scientific Holdings
EXHIBIT E Form of Security Agreement
EXHIBIT F-1 Form of Notice of Borrowing For Revolving Credit Loans and Swing
Line Loans
EXHIBIT F-2 Form of Notice of Borrowing For Canadian Dollar Loans
EXHIBIT G-1 Matters to be Covered in Legal Opinion of Drinker, Xxxxxx &
Xxxxx
EXHIBIT G-2 Matters to be Covered in Legal Opinion of Special Canadian Counsel
EXHIBIT G-3 Matters to be Covered in Legal Opinion of Special Barbados Counsel
EXHIBIT H Form of Subordinated Debenture
EXHIBIT I Form of Canadian Assignment of Book Debts
EXHIBIT J Form of Subordination Agreement from VWR Canada
EXHIBIT K Form of Canadian Security Agreement
EXHIBIT L Form of Quebec Hypothecation Agreement
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CREDIT AGREEMENT
AGREEMENT, dated as of September 14, 1995, among VWR CORPORATION, a
Pennsylvania corporation ("VWR"), VWR SCIENTIFIC OF CANADA LTD., an Ontario
---
corporation ("VWR Canada"), SCIENTIFIC HOLDINGS CORP., a Delaware corporation
----------
("Scientific Holdings"), VWR SCIENTIFIC INTERNATIONAL CORPORATION, a Barbados
-------------------
corporation ("VWR International") (VWR, VWR Canada, Scientific Holdings and VWR
-----------------
International each individually a "Borrower"; collectively, the "Borrowers");
-------- ---------
the several banks and other financial institutions from time to time parties
hereto (the "Banks"); CORESTATES BANK, N.A., as Administrative Agent and
-----
Collateral Agent (in such capacities, the "Administrative Agent") for the Banks
--------------------
hereunder; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Syndication Agent (in such capacity, the "Syndication Agent"); PNC BANK,
-----------------
NATIONAL ASSOCIATION, as Documentation Agent (in such capacity, the
"Documentation Agent"); BA SECURITIES, INC., as Arranger (in such capacity, the
-------------------
"Arranger"); and SEATTLE-FIRST NATIONAL BANK, as Lead Manager (in such capacity,
--------
the "Lead Manager").
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W I T N E S S E T H:
- - - - - - - - - -
In consideration of the promises and the agreements hereinafter set
forth, and intending to be legally bound hereby, the parties hereto hereby agree
as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"Affiliate": as to any Person, any other Person which, directly or
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indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person and any member, director,
officer or employee of any such Person. For purposes of this definition,
"control" shall mean the power, directly or indirectly, either to (a) vote
10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or in effect cause the direction
of the management and policies of such Person whether by contract or
otherwise.
"Agents": the collective reference to the Administrative Agent, the
------
Syndication Agent, the Arranger, and the Documentation Agent.
"Agreement": this Credit Agreement, as amended, supplemented or
---------
otherwise modified from time to time.
"Applicable Margin": on any date, for a Base Rate Loan, Eurodollar
-----------------
Loan, Canadian Base Rate Loan or Canadian COF Rate Loan, the percentage per
annum set forth below in the column entitled Base Rate, Eurodollar Rate,
Canadian Base Rate or Canadian COF Rate, as appropriate, opposite the
Senior Debt/EBITDA Ratio shown on the last Senior Debt/EBITDA Certificate
delivered by the Borrowers to the Administrative Agent pursuant to
subsection 8.2(c) prior to such date:
Senior Debt/EBITDA Eurodollar Canadian Canadian
Ratio Base Rate Rate Base Rate COF RATE
------------------ --------- ---------- --------- --------
Less than 1.50 to 1 0 .75% 0 .75%
Less than 2.00 to 1
but greater than or
equal to 1.50 to 1 0 1.00% 0 1.00%
Less than 2.50 to 1
but greater than or
equal to 2.00 to 1 0 1.25% 0 1.25%
Less than 3.00 to 1
but greater than or
equal to 2.50 to 1 0 1.50% 0 1.50%
Less than 3.50 to 1
but greater than or
equal to 3.00 to 1 .25 1.75% .25 1.75%
Equal to or greater
than 3.50 to 1 1.00 2.50% 1.00 2.50%
; provided, however, that (a) in the event that no Senior Debt/EBITDA Ratio
-------- ------- ----
Certificate has been delivered for a fiscal quarter prior to the last date
on which it can be delivered without violation of subsection 8.2(c), the
Applicable Margin from such date until such Senior Debt/EBITDA Ratio
Certificate is actually delivered shall be that applicable when the Senior
Debt/EBITDA Ratio is equal to or greater than 3.50 to 1, (b) in the event
that the actual Senior Debt/EBITDA Ratio for any fiscal quarter is
subsequently determined to be greater than that set forth in the Senior
Debt/EBITDA Ratio Certificate for such fiscal quarter, the Applicable
Margin shall be recalculated for the applicable period based upon such
actual Senior Debt/EBITDA
2
Ratio and (c) anything in this definition to the contrary notwithstanding,
until receipt by the Administrative Agent of the Senior Debt/EBITDA Ratio
Certificate for the fiscal quarter ended September 30, 1996, the Applicable
Margin shall be that applicable when the Senior Debt/EBITDA Ratio is less
than 3.50 to 1 but greater than or equal to 3.00 to 1. Any additional
interest on the Revolving Credit Loans and the Term Loans resulting from
the operation of clause (b) above shall be payable by the U.S. Dollar
Borrowers jointly and severally to the U.S. Dollar Banks within five (5)
days after receipt of a written demand therefor from the Administrative
Agent. Any additional interest on the Swing Line Loans resulting from the
operation of clause (b) above shall be payable by the U.S. Dollar Borrowers
jointly and severally to CoreStates within five (5) days after receipt of a
written demand therefor from the Administrative Agent. Any additional
interest on the Canadian Dollar Loans resulting from the operation of
clause (b) above shall be payable by VWR Canada to the Canadian Funding
Banks within five (5) days after receipt of a written demand therefor from
the Administrative Agent.
"Application": in respect of each Letter of Credit issued by the
-----------
Issuing Bank, an application, in such form as the Issuing Bank may specify
from time to time, requesting issuance of such Letter of Credit.
"Asset Sale": means any sale, lease, transfer or other disposition of
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assets (each referred to for the purposes of this definition as a
"disposition") by VWR or any Subsidiary (other than a disposition by a
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Borrower to a different Borrower), other than (a) dispositions of inventory
in the ordinary course of business, (b) dispositions of surplus or obsolete
inventory or equipment, waste or by-product material in the ordinary course
of business and (c) dispositions of Permitted Investments.
"Assignment and Acceptance": an assignment and acceptance entered
-------------------------
into by a Bank and a Purchasing Bank, and accepted by the Administrative
Agent, in the form of Exhibit B, or such other form as shall be approved by
the Administrative Agent.
"Available Canadian Dollar Commitments": at any particular time, an
-------------------------------------
amount equal to the excess, if any, of the U.S. Dollar Equivalent of (a)
the Canadian Dollar Commitments at such time over (b) the aggregate unpaid
principal amount of the Canadian Dollar Loans at such time.
"Available Commitments": at any particular time, an amount equal to
---------------------
the excess, if any, of the U.S. Dollar
3
Equivalent of the Revolving Credit Commitments and the Canadian Dollar
Commitments at such time over the sum of the U.S. Dollar Equivalent of (a)
the aggregate unpaid principal amount of the Revolving Credit Loans, Swing
Line Loans, Bridge Loans and Canadian Dollar Loans outstanding at such time
and (b) the L/C Obligations outstanding at such time.
"Available Revolving Credit Commitment": at any particular time, an
-------------------------------------
amount equal to the excess, if any, of the Revolving Credit Commitments at
such time over the sum of (a) the aggregate unpaid principal amount of the
Revolving Credit Loans and Bridge Loans at such time, (b) the aggregate
unpaid principal amount of the Swing Line Loans at such time and (c) the
L/C Obligations outstanding at such time; provided that, for purposes of
-------- ----
calculating Commitment Fees payable by the U.S. Dollar Borrowers pursuant
to subsection 5.1(a), the amount referred to in clause (b) of this
definition shall be zero.
"Bank of America": Bank of America National Trust and Savings
---------------
Association.
"Base Rate": for any day, a rate per annum (rounded upwards, if
---------
necessary, to the next 1/16th of 1%) equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
definition of such term, the Base Rate shall be determined without regard
to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in
the Prime Rate or the Federal Funds Effective Rate, as the case may be.
"Base Rate Loans": Loans bearing interest at a rate determined by
---------------
reference to the Base Rate.
"Baxter Acquisition": means the acquisition of certain assets of
------------------
Xxxxxx Healthcare Corporation constituting what is sometimes referred to as
the "Industrial Distribution Business" pursuant to the Baxter Acquisition
Agreements.
"Baxter Acquisition Agreements": means that certain Asset Purchase
-----------------------------
Agreement, dated as of May 24, 1995, as
4
amended (with the consent of the Agents) on or about September 15, 1995,
among VWR, Xxxxxx Healthcare Corporation and, with respect to certain
provisions, EM Laboratories Incorporated, and the other documents and
agreements entered into with Xxxxxx Healthcare Corporation or its
Affiliates in connection therewith.
"BOA Canada": means Bank of America Canada, a Canadian chartered
----------
bank.
"Borrowing": a group of Loans of a single Type made by the U.S.
---------
Dollar Banks, CoreStates (with respect to Swing Line Loans), the Bridge
Banks (with respect to Bridge Loans) or the Canadian Funding Banks, as the
case may be, on a single date and as to which a single Interest Period is
in effect.
"Borrowing Date": any Business Day on which a Loan is to be made at
--------------
the request of a Borrower under this Agreement.
"Bridge Banks": the collective reference to CoreStates, PNC Bank,
------------
National Association and Bank of America National Trust and Savings
Association.
"Bridge Loan Participation Amount": as defined in subsection 2.20(b).
--------------------------------
"Bridge Loan Percentage": as to any U.S. Dollar Bank, a percentage
----------------------
equal to (a) the amount set forth opposite the name of such Bank on
Schedule I hereto under the caption "Total Commitment" (exclusive of the
amount listed therein because of such U.S. Dollar Bank's Canadian Dollar
Commitment) divided by (b) $268,000,000.
"Bridge Loans": as defined in subsection 2.17(a).
------------
"Bridge Note": as defined in subsection 2.18.
-----------
"Business Day": a day other than a Saturday, Sunday or other day on
------------
which commercial banks in Philadelphia, Pennsylvania are authorized or
required by law to close; provided, however, that, when used in connection
-------- -------
with a Eurodollar Loan, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in dollar deposits in the London
Interbank Market; provided, further, however, that when used in connection
-------- ------- -------
with a Canadian Dollar Loan, the term "Business Day" shall exclude any day
on which banks in Toronto and Vancouver, Canada are authorized or required
by law to close.
5
"Canadian Assignment of Book Debts": the Canadian Assignment of Book
---------------------------------
Debts in the form of Exhibit I attached hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Canadian Base Rate": for any day, a rate per annum equal to the
------------------
Canadian Prime Rate in effect on such day. Any change in the Canadian Base
Rate due to a change in the Canadian Prime Rate shall be effective on the
effective date of such change in the Canadian Prime Rate.
"Canadian Base Rate Loans": Loans bearing interest at a rate
------------------------
determined by reference to the Canadian Base Rate.
"Canadian COF Rate": the cost at which BOA Canada can obtain Canadian
-----------------
Dollar funds in the interbank market for a period comparable in duration to
the Interest Period requested by VWR Canada in connection with a Canadian
COF Rate Loan, as such cost is determined by BOA Canada.
"Canadian COF Rate Loans": Loans bearing interest at a rate
-----------------------
determined by reference to the Canadian COF Rate.
"Canadian Dollar Borrowing Base": means, as of any date of
------------------------------
determination, the sum of the U.S. Dollar Equivalent of (a) eighty-five
percent (85%) of the aggregate face amount of all Canadian Eligible
Receivables at such date, and (b) fifty percent (50%) of the book value of
all Canadian Eligible Inventory at such date.
"Canadian Dollar Borrowing Base Certificate": as defined in
------------------------------------------
subsection 8.2(f)(ii).
"Canadian Dollar Commitments": as to any Canadian Funding Bank, the
---------------------------
obligation of such Bank to make Canadian Dollar Loans in an aggregate
principal amount at any one time outstanding not to exceed the amount set
forth opposite such Bank's name on Schedule I hereto under the caption
"Canadian Dollar Commitments," as such amount may be changed from time to
time in accordance with the provisions of this Agreement.
"Canadian Dollar Commitment Percentage": as to any Canadian Funding
-------------------------------------
Bank at any time, the percentage which such Bank's Canadian Dollar
Commitment then constitutes of the aggregate Canadian Dollar Commitments at
such time (or, at any time after the Canadian Dollar Commitments shall have
expired or terminated, the percentage which the amount of such Canadian
Funding Bank's Canadian Dollar Exposure constitutes of the aggregate amount
of the Canadian Dollar Exposure of all Canadian Funding Banks at such
time).
6
"Canadian Dollar Exposure": at any date, an amount equal to the U.S.
------------------------
Dollar Equivalent of the aggregate principal amount of Canadian Dollar
Loans made by the Canadian Funding Banks then outstanding.
"Canadian Dollar Loans": as defined in subsection 4.1.
---------------------
"Canadian Dollar Note": as defined in subsection 4.2, as the same may
--------------------
be amended, supplemented or otherwise modified from time to time.
"Canadian Dollars", "CAN Dollars" or "CAN $": dollars in lawful
---------------- ----------- -----
currency of Canada.
"Canadian Eligible Inventory": means, as of any date of
---------------------------
determination, all Eligible Inventory of VWR Canada at such date.
"Canadian Eligible Receivables": means, as of any date of
-----------------------------
determination, all Eligible Receivables of VWR Canada at such date.
"Canadian Funding Bank": at any time, the Bank or Banks which at that
---------------------
time are obligated, subject to the terms of this Agreement, to make
Canadian Dollar Loans under the Canadian Dollar Commitments or, after the
Canadian Dollar Commitments are terminated, have any Canadian Dollar Loans
then outstanding.
"Canadian Prime Rate": the rate of interest per annum publicly
-------------------
announced from time to time by BOA Canada as its prime rate, in effect at
its principal office; each change in the Canadian Prime Rate shall be
effective on the date such change is publicly announced as effective.
"Canadian Security Agreement": the Canadian Security Agreement in the
---------------------------
form of Exhibit K attached hereto, as the same may be amended, supplemented
or otherwise modified from time to time.
"Canadian Security Documents": the collective reference to the
---------------------------
Canadian Security Agreement, the Quebec Hypothecation Agreement and the
Canadian Assignment of Book Debts.
"Capital Lease": at any time, a lease with respect to which the
-------------
lessee is required to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
7
"Capital Lease Obligation": of any Person as of the date of
------------------------
determination, the obligations of such Person to pay rent and other amounts
under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP.
"Capital Stock": any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Change of Control": an event or series of events by which (i) any
-----------------
"person" or "group" (as such terms are defined in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder), other than EM Industries Incorporated
and any Subsidiary thereof, is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under such Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all shares that
any such Person has the right to acquire without condition, other than
passage of time, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 20% of the
total voting power of the then outstanding Voting Stock of VWR, (ii) EM
Industries Incorporated and its Subsidiaries are or become the "beneficial
owner" (as defined above), directly or indirectly, of more than 50% of the
total voting power of the then outstanding Voting Stock of VWR, (iii) (A)
VWR consolidates with or merges into another corporation or conveys,
transfers or leases all or substantially all of its properties and assets
(determined on a consolidated basis for VWR and its Subsidiaries taken as a
whole) to any Person, or (B) any corporation consolidates with or merges
into VWR or a Subsidiary of VWR in a transaction in which the outstanding
Voting Stock of VWR is changed into or exchanged for cash, securities or
other property, other than a transaction solely between VWR and a
Subsidiary of VWR or (iv) from and after the date hereof, individuals who
on the date hereof constitute the Board of Directors of VWR (together with
any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of VWR was approved by a vote
of 66-2/3% of the directors then still in office who were either directors
on the date hereof or whose election or nomination for election was
previously so approved) cease for any reason to
8
constitute a majority of the Board of Directors of VWR then in office.
"Closing Date": the date on which the Banks make their initial Loans.
------------
"Co-Agents": the collective reference to all of the Agents other than
---------
the Administrative Agent.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all property and interests in property and proceeds
----------
thereof now owned or hereafter acquired by any Borrower in or upon which a
lien shall be created or purported to be created under any of the Security
Documents.
"Commercial Letter of Credit": as defined in subsection 2.4(b)(i)(B).
---------------------------
"Commitment Fees": those certain fees payable to the Banks on the
---------------
unused Commitments as described in subsection 5.1(a).
"Commitment Fee Rate": on each day during each fiscal quarter of the
-------------------
Borrowers, the percentage per annum set forth below opposite the Senior
Debt/EBITDA Ratio shown on the Senior Debt/EBITDA Ratio Certificate
required pursuant to subsection 8.2(c) to be delivered for the immediately
preceding fiscal quarter:
Senior Debt/EBITDA Ratio Commitment Fee Rate
------------------------ -------------------
Less than 1.50 to 1.0 .20%
Less than 2.00 to 1.0 but
greater than or equal to
1.50 to 1.0 .25%
Less than 2.50 to 1.0 but
greater than or equal to
2.00 to 1 .30%
Less than 3.00 to 1 but
greater than or equal to
2.50 to 1 .375%
Less than 3.50 to 1.0 but
greater than or equal to
3.00 to 1.0 .375%
9
Equal to or greater than
3.50 to 1.0 .50%
; provided, however, that, (a) in the event that no Senior Debt/EBITDA
-------- ------- ----
Ratio Certificate has been delivered for a fiscal quarter prior to the last
day of the next succeeding fiscal quarter, the Commitment Fee Rate during
such fiscal quarter shall be that applicable when the Senior Debt/EBITDA
Ratio is equal to or greater than 3.50 to 1.0, (b) in the event that the
actual Senior Debt/EBITDA Ratio for any fiscal quarter is subsequently
determined to be greater than that set forth in the Senior Debt/EBITDA
Ratio Certificate for such fiscal quarter, the Commitment Fee Rate shall be
recalculated for the applicable period based upon such actual Senior
Debt/EBITDA Ratio and (c) anything in this definition to the contrary
notwithstanding, until receipt by the Administrative Agent of the Senior
Debt/EBITDA Ratio Certificate for the fiscal quarter ended September 30,
1996, the Commitment Fee Rate shall be that applicable when the Senior
Debt/EBITDA Ratio is less than 3.50 to 1 but greater than or equal to 3.00
to 1. Any additional Commitment Fee that is due to the Banks resulting from
the operation of clause (b) above shall be payable (a) with respect to the
Revolving Credit Commitments, by the U.S. Dollar Borrowers jointly and
severally, and (b) with respect to the Canadian Dollar Commitments, by VWR
Canada, in each case within five (5) days after receipt of a written demand
therefor from the Administrative Agent.
"Commitment Period": with respect to the Revolving Credit Commitment
-----------------
or the Canadian Dollar Commitment, the period from and including the date
hereof to but not including the Termination Date, or such earlier date on
which such Commitment shall terminate as provided herein.
"Commitments": the Revolving Credit Commitments, the Swing Line
-----------
Commitment and the Canadian Dollar Commitments.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with VWR within the meaning of Section 4001
of ERISA or is part of a group which includes VWR and which is treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
"Consolidated Capital Expenditures": for any period, the gross amount
---------------------------------
of additions during such period to the fixed assets, property, plant and
equipment of VWR and its Subsidiaries, all as such additions would be
reflected on a consolidated balance sheet of VWR and its Subsidiaries
prepared in accordance with GAAP less the Net Proceeds in
10
such period from any Asset Sale permitted under subsection 9.5(e).
"Consolidated EBITDA": for any period, Consolidated Net Income for
-------------------
such period, plus the amount of income taxes, interest expense,
----
depreciation and amortization deducted from earnings in determining such
Consolidated Net Income; provided that, there shall be excluded therefrom
-------- ----
(a) any addition for non-operating gains (including, without limitation,
extraordinary or unusual gains, gains from discontinuance of operations or
gains arising from the sale of capital assets) and (b) any subtraction for
non-operating losses during such period (including, without limitation,
extraordinary or unusual losses, losses from the discontinuance of
operations or losses arising from the sale of capital assets).
"Consolidated Fixed Charges": for any period the sum of (a)
--------------------------
Consolidated Interest Expense for such period; (b) required amortization of
Indebtedness (other than Indebtedness hereunder, under the other Loan
Documents or permitted under subsection 9.3(i)), determined on a
consolidated basis in accordance with GAAP, for the period involved; (c)
required amortization of the Loans pursuant to subsection 3.4 and clause
(y) of the last sentence of subsections 2.2 and 4.2; (d) Consolidated
Capital Expenditures for such period; and (e) consolidated income tax
expense for such period exclusive of any deferred portion thereof.
"Consolidated Interest Expense": for any period, the amount of cash
-----------------------------
interest expense deducted from earnings of VWR and its Subsidiaries in
determining Consolidated Net Income for such period in accordance with
GAAP.
"Consolidated Net Income": for any fiscal period, the net income (or
-----------------------
loss) after income taxes of VWR and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth": as of the date of determination, all items
----------------------
which in conformity with GAAP would be included under shareholders' equity
on a consolidated balance sheet of VWR and its Subsidiaries at such date.
"Consolidated Total Debt": at any date, without duplication, the
-----------------------
aggregate of all Indebtedness (including the current portion thereof but
excluding Indebtedness permitted under subsection 9.3(i)) of VWR and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
11
"Contingent Obligation": as to any Person any guarantee of payment or
---------------------
performance by such Person or any Indebtedness or other obligation of any
other Person, or any agreement to provide financial assurance with respect
to the financial condition, or the payment of the obligations of, such
other Person (including, without limitation, purchase or repurchase
agreements, reimbursement agreements with respect to letters of credit or
acceptances, indemnity arrangements, grants of security interests to
support the obligations of another Person, keepwell agreements and take-or-
pay or through-put arrangements) which has the effect of assuring or
holding harmless any third Person against loss with respect to one or more
obligations of such third Person; provided, however, the term Contingent
-------- -------
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation of any Person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made and (b) the maximum
amount for which such contingently liable Person may be liable pursuant to
the terms of the instrument embodying such Contingent Obligation, unless
such primary obligation and the maximum amount for which such contingently
liable Person may be liable are not stated or determinable, in which case
the amount of such Contingent Obligation shall be such contingently liable
Person's maximum reasonably anticipated liability in respect thereof as
determined by VWR in good faith.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or any provision of any agreement,
instrument or other undertaking to which such Person is a party or by which
it or any of its property is bound.
"CoreStates": CoreStates Bank, N.A.
----------
"Default": any of the events specified in Section 10, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, or
any other condition precedent therein set forth, has been satisfied.
"Distribution": in respect of any corporation, (a) dividends or other
------------
distributions on capital stock of the corporation (except distributions in
common stock of such corporation); (b) the redemption or acquisition of
such stock or of warrants, rights or other options to purchase such stock
(except when solely in exchange for common stock of such corporation); and
(c) any payment on account of, or the setting apart of any assets for a
sinking or other
12
analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of any share of any class of Capital Stock of such
corporation or any warrants or options to purchase any such stock.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America, except when preceded by the word "Canadian" or the abbreviation
"CAN".
"Eligible Inventory": means as of any date of determination thereof,
------------------
all inventory of the Borrowers at the lower of cost or market value, on a
first-in first-out basis in accordance with GAAP, excluding any xxxx-up
paid by a Borrower in connection with inventory purchased from another
Borrower (or any Subsidiary thereof), less the following (determined
without duplication): (a) all inventory in which the Banks do not have a
valid and enforceable first priority security interest, subject to no other
Liens (other than for taxes not yet due and payable); (b) inventory on
consignment to any Person and (c) inventory classified by a Borrower as
"slow-moving" or "obsolete".
"Eligible Receivables": means, as of any date of determination
--------------------
thereof, the aggregate of all trade receivables of the Borrowers, less the
following (determined without duplication):
(a) any receivables not payable in United States or Canadian
Dollars;
(b) any receivable which, at the date of issuance of the invoice
therefor, was by its terms payable more than thirty (30) days after
shipment of the related inventory;
(c) any receivable due from VWR or any of its Subsidiaries;
(d) any receivable with respect to all or part of which a check,
promissory note, draft, trade acceptance or other instrument for the
payment of money has been presented for payment and returned
uncollected for any reason;
(e) any receivable as to which the applicable owner knows that
any one or more of the following events has occurred with respect to
the account debtor: death or judicial declaration of incompetency; the
filing by or against such account debtor of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts,
adjudication of
13
bankruptcy, or other relief under the bankruptcy, insolvency, or
similar laws of the United States, any state or territory thereof, or
any foreign jurisdiction, now or hereafter in effect; the making of
any general assignment by such account debtor for the benefit of
creditors; the appointment of a receiver or trustee for such account
debtor or for any of the assets of such account debtor, including,
without limitation, the appointment of or taking possession by a
"custodian," as defined in the Bankruptcy Code; the institution by or
against such account debtor of any other type of insolvency proceeding
(under the bankruptcy laws of the United States or elsewhere) or of
any formal or informal proceeding for the dissolution or liquidation
of, settlement of claims against, or winding up of affairs of, such
account debtor; the sale, assignment, or transfer of all or
substantially all of the assets of such account debtor; the inability
to pay or the nonpayment by such account debtor of its debts generally
as they become due; the cessation of the business of such account
debtor as a going concern; or, in the Administrative Agent's sole
reasonable judgment, unsatisfactory general financial performance or
credit standing or likelihood of unsatisfactory general financial
performance or credit standing in the near future;
(f) any receivable due from an account debtor incorporated under
the laws of any jurisdiction other than the United States of America,
a political subdivision thereof, Canada or a political subdivision
thereof, or whose principal place of business is or substantially all
of whose assets are located outside of the United States of America or
Canada;
(g) any receivable which is not paid within ninety (90) days of
the invoice date;
(h) any receivable to the extent there is any unresolved dispute,
defense, offset or counterclaim with or by the account debtor;
(i) any receivable as to which either (i) the perfection,
enforceability or validity of the Banks' security interest in such
receivable, or (ii) the Banks' rights or ability to obtain direct
payment to the Banks of the proceeds of such receivable, is governed
by any federal or state statutory requirements other than those of the
Uniform Commercial Code in the United States or applicable personal
property legislation in Canada;
14
(j) any receivable (i) as to which the Banks do not have a valid
and enforceable first priority security interest, subject to no other
Liens (other than for taxes not yet due and payable) or (ii) as to
which the Banks do not have a right of direct payment upon an Event of
Default;
(k) any receivable that has not been created in the ordinary
course of business; and
(l) any receivable representing an obligation for goods placed on
consignment and not yet sold by the consignee, or for goods on
approval or on a sale-or-return basis or subject to any other
repurchase or return arrangement, other than normal return policies
for breach of warranty or for defective products.
