54
EXHIBIT 4(k)
FIRST AMENDMENT
FIRST AMENDMENT, dated as of January 16, 1996, among VWR SCIENTIFIC PRODUCTS
CORPORATION (formerly known as VWR Corporation) ("VWR"), VWR SCIENTIFIC OF
CANADA LTD. ("VWR Canada"), SCIENTIFIC HOLDINGS CORP. ("Scientific Holdings"),
VWR SCIENTIFIC INTERNATIONAL CORPORATION, ("VWR International"), the several
banks and other financial institutions parties to the Credit Agreement (as
hereinafter defined) (individually a "Bank"; collectively, the "Banks"),
CORESTATES BANK, N.A., as administrative agent (in such capacity, the
"Administrative Agent"), and PNC BANK, NATIONAL ASSOCIATION, as documentation
agent.
W I T N E S S E T H:
WHEREAS, VWR, VWR Canada, Scientific Holdings, VWR International
(individually, a "Borrower"; collectively, the "Borrowers"), the Banks, the
Administrative Agent and the Documentation Agent are parties to a Credit
Agreement, dated as of September, 14, 1995 (the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Banks amend (a) the borrowing
base provisions of the Credit Agreement and (b) Schedule VII to the Credit
Agreement with respect to certain take-or-pay agreements; and
WHEREAS, the Required Banks have agreed to so amend the Credit Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined.
2. Amendments to Borrowing Base Provisions.
(a) Amendment to Subsection 2.1(a). Subsection 2.1(a) of the Credit
Agreement is hereby amended by deleting in its entirety clause (x) of such
subsection from the words "the U.S. Dollar Borrowing Base" through the words
"the Administrative Agent" and inserting in lieu thereof the following:
"(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
minus the amount, if any, by which (A) the aggregate amount of the Canadian
Dollar Exposure at such time exceeds (B) the Canadian Dollar Borrowing Base as
of the date of the most recent Canadian Dollar Borrowing Base Certificate
furnished to the Administrative Agent"
55
(b) Amendment to Subsection 2.4(a). Subsection 2.4(a) of the Credit
Agreement is hereby amended by deleting in its entirety clause (B) of such
subsection from the words "the U.S. Dollar Borrowing Base" through the words
"the Administrative Agent" and inserting in lieu thereof the following:
"(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
minus the amount, if any, by which (I) the aggregate amount of the Canadian
Dollar Exposure at such time exceeds (II) the Canadian Dollar Borrowing Base
as of the date of the most recent Canadian Dollar Borrowing Base Certificate
furnished to the Administrative Agent"
(c) Amendment to Subsection 2.13(a). Subsection 2.13(a) of the Credit
Agreement is hereby amended by deleting in its entirety clause (x) of such
subsection from the words "the U.S. Dollar Borrowing Base" through the words
"the Administrative Agent" and inserting in lieu thereof the following:
"(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 minus the amount, if any, by which (I) the aggregate amount of the
Canadian Dollar Exposure at such time exceeds (II) the Canadian Dollar
Borrowing Base as of the date of the most recent Canadian Dollar Borrowing
Base Certificate furnished to the Administrative Agent"
(d) Amendment to Subsection 4.1(a). Subsection 4.1(a) of the Credit
Agreement is hereby amended by deleting in its entirety the proviso at the end
of the first sentence in said subsection from the words "; provided that,"
through the words "Administrative Agent" and inserting in lieu thereof the
following:
"; 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 sum of (i) the aggregate amount of the Canadian
Dollar Exposure at such time, (ii) the aggregate amount of the Revolving
Credit Exposure at such time and (iii) the aggregate principal amount of the
Swing Line Loans outstanding at such time would exceed the sum of (x) the
Canadian Dollar Borrowing Base as of the date of the most recent Canadian
Dollar Borrowing Base Certificate furnished to the Administrative Agent and
(y) 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."