"Environmental Laws": any and all foreign, Federal, state, local or
------------------
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees or binding requirements of any Governmental Authority, or binding
Requirement of Law regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment, as now or
may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to any Eurodollar Loan for any
--------------------
Interest Period, an interest rate per annum equal to the average (rounded
upwards, if necessary, to the next 1/16 of 1%, if such average is not such
a multiple) of the rate per annum at which deposits in U.S. Dollars are
offered by the principal office of the Administrative Agent in London,
England, to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount
15
approximately equal in principal amount to the Administrative Agent's
portion of such Eurodollar Loan.
"Eurodollar Loan": any Loan bearing interest at a rate determined by
---------------
reference to the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 10,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any period, the amount equal to (a)
----------------
Consolidated EBITDA for such period less (b) the sum of, without
duplication, (i) Consolidated Fixed Charges for such period and (ii) any
optional payments of principal on the Loans (except those prepayments of
Revolving Credit Loans, Swing Line Loans or Canadian Dollar Loans that are
not made simultaneously with a reduction of the Revolving Credit
Commitments, the Swing Line Commitment or the Canadian Dollar Commitments,
as the case may be, by an amount equal to the amount of such prepayments)
made during such period.
"Existing Credit Agreement": means the Amended and Restated Credit
-------------------------
Agreement among the Borrowers, the banks parties thereto and CoreStates, as
agent, dated October 27, 1994, as heretofore amended, supplemented or
otherwise modified.
"Existing Letters of Credit": each of the unexpired letters of credit
--------------------------
issued on behalf of a U.S. Dollar Borrower by the Issuing Bank outstanding
on the Closing Date, as set forth in Schedule III hereto.
"Exposure": as to any Bank at any date, an amount equal to the
--------
aggregate U.S. Dollar Equivalent of the sum of (a) the aggregate principal
amount of all Loans made by such Bank then outstanding and (b) with respect
to U.S. Dollar Banks, such Bank's share of the L/C Obligations then
outstanding.
16
"Extensions of Credit": the collective reference to Loans made and
--------------------
Letters of Credit issued under this Agreement.
"Federal Funds Effective Rate": for any day, the weighted average of
----------------------------
the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter Agreement": the letter agreement between VWR and the
--------------------
Agents dated May 23, 1995 in which VWR agrees, among other things, to pay
such parties the fees provided in such letter, as the same may be amended,
supplemented or otherwise modified from time to time.
"GAAP": at any time with respect to the determination of the
----
character or amount of any asset or liability or item of income or expense,
or any consolidation or other accounting computation, generally accepted
accounting principles as in effect on the date of, or at the end of the
period covered by, the financial statements from which such asset,
liability, item of income, or item of expense, is derived, or, in the case
of any such computation, as in effect on the date when such computation is
required to be determined.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indebtedness": of any Person at any date:
------------
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices),
(b) any other indebtedness which is evidenced by a note, bond,
debenture or similar instrument,
(c) all Capital Lease Obligations of such Person,
17
(d) all obligations of such Person in respect of outstanding
letters of credit, acceptances and similar obligations created for the
account of such Person,
(e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise
become liable for the payment thereof, and
(f) net liabilities of such Person under interest rate cap
agreements, interest rate swap agreements, foreign currency exchange
agreements, netting agreements and other hedging agreements or
arrangements (calculated on a basis satisfactory to the Administrative
Agent and in accordance with accepted practice).
The Indebtedness of any Person shall include any Indebtedness of any
partnership in which such Person is the general partner.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvency Event of Default": as defined in subsection 2.16(a).
---------------------------
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intellectual Property": has the meaning ascribed thereto in
---------------------
subsection 6.16.
"Interest Coverage Ratio": for any period, the ratio of (a)
-----------------------
Consolidated EBITDA for such period to (b) Consolidated Interest Expense
for such period.
"Interest Payment Date": (a) as to any Base Rate Loan or Canadian
---------------------
Base Rate Loan, the last day of each March, June, September and December
while such Loan is outstanding, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, the day which is (i) three months after the first day of such
Interest Period and (ii) the last day of such Interest Period, (d) as to
any Canadian COF Rate Loan having an Interest Period of ninety (90) days or
less, the last day of such Interest Period and (e) as to any Canadian COF
Rate Loan having an Interest Period longer than ninety (90) days, the day
which is (i) ninety days after the
18
first day of such Interest Period and (ii) the last day of such Interest
Period.
"Interest Period": (a) with respect to any Eurodollar Loan:
---------------
(i) initially the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the U.S. Dollar Borrowers in their notice of borrowing or notice of
conversion, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
U.S. Dollar Borrowers by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
(b) with respect to any Canadian COF Rate Loan:
(i) initially the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Canadian COF
Rate Loan and ending thirty, sixty, ninety or one hundred and eighty
days thereafter, as selected by VWR Canada in its notice of borrowing
or notice of conversion, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Canadian COF Rate
Loan and ending thirty, sixty, ninety or one hundred and eighty days
thereafter, as selected by VWR Canada by irrevocable notice to the
Canadian Funding Banks and the Administrative Agent not less than one
Business Day prior to the last day of the then current Interest Period
with respect thereto;
provided that, the foregoing provisions relating to Interest Periods are
-------- ----
subject to the following:
(i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
19
(ii) with respect to Eurodollar Loans, any Interest Period that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month;
(iii) an Interest Period that otherwise would extend beyond the
Termination Date shall end on the Termination Date; and
(iv) the Borrowers shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan or Canadian COF
Rate Loan during an Interest Period for such Loan.
"Interest Rate Protection Agreements": as defined in subsection 8.11.
-----------------------------------
"Issuing Bank": CoreStates, or such other Bank as designated by VWR
------------
and approved by the Required Banks.
"L/C Coverage Requirement": with respect to each Letter of Credit at
------------------------
any time, 100% of the maximum amount available to be drawn thereunder at
such time (determined without regard to whether any conditions to drawing
could be met at such time).
"L/C Obligations": at any time, an amount equal to the sum of (a)
---------------
100% of the maximum amount available to be drawn under all Letters of
Credit outstanding at such time (determined without regard to whether any
conditions to drawing could be met at such time) and (b) the aggregate
amount of drawings under Letters of Credit which have not then been
reimbursed pursuant to subsection 2.8(a).
"L/C Participant": in respect of each Letter of Credit, each U.S.
---------------
Dollar Bank (other than the Issuing Bank) in its capacity as the holder of
a participating interest in such Letter of Credit.
"Letter of Credit": as defined in subsection 2.4(a).
----------------
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Capital Lease having
20
substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Notes, the Applications, the
--------------
Security Agreement, the Pledge Agreements, the VWR Canada Subordination
Agreement, the U.S. Dollar Borrowers Guarantee and the Canadian Security
Documents.
"Loans": the collective reference to the Revolving Credit Loans, the
-----
Swing Line Loans, the Bridge Loans, the Canadian Dollar Loans and the Term
Loans.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, operations, property or condition (financial or otherwise) of VWR
and the other U.S. Dollar Borrowers taken as a whole, (b) the ability of
VWR and the other U.S. Dollar Borrowers to perform their obligations under
this Agreement, the Notes or any other Loan Document or (c) the validity or
enforceability of this Agreement, the Notes or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Banks hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphynels, and ureaformaldehyde insulation.
"Moody's": Xxxxx'x Investors Services, Inc.
-------
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Proceeds": (a) with respect to any Asset Sale, the amount equal
------------
to (i) the sum of (A) the aggregate amount received in cash (including any
cash received by way of deferred payment pursuant to a note receivable,
other non-cash consideration or otherwise, but only as and when such cash
is so received) in connection with such sale or other disposition and (B)
the aggregate amount of any tax refunds received or any reduction in tax
liability realized by VWR or any of its Subsidiaries as a result of any tax
loss realized by VWR or a Subsidiary in connection with such Asset Sale
minus (ii) the sum of (A) the principal amount of any Indebtedness which is
-----
secured by the asset that is the subject of such Asset Sale (other than
Indebtedness assumed by the purchaser of such asset) and which is required
to be, and is, repaid in connection with such Asset Sale or other
21
disposition thereof (other than Indebtedness hereunder) and (B) the
reasonable fees, commissions, income taxes and other out-of-pocket expenses
incurred by VWR or such Subsidiary in connection with such Asset Sale other
than to VWR or any Affiliate thereof;
(b) with respect to the sale or issuance of any Capital Stock by
VWR or any of its Subsidiaries after the Closing Date, the net amount equal
to (i) the aggregate amount received in cash in connection with such sale
or issuance minus (ii) the reasonable fees, commissions and other out-of-
-----
pocket expenses incurred by VWR or such Subsidiary in connection with such
sale or issuance other than to VWR or any Affiliate thereof; and
(c) with respect to the incurrence of any Indebtedness by VWR or
any of its Subsidiaries (other than under this Agreement or the
Subordinated Debt), the net amount equal to (i) the aggregate amount
received in cash from the incurrence of such Indebtedness minus (ii) the
-----
sum of (A) the principal amount of any Indebtedness which is immediately
repaid in connection with such incurrence (i.e., a refinancing) and (B) the
----
reasonable fees, commissions and other out-of-pocket expenses incurred by
VWR or such Subsidiary payable to Persons in connection with such
incurrence other than to VWR or an Affiliate thereof.
"Notes": the collective reference to the Revolving Credit Notes, the
-----
Swing Line Note, the Bridge Notes, the Term Notes and the Canadian Dollar
Notes.
"Notice of Borrowing": with respect to a Loan of any Type, a notice
-------------------
from the applicable Borrower(s) in respect of such Loan, containing the
information in respect of such Loan and delivered to the Person, in the
manner and by the time specified for a Notice of Borrowing in respect of
such Type of Loan pursuant to the terms hereof. A form of the Notice of
Borrowing for Revolving Credit Loans and Swing Line Loans is attached
hereto as Exhibit F-1; a form of the Notice of Borrowing for Canadian
Dollar Loans is attached hereto as Exhibit F-2.
"Notice of Bridge Loan Refinancing": as defined in subsection
---------------------------------
2.20(a).
"Notice of Swing Line Refunding": as defined in subsection 2.16(a).
------------------------------
"OECD": the Organization for Economic Cooperation and Development.
----
22
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA.
"Permitted Investments":
---------------------
(a) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or issued by any agency
thereof and backed by the full faith and credit of the United States
of America, in each case maturing within six months from the date of
acquisition thereof;
(b) marketable general obligations issued by any state of the
United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within six months
from the date of acquisition, having one of the two highest ratings
generally obtainable from either S&P or Moody's;
(c) without limiting the provisions of paragraph (d) of this
definition, commercial paper maturing no more than six months from the
date of acquisition thereof and, at the time of acquisition, having a
rating of A-1 (or the equivalent) or higher from S&P and P-1 (or the
equivalent) or higher from Moody's;
(d) commercial paper maturing no more than six months from the
date of acquisition thereof and issued by (i) the holding company of
any bank that has (A) combined capital, surplus and undivided profits
(less any undivided losses) of not less than $250 million, (B) a Xxxxx
Bank Watch Rating of C or better and (C) commercial paper having a
rating of A-2 (or the equivalent) from S&P's or P-2 (or the
equivalent) of higher from Moody's;
(e) domestic and Eurodollar certificates of deposit, time or
demand deposits or bankers' acceptances maturing within six months
from the date of acquisition issued or guaranteed by or placed with,
and money market deposit accounts issued or offered by:
(i) any Bank,
(ii) any other commercial bank organized under the laws of
the United States of America or any state thereof or the District
of Columbia having combined capital, surplus and undivided
profits (less any undivided losses) of not less than $500
million,
23
(iii) any branch located in the United States of America of a
commercial bank organized under the laws of the United Kingdom,
Canada, France, Germany or Japan having combined capital, surplus
and undivided profits (less any undivided losses) of not less
than $500 million, or
(iv) any domestic commercial bank the deposits of which are
guaranteed by the Federal Deposit Insurance Corporation, provided
--------
that (A) the full amount of the deposits of the Person making
----
such Permitted Investment are so guaranteed and (B) the aggregate
amount of all Permitted Investments under this clause (iv) does
not exceed $500,000; and
(f) fully collateralized repurchase agreements with a term of not
more than 30 days for underlying securities of the type described in
paragraphs (a) and (b) of this definition, entered into with any
institution meeting the qualifications specified in clause (d) or
subclauses (i) through (iii) of clause (e) of this definition;
provided, that, in each case, such obligations are payable in U.S. Dollars
-------- ----
or Canadian Dollars.
"Person": an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which VWR or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pledge Agreement": the collective reference to (a) the Pledge
----------------
Agreement by VWR in the form of Exhibit D-1 attached hereto and (b) the
Pledge Agreement by Scientific Holdings in the form of Exhibit D-2, in each
case as the same may be amended, supplemented or otherwise modified from
time to time.
"Prime Rate": the rate of interest per annum publicly announced from
----------
time to time by CoreStates as its prime rate in effect at its principal
office in Philadelphia, Pennsylvania; each change in the Prime Rate shall
be
24
effective on the date such change is publicly announced as effective.
"Properties": the collective reference to the facilities and
----------
properties owned, leased or operated by VWR or any of its Subsidiaries.
"Proxy Statement": as defined in subsection 6.14.
---------------
"Purchasing Bank": as defined in subsection 12.6(b).
---------------
"Quebec Hypothecation Agreement": the Quebec Hypothecation Agreement
------------------------------
in the form of Exhibit L attached hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Refunding Date": as defined in subsection 2.16(b).
--------------
"Register": as defined in subsection 12.6(d).
--------
"Regulation U": Regulation U of the Board of Governors of the Federal
------------
Reserve System as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X": Regulation X of the Board of Governors of the Federal
------------
Reserve System as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Reimbursement Obligation": in respect of each Letter of Credit, the
------------------------
obligation of the U.S. Dollar Borrowers to reimburse the Issuing Bank for
all drawings made thereunder in accordance with subsection 2.8(a) and the
Application related to such Letter of Credit for amounts drawn under such
Letter of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section
----------------
4043(c)(1), (2), (4), (5), (6), (10) and (13) of ERISA.
"Required Banks": at any time, (a) so long as the Revolving Credit
--------------
Commitments, the Swing Line Commitment or the Canadian Dollar Commitments
are in effect, Banks the Total Commitment Percentages of which at such time
aggregate at least 51% or (b) at any time after the Commitments shall have
expired or been terminated, Banks the Exposures of
25
which constitute at least 51% of the aggregate Exposures at such time;
provided that, for purposes of this definition, (i) included in the
-------- ----
Exposure of each U.S. Dollar Bank other than CoreStates shall be such
Bank's Swing Line Participation Amount and (ii) the Exposure of CoreStates
shall exclude the aggregate amount of the Swing Line Participation Amounts
of the other U.S. Dollar Banks.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case binding
upon such Person or any of its property or to which such Person or any of
its property is subject.
"Responsible Officer": with respect to any Borrower, the chief
-------------------
executive officer, president, chief financial officer, treasurer, assistant
treasurer or vice president for financial or legal affairs of such Borrower
and, with respect to VWR Canada, the assistant secretary. Unless otherwise
qualified, all references to a "Responsible Officer" in this Agreement
shall refer to a Responsible Officer of VWR.
"Revolving Credit and Canadian Dollar Exposure": at any date, an
---------------------------------------------
amount equal to the sum of (a) the aggregate Revolving Credit Exposure at
such time and (b) the aggregate Canadian Dollar Exposure at such time.
"Revolving Credit Commitment": as to any U.S. Dollar Bank, the
---------------------------
obligation of such Bank to make Revolving Credit Loans and to issue and/or
acquire participating interests in Letters of Credit hereunder in an
aggregate principal and/or face amount at any one time outstanding not to
exceed the amount set forth opposite such Bank's name on Schedule I hereto
under the caption "Revolving Credit Commitment," as such amount may be
changed from time to time in accordance with the provisions of this
Agreement.
"Revolving Credit Commitment Percentage": as to any U.S. Dollar Bank
--------------------------------------
at any time, the percentage which such Bank's Revolving Credit Commitment
then constitutes of the aggregate Revolving Credit Commitments at such time
(or, at any time after the Revolving Credit Commitments shall have expired
or terminated, the percentage which the amount of such U.S. Dollar Bank's
Revolving Credit Exposure constitutes of the aggregate amount of the
Revolving Credit Exposure of all U.S. Dollar Banks at such time).
26
"Revolving Credit Exposure": at any date, an amount equal to the sum
-------------------------
of (a) the aggregate principal amount of Revolving Credit Loans made by the
U.S. Dollar Banks then outstanding and (b) the L/C Obligations then
outstanding.
"Revolving Credit Loans": the meaning ascribed thereto in subsection
----------------------
2.1.
"Revolving Credit Note": as defined in subsection 2.2, as the same
---------------------
may be amended, supplemented or otherwise modified from time to time.
"S&P": Standard & Poor's Rating Group, a division of XxXxxx-Xxxx
---
Corporation.
"Security": "security" as defined in Section 2(1) of the Securities
--------
Act of 1933, as amended.
"Security Agreement": the Security Agreement in the form of Exhibit E
------------------
attached hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Security Documents": the Security Agreement, the Pledge Agreements,
------------------
and the Canadian Security Documents.
"Senior Debt": at any date, Consolidated Total Debt exclusive of
-----------
Subordinated Debt then outstanding.
"Senior Debt/EBITDA Ratio": on any date, the ratio of Senior Debt to
------------------------
Consolidated EBITDA for the four consecutive fiscal quarters of VWR most
recently ended prior to such date.
"Senior Debt/EBITDA Ratio Certificate": as defined in subsection
------------------------------------
8.2(c).
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Standby Letter of Credit": as defined in subsection 2.4(b)(i)(A).
------------------------
"Subordinated Debt": Indebtedness of VWR under that certain Common
-----------------
Share and Debenture Agreement dated May 24, 1995, as amended (with the
consent of the Agents) on or about September 15, 1995, between VWR and EM
Industries, Incorporated (as assigned by EM Industries, Incorporated to its
Affiliate EM Laboratories, Incorporated under an Assignment and Assumption
Agreement dated June 13, 1995) and the accompanying Subordinated Debenture
dated September 15,
27
1995 due September 14, 2005 and any other Subordinated Debenture issued in
accordance with the terms of said Common Share and Debenture Agreement, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Subsidiary": as to any Person, a corporation, partnership or other
----------
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only be reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of VWR.
"Swing Line Commitment": CoreStates' obligation to make Swing Line
---------------------
Loans pursuant to subsection 2.13.
"Swing Line Loans": as defined in subsection 2.13(a).
----------------
"Swing Line Note": as defined in subsection 2.13(b).
---------------
"Swing Line Participation Amount": as defined in subsection 2.16(b).
-------------------------------
"Taxes": as defined in subsection 5.10.
-----
"Term Loan Commitment": as to any U.S. Dollar Bank, the obligation of
--------------------
such Bank to make a Term Loan to the U.S. Dollar Borrowers in an aggregate
amount not to exceed the amount set forth opposite such Bank's name on
Schedule I hereto under the caption "Term Loan Commitment," as such amount
may be changed from time to time in accordance with the provisions of this
Agreement.
"Term Loan Percentages" as to any U.S. Dollar Bank at any time, the
---------------------
percentage which such Bank's outstanding Term Loan then constitutes of the
aggregate outstanding Term Loans of the U.S. Dollar Banks at such time.
"Term Loans": as defined in subsection 3.1.
----------
"Term Note": as defined in subsection 3.2.
---------
"Termination Date": September 13, 2000.
----------------
28
"Total Commitment Percentage": as to any Bank at any time, the
---------------------------
percentage which the sum of such Bank's Revolving Credit Commitment and the
U.S. Dollar Equivalent of its Canadian Dollar Commitment then constitutes
of the aggregate U.S. Dollar Equivalent of the Revolving Credit Commitments
and the Canadian Dollar Commitments at such time (or at any time after the
Commitments have expired or terminated, the percentage which the amount of
such Bank's Exposure constitutes of the aggregate amount of the Exposure of
all the Banks at such time; provided that, for purposes of this definition
-------- ----
(a) included in the Exposure of each U.S. Dollar Bank other than CoreStates
shall be such Bank's Swing Line Participation Amount and (b) the Exposure
of CoreStates shall exclude the aggregate amount of the Swing Line
Participation Amounts of the U.S. Dollar Banks).
"Tranche": the collective reference to (a) Eurodollar Loans whose
-------
Interest Periods begin on the same date and end on the same later date
(whether or not such Loans originally were made on the same day) and (b)
Canadian COF Rate Loans whose Interest Periods begin on the same date and
end on the same later date (whether or not such Loans originally were made
on the same day).
"Type": when used in respect of any Loan, shall refer to the Rate by
----
reference to which interest on such Loan is determined. For purposes
hereof, "Rate" shall include the Eurodollar Rate, the Base Rate, the
Canadian Base Rate and the Canadian COF Rate.
"U.S. Dollar Banks": the Banks other than the Canadian Funding Banks;
-----------------
provided that, a Canadian Funding Bank that has also made Revolving Credit
-------- ----
Loans or Term Loans shall be considered both a Canadian Funding Bank and a
U.S. Dollar Bank.
"U.S. Dollar Borrowers": the Borrowers other than VWR Canada.
---------------------
"U.S. Dollar Borrowers Guarantee": the Guaranty from the U.S. Dollar
-------------------------------
Borrowers in the form of Exhibit C hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"U.S. Dollar Borrowing Base": means, as of any date of determination,
--------------------------
the sum of (a) eighty-five percent (85%) of the aggregate face amount of
all U.S. Eligible Receivables at such date and (b) fifty percent (50%) of
the book value of all U.S. Eligible Inventory at such date.
29
"U.S. Dollar Borrowing Base Certificate": as defined in subsection
--------------------------------------
8.2(f)(i).
"U.S. Dollar Equivalent": as of any date of determination with
----------------------
respect to an amount stated in Canadian Dollars, the amount of Dollars that
would be required to purchase such amount of Canadian Dollars, determined
based on the spot selling rate of U.S. Dollars into Canadian Dollars for
the trading day prior to such date of determination as reported in the Wall
Street Journal "Exchange Rates" section on such date of determination, or
if not so reported in the Wall Street Journal on such date, then as
reasonably determined by the Administrative Agent.
"U.S. Eligible Inventory": means, as of any date of determination,
-----------------------
all Eligible Inventory of the U.S. Dollar Borrowers at such time.
"U.S. Eligible Receivables": means, as of any date of determination,
-------------------------
all Eligible Receivables of the U.S. Dollar Borrowers at such time.
"Uniform Customs": the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended, supplemented or otherwise modified from
time to time.
"Voting Stock": capital stock of any class or classes of a
------------
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the directors (or Persons
performing similar functions).
"VWR Canada Subordination Agreement": the Subordination Agreement
----------------------------------
from VWR Canada in the form of Exhibit J hereto, as the same may be
amended, supplemented or otherwise modified from time to time.
"Wholly-Owned Subsidiary": at any time, any Subsidiary one hundred
-----------------------
percent (100%) of all of the equity Securities (except directors'
qualifying shares) and voting Securities of which are owned by any one or
more of VWR and its other Wholly-Owned Subsidiaries at such time.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
30
(b) As used herein and in the Notes and the other Loan Documents,
and any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to VWR and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined in this Agreement shall
be equally applicable to both the singular and plural forms of such terms.
SECTION 2. REVOLVING CREDIT LOANS; LETTERS OF CREDIT;
SWING LINE LOANS; AND BRIDGE LOANS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
----------------------------
conditions hereof, each U.S. Dollar Bank severally agrees to make revolving
credit loans in U.S. Dollars (the "Revolving Credit Loans") to the U.S. Dollar
----------------------
Borrowers on a joint and several basis from time to time during the Commitment
Period in an aggregate principal amount at any one time outstanding which, when
added to such Bank's Revolving Credit Commitment Percentage of the then
outstanding L/C Obligations and such Bank's Swing Loan Participation Amount,
does not exceed the amount of such Bank's Revolving Credit Commitment; provided
--------
that, no Revolving Credit Loan shall be made if, after giving effect to the
----
making of such Loan and the simultaneous application of the proceeds thereof,
the sum of (i) the aggregate amount of the Revolving Credit Exposure at such
time and (ii) the aggregate principal amount of the Swing Line Loans outstanding
at such time would exceed either (x) the U.S. Dollar Borrowing Base as of the
date of the most recent U.S. Dollar Borrowing Base Certificate furnished to the
Administrative Agent or (y) the aggregate amount of the Revolving Credit
Commitments at such time. The Revolving Credit Commitments may be terminated or
reduced from time to time pursuant to subsection 5.5. Within the foregoing
limits, the U.S. Dollar Borrowers may during the Commitment Period borrow, repay
and reborrow under the Revolving Credit Commitments, subject to and in
accordance with the terms and limitations hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans or (iii) a
31
combination thereof, as determined by the U.S. Dollar Borrowers and notified to
the Administrative Agent in accordance with subsections 2.3 and 5.14; provided
--------
that, no Revolving Credit Loan shall be made as a Eurodollar Loan after the date
----
that is one month prior to the Termination Date.
(c) The failure of any U.S. Dollar Bank to make any Revolving
Credit Loan shall not in itself relieve any other U.S. Dollar Bank of its
obligation to lend hereunder (it being understood, however, that no Bank shall
be responsible for the failure of any other Bank to make any Loan required to be
made by such other Bank). Each Revolving Credit Loan shall be made in accordance
with the procedures set forth in subsection 2.3.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each
----------------------
U.S. Dollar Bank shall be evidenced by a promissory note of the U.S. Dollar
Borrowers, substantially in the form of Exhibit A-1, with appropriate insertions
as to payee, date and principal amount (a "Revolving Credit Note"), payable to
---------------------
the order of such U.S. Dollar Bank and in a principal amount equal to the amount
of the initial Revolving Credit Commitment of such U.S. Dollar Bank. Each U.S.
Dollar Bank is hereby authorized to record the date, Type and amount of each
Revolving Credit Loan made by such Bank, each continuation thereof, each
conversion of all or a portion thereof to another Type, the date and amount of
each payment or prepayment of principal thereof and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto, on the schedule
annexed to and constituting a part of its Revolving Credit Note, and any such
recordation shall constitute prima facie evidence of the accuracy of the
----- -----
information so recorded, provided that the failure of any U.S. Dollar Bank to
-------- ----
make such recordation (or any error in such recordation) shall not affect the
obligations of the U.S. Dollar Borrowers hereunder or under such Note. Each
Revolving Credit Note shall (a) be dated the Closing Date, (b) be stated to
mature on the Termination Date and (c) provide for the payment of interest in
accordance with subsections 5.2 and 5.3.
2.3 Procedure for Revolving Credit Loans. (a) The U.S. Dollar
------------------------------------
Borrowers may borrow under the Revolving Credit Commitments during the
Commitment Period on any Business Day. The U.S. Dollar Borrowers shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., Philadelphia time, three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or prior to 12:00
noon, Philadelphia time, one Business Day prior to the requested Borrowing Date
if all of the requested Revolving Credit Loans are to be initially Base Rate
Loans), specifying in the Notice of Borrowing (i) the amount to be borrowed,
(ii) the requested Borrowing Date, (iii)
32
whether the borrowing is to be of Eurodollar Loans, Base Rate Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the amount of such Loan(s) and the length of the initial
Interest Period(s) therefor. Each borrowing under the Revolving Credit
Commitments of Eurodollar Loans shall be in an amount equal to $5,000,000 or
increments of $1,000,000 thereafter (or, if the aggregate Available Revolving
Credit Commitments at such time are less than $5,000,000, such lesser amount).
Each borrowing under the Revolving Credit Commitments of Base Rate Loans shall
be in an amount equal to $500,000 or increments of $100,000 thereafter (or, if
the aggregate Available Revolving Credit Commitments at such time are less than
$500,000, such lesser amount).
Upon receipt of a Notice of Borrowing from the U.S. Dollar Borrowers,
the Administrative Agent shall promptly notify each U.S. Dollar Bank thereof.
Each U.S. Dollar Bank will make the amount of its pro rata share of each
--- ----
borrowing (based on its Revolving Credit Commitment Percentage at that time)
available to the Administrative Agent for the account of the U.S. Dollar
Borrowers at the office of the Administrative Agent specified in subsection 12.2
prior to 10:00 A.M., Philadelphia time, on the Borrowing Date requested by the
U.S. Dollar Borrowers in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the U.S. Dollar Borrowers
by the Administrative Agent crediting the account of VWR on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Banks and in like funds as received by the Administrative Agent.
Unless the Administrative Agent shall have received notice from a U.S.
Dollar Bank prior to the date of any borrowing of Revolving Credit Loans that
such Bank will not make available to the Administrative Agent such Bank's pro
---
rata portion of such borrowing, the Administrative Agent may assume that such
----
Bank has made such portion available to the Administrative Agent on the date of
such borrowing in accordance with this subsection and the Administrative Agent
may, in reliance upon such assumption, make available to the U.S. Dollar
Borrowers on such date a corresponding amount. If and to the extent that such
Bank shall not have made such portion available to the Administrative Agent,
such Bank and the U.S. Dollar Borrowers (without prejudice to the U.S. Dollar
Borrowers' rights against such Bank) severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the U.S. Dollar Borrowers until the date such amount is repaid to the
Administrative Agent at (i) in the case of the U.S. Dollar Borrowers, the
interest rate applicable at the time to the Revolving Credit Loans comprising
such borrowing and (ii) in the case of such Bank, the Federal Funds Effective
Rate, provided,
--------
33
that, if such Bank shall not pay such amount within three Business Days of such
----
Borrowing Date, the interest rate on such overdue amount shall, at the
expiration of such three-Business Day period, be the rate per annum applicable
to Base Rate Loans. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Bank's Revolving Credit
Loan as part of such borrowing for purposes of this Agreement.
(b) If in a Notice of Borrowing no election as to the Type of
Revolving Credit Loan is specified in any such notice, then the requested
Revolving Credit Loan shall be a Base Rate Loan. If a Eurodollar Loan is
requested but no Interest Period with respect to such Loan is specified in any
such notice, then the U.S. Dollar Borrowers shall be deemed to have selected an
Interest Period of one month's duration.
2.4 L/C Commitment. (a) Subject to the terms and conditions hereof,
--------------
the Issuing Bank, in reliance on the agreements of the other U.S. Dollar Banks
set forth in subsection 2.7(a), agrees to issue letters of credit ("Letters of
----------
Credit") for the account of the U.S. Dollar Borrowers on any Business Day during
------
the Commitment Period in such form as may be approved from time to time by the
Issuing Bank; provided, that no Letter of Credit shall be issued if, after
--------
giving effect thereto (i) the sum of (x) the aggregate amount of the Revolving
Credit Exposure at such time and (y) the aggregate principal amount of the Swing
Line Loans outstanding at such time would exceed either (A) the aggregate amount
of the Revolving Credit Commitments at such time or (B) the U.S. Dollar
Borrowing Base as of the date of the most recent U.S. Dollar Borrowing Base
Certificate furnished to the Administrative Agent, or (ii) the aggregate amount
of the L/C Obligations at such time would exceed $15,000,000.
(b) Each Letter of Credit shall;
(i) be denominated in Dollars and shall be (A) a standby
letter of credit (a "Standby Letter of Credit"), or (B) a commercial letter
---------------------------
of credit issued in respect of the purchase of goods or services (a
"Commercial Letter of Credit") by a Borrower in the ordinary course of
----------------------------
business; and
(ii) expire no later than the earlier of (A) 360 days (in the
case of Standby Letters of Credit) or 180 days (in the case of Commercial
Letters of Credit) after its date of issuance and (B) 5 Business Days prior
to the Termination Date.
34
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the Commonwealth of
Pennsylvania.
(d) The Issuing Bank shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
2.5 Procedure for Issuance of Letters of Credit. The U.S. Dollar
-------------------------------------------
Borrowers may from time to time request that the Issuing Bank issue a Letter of
Credit by delivering to the Issuing Bank at its office for notices specified
herein an Application therefor, completed to the satisfaction of the Issuing
Bank, and such other certificates, documents and other papers and information as
the Issuing Bank may reasonably request. Upon receipt by the Issuing Bank of any
Application, the Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Bank be required to issue any Letter of Credit earlier than (a) with
respect to Standby Letters of Credit, three (3) Business Days, and (b) with
respect to Commercial Letters of Credit, one Business Day, after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Bank and the U.S. Dollar Borrowers. The Issuing Bank shall promptly
after issuing a Standby Letter of Credit furnish copies thereof to each Bank. In
addition, the Issuing Bank shall within ten days after the end of each month,
send to each Bank and VWR a schedule of outstanding Letters of Credit as of the
end of the prior month detailing for each such outstanding Letter of Credit (a)
the face amount outstanding, (b) its issuance date and (c) its maturity date.
2.6 Fees, Commissions and Other Charges. (a) The U.S. Dollar
-----------------------------------
Borrowers shall pay to the Administrative Agent, for the account of the U.S.
Dollar Banks (including the Issuing Bank) pro rata according to their respective
--- ----
Revolving Credit Commitment Percentages, a letter of credit commission with
respect to each Letter of Credit, computed at a rate equal to the then
Applicable Margin for Eurodollar Loans on the daily average undrawn face amount
of such Letter of Credit (computed on the basis of the actual number of days
such Letter of Credit is outstanding in a year of 360 days). Such commissions
shall be payable in arrears on the last Business Day of each March, June,
September and December to occur after the date of issuance of
35
each Letter of Credit, and on the Termination Date or such earlier date as
the Revolving Credit Commitments are terminated, and shall be nonrefundable. The
U.S. Dollar Borrowers shall also pay to the Administrative Agent, for the
account of the Issuing Bank, in respect of each Letter of Credit issued by the
Issuing Bank a fronting fee for the period from and including the date of
issuance of such Letter of Credit to and including the date of termination of
such Letter of Credit computed at the rate of .15% per annum on the daily
average undrawn face amount of such Letter of Credit (computed on the basis of
the actual number of days such Letter of Credit is outstanding in a year of 360
days). The fees described in the preceding sentence shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December of each year and on the Termination Date or such earlier date as the
Revolving Credit Commitments are terminated and shall be nonrefundable.
(b) In addition to the foregoing fees and commissions, the U.S.
Dollar Borrowers shall pay or reimburse the Issuing Bank for such normal and
customary costs and expenses as are incurred or charged by the Issuing Bank in
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the U.S. Dollar Banks all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
2.7 L/C Participations. (a) The Issuing Bank irrevocably agrees to
------------------
grant and hereby grants to each L/C Participant, and, to induce the Issuing Bank
to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Bank, on
the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk, an undivided interest equal to such L/C Participant's
Revolving Credit Commitment Percentage in the Issuing Bank's obligations and
rights under each Letter of Credit issued by the Issuing Bank hereunder and the
amount of each draft paid by the Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Bank that, if a draft is
paid under any Letter of Credit issued by the Issuing Bank for which the Issuing
Bank is not reimbursed in full by the U.S. Dollar Borrowers in accordance with
the terms of this Agreement, such L/C Participant shall pay to the Issuing Bank
upon demand at the Issuing Bank's address for notices specified herein an amount
equal to such L/C Participant's Revolving Credit Commitment Percentage of the
amount of such draft or any part thereof, which is not so reimbursed. Any action
taken or omitted by the Issuing Bank
36
under or in connection with a Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for the
Issuing Bank any resulting liability to any Bank.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Bank pursuant to subsection 2.7(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
not paid to the Issuing Bank on the date such payment is due from such L/C
Participant, such L/C Participant shall pay to the Issuing Bank on demand an
amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate, as quoted by the Issuing Bank, during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Bank, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Bank submitted to any
L/C Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
---
rata share of such payment in accordance with subsection 2.7(a), the Issuing
----
Bank receives any payment related to such Letter of Credit (whether directly
from the U.S. Dollar Borrowers or otherwise, including by way of set-off or
proceeds of collateral applied thereto by the Issuing Bank), or any payment of
interest on account thereof, the Issuing Bank will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the event
--- ---- -------- -------
that any such payment received by the Issuing Bank shall be required to be
returned by the Issuing Bank, such L/C Participant shall return to the Issuing
Bank the portion thereof previously distributed by the Issuing Bank to it.
2.8 Reimbursement Obligation of the U.S. Dollar Borrowers. (a) Each
-----------------------------------------------------
U.S. Dollar Borrower jointly and severally agrees to reimburse the Issuing Bank
in respect of a Letter of Credit on each date on which the Issuing Bank notifies
VWR of the date and amount of a draft presented under such Letter of Credit and
paid by the Issuing Bank for the amount of (i) such draft so paid and (ii) any
taxes, fees, charges or other costs or expenses incurred by the Issuing Bank in
connection with such payment. Each such payment shall be made to the Issuing
Bank at its office listed in subsection 12.2 in U.S. Dollars and in immediately
available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the U.S. Dollar Borrowers under this
37
subsection from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full at the per annum
rate of the Base Rate plus 4.0% and shall be payable on demand by the Issuing
Bank.
2.9 Obligations Absolute. (a) The obligations of the U.S. Dollar
--------------------
Borrowers under subsections 2.4 through 2.11 shall be joint and several and
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which any U.S.
Dollar Borrower may have or have had against the Issuing Bank or any beneficiary
of a Letter of Credit or any other Person.
(b) The U.S. Dollar Borrowers also jointly and severally agree
with the Issuing Bank that the Issuing Bank shall not be responsible for, and
the U.S. Dollar Borrowers' Reimbursement Obligations under subsection 2.8(a)
shall not be affected by, among other things, (i) the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be invalid, fraudulent or forged, provided, that reliance upon
--------
such documents by the Issuing Bank shall not have constituted gross negligence
or willful misconduct of the Issuing Bank or (ii) any dispute between or among
any U.S. Dollar Borrower and any beneficiary of any Letter of Credit or any
other party to which such Letter of Credit may be transferred or (iii) any
claims whatsoever of any U.S. Dollar Borrower against any beneficiary of such
Letter of Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Bank's gross negligence or willful
misconduct.
(d) Each U.S. Dollar Borrower jointly and severally agrees that
any action taken or omitted by the Issuing Bank under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct, shall be binding on such U.S. Dollar
Borrower and shall not result in any liability of the Issuing Bank to such U.S.
Dollar Borrower.
2.10 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment to the Issuing Bank under any Letter of Credit, the Issuing Bank shall
promptly notify VWR of the date and amount thereof. The responsibility of the
Issuing Bank to the U.S. Dollar Borrowers in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of
38
Credit and any other obligation expressly imposed by the Uniform Customs, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
2.11 Application. To the extent that any provision of any
-----------
Application related to any Letter of Credit is inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall apply.
2.12 Existing Letters of Credit. The Issuing Bank and each of the
--------------------------
other parties hereto agree that, effective on the Closing Date, each Existing
Letter of Credit outstanding on such date, and each extension, renewal or
replacement thereof, shall be deemed to have been issued pursuant to, and
governed by, the terms of this Agreement.
2.13 Swing Line Commitment. (a) Subject to the terms and conditions
---------------------
hereof, CoreStates may in its discretion make swing line loans (the "Swing Line
----------
Loans") to the U.S. Dollar Borrowers on a joint and several basis from time to
-----
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed $5,000,000; provided, that, no Swing Line Loan
-------- ----
shall be made if, after giving effect to the making of such Loan and the
simultaneous application of the proceeds thereof, the sum of (i) the aggregate
amount of the Revolving Credit Exposure at such time and (ii) the aggregate
principal amount of the Swing Line Loans outstanding at such time would exceed
either (x) the U.S. Dollar Borrowing Base as of the date of the most recent U.S.
Dollar Borrowing Base Certificate furnished to the Administrative Agent or (y)
the aggregate amount of the Revolving Credit Commitments at such time. The
Swing Line Commitment may be terminated or reduced from time to time pursuant to
subsection 5.5. Within the foregoing limits, the U.S. Dollar Borrowers may
during the Commitment Period borrow, repay and reborrow under the Swing Line
Commitment, subject to and in accordance with the terms and limitations hereof.
(b) All Swing Line Loans shall be made as Base Rate Loans and
shall not be entitled to be converted into Eurodollar Loans.
2.14 Swing Line Note. The Swing Line Loans shall be evidenced by a
---------------
promissory note of the U.S. Dollar Borrowers, substantially in the form of
Exhibit A-4 with appropriate insertion as to date (the "Swing Line Note"),
payable to the order of CoreStates. CoreStates is hereby authorized to record
the date and amount of each Swing Line Loan and the date and amount of each
payment or prepayment of principal thereof on the schedule annexed to and
constituting a part of the Swing Line
39
Note, and any such recordation shall constitute prima facie evidence of the
----- -----
accuracy of the information so recorded, provided, that, the failure of
-------- ----
CoreStates to make such recordation (or any error in such recordation) shall not
affect the obligations of the U.S. Dollar Borrowers hereunder or under such
Note. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to
mature on the Termination Date and (c) provide for the payment of interest in
accordance with subsections 5.2 and 5.3.
2.15 Procedure For Swing Line Loans. The U.S. Dollar Borrowers may
------------------------------
borrow under the Swing Line Commitment during the Commitment Period on any
Business Day. The U.S. Dollar Borrowers shall give CoreStates irrevocable
notice, which notice must be received by CoreStates prior to 1:00 P.M.,
Philadelphia time, on the requested Borrowing Date, specifying in the Notice of
Borrowing (a) the amount requested to be borrowed and (b) the requested
Borrowing Date. The proceeds of each Swing Line Loan will be made available by
CoreStates to the U.S. Dollar Borrowers by CoreStates crediting the account of
VWR on the books of its office specified in subsection 12.2 with such proceeds.
2.16 Allocating Swing Line Loans; Swing Line Loan Participations.
-----------------------------------------------------------
(a) If an Event of Default shall occur and be continuing, CoreStates may, in
its sole and absolute discretion, direct that all Swing Line Loans owing to it
be refunded by delivering a notice (a "Notice of Swing Line Refunding") to each
------------------------------
U.S. Dollar Bank and, unless an Event of Default described in subsection 10.1(f)
(an "Insolvency Event of Default") in respect of a U.S. Dollar Borrower has
---------------------------
occurred, to VWR. Each such Notice of Swing Line Refunding shall be deemed to
constitute delivery by the U.S. Dollar Borrowers of a Notice of Borrowing of
Base Rate Loans in an amount equal to the amount of the Swing Line Loans of
CoreStates outstanding on such date. Unless an Insolvency Event of Default
shall have occurred (in which case the procedures of paragraph (b) of this
subsection 2.16 shall apply), each U.S. Dollar Bank (including CoreStates in its
capacity as a U.S. Dollar Bank) shall (i) make a Revolving Credit Loan to the
U.S. Dollar Borrowers pursuant to subsection 2.3 in an amount equal to such
Bank's Revolving Credit Commitment Percentage of the aggregate principal amount
of the Swing Line Loans of CoreStates outstanding on the date of delivery of the
applicable Notice of Swing Line Refunding and (ii) make the proceeds of its
Revolving Credit Loan available to CoreStates for the account of CoreStates at
the office of CoreStates specified in subsection 12.2 prior to 12:00 Noon,
Philadelphia time, in funds immediately available to CoreStates on the Business
Day next succeeding the date such notice is given. The proceeds of such
Revolving Credit Loans shall be immediately applied to repay the outstanding
Swing Line Loans of CoreStates.
40
(b) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to subsection 2.16(a) an Insolvency Event of
Default shall have occurred in respect of a U.S. Dollar Borrower, each U.S.
Dollar Bank (other than CoreStates) shall, on the date such Revolving Credit
Loan would have been made pursuant to the applicable Notice of Swing Line
Refunding (the "Refunding Date"), purchase an undivided participating interest
in the outstanding Swing Line Loans in an amount equal to (i) such Bank's
Revolving Credit Commitment Percentage times (ii) the aggregate principal amount
-----
of the Swing Line Loans then outstanding which were to have been repaid with
Revolving Credit Loans (the "Swing Line Participation Amount"). On the Refunding
-------------------------------
Date, each U.S. Dollar Bank shall transfer to CoreStates, in immediately
available funds, such Bank's Swing Line Participation Amount, and upon receipt
thereof, CoreStates shall, if requested by a U.S. Dollar Bank, deliver to such
Bank a participation certificate dated the date of CoreStates' receipt of such
funds and evidencing such Bank's ownership of its Swing Line Participation
Amount.
(c) Whenever, at any time after CoreStates has received from any
U.S. Dollar Bank such Bank's Swing Line Participation Amount, CoreStates
receives any payment on account thereof, CoreStates will distribute to such Bank
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by CoreStates is
-------- -------
required to be returned, such Bank will return to CoreStates any portion thereof
previously distributed by CoreStates to it in like funds as such payment is
required to be returned by CoreStates.
(d) Each U.S. Dollar Bank's obligation to make Revolving Credit
Loans pursuant to subsection 2.16(a) and to purchase participating interests
pursuant to subsection 2.16(b) shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against any other Bank or any U.S. Dollar Borrower, or any U.S. Dollar Borrower
may have against any Bank or any other Person, as the case may be, for any
reason whatsoever; (ii) the occurrence or continuance of a Default or Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
the U.S. Dollar Borrowers taken as a whole; (iv) any breach of this Agreement by
any party hereto; (v) the failure to satisfy any condition to the making of any
Loan hereunder; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that, no U.S. Dollar
Bank shall have any obligation to make Revolving Credit Loans pursuant to
subsection 2.16(a) or purchase participating
41
interests pursuant to subsection 2.16(b) to the extent that the aggregate
outstanding principal amount of the Swing Line Loans made by CoreStates exceeds
$5,000,000.
2.17 Bridge Loans. (a) Subject to the terms and conditions hereof,
------------
each Bridge Bank severally agrees to make a bridge loan in U.S. Dollars (a
"Bridge Loan") to the U.S. Dollar Borrowers on a joint and several basis on the
------------
Closing Date, in a principal amount not to exceed one-third (1/3) of the
difference between Two Hundred Forty Million Dollars ($240,000,000) and the
face amount of the Existing Letters of Credit; provided that no Bridge Loan
-------- ----
shall be made if, after giving effect to the making of such Loan, the aggregate
principal amount of the Bridge Loans outstanding at such time less an amount
equal to $135,000,000 would exceed the U.S. Dollar Borrowing Base set forth on
the U.S. Dollar Borrowing Base Certificate furnished to the Administrative Agent
pursuant to subsection 7.1(e).
(b) All Bridge Loans shall be made as Base Rate Loans and shall
not be entitled to be converted into Eurodollar Loans.
2.18 Bridge Notes. The Bridge Loan made by each Bridge Bank shall be
------------
evidenced by a promissory note of the U.S. Dollar Borrowers, substantially in
the form of Exhibit A-5 (a "Bridge Note"), with appropriate insertions, payable
-----------
to the order of such Bridge Bank and in a principal amount equal to the
principal amount of the Bridge Loan made by such Bridge Bank on the Closing
Date. Each Bridge Bank is hereby authorized to record the date and the amount
of the Bridge Loan made by such Bank and the date and amount of each payment or
prepayment of principal thereof, on the schedule annexed to and constituting a
part of its Bridge Note and any such recordation shall constitute prima facie
----- -----
evidence of the accuracy of the information so recorded, provided that the
-------- ----
failure of any Bridge Bank to make such recordation (or any error in such
recordation) shall not affect the obligations of the U.S. Dollar Borrowers
hereunder or under such Bridge Note. Each Bridge Note shall (a) be dated the
Closing Date, (b) be stated to mature on the second Business Day after the
Closing Date and (c) provide for the payment of interest in accordance with
subsections 5.2 and 5.3.
2.19 Procedure For Bridge Loans. (a) On or prior to the first
--------------------------
Business Day prior to the Closing Date, the U.S. Dollar Borrowers shall deliver
to the Administrative Agent a Notice of Borrowing of Bridge Loans. The
Administrative Agent shall promptly send a copy of such Notice to each Bridge
Bank. Each Bridge Bank will make the amount of its Bridge Loan available to the
Administrative Agent at the office of the Administrative Agent specified in
subsection 12.2 prior to 10:00 A.M., Philadelphia time on the Closing Date in
funds immediately
42
available to the Administrative Agent. Such borrowing will then be made
available to the U.S. Dollar Borrowers by the Administrative Agent crediting the
account of VWR on the books of such office with the aggregate of the amount made
available to the Administrative Agent by the Bridge Banks and in like funds as
received by the Administrative Agent.
(b) The Administrative Agent may assume that each Bridge Bank has
made its portion of the Bridge Loans available to the Administrative Agent on
the Closing Date in accordance with this subsection and the Administrative Agent
may, in reliance upon such assumption, make available to the U.S. Dollar
Borrowers on such date a corresponding amount. If and to the extent that such
Bridge Bank shall not have made such portion available to the Administrative
Agent, such Bridge Bank agrees to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the U.S. Dollar Borrowers until
the date such amount is repaid to the Administrative Agent at the Federal Funds
Effective Rate. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Bank's Bridge Loan as
part of such borrowing for purposes of this Agreement.
2.20 Allocating Bridge Loans; Bridge Loan Participations. (a) On or
---------------------------------------------------
prior to the first Business Day prior to the Closing Date, the Administrative
Agent shall deliver to each U.S. Dollar Bank a Notice of Borrowing (the "Notice
------
of Bridge Loan Refunding") for the refunding of the Bridge Loans. Unless an
------------------------
Insolvency Event of Default shall have occurred (in which case the procedures of
paragraph (b) of this subsection 2.20 shall apply) each U.S. Dollar Bank
(including the Bridge Banks in their capacities as U.S. Dollar Banks) shall (i)
make a Revolving Credit Loan to the U.S. Dollar Borrowers pursuant to subsection
2.3 in an amount equal to such U.S. Dollar Bank's Revolving Credit Commitment
Percentage of the aggregate amount of Revolving Credit Loans set forth in the
Notice of Bridge Loan Refunding, (ii) make a Term Loan to the U.S. Dollar
Borrowers pursuant to subsection 3.3 in an amount equal to such U.S. Dollar
Bank's Term Loan Commitment Percentage of the aggregate amount of Term Loans set
forth in the Notice of Bridge Loan Refunding and (iii) make the proceeds of its
Revolving Credit Loan and Term Loan available to the Administrative Agent for
the account of the Bridge Banks pro rata at the office of the Administrative
--- ----
Agent specified in subsection 12.2 prior to 12:00 Noon, Philadelphia time, in
funds immediately available to the Administrative Agent on the second Business
Day after the Closing Date. Such proceeds shall then be promptly distributed by
the Administrative Agent pro rata to the Bridge Banks (i.e., one-third to each)
--- ---- ----
in immediately available funds. Such proceeds shall be immediately
43
applied by each Bridge Bank to repay the outstanding Bridge Loans of such Bridge
Bank.
(b) If prior to the time a Revolving Credit Loan or Term Loan
would have otherwise been made pursuant to subsection 2.20(a) an Insolvency
Event of Default shall have occurred in respect of a U.S. Dollar Borrower, each
U.S. Dollar Bank shall, on the second Business Day after the Closing Date,
purchase an undivided participating interest in the outstanding Bridge Loan of
each Bridge Bank in an amount equal to the product of (i) the aggregate
principal amount of the outstanding Bridge Loans of such Bridge Bank which were
to have been repaid with Revolving Credit Loans and Term Loans times (ii) such
U.S. Dollar Bank's Bridge Loan Percentage (such product, the "Bridge Loan
-----------
Participation Amount"); provided that, no Bridge Bank shall purchase a
-------------------- -------- ----
participating interest in the Bridge Loans of such Bridge Bank. On the second
Business Day after the Closing Date, each U.S. Dollar Bank shall transfer to the
Administrative Agent, in immediately available funds, such Bank's Bridge Loan
Participation Amount, and upon receipt thereof, each Bridge Bank shall, if
requested by a U.S. Dollar Bank, deliver to such Bank a participation
certificate dated the date of such Bridge Bank's receipt of such funds and
evidencing such Bank's ownership of its Bridge Loan Participation Amount. The
Administrative Agent shall promptly distribute pro rata to the Bridge Banks
--- ----
(i.e., one-third to each) in immediately available funds the amount made
---
available to it pursuant to the preceding sentence.
(c) Whenever, at any time after a Bridge Bank has received from
any U.S. Dollar Bank such Bank's Bridge Loan Participation Amount, such Bridge
Bank receives any payment on account thereof, such Bridge Bank will distribute
to such U.S. Dollar Bank its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Bank's participating interest was outstanding and
funded) in like funds as received; provided, however, that in the event that
-------- -------
such payment received by such Bridge Bank is required to be returned, such U.S.
Dollar Bank will return to such Bridge Bank any portion thereof previously
distributed by such Bridge Bank to it in like funds as such payment is required
to be returned by such Bridge Bank.
(d) Each U.S. Dollar Bank's obligation to make Revolving Credit
Loans and Term Loans pursuant to subsection 2.20(a) and to purchase
participating interests pursuant to subsection 2.20(b) shall be absolute and
unconditional and shall not be affected by any circumstance including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Bank may have against any other Bank or any U.S. Dollar Borrower, or
any U.S. Dollar Borrower may have against any Bank or any other Person, as the
case may be, for any
44
reason whatsoever; (ii) the occurrence or continuance of a Default or Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
the U.S. Dollar Borrowers taken as a whole; (iv) any breach of this Agreement by
any party hereto; (v) the failure to satisfy any condition to the making of any
Loan hereunder; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that, the obligation of
-------- ----
such U.S. Dollar Bank to make Revolving Credit Loans and Term Loans pursuant to
subsection 2.20(a) or purchase participating interests pursuant to subsection
2.20(b) shall not exceed the amount set forth opposite the name of such Bank
under the caption "Total Commitment" on Schedule I hereto exclusive of the
amount listed therein because of such U.S. Dollar Bank's Canadian Dollar
Commitment.
(e) To the extent that any U.S. Dollar Bank shall not pay to the
Administrative Agent for the account of the Bridge Banks the amount required
pursuant to clause (a) of this subsection 2.20, each Bridge Bank shall be deemed
to have made a Term Loan and/or Revolving Credit Loan to the U.S. Dollar
Borrowers in an aggregate principal amount equal to one-third of the amount that
should have been, but was not, paid by such U.S. Dollar Bank to the
Administrative Agent pursuant to subsection 2.20(a) (the allocation of such
Loans between Revolving Credit Loans and Term Loans to be determined by the
Agents and to be consistent with the Notice of Bridge Loan Refunding sent to
such defaulting U.S. Dollar Bank). The proceeds of such Revolving Credit Loans
and Term Loan made by the Bridge Banks shall immediately be applied by the
Bridge Banks to repay outstanding Bridge Loans. The making of such Loans to the
U.S. Dollar Borrowers by the Bridge Banks shall not relieve the liability of a
U.S. Dollar Bank to the Bridge Banks pursuant to subsection 2.20(a).
2.21 Gap Period. Notwithstanding anything to the contrary contained
----------
herein, except as contemplated by subsection 2.17 and 2.20, the U.S. Dollar
Borrowers shall not request, and the U.S. Dollar Banks and the Issuing Bank
shall not be required to make or issue, any Revolving Credit Loans, Term Loans
or Letters of Credit during the period from the Closing Date to the close of
business on the second Business Day after the Closing Date.
SECTION 3. TERM LOANS
3.1 Term Loans. Subject to the terms and conditions of subsection
----------
2.20, each U.S. Dollar Bank severally agrees to make a term loan in U.S. Dollars
(a "Term Loan") to the U.S. Dollar Borrowers on a joint and several basis on the
---------
second Business Day after the Closing Date, in a principal amount not to
45
exceed such Bank's Term Loan Commitment. Any portion of the Term Loan Commitment
not borrowed on such date shall be terminated.
3.2 Term Notes. The Term Loan made by each U.S. Dollar Bank shall be
----------
evidenced by a promissory note of the U.S. Dollar Borrowers, substantially in
the form of Exhibit A-2 (a "Term Note"), with appropriate insertions, payable to
---------
the order of such U.S. Dollar Bank and in a principal amount equal to the amount
of the Term Loan Commitment of such U.S. Dollar Bank. Each U.S. Dollar Bank is
hereby authorized to record the date, Type and amount of the Term Loan made by
such Bank, each continuation thereof, each conversion of all or a portion
thereof to another Type, the date and amount of each payment or prepayment of
principal thereof and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its Term Note and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded, provided
----- ----- --------
that the failure of any Bank to make such recordation (or any error in such
recordation) shall not affect the obligations of the U.S. Dollar Borrowers
hereunder or under such Note. Each Term Note shall (a) be dated the Closing
Date, (b) be stated to mature on the Termination Date and (c) provide for the
payment of interest in accordance with subsections 5.2 and 5.3.
3.3 Procedure for Term Loans. As provided in subsection 2.20(a),
------------------------
unless an Insolvency Event of Default shall have occurred, each U.S. Dollar
Bank will make the amount of its pro rata share of the Term Loans (based
--- ----
on the percentage which its Term Loan Commitment constitutes of the aggregate
Term Loan Commitments) available to the Administrative Agent for the account of
the U.S. Dollar Borrowers at the office of the Administrative Agent specified in
subsection 12.2 prior to 10:00 A.M., Philadelphia time on the second Business
Day after the Closing Date in funds immediately available to the Administrative
Agent.
3.4 Repayment of Term Loans. (a) The U.S. Dollar Borrowers shall
-----------------------
repay the Term Loans in 20 consecutive quarterly installments on the dates and
in the aggregate amounts set forth below:
Date Amount
---- ------
December 31, 1995 $ 3,750,000
March 31, 1996 3,750,000
June 30, 1996 3,750,000
September 30, 1996 3,750,000
December 31, 1996 5,000,000
March 31, 1997 5,000,000
June 30, 1997 5,000,000
46
September 30, 1997 5,000,000
December 31, 1997 7,500,000
March 31, 1998 7,500,000
June 30, 1998 7,500,000
September 30, 1998 7,500,000
December 31, 1998 7,500,000
March 31, 1999 7,500,000
June 30, 1999 7,500,000
September 30, 1999 7,500,000
December 31, 1999 10,000,000
March 31, 2000 10,000,000
June 30, 2000 10,000,000
Termination Date 10,000,000
(b) The Term Notes shall also be subject to mandatory and
optional prepayment as provided in subsections 5.7 and 5.8. Any payments on the
Term Loans (whether optional or mandatory) may not be reborrowed.
SECTION 4. CANADIAN DOLLAR LOANS
4.1 Canadian Dollar Commitments. (a) Subject to the terms and
---------------------------
conditions hereof, each Canadian Funding Bank severally agrees to make
revolving credit loans in Canadian Dollars (the "Canadian Dollar Loans") to VWR
---------------------
Canada from time to time during the Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed the U.S. Dollar Equivalent of
the Canadian Dollar Commitment of such Bank; provided that, no Canadian Dollar
-------- ----
Loan shall be made if, after giving effect to the making of such Loan and the
simultaneous application of the proceeds thereof, the aggregate amount of the
Canadian Dollar Exposure at such time would exceed the Canadian Dollar Borrowing
Base as of the date of the most recent Canadian Dollar Borrowing Base
Certificate furnished to the Administrative Agent. The Canadian Dollar
Commitments may be terminated or reduced from time to time pursuant to
subsection 5.5. Within the foregoing limits, VWR Canada may during the
Commitment Period borrow, repay and reborrow under the Canadian Dollar
Commitments, subject to and in accordance with the terms and limitations hereof.
(b) The Canadian Dollar Loans may from time to time be (i)
Canadian Base Rate Loans, (ii) Canadian COF Rate Loans or (iii) a combination
thereof, as determined by VWR Canada and notified to the Canadian Funding Banks
and the Administrative Agent in accordance with subsections 4.3 and 5.14;
provided that, no Canadian Dollar Loan shall be made as a Canadian COF Rate Loan
-------- ----
after the date that is one month prior to the Termination Date.
47
(c) The failure of any Canadian Funding Bank to make any Canadian
Dollar Loan shall not in itself relieve any other Canadian Funding Bank of its
obligation to lend hereunder (it being understood, however, that no Bank shall
be responsible for the failure of any other Bank to make any Loan required to be
made by such other Bank). Each Canadian Dollar Loan shall be made in accordance
with the procedures set forth in subsection 4.3.
4.2 Canadian Dollar Note. The Canadian Dollar Loans made by each
--------------------
Canadian Funding Bank shall be evidenced by a promissory note of VWR Canada,
substantially in the form of Exhibit A-3, with appropriate insertions as to
payee, date and principal amount (a "Canadian Dollar Note"), payable to the
--------------------
order of such Canadian Funding Bank. Each Canadian Funding Bank is hereby
authorized to record the date, Type and amount of each Canadian Dollar Loan made
by such Bank, each continuation thereof, each conversion of all or a portion
thereof to another Type, the date and amount of each payment or prepayment of
principal thereof and, in the case of Canadian COF Rate Loans, the length of
each Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its Canadian Dollar Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
----- -----
provided that the failure of any Canadian Funding Bank to make such recordation
-------- ----
(or any error in such recordation) shall not affect the obligations of VWR
Canada hereunder or under such Canadian Dollar Note. Each Canadian Dollar Note
shall (a) be dated the Closing Date, (b) be stated to mature on the Termination
Date and (c) provide for the payment of interest in accordance with subsections
5.2 and 5.3.
4.3 Procedure for Canadian Dollar Loans. (a) VWR Canada may borrow
-----------------------------------
under the Canadian Dollar Commitments during the Commitment Period on any
Business Day. VWR Canada shall give each Canadian Funding Bank and the
Administrative Agent irrevocable notice (which notice must be received by both
such parties prior to twelve o'clock (12:00) noon, Philadelphia time, one
Business Day prior to the requested Borrowing Date), specifying in the Notice of
Borrowing (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Canadian COF Rate Loans, Canadian Base
Rate Loans or a combination thereof and (iv) if the borrowing is to be entirely
or partly of Canadian COF Rate Loans, the amount of such Loan(s) and the length
of the initial Interest Period(s) therefor. Each borrowing under the Canadian
Dollar Commitments shall be in an amount equal to CAN $250,000 or increments of
CAN $100,000 thereafter (or, if the then Available Canadian Dollar Commitments
are less than CAN $250,000, such lesser amount).
48
Upon receipt of a Notice of Borrowing from VWR Canada in respect of a
Canadian Dollar Loan, the Administrative Agent shall promptly notify each
Canadian Funding Bank in writing of (i) the aggregate amount of the Revolving
Credit Loans, Swing Line Loans and L/C Obligations then outstanding, (ii) the
U.S. Dollar Equivalent of the aggregate amount of the Canadian Dollar Loans then
outstanding (exclusive of the amount so requested to be borrowed), (iii) the
U.S. Dollar Equivalent of the Canadian Dollar Loans so requested to be borrowed,
(iv) the Applicable Margin for Canadian Dollar Loans then in effect and (v) the
Canadian Dollar Borrowing Base as of the date of the most recent Canadian Dollar
Borrowing Base Certificate furnished to the Administrative Agent. Each Canadian
Funding Bank will make the amount of its pro rata share of each borrowing (based
--- ----
on its Canadian Dollar Commitment Percentage at the time) available to VWR
Canada by crediting such amount in Canadian Dollars to VWR Canada's deposit
account with such Canadian Funding Bank not later than 2:00 p.m. Philadelphia
time on the day of the requested Canadian Dollar Loan or as otherwise directed
by VWR Canada and acceptable to the Canadian Funding Banks. The Administrative
Agent shall within ten days after the end of each month send to each Bank and
VWR a schedule of the U.S. Dollar Equivalent of the Canadian Dollar Loans
outstanding as of the end of the prior month.
(b) If in a Notice of Borrowing no election as to the Type of
Canadian Dollar Loan is specified in any such notice, then the requested
Canadian Dollar Loan shall be a Canadian Base Rate Loan. If a Canadian COF Rate
Loan is requested but no Interest Period with respect to such Loan is specified
in any such notice, then VWR Canada shall be deemed to have selected an Interest
Period of thirty (30) days' duration.
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS
5.1 Fees. (a) The U.S. Dollar Borrowers jointly and severally agree
----
to pay to the Administrative Agent for the account of each U.S. Dollar Bank, on
each March 31, June 30, September 30 and December 31 during the Commitment
Period and on the date on which the Revolving Credit Commitments shall be
terminated as provided herein, a commitment fee at a rate per annum equal to the
Commitment Fee Rate in effect from time to time on the average daily amount of
the Available Revolving Credit Commitments during the preceding quarter (or
shorter period commencing with the date hereof or ending with the Termination
Date or the date on which the Revolving Credit Commitments shall be terminated);
provided that, for purposes of the commitment fee for the period between the
-------- ----
Closing Date and the date of refunding of the Bridge Loans, it shall be assumed
that such refunding of the Bridge Loans occurred on and as of the
49
Closing Date. As provided in the definition of Available Revolving Credit
Commitments, any Swing Line Loans by CoreStates outstanding during any quarter
shall not reduce the commitment fees payable to CoreStates in such quarter. VWR
Canada agrees to pay to the Administrative Agent for the account of each
Canadian Funding Bank, on each March 31, June 30, September 30, and December 31
during the Commitment Period and on the date on which the Canadian Dollar
Commitments shall be terminated as provided herein, a commitment fee at a rate
per annum equal to the Commitment Fee Rate in effect from time to time on the
average daily amount of the U.S. Dollar Equivalent of the Available Canadian
Dollar Commitments during the preceding quarter (or shorter period commencing
with the date hereof or ending with the Termination Date or the date on which
the Canadian Dollar Commitments shall be terminated). All Commitment Fees shall
be computed on the basis of the actual number of days elapsed in a year of 360
days and shall be paid in U.S. Dollars. The Commitment Fee due to each Bank
shall commence to accrue on the date hereof, and shall cease to accrue on the
earlier of the Termination Date and the termination of the Commitment of such
Bank as provided herein. The Administrative Agent shall distribute (a) the
Commitment Fees on the Revolving Credit Loans among the U.S. Dollar Banks pro
---
rata in accordance with their respective Revolving Credit Commitment Percentages
----
and (b) the Commitment Fees on the Canadian Dollar Loans among the Canadian
Funding Banks pro rata in accordance with their respective Canadian Dollar
--- ----
Commitment Percentages.
(b) The U.S. Dollar Borrowers jointly and severally agree to pay
the Administrative Agent, for its own account, administrative and other fees at
the times and in the amounts set forth in the Fee Letter Agreement.
(c) The foregoing fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, if
and as appropriate, among the Banks. Once paid, none of the foregoing fees shall
be refundable under any circumstances.
5.2 Interest Rates and Payment Dates. (a) Subject to the provisions
--------------------------------
of subsection 5.3, each Base Rate Loan shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be) at a rate per annum equal to the Base Rate plus the Applicable
Margin.
(b) Subject to the provisions of subsection 5.3, each Eurodollar
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the Eurodollar
Rate for the Interest Period in effect for such Eurodollar Loan plus the
Applicable Margin.
50
(c) Subject to the provisions of subsection 5.3, each Canadian
Base Rate Loan shall bear interest (computed on the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) at a rate per annum
equal to the Canadian Base Rate plus the Applicable Margin.
(d) Subject to the provisions of subsection 5.3, each Canadian
COF Rate Loan shall bear interest (computed on the actual number of days elapsed
over a year of 365 or 366 days, as the case may be) at a rate per annum equal to
the Canadian COF Rate for the Interest Period in effect for such Canadian COF
Rate Loan plus the Applicable Margin.
(e) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan; provided that, interest accruing
-------- ----
on overdue amounts pursuant to subsection 5.3 shall be payable on demand as
provided in such subsection.
(f) As soon as practicable the Administrative Agent shall notify
VWR and the Banks of (i) each determination of a Eurodollar Rate and (ii) the
effective date and the amount of each change in the interest rate on a
Eurodollar Loan or Base Rate Loan. As soon as practicable, BOA Canada shall
notify VWR, the Administrative Agent and the Canadian Funding Banks of (i) each
determination by BOA Canada of a Canadian COF Rate and (ii) the effective date
and the amount of each change in the interest rate on a Canadian COF Rate Loan
or Canadian Base Rate Loan. Each determination of an interest rate by the
Administrative Agent or BOA Canada, as the case may be, pursuant to any
provision of this Agreement (including subsections 5.2 and 5.3) shall be
conclusive and binding on the Borrowers and the Banks in the absence of clearly
demonstrable error. At the request of the Borrowers, the Administrative Agent or
BOA Canada, as the case may be, shall deliver to VWR a statement showing the
quotations used by it in determining any interest rate pursuant to subsections
5.2(a) through 5.2(d).
(g) For the purposes of the Interest Act (Canada), in order to
---------------------
effectuate the agreed rates of interest provided herein with respect to Canadian
Dollar Loans, (i) the principle of deemed reinvestment of interest shall not
apply to any interest calculation under this Agreement or the Canadian Dollar
Note, (ii) the rates of interest stipulated under this Agreement and the
Canadian Dollar Note are intended to be nominal rates and not effective rates or
yields, and (iii) each rate of interest determined pursuant to such calculation
expressed as an annual rate is equivalent to such rate as so determined
multiplied by the actual number of days in the calendar year in which the same
is to be ascertained and divided by 365 days (or 366 days in a leap-year).
51
5.3 Default Interest. If the U.S. Dollar Borrowers or VWR Canada
----------------
shall default in the payment of the principal of or interest on any Loan or any
other amount becoming due hereunder, the U.S. Dollar Borrowers or VWR Canada, as
the case may be, shall on demand from time to time pay interest on any overdue
payment of principal (in lieu of the interest otherwise payable on such
principal under Section 5.2) and, to the extent permitted by law, on overdue
payments of interest and other amounts due hereunder up to the date of actual
payment (after as well as before judgment):
(a) in the case of overdue principal of a Base Rate Loan or a
Eurodollar Loan, at a rate determined by the Administrative Agent to be 2% per
annum above the rate which would otherwise be payable on such Loans in
accordance with the provisions hereof;
(b) in the case of overdue principal of a Canadian Base Rate Loan
or a Canadian COF Rate Loan, at a rate determined by BOA Canada to be the lower
of (i) 2% per annum above the rate which would otherwise be payable on such
Loans in accordance with the provisions hereof and (ii) the maximum rate
permitted under applicable law; and
(c) in the case of any other amount payable hereunder (whether
for interest, fees or otherwise), at a rate equal to 4% per annum above the Base
Rate.
5.4 Inability to Determine Interest Rate. In the event, and on each
------------------------------------
occasion, that prior to the first day of the commencement of any Interest Period
for a Eurodollar Loan, the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the U.S. Dollar Borrowers)
that dollar deposits in the principal amount of such Eurodollar Loan are not
generally available in the London Interbank Market, or that the rate at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to the U.S. Dollar Banks of making or maintaining the principal amount
of such Eurodollar Loan during such Interest Period, or that reasonable means do
not exist for ascertaining the Eurodollar Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written, telegraphic or telephonic
notice of such determination to VWR and the Banks. After such notice shall have
been given and until the circumstances giving rise to such notice no longer
exist, each request for a Eurodollar Loan or for conversion to or maintenance of
a Eurodollar Loan pursuant to the terms of this Agreement shall be deemed to be
a request for a Base Rate Loan. Each determination by the Administrative Agent
hereunder shall be conclusive absent error in calculation.
52
5.5 Termination and Reduction of Commitments. (a) The Commitments
----------------------------------------
shall be automatically terminated on the Termination Date.
(b) Upon at least five Business Days' prior irrevocable written
(including telecopy) notice to the Administrative Agent, the Borrowers may at
any time in whole permanently terminate, or from time to time in part
permanently reduce, the Revolving Credit Commitments, the Swing Line Commitment
and/or the Canadian Dollar Commitments; provided, however, that (i) each partial
-------- -------
reduction of any Commitment shall be in a minimum principal amount of $5,000,000
or in whole multiples of $1,000,000 in excess thereof, (ii) the Revolving Credit
Commitments may not be reduced or terminated such that after such reduction or
termination, the Revolving Credit Commitments are less than either the Canadian
Dollar Commitments or the Swing Line Commitment and (iii) the Commitments may
not be reduced or terminated if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans, the Swing Line Loans and/or the
Canadian Dollar Loans made on the effective date thereof (A) the sum of (X) the
aggregate amount of the Revolving Credit Exposure at such time and (Y) the
aggregate principal amount of the Swing Line Loans outstanding at such time
would exceed the aggregate amount of the Revolving Credit Commitments at such
time or (B) the aggregate amount of the Canadian Dollar Exposure at such time
would exceed the aggregate amount of the Canadian Dollar Commitments at such
time.
(c) Each reduction in the Revolving Credit Commitment hereunder
shall be made ratably among the U.S. Dollar Banks in accordance with their
respective Revolving Credit Commitment Percentages. The U.S. Dollar Borrowers
shall pay to the Administrative Agent for the account of the U.S. Dollar Banks
on the date of each termination or reduction of the Revolving Credit Commitment,
the Commitment Fees on the amount of the Revolving Credit Commitment so
terminated or reduced accrued to the date of such termination or reduction.
(d) Each reduction in the Canadian Dollar Commitments hereunder
shall be made ratably among the Canadian Funding Banks in accordance with their
respective Canadian Dollar Commitment Percentages. VWR Canada shall pay to the
Administrative Agent for the account of the Canadian Funding Banks on the date
of each termination or reduction of the Canadian Dollar Commitments, the
Commitment Fees on the amount of the Canadian Dollar Commitments so terminated
or reduced accrued to the date of such termination or reduction.
5.6 Optional Prepayment of Loans. (a) The Borrowers shall have the
----------------------------
right at any time and from time to time to prepay any Loan, in whole or in part,
without premium or penalty (but in
53
any event subject to subsection 5.11), upon prior written, telecopy or
telephonic notice to the Administrative Agent and, in the case of Canadian
Dollar Loans, each Canadian Funding Bank given, in the case of Base Rate Loans,
no later than 10:30 a.m., Philadelphia time, one Business Day before any
proposed prepayment, in the case of Eurodollar Loans, no later than 10:30 a.m.,
Philadelphia time, three Business Days before any such proposed prepayment and,
in the case of Canadian Dollar Loans, no later than twelve o'clock (12:00) noon,
Philadelphia time, one Business Day before any proposed prepayment. In each case
the notice shall specify the date and amount of each such prepayment, whether
the prepayment is of (i) Revolving Credit Loans, Swing Line Loans, Canadian
Dollar Loans, Term Loans or a combination thereof, and, if a combination
thereof, the amount allocable to each and (ii) Eurodollar Loans, Base Rate
Loans, Canadian Base Rate Loans, Canadian COF Rate Loans or a combination
thereof, and, if a combination thereof, the amount allocable to each; provided,
--------
however, (x) that each such partial prepayment shall be in the principal amount
-------
of at least (A) with respect to prepayments of Term Loans or Revolving Credit
Loans bearing interest at a Eurodollar Rate, $5,000,000 or in whole multiples of
$1,000,000 in excess thereof, (B) with respect to prepayments of Revolving
Credit Loans or Term Loans bearing interest at the Base Rate, $500,000 or in
whole multiples of $100,000 in excess thereof and (C) with respect to
prepayments of Canadian Dollar Loans, CAN $250,000 or in whole multiples of CAN
$100,000 in excess thereof and (y) application of any such prepayments shall be
subject to the provisions of subsection 10.2. There shall be no minimum
principal amount with respect to any prepayments of Swing Line Loans.
(b) On the date of any termination or reduction of the
Commitments pursuant to subsection 5.5, the applicable Borrower(s) shall pay or
prepay so much of the Loans as shall be necessary in order that (i) the sum of
the aggregate amount of the Revolving Credit Exposure at such time and the
aggregate principal amount of the Swing Line Loans outstanding at such time
would not exceed the aggregate amount of the Revolving Credit Commitments at
such time and (ii) the aggregate amount of the Canadian Dollar Exposure at such
time would not exceed the aggregate amount of the Canadian Dollar Commitments at
such time. With respect to any payments or prepayments pursuant to clause (i)
above, the Borrowers shall specify in writing to the Administrative Agent if the
prepayment is of Revolving Credit Loans, Swing Line Loans or a combination
thereof, and, if a combination thereof, the amount allocable to each.
(c) Each notice of prepayment shall be irrevocable and shall
commit the applicable Borrower(s) to prepay the amount specified in such notice.
All prepayments on Term
54
Loans under this Section shall be accompanied by accrued interest on the
principal amount being prepaid to the date of prepayment.
(d) Upon receipt of any notice of prepayment (other than in
respect of Swing Line Loans), the Administrative Agent shall promptly notify
each Bank thereof.
(e) Partial prepayments of the Term Loans shall be applied to
reduce pro rata, all scheduled installments of principal under the Term Loans.
--- ----
(f) Amounts prepaid on account of Term Loans may not be
reborrowed. Amounts prepaid pursuant to subsection 5.6(a) on account of the
Revolving Credit Loans, the Swing Line Loans or the Canadian Dollar Loans may be
reborrowed, subject to the terms and conditions hereof.
5.7 Mandatory Prepayments. (a) In the event that at the end of any
---------------------
fiscal year of VWR (commencing with the 1996 fiscal year) there shall exist
Excess Cash Flow with respect to such fiscal year, then, on the date which is
five Business Days after the earlier to occur of (i) the date upon which the
audited consolidated financial statements of VWR and its Subsidiaries with
respect to such fiscal year are delivered to the Administrative Agent and (ii)
the 90th day after the end of such fiscal year, the U.S. Dollar Borrowers shall
prepay the Term Loans and/or the Revolving Credit Loans by paying to the
Administrative Agent on behalf of the U.S. Dollar Banks, in U.S. Dollars an
amount equal to (A) until the principal amount of the Term Loans are permanently
reduced to 50% of the principal amount of such Loans on the Closing Date, 75% of
such Excess Cash Flow and (B) thereafter, 50% of such Excess Cash Flow; provided
--------
that, after the Term Loans are paid in full and the Revolving Credit Commitments
----
have been reduced to $100,000,000, the U.S. Dollar Borrowers shall no longer be
obligated to make a mandatory prepayment of Excess Cash Flow.
(b) Promptly upon receipt by VWR or any of its Subsidiaries of
any Net Proceeds (whether from an Asset Sale, the sale or issuance of Capital
Stock or the incurrence of Indebtedness by VWR or any of its Subsidiaries), the
Borrowers shall apply 100% of such Net Proceeds to the prepayment of the Loans
by paying such amounts to the Administrative Agent, on behalf of the Banks. The
Borrowers shall give the Administrative Agent at least one Business Day's prior
written notice of each prepayment pursuant to this subsection 5.7(b) setting
forth the date and amount thereof.
(c) If any U.S. Dollar Borrowing Base Certificate shows that the
sum of the aggregate amount of the Revolving Credit Exposure on the date of such
Certificate and the aggregate
55
principal amount of the Swing Line Loans outstanding on the date of such
Certificate exceeds the U.S. Dollar Borrowing Base on such date, the U.S. Dollar
Borrowers shall prepay the Revolving Credit Loans and/or the Swing Line Loans on
the date such Certificate is delivered to the Administrative Agent in an
aggregate amount equal to the amount of such excess. At the time of any such
prepayment, the U.S. Dollar Borrowers shall specify in writing to the
Administrative Agent whether such prepayment is of Revolving Credit Loans or
Swing Line Loans or, if a combination thereof, the amount of each being prepaid.
If any Canadian Dollar Borrowing Base Certificate shows that the aggregate
amount of the Canadian Dollar Exposure on the date of such Certificate exceeds
the Canadian Dollar Borrowing Base on such date, VWR Canada shall prepay the
Canadian Dollar Loans on the date such certificate is delivered to the
Administrative Agent in an aggregate amount equal to the amount of such excess.
(d) The applicable Borrower(s) shall prepay the Revolving Credit
Loans, the Swing Line Loans and/or the Canadian Dollar Loans to the extent
required so that there shall be a period of at least 30 consecutive days (i) in
the first twelve-month period after the Closing Date, during which the Available
Commitments are at least $20,000,000 and (ii) in each twelve month period
thereafter, during which the Available Commitments are at least $30,000,000. At
the time of any such prepayment, the Borrowers shall specify in writing to the
Administrative Agent whether such prepayment is of Revolving Credit Loans, Swing
Line Loans, Canadian Dollars Loans or, if a combination thereof, the amount of
each being prepaid.
(e) If at any time the sum of the aggregate amount of the
Revolving Credit Exposure at such time and the aggregate principal amount of the
Swing Line Loans outstanding at such time shall exceed the aggregate amount of
the Revolving Credit Commitments at such time, the U.S. Dollar Borrowers shall
prepay the Revolving Credit Loans and/or the Swing Line Loans in an aggregate
amount equal to such excess. At the time of any such prepayment, the Borrowers
shall specify in writing to the Administrative Agent whether such prepayment is
of Revolving Credit Loans or Swing Line Loans or, if a combination thereof, the
amount of each being prepaid.
(f) If at any time the aggregate amount of the Canadian Dollar
Exposure at such time shall exceed the Canadian Dollar Commitments at such time,
VWR Canada shall prepay the Canadian Dollar Loans by paying to the Canadian
Funding Banks for their own account an amount equal to such excess.
(g) Subject to subsection 10.2 hereof, any prepayment of the
Loans pursuant to subsection 5.7(a) and (b) shall be applied as follows: first,
-----
to the Term Loans, with such
56
payments being applied to reduce the installments of principal in the inverse
order of maturity, second, to the Revolving Credit Loans whereupon the Revolving
------
Credit Commitments shall automatically be reduced by an amount equal to the
amount of such prepayment, third, to the Swing Line Loans, whereupon the Swing
-----
Line Commitment shall automatically be reduced by an amount equal to the amount
of such prepayment, fourth, to the Canadian Dollar Loans whereupon the Canadian
------
Dollar Commitments shall automatically be reduced by an amount equal to the
amount of such prepayment, and fifth, to cash collateralize any outstanding
-----
Letters of Credit whereupon the Revolving Credit Commitments shall automatically
be reduced by an amount equal to the amount of such cash collateral; provided
--------
that, notwithstanding the foregoing, at the request of VWR Canada or the
----
Canadian Funding Banks, any Net Proceeds paid pursuant to subsection 5.7(b) from
an Asset Sale by VWR Canada of assets of VWR Canada shall be applied only to the
Canadian Dollar Loans, whereupon the Canadian Dollar Commitments shall
automatically be reduced by an amount equal to the amount of such prepayment and
any Net Proceeds remaining after payment in full of the Canadian Dollar Loans
shall be retained by VWR Canada.
(h) Subject to subsection 10.2 hereof, any prepayment of the
Revolving Credit Loans, the Swing Line Loans, the Term Loans and/or the Canadian
Dollar Loans pursuant to subsection 5.7 (a), (b), (c), (d), (e) and (f) shall be
subject to the following provisions: (i) payments in respect of the Revolving
Credit Loans or the Term Loans shall be in U.S. Dollars paid to the
Administrative Agent on behalf of the U.S. Dollar Banks, (ii) payments in
respect of the Swing Line Loans shall be in U.S. Dollars paid to CoreStates for
its own account and (iii) payments in respect of the Canadian Dollar Loans shall
be in Canadian Dollars paid to the Canadian Funding Banks for their own account
pro rata based on their respective Canadian Dollar Commitment Percentages.
--- ----
(i) Any prepayment of the Revolving Credit Loans, the Swing Line
Loans and/or the Canadian Dollar Loans pursuant to subsection 5.7(c), (d), (e)
and (f) may, subject to the terms and conditions relating to borrowings
hereunder, be reborrowed by the applicable Borrower(s).
(j) All prepayments under this subsection 5.7 shall, to the
extent possible and consistent with the application of such prepayment to the
Term Loans, Revolving Credit Loans, Swing Line Loans or Canadian Dollar Loans,
as the case may be, be applied first (x) with respect to prepayments of the Term
Loans, Revolving Credit Loans or Swing Line Loans, to any Base Rate Loans then
outstanding and the balance, if any, to Eurodollar Loans outstanding, with
payments applied to Eurodollar Loans being applied in order of next maturing
Interest Periods and (y)
57
with respect to prepayments of the Canadian Dollar Loans, to any Canadian Base
Rate Loans then outstanding and the balance, if any, to Canadian COF Rate Loans
outstanding, with payments applied to Canadian COF Rate Loans being applied in
order of next maturing Interest Periods. Any prepayment of Eurodollar Loans or
Canadian COF Rate Loans shall be subject to subsection 5.11.
5.8 Illegality. Notwithstanding any other provision herein, if any
----------
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any U.S. Dollar Bank to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the commitment of such Bank
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
refinance Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and
(b) such Bank's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the U.S. Dollar Borrowers shall pay to such Bank such amounts, if any,
as may be required pursuant to subsection 5.11.
5.9 Requirements of Law. (a) In the event that any change in any
-------------------
Requirement of Law or in the interpretation, or application thereof or
compliance by any Bank with any request or directive (whether or not having the
force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit, any Application,
any Eurodollar Loan or any Canadian COF Rate Loan made by it, or change the
basis of taxation of payments to such Bank in respect thereof (except for
taxes covered by subsection 5.10 and changes in the rate of tax (including,
with respect to Canadian Funding Banks, surtax) on the net income or, with
respect to Canadian Funding Banks, capital of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank which is not otherwise included in the determination of
the interest rate on such Eurodollar Loan or Canadian COF Rate Loan, as the
case may be, hereunder; or
58
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Canadian COF Rate Loans or issuing
or participating in Letters of Credit or maintaining any Commitment hereunder or
to reduce any amount receivable hereunder in respect thereof then, in any such
case, the Borrowers shall as promptly as practicable pay such Bank, upon its
demand, any additional amounts necessary to compensate such Bank for such
increased cost or reduced amount receivable. If any Bank becomes entitled to
claim any additional amounts pursuant to this subsection, it shall as promptly
as practicable notify VWR, through the Administrative Agent, of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this subsection submitted by such Bank, through the
Administrative Agent, to VWR shall be conclusive in the absence of clearly
demonstrable error. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable hereunder.
(b) In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Bank's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Bank or such corporation could have achieved but for
such change or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, the Borrowers shall as
promptly as practicable pay such Bank, upon its demand, such additional amount
or amounts as will compensate such Bank for such reduction. If any Bank becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
as promptly as practicable notify VWR, through the Administrative Agent, of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection submitted by such Bank,
through the Administrative Agent, to VWR shall be conclusive in the absence of
clearly demonstrable error. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable hereunder.
59
(c) Each Bank agrees that it will use reasonable efforts in order
to avoid or to minimize, as the case may be, the payment by the Borrowers of any
additional amount under subsections 5.9(a) or (b); provided, however, that no
-------- -------
Bank shall be obligated to incur any expense, cost or other amount in connection
with utilizing such reasonable efforts.
5.10 Taxes. (a) All payments made by the Borrowers under this
-----
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority (excluding, in the case of the Administrative Agent and
each Bank, net income taxes and franchise or gross receipts taxes imposed on the
Administrative Agent or such Bank, as the case may be, as a result of a present
or former connection between the jurisdiction of the government or taxing
authority imposing such tax and the Administrative Agent or such Bank (excluding
a connection arising solely from the Administrative Agent or such Bank having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or the Notes)) (all such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions and withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any amounts
-----
payable to the Administrative Agent or any Bank hereunder or under the Notes,
the amounts so payable to the Administrative Agent or such Bank shall be
increased to the extent necessary to yield to the Administrative Agent or such
Bank (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes. Whenever any Taxes are payable by the Borrowers, as promptly as possible
thereafter the Borrowers shall send to the Administrative Agent for its own
account or for the account of such Bank, as the case may be, a certified copy of
an original official receipt received by the Borrowers showing payment thereof.
If the Borrowers fail to pay any Taxes when due to the appropriate taxing
authority or fail to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrowers shall indemnify the
Administrative Agent and the Banks for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Bank as a
result of any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
(b) Each U.S. Dollar Bank that is not incorporated under the laws
of the United States of America or a state thereof agrees that it will deliver
to VWR and the
60
Administrative Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form. Each such Bank also agrees to deliver to VWR and the Administrative Agent
two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to VWR, and such extensions or renewals thereof as
may reasonably be requested by VWR or the Administrative Agent, unless in any
such case an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank so advises VWR and the Administrative Agent. Each such Bank
shall certify (i) in the case of a Form 1001 or 4224, that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8 or W-9,
that it is entitled to an exemption from United States backup withholding tax.
(c) Each Canadian Funding Bank agrees that, on the Closing Date,
it will deliver to VWR Canada and the Administrative Agent an instrument in
writing certifying that such Canadian Funding Bank is not a non-resident of
Canada for the purposes of Part XIII of the Income Tax Act (Canada) and either
(i) that it is the sole beneficial owner of payments of principal of and
interest on its Canadian Dollar Loans, or (ii) that attached are the names of
the beneficial owners of payments of principal of and interest on its Canadian
Dollar Loans together with certificates of such beneficial owners stating that
they are not non-residents of Canada for the purposes of Part XIII of the Income
Tax Act (Canada). Each Canadian Funding Bank agrees to advise VWR Canada and the
Administrative Agent of any changes in respect of the foregoing.
(d) Notwithstanding the foregoing subsections 5.10(a) or 5.10(b),
the Borrowers shall not be required to pay any additional amounts to any Bank in
respect of United States withholding tax pursuant to such subsections if (i) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to comply with the requirements of subsection 5.10(b) or
(ii) such Bank shall not have furnished VWR with such forms listed in subsection
5.10(b) and shall not have taken such other steps as reasonably may be available
to it under applicable tax laws and any applicable tax treaty or convention
61
to obtain an exemption from, or reduction (to the lowest applicable rate) of,
such United States withholding tax.
(e) Notwithstanding the foregoing subsections 5.10(a) or 5.10(c),
VWR Canada shall not be required to pay any additional amounts to any Canadian
Funding Bank in respect of Canadian withholding tax pursuant to such subsections
if (i) the obligation to pay such additional amounts would not have arisen but
for the status of such Canadian Funding Bank or any Person having a
participation or other interest in the Canadian Dollar Loans of such Canadian
Funding Bank as a non-resident of Canada for the purposes of Part XIII of the
Income Tax Act (Canada), or (ii) such Canadian Funding Bank shall not have taken
such steps as reasonably may be available to it under applicable tax laws and
any applicable tax treaty or convention to obtain an exemption from, or
reduction (to the lowest applicable rate) of, such Canadian withholding tax.
5.11 Indemnity. (a) The Borrowers jointly and severally agree to
---------
indemnify each Bank and to hold each Bank harmless from any loss or expense
which such Bank may sustain or incur as a consequence of (i) default by a
Borrower in payment when due of the principal amount of or interest on any
Eurodollar Loan or Canadian COF Rate Loan, (ii) default by a Borrower in making
a borrowing of, conversion into or continuation of Eurodollar Loans or Canadian
COF Rate Loans after the Borrowers have given a notice requesting the same in
accordance with the provisions of this Agreement, (iii) default by a Borrower in
making any prepayment after the Borrowers have given a notice thereof in
accordance with the provisions of this Agreement or (iv) the making of a
prepayment (whether voluntary, mandatory, as a result of acceleration or
otherwise) of Eurodollar Loans or Canadian COF Rate Loans on a day which is not
the last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it or from fees payable to terminate the deposits from
which such funds were obtained. A certificate as to any amounts that a Bank is
entitled to receive under this subsection 5.11 submitted by such Bank, through
the Administrative Agent, to VWR shall be conclusive in the absence of clearly
demonstrable error and all such amounts shall be paid by the Borrowers promptly
upon demand by such Bank. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable hereunder.
(b) For the purpose of calculation of all amounts payable to a
Bank under this subsection, each Bank shall be deemed to have actually funded
its relevant Eurodollar Loan or Canadian COF Rate Loan through the purchase of a
deposit bearing interest at the Eurodollar Rate or the Canadian COF Rate, as the
case may be, in an amount equal to the amount of that Eurodollar
62
Loan or Canadian COF Rate Loan, as the case may be, and having a maturity
comparable to the relevant Interest Period; provided, however, that each Bank
-------- -------
may fund each of its Eurodollar Loans or Canadian COF Rate Loans in any manner
it sees fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
5.12 Pro Rata Treatment of Loans, L/C's and Payments; Commitment
-----------------------------------------------------------
Fees. (a) Except as required under subsection 5.8, each borrowing of Revolving
Credit Loans, each payment or prepayment of principal of any Revolving Credit
Loans, each payment of interest on the Revolving Credit Loans, each payment of
Commitment Fees with respect to the Revolving Credit Commitments, each payment
of a Reimbursement Obligation, and each reduction of the Revolving Credit
Commitments, shall be made pro rata among the U.S. Dollar Banks in accordance
--- ----
with their respective Revolving Credit Commitment Percentages.
(b) Except as required under subsection 5.8, each payment or
prepayment of principal of the Term Loans and each payment of interest on the
Term Loans shall be made pro rata among the U.S. Dollar Banks in accordance with
--- ----
their respective Term Loan Percentages.
(c) Each borrowing of Canadian Dollar Loans, each payment or
prepayment of principal of any Canadian Dollar Loans, each payment of interest
on the Canadian Dollar Loans, each payment of Commitment Fees with respect to
the Canadian Dollar Commitments and each reduction of the Canadian Dollar
Commitments, shall be made pro rata among the Canadian Funding Banks in
--- ----
accordance with their respective Canadian Dollar Commitment Percentages.
(d) Except as provided in subsection 2.16, each borrowing of a
Swing Line Loan, each payment or prepayment of principal of a Swing Line Loan,
each payment of interest on the Swing Line Loans and each reduction of the Swing
Line Commitment shall be for the sole account of CoreStates.
(e) Except as provided in subsection 2.16, each borrowing of a
Bridge Loan, each payment or prepayment of principal of a Bridge Loan and each
payment of interest on the Bridge Loans shall be made pro rata (i.e., one-third
--- ---- ----
each) among the Bridge Banks.
(f) Each Bank agrees that in computing such Bank's portion of any
borrowing to be made hereunder, the Administrative Agent (or, with respect to
Canadian Dollar Loans, the Canadian Funding Banks) may, in its (or their)
discretion,
63
round each Bank's percentage of such borrowing to the next higher or lower whole
dollar amount.
5.13 Payments. (a) Except with respect to payments in connection
--------
with the Canadian Dollar Loans (other than Commitment Fees in respect of the
Canadian Dollar Commitments) or the Swing Line Loans or the Bridge Loans, the
Borrowers shall make each payment (including principal of or interest on any
borrowing or any fees or other amounts including Reimbursement Obligations)
hereunder not later than 12:00 (noon), Philadelphia time, on the date when due
in Dollars to the Administrative Agent at its offices set forth in subsection
12.2, in immediately available funds. Such payments shall be made without set
off or counterclaim of any kind. The Administrative Agent shall distribute to
the Banks any payments received by the Administrative Agent promptly upon
receipt in like funds as received.
(b) Any payments with respect to the Swing Line Loans (including
principal of, or interest on, any borrowing or other amounts) shall be made to
CoreStates. Any such payments shall be made not later that 12:00 (noon),
Philadelphia time, on the date when due in Dollars at the office of CoreStates
set forth in subsection 12.2 in immediately available funds. Such payment shall
be made without setoff or counterclaim of any kind.
(c) Any payments with respect to the Canadian Dollar Loans
(including principal of or interest on any borrowing or any fees or other
amounts) (other than Commitment Fees in respect of the Canadian Dollar
Commitments) shall be made directly to the Canadian Funding Banks at their
respective offices set forth in section 12.2 in Canadian Dollars in immediately
available funds not later than 12:00 (noon) Philadelphia time. Such payments
shall be made without set off or counterclaim of any kind. As provided in
subsection 5.1, any payments of Commitment Fees by VWR Canada to the Canadian
Funding Banks shall be made to the Administrative Agent, for the account of the
Canadian Funding Banks, at its offices set forth in subsection 12.2 on the date
when due in Dollars and in immediately available funds. Such payments shall be
made without set off or counterclaim of any kind.
(d) Whenever any payment (including principal of or interest on
any borrowing or any fees or other amounts) hereunder (other than payments on
Eurodollar Loans or Canadian COF Rate Loans) shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or fees, if applicable.
64
5.14 Conversion and Continuation Options. The Borrowers shall have
-----------------------------------
the right at any time upon prior irrevocable notice to the Administrative Agent
and, with respect to Canadian Dollar Loans, each Canadian Funding Bank (i) not
later than 12:00 noon, Philadelphia time, one Business Day prior to conversion,
to convert any Eurodollar Loan to a Base Rate Loan, (ii) not later than 10:00
a.m., Philadelphia time, three Business Days prior to conversion or
continuation, to convert any Base Rate Loan into a Eurodollar Loan or to
continue any Eurodollar Loan as a Eurodollar Loan for any additional Interest
Period, (iii) not later than 10:00 a.m., Philadelphia time, three Business Days
prior to conversion, to convert the Interest Period with respect to any
Eurodollar Loan to another permissible Interest Period, and (iv) not later than
12:00 noon, Philadelphia time, one Business Day prior to conversion, to convert
any Canadian Base Rate Loan to a Canadian COF Rate Loan, to convert any Canadian
COF Rate Loan to a Canadian Base Rate Loan or to convert the Interest Period
with respect to any Canadian COF Rate Loan to another permissible Interest
Period, subject in each case to the following:
-------
(a) a Eurodollar Loan or Canadian COF Rate Loan may not be
converted at a time other than the last day of the Interest Period applicable
thereto;
(b) any portion of a Loan maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar Loan
or Canadian COF Rate Loan;
(c) no Eurodollar Loan may be continued as such and no Base Rate
Loan may be converted to a Eurodollar Loan when any Default has occurred and is
continuing and the Administrative Agent or the Required Banks have determined
that such a continuation is not appropriate;
(d) any portion of a Eurodollar Loan that cannot be converted
into or continued as a Eurodollar Loan by reason of paragraph 5.14(b) or 5.14(c)
automatically shall be converted at the end of the Interest Period in effect for
such Loan to a Base Rate Loan;
(e) on the last day of any Interest Period for Eurodollar Loans,
if the U.S. Dollar Borrowers have failed to give notice of conversion or
continuation as described in this subsection or if such conversion or
continuation is not permitted pursuant to subsection 5.14(d), such Loans shall
be converted to Base Rate Loans on the last day of such then expiring Interest
Period;
(f) no Canadian COF Rate Loan may be continued as such and no
Canadian Base Rate Loan may be converted to a
65
Canadian COF Rate Loan when any Default has occurred and is continuing and BOA
Canada has determined that such a continuation is not appropriate;
(g) any portion of a Canadian COF Rate Loan that cannot be
converted into or continued as a Canadian COF Rate Loan by reason of paragraph
5.14(b) or 5.14(f) automatically shall be converted at the end of the Interest
Period in effect for such Loan to a Canadian Base Rate Loan;
(h) on the last day of any Interest Period for Canadian COF Rate
Loans, if VWR Canada has failed to give notice of conversion or continuation as
described in this subsection or if such conversion or continuation is not
permitted pursuant to subsection 5.14(g), such Loans shall be converted to
Canadian Base Rate Loans on the last day of such then expiring Interest Period;
(i) as provided in subsection 2.13(a) and (b), all Swing Line
Loans shall be Base Rate Loans and may not be converted to Eurodollar Loans; and
(j) Each request by a Borrower to convert or continue a Loan
shall constitute a representation and warranty that no Default shall have
occurred and be continuing.
Accrued interest on a Loan (or portion thereof) being converted shall be paid by
the applicable Borrower(s) at the time of conversion.
5.15 Minimum Amounts of Tranches; Maximum Number of Tranches. (a)
-------------------------------------------------------
All borrowings, conversions and continuation of Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections that, after giving effect thereto, the aggregate
principal amount of the Loans comprising each (i) Eurodollar Tranche shall be
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (ii)
Canadian COF Rate Tranches shall be equal to CAN $250,000 or a whole multiple of
CAN $100,000 in excess thereof.
(b) The Borrowers shall not have outstanding at any one time more
than in the aggregate eight Eurodollar Tranches and/or Canadian COF Rate
Tranches.
5.16 Use of Proceeds. (a) Revolving Credit and Canadian Dollar
--------------- ------------------------------------
Loans. The proceeds of the Revolving Credit Loans, the Bridge Loans and
-----
Canadian Dollar Loans shall be used by the Borrowers (i) for working capital and
general corporate purposes in the ordinary course of business (including
repaying Reimbursement Obligations, Swing Line Loans and Bridge Loans), and (ii)
with respect to the Revolving Credit Loans and the
66
Bridge Loans, to repay Indebtedness under the Existing Credit Agreement and to
pay a portion of the purchase price for the Xxxxxx Acquisition.
(b) Term Loans. The proceeds of the Term Loans shall be used
----------
solely for the purpose of paying a portion of the purchase price for the Xxxxxx
Acquisition and repaying Bridge Loans.
(c) Swing Line Loans. The proceeds of the Swing Line Loans shall
----------------
be used for working capital and general corporate purposes in the ordinary
course of business (including repaying Reimbursement Obligations).
5.17 Limitation on Obligations of VWR Canada. Notwithstanding
---------------------------------------
anything to the contrary contained in subsections 5.9, 5.10 and 5.11, VWR Canada
shall have no obligation to the U.S. Dollar Banks under such subsections.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Banks to enter into this Agreement and to
make the Loans and to issue or participate in the Letters of Credit, each of the
Borrowers hereby represents and warrants to the Agents and each Bank that:
6.1 Financial Condition. The consolidated balance sheet of VWR and
-------------------
its consolidated Subsidiaries as at December 31, 1994 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, copies of which have heretofore been furnished to each Bank, present
fairly the consolidated financial condition of VWR and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of VWR and its consolidated Subsidiaries as at June
30, 1995 and the related unaudited consolidated statements of income and of cash
flows for the three-month period ended on such date, certified by a Responsible
Officer of VWR, copies of which have heretofore been furnished to each Bank,
present fairly the consolidated financial condition of VWR and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the three-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved. Neither VWR nor any
of its consolidated Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Contingent Obligation, liability for
taxes, or any long-term lease or
67
unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is
required by GAAP to be but is not reflected in the foregoing statements or in
the notes thereto.
6.2 No Change. Since December 31, 1994 there has been no development
---------
or event nor any prospective development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
6.3 Corporate Existence; Compliance with Law. Each of the Borrowers
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent that the failure to be so
qualified could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations. Each of
-------------------------------------------------------
the Borrowers has the corporate power, authority, and legal right, to make,
deliver and perform this Agreement and each other Loan Document to which it is a
party and to borrow hereunder (including through the issuance of Letters of
Credit) and has taken all necessary corporate action to authorize the borrowings
(including the Letters of Credit) on the terms and conditions of this Agreement
and each other Loan Document to which it is a party and to authorize the
execution, delivery and performance of this Agreement and each other Loan
Document to which it is a party. No consent or authorization of, filing with or
other act by or in respect of, any Governmental Authority or any other Person
(including stockholders and creditors of the Borrowers) is required in
connection with the borrowings hereunder (including the issuance of Letters of
Credit) or with the execution, delivery, performance, validity or enforceability
of this Agreement, the Notes or any other Loan Document. This Agreement has
been and each other Loan Document to which it is a party will be, duly executed
and delivered on behalf of such Borrower. This Agreement constitutes and each
other Loan Document when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrowers parties thereto enforceable against such
Borrowers in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy,
68
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement, the Notes and the other Loan Documents by the Borrowers, the
borrowings hereunder (including the issuance of Letters of Credit) and the use
of the proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of any Borrower or any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any properties or revenues of
any Borrower pursuant to any such Requirement of Law or Contractual Obligation.
6.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrowers, threatened against any Borrower or any of
their respective Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to this Agreement, the Notes, the other
Loan Documents or any of the transactions contemplated hereby, except as set
forth in Schedule VIII, or (b) as to which there is a reasonable likelihood of
an adverse determination and which, if adversely determined, could have a
Material Adverse Effect.
6.7 No Default. Neither VWR, any other Borrower nor any of its or
----------
their Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
6.8 Taxes. Each of the Borrowers has filed or caused to be filed all
-----
tax returns which, to its knowledge, are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which reserves, if any, in
conformity with GAAP have been provided on the books of VWR or its Subsidiaries,
as the case may be); no tax Lien has been filed against any of the Borrowers or
any of their Subsidiaries, and, to the knowledge of each of the Borrowers, no
claim is being asserted, with respect to any such tax, fee or other charges.
6.9 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms
69
under Regulation U or for any purpose which violates the provisions of
Regulation U or any other Regulations of the Board of Governors of the Federal
Reserve System. If requested by any Bank or the Administrative Agent, the
Borrowers will furnish to the Administrative Agent and each Bank a statement to
the foregoing effect in conformity with the requirements of FR Form U-l referred
to in said Regulation U. No part of the proceeds of the Loans hereunder will be
used for any purpose which violates, or which is inconsistent with, the
provisions of Regulation X.
6.10 ERISA. Each Plan (such representations in respect of any
-----
Multiemployer Plan being made to the best knowledge of each Borrower) has
complied in all material respects with the applicable provisions of ERISA and
the Code. No prohibited transaction or accumulated funding deficiency (each as
defined in subsection 10.1(k)) or, Reportable Event has occurred with respect to
any Single Employer Plan. The present value of all accrued benefits under each
Single Employer Plan of which any Borrower or a Commonly Controlled Entity is a
sponsor (based on those assumptions used to fund the Plans), as calculated by
such Borrower's actuaries, did not, as of the last annual valuation date, which
in the case of any Plan was not earlier than January 1, 1995, exceed the value
of the assets of the Plans allocable to such benefits. Neither any Borrower nor
any Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan and neither any Borrower nor any Commonly Controlled Entity
would become subject under ERISA to any liability if any Borrower or any such
Commonly Controlled Entity were to withdraw completely from any Multiemployer
Plan as of the valuation date most closely preceding the date this
representation is made or deemed made. Such Multiemployer Plans are neither in
Reorganization as defined in Section 4241 of ERISA nor Insolvent as defined in
Section 4245 of ERISA. The present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Borrowers and each Commonly
Controlled Entity for post-retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits by an amount in excess of $2,000,000.
Neither any Borrower nor any Commonly Controlled Entity has any or has received
notice of any liability under the Coal Industry Retiree Health Benefit Act of
1992. Neither a Reportable Event nor an "accumulated funding deficiency" within
the meaning of Section 412 of the Code or Section 302 of ERISA has occurred
during the five-year period to the date on which this representation is made or
deemed made on the date of a Loan or issuance of a Letter of Credit with respect
to any Single Employer Plan or Multiemployer Plan. No termination of a Single
Employer Plan has occurred, and no Lien
70
on assets of any of the Borrowers or any Commonly Controlled Entity in favor of
the PBGC or a Plan has arisen during such five-year period.
6.11 Investment Company Act. None of Borrowers is an "investment
----------------------
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
6.12 Purpose of Loans. The proceeds of the Loans shall be used by
----------------
the Borrowers to repay all amounts payable under the Existing Credit Agreement,
to help finance the Xxxxxx Acquisition, and proceeds remaining and Letters of
Credit issued thereafter shall be used for working capital and general corporate
purposes in the ordinary course of business.
6.13 Environmental Matters. Except to the extent that all of the
---------------------
following could not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of each of the Borrowers after
reasonable inquiry, the Properties do not contain, and have not previously
contained, in, on, or under, including, without limitation, the soil and
groundwater thereunder, any Materials of Environmental Concern in amounts or
concentrations that constitute or constituted a violation of, or reasonably
could give rise to liability under Environmental Laws.
(b) To the best knowledge of each of the Borrowers after
reasonable inquiry, the Properties and all operations and facilities at the
Properties are in compliance, and have in the last five years been in compliance
with all Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by any Borrower or any Subsidiary thereof
which could interfere with the continued operation of any of the Properties or
impair the fair saleable value of any thereof. None of the Borrowers or any of
their respective Subsidiaries have assumed any liability of any Person under
Environmental Laws.
(c) Neither VWR, any other Borrower, nor any of their
Subsidiaries has received or is aware of any claim, notice of violation, alleged
violation, non-compliance, investigation or advisory action or potential
liability regarding environmental matters or compliance of Environmental Law
with regard to the Properties which has not been satisfactorily resolved by VWR,
such other Borrower, or such Subsidiary, nor is VWR nor any other Borrower aware
or have reason to believe that any such action is being contemplated, considered
or threatened.
71
(d) To the best knowledge of each Borrower after diligent
inquiry, Materials of Environmental Concern have not been generated, treated,
stored, transported, disposed of, at, on, from or under any of the Properties,
nor have any Materials of Environmental Concern been transferred from the
Properties to any other location except in either case in the ordinary course of
business of the Borrowers or any of their respective Subsidiaries, in compliance
with all Environmental Laws and such that it could not reasonably be expected to
give rise to liability under any applicable Environmental Law.
(e) There are no governmental, administrative actions or judicial
proceedings pending or, to the best knowledge of each Borrower after reasonable
inquiry, contemplated or threatened under any Environmental Laws to which VWR,
any other Borrower or any of their respective Subsidiaries is or will be named
as a party with respect to the Properties, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to any of the Properties.
(f) To the best knowledge of the Borrowers after reasonable
inquiry, there has been no release or threat of release of Matters of
Environmental Concern at or from the Properties, or arising from or related to
the operation of VWR or any Subsidiary in connection with the Properties or
otherwise in connection with the business operated by VWR or any Subsidiary in
violation of or in amounts or in a manner that could reasonably be expected to
give rise to liability under any Environmental Law.
(g) To the best knowledge of the Borrowers after reasonable
inquiry, each of the representations and warranties set forth in paragraphs
6.13(a) through 6.13(f) is true and correct with respect to each Property.
6.14 No Material Misstatements. No financial statement, exhibit or
-------------------------
schedule furnished by or on behalf of any Borrower to any Agent or any Bank in
connection with the negotiation of this Agreement, any Note or any other Loan
Document contains any misstatement of fact, or omitted or omits to state any
fact necessary to make the statements therein not misleading under the
circumstances under which they were made or given, where such misstatement or
omission would be material to the interests of the Banks with respect to the
performance of each Borrower of its obligations hereunder or thereunder. Prior
to the date hereof, the Borrowers have disclosed to the Banks in writing
(including as set forth on pages 20-21 under the caption "Risks to VWR
Associated with the Acquisition" in that certain Proxy Statement (the "Proxy
Statement") dated August 11, 1995 for
72
Special Meeting of Shareholders to be held September 13, 1995) any and all facts
which materially and adversely affect (to the extent the Borrowers can as of the
date hereof reasonably foresee), the business, operations or financial condition
of VWR and its Subsidiaries taken as a whole, and the ability of the Borrowers
to perform their obligations under this Agreement, the Notes and the other Loan
Documents.
6.15 Ownership of Properties; Liens. Each of the Borrowers and its
------------------------------
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material real property, except for minor defects in title that do not
interfere in any material respect with its ability to conduct its business as
presently conducted. All such material properties are free and clear of all
Liens, other than Liens permitted by subsection 9.2.
6.16 Intellectual Property. Each of the Borrowers and each of their
---------------------
respective Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted (the "Intellectual Property") except for those
---------------------
as to which the failure to own or license could not reasonably be expected to
have a Material Adverse Effect. No claim has been asserted and is pending by
any Person challenging or questioning the use of any such Intellectual Property,
nor does such Borrower know of any valid basis for any such claim. The use of
such Intellectual Property by the Borrowers and their Subsidiaries does not
infringe the rights of any Person, except for such claims and infringements
that, in the aggregate, do not have such a Material Adverse Effect.
6.17 No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation of any of the Borrowers or any of their Subsidiaries
could reasonably be expected to have a Material Adverse Effect. All of the
Subsidiaries of such Borrower at the date hereof are listed on Schedule II of
this Agreement under its name.
6.18 Security Interests. (a) At all times after execution and
------------------
delivery of the Pledge Agreements by the Borrower(s) party thereto and
satisfaction of the conditions specified in subsection 7.1(b), the security
interests created for the benefit of the Administrative Agent and the Banks
under the Pledge Agreements will constitute valid, perfected security interests
in the stock pledged thereunder, subject to no other Liens.
(b) At all times after execution and delivery of the Security
Documents (other than the Pledge Agreements) by the Borrower(s) party thereto
and completion of the filing and recordings listed on Schedule VI, the security
interests created
73
for the benefit of the Administrative Agent and the Banks pursuant to the
Security Documents (other than the Pledge Agreements) will constitute valid,
perfected security interests in the collateral subject thereto, subject to no
other Liens whatsoever, except as provided in Schedule IV attached hereto or as
permitted by subsection 9.2.
6.19 Xxxxxx Acquisition.
------------------
(a) Delivery. Complete and correct copies of the Xxxxxx
--------
Acquisition Agreements have been provided to the Administrative Agent.
(b) Validity. VWR has the power and authority under the laws of
--------
its jurisdiction of incorporation and under its articles of incorporation and
by-laws to enter into and perform the Xxxxxx Acquisition Agreements; all actions
(corporate or otherwise) necessary or appropriate for the execution and
performance of the Xxxxxx Acquisition Agreements by VWR has been taken; and the
Xxxxxx Acquisition Agreements constitute the valid and binding obligation of
each party thereto, enforceable in accordance with their respective terms.
(c) No Violations. The making and performance of the Xxxxxx
-------------
Acquisition Agreements will not violate any provision of any law or regulation,
federal, state or local, including precedents of the jurisdiction of
incorporation of VWR, and will not violate any provisions of the articles of
incorporation and by-laws of VWR, or constitute a default under any agreement by
which VWR or its property may be bound.
(d) Immediately after the consummation of the Xxxxxx Acquisition,
the representations and warranties set forth in this Article VI shall be true
and correct in all material respects.
6.20 Senior Debt Status. The obligations of the Borrowers under this
------------------
Agreement and the Notes rank senior in priority of payment to the Subordinated
Debt.
6.21 Solvency. Each of the Borrowers is, and after receipt and
--------
application of the first loan hereunder will be, solvent such that: (a) the
fair value of its assets (including without limitation the fair salable value of
the goodwill and other intangible property of such Borrower) is greater than the
total amount of its liabilities, including without limitation, Contingent
Obligations, (b) the present fair salable value of its assets (including without
limitation the fair salable value of the goodwill and other intangible property
of such Borrower) is not less than the amount that will be required to pay the
probable liability on its debts as they become absolute and
74
matured, and (c) it is able to realize upon its assets and pay its debts and
other liabilities and commitments (including Contingent Obligations) as they
mature in the normal course of business. Each Borrower (a) does not intend to,
and does not believe that it will, incur debts or liabilities beyond its ability
to pay as such debts and liabilities mature, and (b) is not engaged in a
business or transaction, or about to engage in a business or transaction, for
which its property would constitute unreasonably small capital after giving due
consideration to the prevailing practice and industry in which it is engaged.
6.22 Public Utility Holding Company Act. No Borrower is subject to
----------------------------------
regulation as a "holding company", subject to regulation as an "affiliate" of a
"holding company", or subject to regulation as a "subsidiary company" of a
"holding company", in each case under the Public Utility Holding Company Act of
1935, as amended.
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Initial Extension of Credit. The agreement of each
-----------------------------------------
Bank (including the Bridge Banks) to make the initial Extension of Credit
requested to be made by it is subject to the satisfaction, immediately prior to
or concurrently with the making of such Loan on the Closing Date, of the
following conditions precedent:
(a) Credit Agreement and Notes. The Administrative Agent shall
--------------------------
have received (i) this Agreement, (A) executed and delivered by a duly
authorized officer of each Borrower, with a counterpart for each Bank, and (B)
executed and delivered by a duly authorized officer of each Bank, (ii) for the
account of each U.S. Dollar Bank, a Revolving Credit Note and a Term Note
conforming to the requirements hereof and executed by a duly authorized officer
of the U.S. Dollar Borrowers, (iii) for the account of CoreStates, a Swing Line
Note conforming to the requirements hereof and executed by a duly authorized
officer of the U.S. Dollar Borrowers, (iv) for the account of each Bridge Bank,
a Bridge Loan Note conforming to the requirements hereof and executed by a duly
authorized officer of the U.S. Dollar Borrower and (v) for the account of each
Canadian Funding Bank, a Canadian Dollar Note conforming to the requirements
hereof and executed by a duly authorized officer of VWR Canada.
(b) Other Loan Documents. (i) The Administrative Agent shall
have the following agreements executed and delivered by a duly authorized
officer of the Borrower(s) party thereto: (A) the Pledge Agreements, together
with share certificates evidencing all of the stock pledged thereunder and stock
powers or other appropriate instruments of transfer, executed in blank,
75
(B) the Security Agreement, (C) each of the other Security Documents, (D) the
U.S. Dollar Borrowers Guarantee and (E) the VWR Canada Subordination Agreement.
(ii) Any document (including without limitation financing
statements) required to be filed, registered or recorded in order to create, for
the benefit of the Administrative Agent and the Banks, a perfected, first
priority Lien, subject only to those Liens described on Schedule IV, shall have
been properly prepared for filing, registration or recording in each office in
each jurisdiction in which such filings, registration and recordation are
required to perfect such first priority security interests created by the
Security Documents, and the Administrative Agent shall be satisfied that all
such recordings and filings will be completed promptly following the Closing
Date and that all necessary filing, recording and other fees and all taxes and
expenses related to such filings, registrations and recordings will be paid in
full by the Borrowers.
(c) Corporate Proceedings. The Administrative Agent shall have
---------------------
received, with a counterpart for each Bank, a certificate of the Secretary or an
Assistant Secretary of each Borrower dated as of the Closing Date certifying (A)
that attached thereto is a true and complete copy of the resolutions, in form
and substance satisfactory to the Administrative Agent, of the Board of
Directors of such Borrower authorizing (i) the execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents to which
it is a party, and (ii) the borrowings contemplated hereunder and that such
resolutions attached thereto have not been amended, modified, revoked or
rescinded and (B) as to the incumbency and specimen signature of each officer
executing any Loan Document on behalf of a Borrower; and such certificate and
the regulations attached thereto shall be in form and substance satisfactory to
the Administrative Agent.
(d) Corporate Documents. The Administrative Agent shall have
-------------------
received, with a counterpart for each Bank, true and complete copies of the
certificate of incorporation and by-laws of each Borrower, certified as of the
Closing Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Borrower.
(e) Borrowing Base Certificates. The Administrative Agent shall
---------------------------
have received from the Borrowers, with a counterpart for each Bank, a U.S.
Dollar Borrowing Base Certificate and a Canadian Dollar Borrowing Base
Certificate, in each case dated the Closing Date, with appropriate insertions
and attachments satisfactory in form and substance to the Administrative Agent,
executed by a Responsible Officer of the
76
appropriate Borrower(s). The foregoing Certificates shall be prepared based on
reasonable assumptions and the good faith estimates of the Borrowers, as the
Banks acknowledge that the Xxxxxx Acquisition will have just been consummated.
(f) Fees. The Administrative Agent shall have received for the
----
account of the Agents the fees to be received on the Closing Date referred to in
the Fee Letter.
(g) Legal Opinions. The Administrative Agent shall have
--------------
received, with a counterpart for each Bank, the following legal opinions, each
dated the Closing Date:
(i) the executed legal opinion of Drinker Xxxxxx & Xxxxx,
counsel to the Borrowers, covering the matters set forth in Exhibit G-1;
(ii) the executed legal opinion of Blake, Xxxxxxx & Xxxxxxx,
special Canadian counsel, covering the matters set forth in Exhibit G-2; and
(iii) the executed legal opinion of Xxxx X. Xxxxxxx, special
Barbados counsel, covering the matters set forth in Exhibit G-3.
Each such opinion shall be addressed to the Banks and the Agents and cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(h) UCC Filing and Other Searches. The Administrative Agent
-----------------------------
shall have received the results of (i) Uniform Commercial Code Filings and/or
similar searches made with respect to the Borrowers in the states or provinces
in which their chief executive offices are located and all other states or
provinces in which filings are required to be made pursuant to subsection
7.1(b)(ii), together with copies of financing statements disclosed by such
searches and (ii) such tax and judgment lien searches as the Administrative
Agent shall reasonably request, and each of the foregoing searches shall
disclose no Liens on any assets encumbered by any Security Document, except for
Liens permitted under subsection 9.2 or, if unpermitted Liens are disclosed, the
Administrative Agent shall have received satisfactory evidence of the release of
such Liens.
(i) Collateral Audit. The Agents shall have completed a
----------------
collateral audit, which shall be delivered to the Banks and shall be in form and
substance satisfactory to the Agents.
77
(j) Existing Credit Agreement. The Existing Credit Agreement
-------------------------
shall be terminated, all Indebtedness thereunder shall have been repaid in full
and there shall be no letters of credit outstanding issued for the account of a
Borrower, other than the Existing Letters of Credit which, pursuant to
subsection 2.12, are deemed to be issued hereunder.
(k) Xxxxxx Acquisition. The Xxxxxx Acquisition shall be
------------------
consummated substantially on the terms set forth in the Xxxxxx Acquisition
Agreement. The total cost to VWR and its Subsidiaries to consummate such
transaction shall not exceed $401,000,000 plus the cost of acquiring certain
----
accounts receivable at closing in an amount not to exceed an additional
$30,000,000 in the aggregate, plus the cost of acquiring certain inventory as
----
contemplated by Section 7 of the Services Agreement, a copy of which agreement
is attached as Exhibit VII to the Proxy Statement, plus certain fees for
----
services rendered in connection with the acquisition, all as contemplated in the
Xxxxxx Acquisition Agreements, and the Agents shall be satisfied with all
material aspects of the Xxxxxx Acquisition.
(l) Subordinated Debt. VWR shall have received the proceeds of
-----------------
the Subordinated Debt in the amount of at least $135,000,000 and the terms of
the debenture evidencing such Subordinated Debt shall be substantially in the
form of Exhibit H hereto.
(m) Additional Equity Investment. VWR shall have received at
----------------------------
some time after December 31, 1994 at least $115,000,000 of additional equity
capital from E. Merck, Incorporated or an Affiliate thereof, such capital
contribution to be on terms previously approved by the Agents.
(n) Insurance. The Administrative Agent shall have received
---------
Certificates of Insurance with respect to each Borrower's fire, casualty,
liability and other insurance covering its respective property and business,
including loss payee endorsements in favor of the Administrative Agent (for the
benefit of the Banks) as to all material collateral under the Security
Documents.
(o) Good Standing. The Administrative Agent shall have received
-------------
certificates of good standing, subsistence and/or status dated a recent date
from the Secretary of State or appropriate taxing or other authorities in the
state or province of incorporation of each Borrower.
7.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Bank to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its
78
initial Extension of Credit) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations
------------------------------
and warranties made by each Borrower herein or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection herewith or therewith, shall be true and correct in all
material respects on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
----------
occurred and be continuing on such date or after giving effect to the Extension
of Credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
------------------
and all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Agents, and the Agents shall have
received such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
Each request by the Borrowers for an Extension of Credit hereunder shall
constitute a representation and warranty by the Borrowers as of the date of such
Extension of Credit that the conditions contained in this subsection 7.2 have
been satisfied.
SECTION 8. AFFIRMATIVE COVENANTS
Each of the Borrowers hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid, any Letter of Credit
remains outstanding or any other amount is owing to any Bank or any Agent
hereunder, such Borrower shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
8.1 Financial Statements. Furnish to the Administrative Agent copies
--------------------
(in such quantities as the Administrative Agent shall request) of each of the
following so that the Administrative Agent may (and the Administrative Agent
hereby agrees to within five (5) Business Days after receipt thereof) deliver to
each Bank:
(a) as soon as available, but in any event not later than 90 days
after the close of each fiscal year of VWR, a copy of the annual audit report
for such year for VWR and its
79
consolidated Subsidiaries, including therein a consolidated balance sheet of VWR
and its consolidated Subsidiaries as at the end of such fiscal year, and related
consolidated statements of income and retained earnings and changes in cash
flows of VWR and its consolidated Subsidiaries for such fiscal year, all in
reasonable detail, prepared in accordance with GAAP applied on a basis
consistently maintained throughout the period involved and with the prior year
with such changes thereon as shall be approved by VWR's independent certified
public accountants, such financial statements to be certified by Ernst & Young
or other independent certified public accountants selected by VWR and reasonably
acceptable to the Banks, without a "going concern" or like qualification or
exception or qualification arising out of the scope of the audit; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of VWR, unaudited cash flows of VWR and its consolidated Subsidiaries, including
therein (i) a consolidated balance sheet of VWR and its consolidated
Subsidiaries as at the end of such fiscal quarter, (ii) the related consolidated
statements of income and retained earnings of VWR and its consolidated
Subsidiaries, and (iii) the related consolidated statement of changes in
financial position of VWR and its consolidated Subsidiaries all for the period
from the beginning of such fiscal quarter to the end of such fiscal quarter and
the portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the like period of
the preceding fiscal year; all in reasonable detail, prepared in accordance with
GAAP applied on a basis consistently maintained throughout the period involved
and with prior periods and accompanied by a certificate of a Responsible Officer
of VWR stating that the financial statements fairly present the financial
condition of VWR and its consolidated Subsidiaries as of the date and for the
periods covered thereby (subject to normal year-end audit adjustments).
8.2 Certificates; Other Information. Furnish to the Administrative
-------------------------------
Agent copies (in such quantities as the Administrative Agent may request) of
each of the following so that the Administrative Agent may (and the
Administrative Agent hereby agrees to within five (5) Business Days after
receipt thereof) deliver to each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a), a certificate of VWR's independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary for certifying such financial statements no knowledge
was obtained of any Default or Event of Default, except as specifically
indicated;
80
(b) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a), a certificate of the chief financial officer
or Treasurer or Assistant Treasurer of VWR showing in detail the calculations
demonstrating compliance with the financial covenants set forth in subsection
9.1; and concurrently with the delivery of the financial statements referred to
in subsections 8.1(a) and 8.1(b), a certificate of the chief financial officer
or Treasurer or Assistant Treasurer of VWR stating that, to the best of his or
her knowledge, each of the Borrowers during such period has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Agreement and in the Notes and the other Loan Documents to which it is a party
and that such officer has obtained no knowledge of any Default or Event of
Default except as specifically indicated; if the certificate above shall
indicate that such officer has obtained knowledge of a Default or Event of
Default, such certificate shall state what efforts the Borrowers are making to
cure such Default or Event of Default;
(c) within 45 days after the end of the first three fiscal
quarters in each fiscal year of VWR, and within 90 days after the end of each
fiscal year of VWR, a certificate of the chief financial officer or Treasurer or
Assistant Treasurer of VWR showing in detail the computations necessary to
calculate the Applicable Margin and Commitment Fee Rate (a "Senior Debt/EBITDA
------------------
Ratio Certificate");
-----------------
(d) on or prior to thirty days prior to the commencement of each
fiscal year of VWR and in any event, not later than ten Business Days following
approval by the Board of Directors of VWR, a copy of VWR's final Planned Profit
and Loss Statement for the next fiscal year as approved by such Board of
Directors;
(e) within five days after the same are sent, copies of all
financial statements and reports which VWR sent to its stockholders and within
five days after the same are filed, copies of all financial statements and
reports which any Borrower may make to, or file with, the Securities and
Exchange Commission or any successor of analogous Governmental Authority;
(f) (i) within 15 days after the last day of each month, a fully
completed certificate (each a "U.S. Dollar Borrowing Base Certificate") signed
--------------------------------------
by a Responsible Officer of VWR, in a form acceptable to the Administrative
Agent, with respect to U.S. Eligible Receivables and U.S. Eligible Inventory as
of such last day of such month and (ii) within 15 days after the last day of
each month, a fully completed Certificate (each a "Canadian Dollar Borrowing
-------------------------
Base Certificate") signed by a Responsible Officer of VWR Canada, in a form
----------------
acceptable to the Administrative Agent, with respect to Canadian Eligible
81
Receivables and Canadian Eligible Inventory as of such last day of such month;
and
(g) promptly, such additional financial and other information as
the Administrative Agent or any Bank may from time to time reasonably request,
including without limitation additional U.S. Dollar Borrowing Base Certificates
and/or Canadian Dollar Borrowing Base Certificates if the Administrative Agent
believes that it needs an updated Certificate prior to the time it would
otherwise be due under paragraph (f)(i) and (ii) of this subsection 8.2.
8.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
----------------------
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
VWR or its Subsidiaries, as the case may be.
8.4 Conduct of Business and Maintenance of Existence. Except as
------------------------------------------------
otherwise permitted in subsection 9.5, continue to engage in business of the
same general type as now conducted by it and, preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, have a Material Adverse Effect.
8.5 Maintenance of Property; Insurance. Keep all property useful and
----------------------------------
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business, with the Administrative Agent (for the benefit of
the Banks) being named as loss payee as to all material collateral under the
Security Documents; and furnish to each Bank, upon written request, full
information as to the insurance carried, including evidence that the
Administrative Agent (for the benefit of the Banks) is named as loss payee as to
all material collateral under the Security Documents.
8.6 Inspection of Property; Books and Records; Discussions. (a)
------------------------------------------------------
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and
82
all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and upon reasonable notice permit
representatives of any Bank to visit and inspect any of its properties and
examine and make abstracts from any of its books and records during normal
business hours and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of VWR and
its Subsidiaries with officers and employees of VWR and its Subsidiaries and
with its independent certified public accountants.
(b) (i) Permit a collateral audit by the Administrative Agent or
a representative thereof of the collateral securing the Notes as may be
requested by the Administrative Agent and (ii) pay the cost of any such
collateral audit; provided that, the Borrowers shall only be responsible to pay
-------- ----
the cost of one such collateral audit in any calendar year unless a Default
shall exist and be continuing, in which event the Borrowers shall be obligated
to pay for all such collateral audits requested by the Administrative Agent.
8.7 Notices. Promptly give notice to the Administrative Agent and
-------
each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of VWR or any of its Subsidiaries or (ii) litigation, investigation
or proceeding which may exist at any time between VWR or any of its Subsidiaries
and any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting VWR or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not covered
by insurance as reasonably determined by VWR's corporate counsel or in which
injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after VWR knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, any Lien in favor of PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or any Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the
83
terminating, Reorganization or Insolvency of, any Plan or (iii) assessment of
liability under the Coal Industry Retiree Health Benefit Act of 1992; and
(e) an event which has had or could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrowers propose to take with respect thereto.
8.8 Environmental Laws. (a) Comply with, and require compliance by
------------------
all tenants and all subtenants, if any, with, all Environmental Laws and obtain
and comply with and maintain, and require that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, registrations or
permits required by Environmental Laws, except to the extent that failure to so
comply or obtain or maintain such documents could not reasonably be expected to
have a Material Adverse Effect;
(b) Comply with all lawful and binding orders and directives of
all Governmental Authorities respecting Environmental Laws; and
(c) Defend, indemnify and hold harmless the Agents and the Banks,
and their respective employees, agents, officers, directors, successors and
assigns from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to any
violation of or noncompliance with or liability under any Environmental Laws, or
any orders, requirements or demands of Governmental Authorities related thereto
which in each case relate to or arise in connection with any Borrower, any
Property or any activities relating to any other property or business of a
Borrower or the enforcement of any rights provided herein or in the other Loan
Documents, including, without limitation, attorneys' and consultants' fees,
response costs, investigation and laboratory fees, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of any of the foregoing enumerated parties.
This indemnity shall continue in full force and effect regardless of the
termination of this Agreement and the payment of the Notes.
8.9 Pledge of Real Property. At any time and from time to time at
-----------------------
the written request of the Administrative Agent indicating that such request is
being made at the direction of the Required Banks, each Borrower shall execute,
deliver and, if requested, record such mortgage, deed of trust and related
84
documents as the Administrative Agent shall reasonably request, and take such
further action as the Administrative Agent shall reasonably request, in each
case, in order to grant to the Administrative Agent (or other Person selected by
the Administrative Agent) for the benefit of the Banks a first priority Lien
(subject to customary permitted exceptions) in all real property or leasehold
interests owned by such Borrower as additional collateral for the obligations of
the Borrowers to the Banks under this Agreement and the Notes; provided that,
-------- ----
notwithstanding the foregoing, any Lien on property of VWR Canada shall only be
in favor of the Canadian Funding Banks. The Borrowers shall be responsible for
the reasonable costs and expenses (including attorneys' fees and expenses) of
the Administrative Agent in connection with the preparation, registration,
execution and recording (including mortgage recording tax) of the foregoing
documents.
8.10 Management Changes. Notify the Administrative Agent in writing
------------------
within thirty (30) days after any change of its executive officers.
8.11 Interest Rate Protection. Within ninety (90) days after the
------------------------
Closing Date, enter into, with one or more Banks, the unsecured long-term debt
obligations of which are rated "A3" or higher by Xxxxx'x or "A-" or higher by
S&P, and issued by a Bank having capital, surplus and undivided profits
aggregating at least $250,000,000, such interest rate protection contracts
(collectively, the "Interest Rate Protection Agreements") as are necessary to
-----------------------------------
cause an amount not less than 25% of the Borrowers' then outstanding Loans
hereunder to bear interest at a fixed rate. Such contracts shall conform to
ISDA standards, shall be subject to such intercreditor and subordination
provisions as may be required by the Agents and shall otherwise be acceptable to
the Agents as to structure, notional amount (subject to the 25% standard set
forth herein) and term (except that no such contract shall be required to extend
beyond the Termination Date).
SECTION 9. NEGATIVE COVENANTS
Each of the Borrowers hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid, any Letter of Credit
remains outstanding or any other amount is owing to any Bank or Agent hereunder,
such Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
85
9.1 Financial Condition Covenants.
-----------------------------
(a) Maintenance of Consolidated Net Worth. Permit Consolidated
-------------------------------------
Net Worth on the last day of any fiscal quarter to be less than (i) for the 4th
Quarter 1995, $145,000,000 and (ii) for any fiscal quarter thereafter, the sum
of (x) $145,000,000 plus (y) seventy-five percent (75%) of Consolidated Net
Income for each fiscal quarter commencing with the first fiscal quarter of 1996
and ending with the fiscal quarter for which such calculation is being made,
exclusive of any fiscal quarters in which Consolidated Net Income is a negative.
(b) Minimum Consolidated EBITDA. At the last day of any period
---------------------------
set forth below, permit Consolidated EBITDA for the period of the four
consecutive fiscal quarters ending on such date (except for the calculations as
at the end of each of the first three fiscal quarters after the Closing Date,
for which the amount shall be calculated for the less than four-quarter periods
set forth below and then annualized, i.e., (i) for the 4th Quarter 1995,
----
multiplied by 4, (ii) for the 4th Quarter 1995 -1st Quarter 1996, multiplied by
2 and (iii) for the 4th Quarter 1995 - 2nd Quarter 1996, multiplied by 4/3) to
be less than the amount set forth opposite such period below:
Period Amount
------ ------
4th Quarter 1995 $40,000,000
4th Quarter 1995 - 1st Quarter 1996 52,000,000
4th Quarter 1995 - 2nd Quarter 1996 56,000,000
3rd Quarter 1996 58,000,000
4th Quarter 1996 64,000,000
1st Quarter 1997 70,000,000
2nd Quarter 1997 75,000,000
3rd Quarter 1997 82,000,000
4th Quarter 1997 85,000,000
1st Quarter 1998 and each Quarter 95,000,000
thereafter
(c) Interest Coverage Ratio. At the last day of any period set
-----------------------
forth below, permit the Interest Coverage Ratio for the period of the four
consecutive fiscal quarters ending on such date (except for the calculations as
at the end of each of the first three fiscal quarters after the Closing Date,
for which the ratio shall be calculated for the less than four-quarter periods
set forth below) to be less than the ratio set forth opposite such period
below :
86
Period Ratio
------ -----
4th Quarter 1995 1.75
4th Quarter 1995 - 1st Quarter 1996 2.25
4th Quarter 1995 - 2nd Quarter 1996 2.50
3rd Quarter 1996 2.50
4th Quarter 1996 2.75
1st Quarter 1997 3.00
2nd Quarter 1997 3.00
3rd Quarter 1997 3.00
4th Quarter 1997 3.00
1st Quarter 1998 and each Quarter 3.25
thereafter
(d) Senior Leverage Ratio. At the last day of any period set
---------------------
forth below, permit the ratio of Senior Debt to Consolidated EBITDA for the
period of the four consecutive fiscal quarters ending on such day (except for
the calculations as at the end of each of the first three fiscal quarters after
the Closing Date, for which (i) the ratio shall be calculated for the less than
four-quarter periods set forth below and (ii) in calculating such ratio, the
Consolidated EBITDA figure that appears in the numerator of such ratio shall be
annualized in the manner set forth in subsection 9.1(b)) to be greater than the
ratio set forth opposite such period below:
Period Ratio
------ -----
4th Quarter 1995 7.00
4th Quarter 1995 - 1st Quarter 1996 5.50
4th Quarter 1995 - 2nd Quarter 1996 4.75
3rd Quarter 1996 4.40
4th Quarter 1996 4.00
1st Quarter 1997 3.75
2nd Quarter 1997 3.50
3rd Quarter 1997 3.25
4th Quarter 1997 3.00
1st Quarter 1998 and each Quarter 3.00
thereafter
(e) Fixed Charge Coverage Ratio. Permit the ratio for any
---------------------------
period of four consecutive fiscal quarters ending during any period set forth
below (except for the calculations as at the end of each of the first three
fiscal quarters after the Closing Date, for which the ratio shall be calculated
for the less than four-quarter periods set forth below) of (i) Consolidated
EBITDA for such period to (ii) Consolidated Fixed Charges for such period to be
less than the ratio set forth opposite such period below:
87
Period Ratio
------ -----
4th Quarter 1995 1.00
4th Quarter 1995 - 1st Quarter 1996 1.00
4th Quarter 1995 - 2nd Quarter 1996 1.00
3rd Quarter 1996 1.00
4th Quarter 1996 1.00
1st Quarter 1997 1.05
2nd Quarter 1997 1.05
3rd Quarter 1997 1.05
4th Quarter 1997 1.10
1st Quarter 1998 and each Quarter 1.10
thereafter
9.2 Limitation on Liens. Create, incur, assume or suffer to
-------------------
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens created pursuant to the Security Documents;
(b) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
--------
respect thereto are maintained on the books of such Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not materially detract
from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of VWR and its Subsidiaries taken as a whole;
88
(g) Liens listed on Schedule IV hereto, securing Indebtedness
permitted by subsection 9.3(d), provided that no such Lien is amended after
--------
the date of this Agreement to cover any additional property or to secure
additional Indebtedness;
(h) Liens securing Indebtedness of the Borrower and their
Subsidiaries permitted by subsection 9.3(c) incurred to finance the acquisition
(including through Capital Leases) of fixed or capital assets, provided that
--------
(i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets or such Liens shall have existed on
such assets prior to their acquisition by a Borrower or a Subsidiary thereof and
were not created in anticipation of the acquisition, (ii) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness, (iii) the Liens are not modified to secure other Indebtedness and
the amount of Indebtedness secured thereby is not increased and (iv) the
principal amount of Indebtedness secured by any such Lien shall not at any time
exceed 100% of the original purchase price of such property;
(i) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness permitted by
subsection 9.3(e), provided that (i) such Liens existed at the time such
corporation became a subsidiary and were not created in anticipation of the
acquisition, (ii) any such Lien does not by its terms cover any property or
assets after the time such corporation becomes a Subsidiary which were not
covered immediately prior thereto and (iii) any such Lien does not by its terms
secure any Indebtedness other than Indebtedness existing immediately prior to
the time such corporation becomes a Subsidiary; and
(j) Liens not otherwise permitted hereunder which secure
Indebtedness permitted under subsection 9.3(h) not exceeding, as to the
Borrowers and all Subsidiaries thereof taken together, $1,000,000 in aggregate
amount at any one time outstanding; provided, however, such Liens shall not
-------- -------
attach to (A) inventory (including Eligible Inventory) of any Borrower, (B)
accounts receivable (including Eligible Receivables) of any Borrower, and (C)
the books and records of any Borrower.
9.3 Limitation of Indebtedness. Create, incur, assume or suffer to
-------------------------
exist any Indebtedness except:
(a) Indebtedness in respect of the Loans, the Notes, the Letters
of Credit and other obligations of the Borrowers under this Agreement;
89
(b) Indebtedness of a Borrower to another Borrower to the extent
that the incurrence of such Indebtedness does not violate subsection 9.11(f);
(c) Indebtedness of VWR and any of its Subsidiaries incurred
solely in order to finance the acquisition (including through Capital Leases) of
fixed or capital assets in an aggregate principal amount not exceeding, as to
the Borrowers and their Subsidiaries taken together, $6,000,000 at any one time
outstanding;
(d) Indebtedness listed on Schedule V (including those letters of
credit in an aggregate drawable amount not in excess of $2,000,000 assumed by
one or more of the Borrowers pursuant to the Baxter Acquisition), and renewals,
extensions and modifications thereof which do not increase the principal amount
thereof;
(e) Indebtedness of a corporation which becomes a Subsidiary
after the date hereof, provided that, (i) such Indebtedness existed at the time
-------- ----
such corporation became a Subsidiary and was not created in anticipation of the
acquisition and (ii) immediately after giving effect to the acquisition of such
corporation by a Borrower, no Default or Event of Default shall have occurred
and be continuing; and, renewals, extensions and modifications thereof which do
not increase the principal amount thereof;
(f) the Subordinated Debt, and renewals, extensions and
modifications thereof which do not increase the principal amount thereof;
(g) Indebtedness under the Interest Rate Protection Agreements;
(h) Indebtedness secured by any Lien permitted by subsection
9.2(j), and renewals, extensions and modification thereof which do not increase
the principal amount thereof;
(i) Indebtedness in the nature of accounts payable owed to Xxxxxx
Healthcare Corporation and its Affiliates in an amount not to exceed in the
aggregate $30,000,000 incurred under the Baxter Acquisition Agreements to
finance accounts receivable being acquired after the closing of the Baxter
Acquisition; provided that, no such Indebtedness shall be refinanced, extended,
-------- ----
renewed or continued beyond the initial due date therefor; and
(j) additional Indebtedness not exceeding $4,000,000 in aggregate
principal amount at any time outstanding.
90
9.4 Limitations on Fundamental Changes. Enter into any merger,
----------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except that:
(a) any Subsidiary of VWR may be merged or consolidated with or
into VWR (provided that VWR shall be the continuing or surviving corporation) or
with or into any other U.S. Dollar Borrower (provided that if any such
--------
transaction shall be between a Subsidiary which is not a U.S. Dollar Borrower
and a Subsidiary which is a U.S. Dollar Borrower, such U.S. Dollar Borrower
shall be the continuing or surviving corporation); and
(b) any Subsidiary of VWR may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
a U.S. Dollar Borrower; provided that, immediately after any such transaction
-------- ----
referred to in paragraphs (a) and (b) above and after giving effect thereto,
each of the Borrowers is in compliance with this Agreement and no Default or
Event of Default shall have occurred and be continuing or result from such
transaction.
9.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection in the ordinary course of business of such accounts receivable;
(d) as permitted by Section 9.4;
(e) the sale or conveyance of VWR's ten percent (10%) minority
interest in the joint venture with EM Industries Incorporated known as Xxxxxx
and Xxxxxx and the sale or conveyance by VWR of that certain building located at
000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000 and operated as part of the
Xxxxxxx-Xxxxx Division of VWR; provided that (i) such sale or conveyance is for
-------- ----
cash consideration which the officers or Board of Directors of VWR deems to be
fair and reasonable and
91
(ii) the Net Proceeds are applied to the Loans as provided in subsection 5.7(b);
(f) so long as no Default shall exist or be continuing, the
transfer by VWR to E. Merck, Darmstadt, Germany or one of its Affiliates of a
portion of the assets acquired by VWR in the Baxter Acquisition, which assets
constitute the international business of what is sometimes referred to as the
"Industrial Distribution Business" of Xxxxxx Healthcare Corporation, other than
any such assets relating to business conducted in Canada or Puerto Rico;
provided that (i) the total sales volume attributed to the assets so
-------- ----
transferred does not exceed $7,000,000 in the aggregate and (ii) such transfer
is in accordance with applicable law; and
(g) in addition to the above subsections 9.5(a) through 9.5(f)
inclusive, any such conveyances, sales, leases, assignments, transfers or other
disposals, the aggregate amount of which for VWR and its Subsidiaries for any
fiscal year of VWR does not exceed $2,000,000; provided that (i) such
-------- ----
conveyance, sale, lease, assignment, transfer or other disposition is for cash
consideration which the officers or Board of Directors of VWR or its Subsidiary,
as the case may be, deems to be fair and reasonable and (ii) the Net Proceeds
are applied to the Loans as provided in subsection 5.7(b).
9.6 Limitation on Distributions. Declare or pay any Distribution
---------------------------
(whether in cash or property or obligations of a Borrower or any Subsidiary
thereof) in respect of any Borrower or any Subsidiary thereof, except (a) any
Wholly-Owned Subsidiary may declare and pay dividends to a Borrower; provided
--------
that, if a Default shall exist and be continuing, no U.S. Dollar Borrower may
----
declare or pay any dividends to VWR Canada and (b) VWR may issue common stock or
Subordinated Debt of VWR pursuant to the terms of the instruments evidencing the
Subordinated Debt.
9.7 Transactions with Affiliates. Except as expressly permitted in
----------------------------
this Agreement, directly or indirectly enter into any transaction or arrangement
whatsoever (including without limitations any purchase, sale, lease or exchange
of property or the rendering of any service) or make any payment to or otherwise
deal with any Affiliate, except, (a) as to all of the foregoing in the ordinary
course of and pursuant to the reasonable requirements of such Borrower's and its
Subsidiaries' business and upon fair and reasonable terms no less favorable to
such Borrower or such Subsidiary, as the case may be, than would be obtained in
a comparable arm's length transaction with a Person not an Affiliate and (b) VWR
may transfer assets to E. Merck, Darmstadt, Germany or one of its Affiliates to
the extent permitted by subsection 9.5(f). Notwithstanding anything to the
contrary contained herein or otherwise limiting the provisions
92
hereof, it is understood and agreed that so long as a Default shall exist and be
continuing, no U.S. Dollar Borrower may transfer any inventory or other assets
to VWR Canada except in the ordinary course of business and for cash
consideration.
9.8 Sale and Leaseback. Enter into any arrangement with any Person
------------------
providing for the leasing by such Borrower or any Subsidiary thereof of real or
personal property which has been or is to be sold or transferred by such
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations thereof.
9.9 Landlord Waivers. Permit more than 10% in U.S. Dollar Equivalent
----------------
amount of all of Borrowers' Eligible Inventory to be maintained at locations
which (a) are not owned free and clear of any mortgage or other Lien, except any
Lien in favor of the Administrative Agent for the benefit of the Banks; or (b)
are leased by a Borrower from the owner of such facility unless such owner has
executed a landlord waiver and consent in form and substance satisfactory to the
Administrative Agent.
9.10 Limitation on Contingent Obligations. Create, incur, assume or
------------------------------------
suffer to exist any Contingent Obligation except:
(a) guarantees made in the ordinary course of its business by any
of the Borrowers or its Subsidiaries of obligations of any of their
Subsidiaries, provided those obligations are otherwise permitted under this
--------
Agreement;
(b) Contingent Obligations described on Schedule VII, including
those letters of credit in an aggregate drawable amount not in excess of
$2,000,000 assumed by one or more of the Borrowers pursuant to the Baxter
Acquisition;
(c) Contingent Obligations incurred after the date hereof in an
aggregate amount not to exceed $3,000,000 at any one time outstanding;
(d) the Letters of Credit; and
(e) the U.S. Dollar Borrowers Guarantee.
9.11 Limitation on Investments, Loans and Advances. Purchase, hold
---------------------------------------------
or acquire beneficially any stock, other securities or evidences of indebtedness
of, make or permit to exist any loans or advances to, or make or permit to exist
any investment or acquire any interest whatsoever in, any other Person, except:
93
(a) extensions of trade credit to customers in the ordinary
course of business;
(b) Permitted Investments;
(c) loans to officers of the Borrowers in an aggregate principal
amount outstanding at any time not to exceed $500,000;
(d) loans and advances to employees of the Borrowers or their
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business in an aggregate amount for the Borrowers and their
Subsidiaries not to exceed $5,000,000 at any one time outstanding;
(e) Capital Stock of any Subsidiary; provided that such Capital
-------- ----
Stock is pledged to the Administrative Agent for the benefit of the Banks
pursuant to a Pledge Agreement (other than Capital Stock of a foreign
Subsidiary, in respect of which only 65% of such Stock need be pledged to the
Administrative Agent); and
(f) loans and advances by a Borrower to another Borrower;
provided that, if a Default shall exist and be continuing, no U.S. Dollar
-------- ----
Borrower may make any loan or advance to VWR Canada.
9.12 Limitation on Optional Payments and Modifications of Debt
---------------------------------------------------------
Instruments. Make any optional payment or prepayment on or redemption,
-----------
defeasance or purchase of any Indebtedness (other than Indebtedness under this
Agreement), including, without limitation, the Subordinated Debt, or amend,
modify or change, or consent or agree to any amendment, modification or change
to any of the terms (a) of the Subordinated Debt or (b) relating to the payment
or prepayment of principal of or interest on, any Indebtedness (other than
Indebtedness under this Agreement), other than any amendment, modification or
change which would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon.
9.13 Limitation on Negative Pledge Clauses. Enter into any agreement
-------------------------------------
with any Person other than the Banks which prohibits or limits the ability of
any Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its properties, assets or revenues, whether now owned
or hereafter acquired; provided that a Borrower may enter into such an agreement
--------
in connection with any Lien permitted by subsection 9.2(h) of this Agreement,
when such prohibition or limitation is by its terms effective only against the
assets subject to such Lien.
94
9.14 Fiscal Year. Permit the fiscal year of a Borrower to end on a
-----------
day other than December 31.
9.15 Limitation on Conduct of Business. Enter into any business
---------------------------------
either directly or through any Subsidiary except for businesses in which the
Borrowers and their Subsidiaries are engaged on the date of this Agreement and
any business directly related to such existing businesses.
SECTION 10. EVENTS OF DEFAULT
10.1 Events of Default. If any of the following events shall occur
-----------------
and be continuing:
(a) A Borrower shall fail to pay any principal of any Note or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or a Borrower shall fail to pay any interest on any Note, or any other
amount payable hereunder or thereunder (including without limitation any fees),
within three days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by a
Borrower herein or in any other Loan Document or which is contained in any
certificate or financial statement furnished at any time under or in connection
with this Agreement shall prove to have been incorrect or misleading in any
material respect on or as of the date made or deemed made; or
(c) A Borrower shall default in the observance or performance of
any agreement contained in Section 9 of this Agreement; or
(d) A Borrower shall default in the observance or performance of
any other agreement contained in this Agreement (other than as provided in
subsection (a) through (c) above) or any other Loan Documents, and such default
shall continue unremedied for a period of 30 days; or
(e) A Borrower or any Subsidiary thereof shall (i) default in the
payment of any principal of or interest on or any other amount payable on any
Indebtedness (other than the Notes) or in the payment of any Contingent
Obligation, beyond the period of grace (not to exceed 30 days), if any, provided
in the instrument or agreement under which such Indebtedness or Contingent
Obligation was created and the aggregate amount of such Indebtedness and/or
Contingent Obligations in respect of which such default or defaults shall have
occurred is at least $3,000,000; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
95
Indebtedness or Contingent Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Contingent Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
and payable prior to its stated maturity or such Contingent Obligation to become
payable; or
(f) (i) A Borrower or any Subsidiary thereof shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or a Borrower or any of
its Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against a Borrower or any of its
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against a
Borrower or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged,
satisfied, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) a Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) a Borrower
or any of its Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they generally become due;
or
(g) One or more judgments or decrees shall be entered against a
Borrower or any of its Subsidiaries involving in the aggregate a liability
(excluding any such judgments or orders which are fully covered by insurance,
subject to any customary deductible, and under which the applicable insurance
carrier has acknowledged such full coverage in writing) of $1,000,000 or more
and all such judgments or decrees shall not have been vacated, discharged,
settled, satisfied or paid, or
96
stayed or bonded pending appeal, within 60 days from the entry thereof; or
(h) Any Change in Control shall occur, or
(i) Either (i) in the first twelve month period after the
Closing Date, there shall not be a period of at least 30 consecutive days in
which the Available Commitments of the Banks is at least $20,000,000 or (ii) in
each twelve-month period thereafter, there shall not be a period of at least 30
consecutive days in which the Available Commitments of the Banks is at least
$30,000,000; or
(j) A Borrower or any Subsidiary thereof shall fail to (i) comply
with or require compliance by all tenants and, to the extent possible, all
subtenants, if any, with all Environmental Laws or obtain and comply with and
maintain, or require that all tenants and, to the extent possible, all
subtenants, obtain and comply with and maintain, any and all licenses,
approvals, registrations or permits required by Environmental Laws except to the
extent that failure to so comply or obtain or maintain such documents could not
reasonably be expected to have a Material Adverse Effect; or (ii) comply with
all lawful and binding orders and directives of all Governmental Authorities
respecting Environmental Laws except to the extent that failure to so comply
could not reasonably be expected to have a Material Adverse Effect; or
(k) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any Lien
in favor of the PBGC or a Plan shall arise on the assets of VWR or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) VWR or any
Commonly Controlled Entity shall, or in the reasonable opinion of the Required
Banks is likely to, incur any liability in connection with a withdrawal from, or
the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist in regard to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all other
such events or conditions, if
97
any, could reasonably be expected to have a Material Adverse Effect; or
(l) VWR shall cease to own, directly or indirectly, one-hundred
percent (100%) of the legal and beneficial ownership of VWR Canada, Scientific
Holdings or VWR International; or
(m) Any Security Document shall, at any time, cease to be in full
force and effect (unless released by the Administrative Agent) or shall be
declared null and void, or the validity or enforceability thereof shall be
contested by any Borrower or the Administrative Agent shall not have or shall
cease to have valid, perfected security interests in the collateral subject
thereto, subject to no other liens whatsoever, except as provided in Schedule IV
attached hereto or as permitted by subsection 9.2; or
(n) Any other event shall have occurred which could reasonably be
expected to have a Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to a Borrower
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) and the Notes shall automatically and immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Banks, the Administrative Agent may, or upon the written request of
the Required Banks, the Administrative Agent shall, by notice to VWR declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Banks, the
Administrative Agent may, or upon the written request of the Required Banks, the
Administrative Agent shall, by notice of default to VWR, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
subsection 10.1, the Borrowers shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the L/C
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Coverage Requirement for each such Letter of Credit. The Borrowers hereby grant
to the Administrative Agent, for the benefit of the Issuing Bank and the L/C
Participants, a security interest in such cash collateral to secure all
obligations of the Borrowers under this Agreement and the other Loan Documents.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the Notes. After all such
Letters of Credit shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other obligations of the Borrowers
hereunder and under the Notes shall have been paid in full, the balance, if any,
in such cash collateral account shall be returned to VWR or as otherwise
directed by a court of competent jurisdiction. The Borrowers shall execute and
deliver to the Administrative Agent, for the account of the Issuing Bank and the
L/C Participants, such further documents and instruments as the Administrative
Agent may request to evidence the creation and perfection of the within security
interest in such cash collateral account. Except as expressly provided above in
this Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
10.2 Priority of Application of Proceeds.
-----------------------------------
(a) All Collateral shall be held or administered by the
Administrative Agent for the ratable benefit of the Banks; provided that, any
-------- ----
Collateral under the Canadian Security Documents shall be held or administered
for the sole benefit of the Canadian Funding Banks.
(b) Notwithstanding any provision herein to the contrary or in
the other Loan Documents, any proceeds received by the Administrative Agent from
any payment made by VWR Canada under this Agreement or the other Loan Documents
after an Event of Default has occurred and during the continuance thereof or
received by the Administrative Agent from the foreclosure, sale, lease,
collection upon, realization of or other disposition of any Collateral under the
Canadian Security Documents after an Event of Default has occurred and during
the continuance thereof (including without limitation insurance proceeds) shall
be applied by the Administrative Agent as follows, unless otherwise agreed by
all the Banks:
(i) FIRST, to the payment of all costs and expenses of the
Administrative Agent incurred in connection with the collection of such proceeds
or the protection or
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administration of the rights and interests of the Canadian Funding Banks
therein, until such amounts are paid in full;
(ii) SECOND, to accrued and unpaid interest on the Canadian
Dollar Loans (ratably according to the respective amounts outstanding);
(iii) THIRD, to fees payable under this Agreement and the
other Loan Documents with respect to the Canadian Dollar Loans (ratably
according to the respective amounts then outstanding);
(iv) FOURTH, to the principal amount of the Canadian Dollar
Loans then outstanding (ratably according to the respective amounts then
outstanding);
(v) FIFTH, to the ratable payment of any other obligations
owed by VWR Canada to the Agents or the Banks until such amounts are paid in
full (ratably according to the respective amounts then outstanding); and
(vi) SIXTH, the balance, if any, shall be paid to VWR Canada
or as a court of competent jurisdiction may direct.
(c) Notwithstanding any provision herein to the contrary (other
than paragraphs (b) and (d) of this subsection 10.2) or in the other Loan
Documents, any proceeds received by the Administrative Agent from any payment
made by the U.S. Dollar Borrowers or any of them under this Agreement or the
other Loan Documents after an Event of Default has occurred and during the
continuance thereof or received by the Administrative Agent from the
foreclosure, sale, lease, collection upon, realization of or other disposition
of any Collateral after an Event of Default has occurred and during the
continuance thereof (including without limitation insurance proceeds), except in
each case to the extent such amounts are to be applied pursuant to the
provisions of clause (b) above, shall be applied by the Administrative Agent as
follows, unless otherwise agreed by all the Banks:
(i) FIRST, to the payment of all costs and expenses of the
Administrative Agent incurred in connection with the collection of such proceeds
or the protection or administration of the rights and interests of the Banks
therein, until such amounts are paid in full;
(ii) SECOND, to accrued and unpaid interest on the Loans, the
Reimbursement Obligations and the obligations of the Borrower(s) under the
Interest Rate Protection Agreements (ratably according to the respective amounts
then outstanding);
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(iii) THIRD, to fees payable under this Agreement, the other
Loan Documents and the Interest Rate Protection Agreements (ratably according to
the respective amounts then outstanding);
(iv) FOURTH, (i) to the principal amount of the Loans then
outstanding, (ii) to the Reimbursement Obligations then outstanding, (iii) to
the principal or similar amount then due under the Interest Rate Protection
Agreements and (iv) by deposit in a cash collateral account maintained by the
Issuing Bank, to satisfy the L/C Coverage Requirement with respect to all
outstanding Letters of Credit (ratably according to the respective amounts then
outstanding);
(v) FIFTH, to the ratable payment of any other obligations
owed to the Agents and the Banks until such amounts are paid in full (ratably
according to the respective amounts then outstanding); and
(vi) SIXTH, the balance, if any, shall be paid to VWR or as a
court of competent jurisdiction may direct.
(d) Notwithstanding anything to the contrary contained in this
subsection 10.2 (i) if any payments are to be made under paragraphs (b) and (c)
at the same time, the payments under clause (b) shall be made first and (ii) any
payments that are to be made to the Canadian Funding Banks pursuant to
subsection 10.2(c) shall be held in escrow by the Administrative Agent in an
interest bearing account for a period of one year from the date of receipt and
shall not be credited against the Canadian Dollar Loans until actually
distributed to the Canadian Funding Banks pursuant to the next sentence hereof,
and then only to the extent so distributed to the Canadian Funding Banks. Any
amounts held in escrow by the Administrative Agent pursuant to the preceding
sentence shall, at the end of such one year period, be distributed among the
Canadian Funding Banks and the U.S. Dollar Banks in such amounts so that from
and after the occurrence of the Event of Default that triggered the application
of this subsection 10.2 through the date of and after giving effect to such
distribution and all other distributions theretofore made to the Banks pursuant
to subsections 10.2(b) and (c), each Bank shall have received the same
percentage payment on the principal of and accrued and unpaid interest on its
Loans outstanding on the date of such Event of Default. Any amounts that (i) are
distributed to the Canadian Funding Banks pursuant to this clause (d) shall be
applied by the Canadian Funding Banks in the order set forth in clauses (ii)
through (v) of subsection 10.2(b) and (ii) are distributed to the U.S. Dollar
Banks pursuant to this clause (d) shall be applied by the U.S. Dollar Banks in
the order set forth in clauses (ii) through (v) of subsection 10.2(c).
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(e) If the Banks shall be exercising their remedies under the
Security Documents, the Canadian Funding Banks shall use diligent efforts to
exercise their remedies under the Canadian Security Documents, unless the
Required Banks otherwise consent.
10.3 Turnover of Proceeds. Each Bank agrees that (a) if at any time
--------------------
it shall receive the proceeds of any collateral or any proceeds thereof pursuant
to the terms of the Security Documents or (b) if after an Event of Default shall
have occurred and be continuing it shall receive any payment on account of the
Loans, the L/C Obligations or any other amounts owing hereunder, under the other
Loan Documents or the Interest Rate Protection Agreements (other than through
application by the Administrative Agent in accordance with subsection 10.2), it
shall promptly turn the same over to the Administrative Agent for application in
accordance with the terms of subsection 10.2.
SECTION 11. THE AGENTS
11.1 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints CoreStates as the Administrative Agent of such Bank under this
Agreement and the other Loan Documents, and each such Bank irrevocably
authorizes CoreStates, as the Administrative Agent for such Bank, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement and the other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein or
therein, or any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement and the other Loan Documents or otherwise exist against the
Administrative Agent. CoreStates agrees to act as the Administrative Agent on
behalf of the Banks to the extent provided in this Agreement and the other Loan
Documents.
11.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to engage and pay for the
advice and services of counsel concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible to the Banks for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
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11.3 Exculpatory Provisions. Neither any of the Agents nor any of
----------------------
their officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or the other Loan
Documents (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by a Borrower or any
officer thereof contained in this Agreement, the other Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by such Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, the Notes or the other Loan Documents or for any failure of the
Borrowers (or any of them) to perform their obligations hereunder or thereunder.
The Agents shall not be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or the other Loan Documents, or to inspect
the properties, books or records of the Borrowers (or any of them).
11.4 Reliance by Agents. Each of the Agents shall be entitled to
------------------
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to one or
more of the Borrowers), independent accountants and other experts selected by
such Agent. The Administrative Agent may deem and treat the payee of any Note
as the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement or the other Loan Documents unless it
shall first receive such advice or concurrence of the Required Banks as it deems
appropriate or it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement, the Notes or the other Loan Documents in accordance with a
request of the Required Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Banks and all future
holders of the Notes.
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11.5 Notice of Default. The Administrative Agent shall not be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Bank or a Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice thereof
to the Banks. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Banks; provided that unless and until the Administrative Agent shall have
--------
received such directions, it may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
11.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
-------------------------------------
acknowledges that neither any Agent nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of the Borrowers, shall be deemed to
constitute any representation or warranty by any Agent to any Bank. Each Bank
represents to the Agents that it has, independently and without reliance upon
the Agents or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrowers and made its own decision to make its Loans
hereunder and enter into this Agreement and each other Loan Document to which it
is a party. Each Bank also represents that it will, independently and without
reliance upon any Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by an Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrowers which may come into
the possession of such Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
104
11.7 Indemnification. The Banks agree to indemnify each of the
---------------
Agents in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation, if any, of the Borrowers to do so) in U.S.
Dollars, ratably according to their respective Total Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of this Agreement, the
other Loan Documents, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent under or in connection with any of the foregoing;
provided that no Bank shall be liable for the payment of any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from such Agent's gross
negligence or willful misconduct. The agreements in this Section 11.7 shall
survive the payment of the Notes and all other amounts payable hereunder.
11.8 Agents in Their Individual Capacities. Each Agent and its
-------------------------------------
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrowers (or any of them) as though such Agent were
not an Agent hereunder. With respect to its Loans made or renewed by it and any
Note issued to it and with respect to any Letter of Credit issued or
participated in by it, such Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Bank and may exercise the
same as though it were not an Agent, and the terms "Bank" and "Banks" shall
include the Agent in its individual capacity.
11.9 Successor Administrative Agent. The Administrative Agent (a)
------------------------------
may resign as Administrative Agent hereunder and under the other Loan Documents
upon 30 days' notice to the Banks and VWR and (b) shall promptly resign upon the
written request of the Required Banks. If the Administrative Agent shall
resign, then the Required Banks shall appoint from among the Banks a successor
Administrative Agent for the Banks, which appointment shall be subject to the
approval of VWR (which approval shall not be unreasonably withheld), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent effective upon its appointment and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or the other Loan
Documents or any holders of the Notes. After any retiring
105
Administrative Agent's resignation, the provisions of this Subsection 11.9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
11.10 Beneficiaries. Except as expressly provided herein, the
-------------
provisions of this Section 11 are solely for the benefit of the Agents and the
Banks, and the Borrowers shall not have any rights to rely on or enforce any of
the provisions hereof. In performing its functions and duties under this
Agreement and the other Loan Documents, the Administrative Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for the
Borrowers.
11.11 Co-Agents, Arranger and Lead Manager. The Co-Agents, the
------------------------------------
Arranger and the Lead Manager, in such respective capacities, shall have no
duties or responsibilities under this Agreement or the other Loan Documents, but
shall nevertheless be entitled to all of the indemnities and other protections
afforded to the Administrative Agent under this Section 11.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. Neither this Agreement, any Note any
----------------------
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. With the written consent of the Required Banks, the Administrative
Agent and the Borrowers may, from time to time, enter into written amendments
(including letter amendments), supplements or modifications hereto and to the
Notes and the other Loan Documents for the purpose of adding any provisions to
this Agreement, the Notes or any other Loan Document or changing in any manner
the rights of the Banks or of the Borrowers hereunder or thereunder or waiving,
on such terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of this Agreement, the Notes or any other
Loan Document or any Default or Event of Default and its consequences; provided,
--------
however, that no such waiver and no such amendment, supplement or modification
-------
shall directly or indirectly (a) reduce the amount or extend the maturity of any
Note or any installment thereof, or reduce the rate of interest or extend the
time of payment of interest thereon, or reduce any fee payable to any Bank
hereunder or extend the period for payment thereof, or change the duration or
the amount of any Bank's Commitment, or amend, modify or waive any provision of
this subsection or reduce the percentage specified in the definition of Required
Banks, or consent to the assignment or transfer by the Borrowers of any of their
rights and obligations under this Agreement, the Notes and the other Loan
Documents, or
106
release all or substantially all of the collateral subject to any Security
Documents in each case without the written consent of all the Banks, or (b)
amend, modify or waive any provision of Section 11 without the written consent
of the then Agents. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Borrowers, the Banks, the Agents and all future holders of the Notes. In the
case of any waiver, the Borrowers, the Banks and the Agents shall be restored to
their former position and rights hereunder and under the outstanding Notes, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
12.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex confirmed in writing), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or three days after being deposited in the mail, postage
prepaid, or the next Business Day if sent by reputable overnight courier,
postage prepaid, for delivery on the next Business Day, or, in the case of
telecopy notice, when received during normal business hours, or, in the case of
telegraphic notice, when delivered to the telegraph company, or, in the case of
telex notice, when sent, answerback received, addressed as follows in the case
of the Borrowers, the Administrative Agent or BOA Canada, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
The Borrowers c/o VWR Corporation
or any of them: 0000 Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx,
Vice President of Finance
and Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to: Drinker Xxxxxx & Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esquire
Telecopy: 000-000-0000
(provided that failure to send a copy of any notice to
said counsel shall in no way affect, limit or
invalidate any notice sent to the Borrowers or the
107
exercise of any of the Administrative Agent's or the
Banks' rights or remedies pursuant to a notice sent to
the Borrowers.)
The Administrative CoreStates Bank, N.A.
Agent: 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
FC 1-8-3-10
Attention: Xxxxx Xxxxxxxx
Senior Vice President
Telecopy: (000) 000-0000
with a copy to:
CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
FC 1-8-12-1
Attention: Xxxxx Xxxxxx
Administrative Officer
Telecopy: (000) 000-0000
BOA Canada: Bank of America Canada
0000 Xxxxxxxx Xxxxxx
Xxxxx 000, Four Bentall Centre
X.X. Xxx 00000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Xxxx X. Xxxxxxxx
Vice President
Telecopier: (000) 000-0000;
provided that (a) any notice, request or demand to or upon the Administrative
--------
Agent or the Banks pursuant to subsections 2.3, 2.5, 2.15, 2.19, 3.3, 4.3, 5.6,
5.7 and 5.14 shall not be effective until received and (b) any notice of a
Default or Event of Default hereunder shall be sent by telecopy or reputable
overnight courier.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
108
12.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Notes and the other Loan Documents.
12.5 Payment of Expenses and Taxes. Each of the Borrowers jointly
-----------------------------
and severally agrees (a) to pay or reimburse each of the Agents for all its out-
of-pocket costs and expenses incurred in connection with the Xxxxxx Acquisition
(including negotiations of the terms of the Subordinated Debt issued in
connection therewith) or in developing, preparing, negotiating and executing the
Term Sheet agreed to by the Agents and VWR on or about May 23, 1995 (the "Term
----
Sheet"), including without limitation the reasonable fees and disbursements of
-----
counsel, (b) to pay or reimburse each of the Agents for all its out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and the syndication of, this Agreement, the Notes, the other Loan
Documents and any other documents executed and delivered in connection herewith,
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
to any Agent or any consultant retained by any Agent; provided that, the maximum
-------- ----
amount that the Borrowers shall be responsible for under clauses (a) and (b)
shall be $300,000 in the aggregate, (c) to pay or reimburse the Agents for all
their out-of-pocket costs and expenses incurred in connection with any
amendment, supplement or modification to this Agreement, the Notes and the other
Loan Documents and any other documents executed and delivered in connection
therewith, including without limitation, the reasonable fees and disbursements
of counsel, (d) pay or reimburse each Bank and each Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes, the other Loan Documents and any such
other documents, including, without limitation, reasonable fees and
disbursements of counsel to an Agent and to the several Banks, (e) to pay,
indemnify, and hold each Bank and the Agents harmless from, any and all
recording and filing fees (except those recording and filings specifically
referred to in subsection 7.1, which are included in clauses (a) and (b) above
for purposes of the $300,000 cap referred to above) and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any (other than Taxes expressly excluded from the definition of Taxes
in subsection 5.10) which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes, the
other Loan Documents and any such other documents, and (f) to pay, indemnify,
and hold each Bank
109
and each Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the Notes, the other Loan Documents and any such other documents (all
the foregoing, collectively, the "indemnified liabilities"), provided, that the
----------------------- --------
Borrowers shall have no obligation hereunder to any Agent or any Bank with
respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of such person or (ii) legal proceedings commenced against
such person by any other Bank; provided that, it is understood and agreed that
-------- ----
the term "indemnified liabilities" shall not include the out-of-pocket costs and
expenses incurred by the Agents in developing, preparing, negotiating and
executing the Term Sheet or this Agreement and the other Loan Documents. The
agreements in this subsection shall survive repayment of the Notes and all other
amounts payable hereunder. All references in this subsection to attorneys fees
shall include the allocable costs of in-house legal services of any Agent.
12.6 Successors and Assigns. (a) Whenever in this Agreement any of
----------------------
the parties hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party; and all covenants, promises and
agreements by or on behalf of a Borrower, the Administrative Agent, the Co-
Agents or the Banks that are contained in this Agreement shall bind and inure to
the benefit of their respective successors and assigns. The Borrowers may not
assign or transfer any of their rights or obligations under this Agreement or
the other Loan Documents without the prior written consent of each Bank.
(b) Each Bank may, in accordance with applicable law, sell to any
Bank or Affiliate thereof and, with the consent of VWR (which consent shall not
be unreasonably withheld) and the Administrative Agent, to one or more banks or
other financial institutions (each, a "Purchasing Bank") all or any part of its
---------------
interests, rights and obligations under this Agreement, the Notes and the other
Loan Documents (including all or a portion of its Commitment and the Loans at
the time owing to it and the Notes held by it); provided, however, that (i) so
-------- -------
long as the Commitments are then in effect, such assignment shall be in an
amount not less than $10,000,000 (or such lesser amount as VWR and the
Administrative Agent shall agree in their sole discretion), (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent and
VWR for its acceptance and recording in the Register an Assignment and
Acceptance, together with the Note or Notes subject to such assignment and a
processing and recordation fee of $3,000 and (iii) CoreStates may not assign in
whole or in part its Swing Line Commitment without the prior written consent of
VWR. Upon
110
acceptance and recording pursuant to paragraph (e) of this subsection 12.6, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof,
(A) such Purchasing Bank shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Bank under this Agreement and (B) the assigning Bank thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement and the other Loan Documents,
such Bank shall cease to be a party hereto but shall continue to be entitled to
the benefits of subsections 5.9, 5.10 and 5.11 (to the extent that such Bank's
entitlement to such benefits arose out of such Bank's position as a Bank prior
to the applicable assignment), as well as to any Commitment Fees accrued for its
account and not yet paid). Such Assignment and Acceptance shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to reflect
the addition of such Purchasing Bank and the resulting amounts and percentages
held by the Banks arising from the purchase by such Purchasing Bank of all or a
portion of the rights and obligations of such assigning Bank under this
Agreement, the Notes and the other Loan Documents. Notwithstanding any provision
of this subsection 12.6, the consent of VWR shall not be required for any
assignment which occurs at any time when any of the events described in
subsection 10(f) shall have occurred and be continuing.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the Purchasing Bank thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Bank warrants that it is the legal and beneficial owner of
the interest being assigned thereby, free and clear of any adverse claim and
that its Commitment, and the outstanding balances of its Loans and L/C
Obligations, in each case without giving effect to assignments thereof which
have not become effective, are as set forth in such Assignment and Acceptance,
(ii) except as set forth in (i) above, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the other Loan Documents, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the other
Loan Documents or any other
111
instrument or document furnished pursuant hereto or thereto, or the financial
condition of the Borrowers or any Subsidiary thereof or the performance or
observance by the Borrowers or any Subsidiary thereof of any of its obligations
under this Agreement or the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such Purchasing Bank confirms that it has received a copy of
this Agreement, together with copies of the most recent financial statements
delivered pursuant to subsection 8.1 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such Purchasing Bank will independently
and without reliance upon the Administrative Agent, such assigning Bank or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents; (vi) such
Purchasing Bank appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto; and (vii) such Purchasing Bank agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement and the other Loan Documents are required to be performed by it as a
Bank including, (A) if it is becoming a U.S. Dollar Bank and is organized under
the laws of a jurisdiction outside the United States, its obligation pursuant to
subsection 5.10 to deliver the forms prescribed by the Internal Revenue Service
of the United States certifying as to the Purchasing Bank's exemption from
United States withholding taxes with respect to all payments to be made to the
Purchasing Bank under this Agreement, and (B) if it is becoming a Canadian
Funding Bank, its obligations under subsection 5.10(c) to provide information
regarding its status for Canadian withholding tax purposes.
(d) The Administrative Agent shall maintain at its offices in
Philadelphia, Pennsylvania a copy of each Assignment and Acceptance and the
names and addresses of the Banks, and the Commitment of, and principal amount of
the Loans and L/C Obligations owing to, each Bank pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
--------
conclusive in the absence of manifest error and the Borrowers, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers and any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and a Purchasing Bank (and in the case
of a Purchasing Bank that is not
112
then a Bank or an Affiliate thereof, by VWR and the Administrative Agent)
together with the Note or Notes subject to such assignment and the processing
and recordation fee referred to in paragraph (b) above, the Administrative Agent
shall promptly (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give notice thereof to
the Banks. Within five Business Days after receipt of notice, the Borrowers, at
their own expense, shall execute and deliver to the Administrative Agent, in
exchange for the surrender of the original Note(s) (A) (x) with respect to an
assignment of the Term Loan of any U.S. Dollar Bank, a new Term Note to the
order of the Purchasing Bank in an amount equal to the Term Loan purchased, (y)
with respect to an assignee of Revolving Credit Loans, a new Revolving Credit
Note to the order of such Purchasing Bank in an amount equal to the Revolving
Credit Commitment assumed and (z) with respect to the assignee of Canadian
Dollar Loans, a new Canadian Dollar Note to the order of such Purchasing Bank in
an amount equal to the Canadian Dollar Commitment assumed by such Purchasing
Bank and (B) if the assigning Bank has retained a Commitment or a portion of the
Term Loans, a new Term Note, Revolving Credit Note and/or Canadian Dollar Note
to the order of such assignor in the respective amount equal to the Term Loan
retained by it, the Revolving Credit Commitment retained by it and/or the
Canadian Dollar Commitment retained by it, as the case may be. Such new Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note(s); such new Notes shall be dated the date of
the surrendered Notes which they replace and shall otherwise be in substantially
the form of Exhibit X-0, X-0 or A-3 hereto, as appropriate. Canceled Notes shall
be returned to VWR.
(f) Each Bank may without the consent of VWR or the
Administrative Agent (except to the extent provided below) sell participations
to one or more banks or other entities (each a "Participant") in any Loan owing
to such Bank, any Note held by such Bank, any Commitment of such Bank or any
other interest of such Bank hereunder and under the other Loan Documents,
provided, however, that (i) such Bank's obligations under this Agreement to the
-------- -------
other parties to this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Bank shall remain the holder of any such Note for
all purposes under this Agreement and the other Loan Documents, (iv) the
Borrowers, the Banks and the Administrative Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Loan Documents, (v) in any
proceeding under the Bankruptcy Code the Bank shall be, to the extent permitted
by law, the sole representative with respect to the obligations held in the name
of such Bank, whether for its own account or for the account of
113
any Participant, (vi) such Bank shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any
provision of this Agreement or the Note or Notes held by such Bank or any other
Loan Document, other than any such amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has an interest that
forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, postpones any date fixed
for any regularly scheduled payment of principal of, or interest or fees on, any
such Loan, releases any guarantor of such Loan or releases all or substantially
all of collateral, if any, securing any such Loan.
(g) If amounts outstanding under this Agreement and the Notes
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Bank under
this Agreement or any Note, provided that in purchasing such participation such
--------
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 12.8. The Borrowers also agree that
each Participant shall be entitled to the benefits of subsections 5,9, 5.10,
5.11 and 12.5 with respect to its participation in the Commitments and the Loans
outstanding from time to time; provided, that no Participant shall be entitled
--------
to receive any greater amount pursuant to such subsections than the assigning
Bank would have been entitled to receive in respect of the amount of the
participation transferred by such assigning Bank to such Participant had no such
transfer occurred.
(h) If any Participant of a U.S. Dollar Bank is organized under
the laws of any jurisdiction other than the United States or any state thereof,
the assigning Bank, concurrently with the sale of a participating interest to
such Participant, shall cause such Participant (i) to represent to the assigning
Bank (for the benefit of the assigning Bank, the other Banks, the Administrative
Agent and the Borrowers) that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the Borrowers or the
assigning Bank with respect to any payments to be made to such Participant in
respect of its participation in the Loans and (ii) to agree (for the benefit of
the assigning Bank, the other Banks, the Administrative Agent and the Borrowers)
that it will deliver the tax forms and other documents required to be delivered
pursuant to paragraph 5.10(b) and comply from time to time with all applicable
U.S. laws and regulations with respect to withholding tax exemptions. In the
case of an assigning Bank which is a Canadian Funding Bank, the assigning Bank,
114
concurrently with the sale of a participating interest to such Participant,
shall cause such Participant (i) to represent to the assigning Bank (for the
benefit of the assigning Bank, the Administrative Agent and VWR Canada) that it
is not a non-resident of Canada for the purposes of Part XIII of the Income Tax
Act (Canada) and that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the assigning Bank or VWR
Canada with respect to any payments to be made to such Participant in respect of
its participation in the Loans and (ii) to agree (for the benefit of the
assigning Bank, the Administrative Agent and VWR Canada) that it will comply
with subsection 5.10(c) and comply from time to time with all applicable
Canadian laws and legislation and the administrative practice of Revenue Canada
with respect to Canadian withholding taxes.
(i) Any Bank may at any time assign all or any portion of its
rights under this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release a Bank from any of its
--------
obligations hereunder.
12.7 Disclosure of Information. The Borrowers authorize each Bank to
-------------------------
disclose to any Participant or Purchasing Bank and any prospective Participant
or Purchasing Bank any and all information relating to the Borrowers and their
Affiliates which has been furnished to such Bank by or on behalf of the
Borrowers; provided that, each Bank agrees to cause each of its Participants or
-------- ----
potential Participants to agree in favor of VWR and such Bank to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information provided to it by such Bank in connection with this Agreement;
provided however, that any such agreement may allow such Participant or
-------- -------
potential Participant to disclose such information (a) at the request of any
bank regulatory authority or in connection with an examination of such
Participant or potential Participant by any such bank regulatory authority, (b)
pursuant to subpoena or other court process, (c) when required to do so in
accordance with the provisions of any applicable law, (d) at the direction of
any other agency of any State of the United States or of any other jurisdiction
in which such Bank conducts its business, or (e) to such Participant's or
potential Participant's independent auditors and other professional advisors;
provided, further, that no Bank shall be required to take any actions to enforce
-------- -------
or monitor any such agreements with its Participants or potential Participants
or be responsible for any breaches thereof.
12.8 Adjustments; Set-off. (a) Subject to subsection 10.2, if any
--------------------
Bank (a "benefitted Bank") shall at any time receive any payment of all or part
---------------
of its Loans or the Reimbursement Obligation owing to it, or interest thereon,
or receive any
115
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in subsection 10(f),
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Bank, if any, in respect of such other Bank's Loans or the
Reimbursement Obligation owing to it, or interest thereon, such benefitted Bank
shall purchase for cash from the other Banks such portion of each such other
Bank's Loan or the Reimbursement Obligation owing to it, or shall provide such
other Banks with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Bank to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Banks;
provided, however, that if all or any portion of such excess payment or benefits
-------- -------
is thereafter recovered from such benefitted Bank, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. Each of the Borrowers, jointly and severally
agrees that each Bank so purchasing a portion of another Bank's Loan or
Reimbursement Obligation may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion.
(b) Notwithstanding anything to the contrary contained herein, it
is understood and agreed that (i) no U.S. Dollar Bank shall be required to buy
any participation or purchase any interest in any Canadian Dollar Loans and (ii)
no Canadian Dollar Bank shall be required to buy any participation or purchase
any interest in any Revolving Credit Loans, Term Loans or Swing Line Loans or
any Reimbursement Obligation; except to the extent, in each case, that a U.S.
Dollar Bank is also a Canadian Dollar Bank or a Canadian Dollar Bank is also a
U.S. Dollar Bank.
(c) In addition to any rights and remedies of the Banks provided
by law, upon the occurrence and during the continuance of an Event of Default,
each Bank shall have the right, without prior notice to the Borrowers (or any of
them), any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrowers hereunder or under the Notes (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Bank to or for the
credit or the account of one or more Borrowers. Each Bank agrees promptly to
notify VWR and the Administrative Agent after any such set-off and application
made
116
by such Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
12.9 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with VWR, on behalf of the Borrowers, and each of the Banks.
12.10 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.11 Power of Attorney. Each Borrower other than VWR hereby grants
-----------------
to VWR an irrevocable power of attorney to act as its attorney-in-fact with
regard to all matters relating to this Agreement, the Applications and each
other Loan Document, including, without limitation, execution and delivery of
any Notice of Borrowing, and amendments, supplements, waivers or other
modifications hereto or thereto, receipt of any notices hereunder or thereunder
and receipt of service of process in connection herewith or therewith and making
all elections as to interest rates and interest payment dates. Each such
Borrower hereby explicitly acknowledges that the Administrative Agent and each
Bank has executed and delivered this Agreement and each other Loan document to
which it is a party, and has performed its obligations under this Agreement and
each other Loan Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection 12.11.
12.12 Judgment. (a) If for the purpose of obtaining judgment in any
--------
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligation of the Borrowers in respect of any sum due to
any Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
-----------------
sum is denominated in accordance with the applicable provisions of this
Agreement (the
117
"Agreement Currency"), be discharged only to the extent that on the Business
------------------
Day following receipt by such Bank or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in the Judgment Currency such Bank or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if the
amount of the Agreement Currency so purchased is less than the sum originally
due to such Bank or the Administrative Agent (as the case may be) in the
Agreement Currency, each Borrower jointly and severally agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to any
Bank or the Administrative Agent (as the case may be), such Bank or the
Administrative Agent (as the case may be) agrees to remit to such Borrower (as
the case may be) such excess.
12.13 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the parties hereto with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any other Agent or any Bank relative to the
subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
12.14 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
COMMONWEALTH OF PENNSYLVANIA.
12.15 Submission To Jurisdiction; Waivers. Each of the Borrowers
-----------------------------------
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or the Notes, or for recognition and
enforcement of any judgement in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the Commonwealth of Pennsylvania, the courts of
the United States of America for the Eastern District of Pennsylvania, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
118
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to VWR at its
address set forth in Section 12.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
12.16 Acknowledgements. Each of Borrowers hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement, the Notes and the other Loan Documents;
(b) neither the Administrative Agent nor any Bank has any
fiduciary relationship to the Borrowers (or any of them) and the relationship
hereunder between the Agents and Banks, on the one hand, and the Borrowers, on
the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the
Borrowers (or any of them) and the Banks.
12.17 Name Change. Each of the Banks and the Agents hereby
-----------
acknowledges that VWR has informed it that immediately after the consummation of
the Xxxxxx Acquisition, VWR will change its name to "VWR Scientific Products
Corporation" and each reference hereunder to VWR, after such consummation, will
be deemed to be a reference to VWR Scientific Products Corporation. Each of the
Banks and the Agents hereby consents to such name change.
12.18 No Right of Contribution. On and after the occurrence of an
------------------------
Event of Default hereunder, no U.S. Dollar Borrower shall seek or be entitled to
any reimbursement from any other U.S. Dollar Borrower, or be subrogated to any
rights of the Banks against the U.S. Dollar Borrowers, in respect of any
payments made pursuant to the Loan Documents, until all amounts owing to the
U.S. Dollar Banks hereunder and under the Notes and the Letters of Credit are
paid in full.
119
12.19 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
---------------------
ADMINISTRATIVE AGENT, THE CO-AGENTS, THE ARRANGER, THE LEAD MANAGER AND THE
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN
DOCUMENT AND FOR ANY MANDATORY COUNTERCLAIM THEREIN.
120
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ATTEST: VWR CORPORATION
By: __________________________ By: _________________________
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: Assistant Treasurer Title: Vice President-Finance
[CORPORATE SEAL]
ATTEST: VWR SCIENTIFIC OF CANADA LTD.
By: ______________________ By: _________________________
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary Title: Vice President-Finance
[CORPORATE SEAL]
SCIENTIFIC HOLDINGS CORP.
By: _________________________
Name: Xxxxxxx X. Xxxx
Title: Corporate Secretary
ATTEST: VWR SCIENTIFIC INTERNATIONAL
CORPORATION
By: ________________________ By: _________________________
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary Title: Vice President
[CORPORATE SEAL]
S-1
CORESTATES BANK, N.A. as
a Bank and as Administrative
Agent and Collateral Agent
By: _________________________
Name:
Title:
SEATTLE-FIRST NATIONAL BANK
as a Bank and as Lead Manager
By: _________________________
Name:
Title:
BANK OF AMERICA CANADA
By: _________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
as a Bank and as Documentation
Agent
By: _________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION as a
Bank and as Syndication Agent
By: _________________________
Name:
Title:
BA SECURITIES, INC. as Arranger
By: _________________________
Name:
Title:
S-2
THE FIRST NATIONAL BANK OF BOSTON
By: _________________________
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE, Cayman
Islands Branch
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
COMMERZBANK, A.G.
By: _________________________
Name:
Title:
DEUTSCHE BANK AG, New York Branch and/or
Cayman Islands Branch
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
DG BANK
DEUTSHE GENOSSENSCHAFTSBANK
By: _________________________
Name:
Title:
X-0
XXXXXXXX XXXX XX, Xxx Xxxx Branch and Grand
Cayman Branch
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
THE FUJI BANK, LIMITED
By: _________________________
Name:
Title:
LTCB TRUST COMPANY
By: _________________________
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By: _________________________
Name:
Title:
THE BANK OF NEW YORK
By: _________________________
Name:
Title:
X-0
XXX XXXX XX XXXX XXXXXX
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
NATIONAL BANK OF CANADA
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
S-5
NATIONAL CITY BANK
By: _________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc
By: __________________________
Name:
Title:
SOCIETE GENERALE
By: __________________________
Name:
Title:
S-6