(e) Amendment to Subsection 4.3(a). Subsection 4.3(a) of the Credit
Agreement is hereby amended by inserting at the end of the first sentence of
the second paragraph in subsection 4.3(a) immediately after the words
"Administrative Agent" the following:
"and 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"
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(f) Amendment to Subsection 5.7(c). Subsection 5.7(c) of the Credit
Agreement is hereby amended by deleting in its entirety the last sentence of
such subsection starting with the words "If any" and ending with the words
"amount of such excess" and inserting in lieu thereof the following:
"If, at the time of delivery of a U.S. Dollar Borrowing Base
Certificate or a Canadian Dollar Borrowing Base Certificate, the sum of (i)
the aggregate amount of the Canadian Dollar Exposure at such time, (ii) the
aggregate amount of the Revolving Credit Exposure at such time and (iii) the
aggregate principal amount of the Swing Line Loans outstanding at such time
shall exceed the sum of (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 and (y) the Canadian Borrowing Base as of the date of the
most recent Canadian Dollar Borrowing Base Certificate furnished to the
Administrative Agent, the applicable Borrower(s) shall prepay the Revolving
Credit Loans, the Swing Line Loans and/or 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. 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 Dollar Loans or, if a combination thereof, the amount of each being
prepaid."
3. Amendments to Credit Agreement Regarding Take-Or-Pay Agreements.
(a) Amendment to Subsection 9.10. Subsection 9.10 of the Credit
Agreement is hereby amended by (I) inserting immediately before the phrase
"Contingent Obligations" in clause (c) thereof the word "other"; (ii)
renumbering clause (c) of that subsection as clause (e); and (iii) renumbering
clause (e) of that subsection as clause (c).
(b) Amendment to Schedule VII. Schedule VII of the Credit Agreement is
hereby amended by deleting such Schedule in its entirety and inserting in lieu
thereof a new Schedule VII a copy of which is attached to this First Amendment
as Exhibit A hereto.
4. Representations and Warranties. Each of the Borrowers hereby represents
and warrants to the Banks and the Agents that:
(a) There exists no Default or Event of Default under the Credit
Agreement as amended hereby;
(b) The representations and warranties made in the Credit Agreement are
true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof; and
(c) The execution and delivery of this First Amendment by and on behalf
of each Borrower has been duly authorized by all requisite action on behalf of
the Borrowers and this First Amendment constitutes the legal, valid and
binding obligation of each Borrower, enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
57
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
5. Effectiveness. This First Amendment shall become effective upon the
Administrative Agent receiving counterparts hereof duly executed by each
Borrower and the Required Banks. If and when this First Amendment becomes
effective, the amendments to the Credit Agreement set forth in Paragraph 3
hereof shall be deemed to have been effective on and as of the Closing Date.
6. Limited Effect. Except as expressly amended by this First Amendment, the
Credit Agreement shall continue to be, and shall remain, unaltered and in full
force and effect in accordance with its terms.
7. Release and Indemnity. Recognizing and in consideration of the Banks' and
the Administrative Agent's agreement to the amendments set forth herein, each
Borrower hereby waives and releases the Banks and the Agents and their
officers, attorneys, agents, and employees from any liability, suit, damage,
claim, loss or expense of any kind or nature whatsoever and howsoever arising
that such Borrower ever had or now has against any of them arising out of or
relating to any Bank's or any Agent's acts or omissions with respect to this
First Amendment, the Credit Agreement, the other Loan Documents or any other
matters described or referred to herein or therein. Each Borrower further
hereby agrees to indemnify and hold the Agents and the Banks and their
officers, attorneys, agents and employees harmless from any loss, damage,
judgment, liability or expense (including counsel fees) suffered by or
rendered against the Banks or the Agents or any of them on account of anything
arising out of this First Amendment, the Credit Agreement, the other Loan
Documents or any other document delivered pursuant thereto up to and including
the date hereof; provided that, no Borrower shall have any obligation
hereunder to any Bank or Agent with respect to indemnified liabilities arising
from the gross negligence or willful misconduct of such Bank or Agent.
8. Miscellaneous.
(a) Expenses. Each Borrower agrees to pay all of the Administrative
Agent's reasonable out-of-pocket expenses incurred in connection with the
preparation, negotiation and execution of this First Amendment including,
without limitation, the reasonable fees and expenses of Xxxxxxx Xxxxx Xxxxxxx
& Xxxxxxxxx.
(b) Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
(c) Successor and Assigns. The terms and provisions of this First
Amendment shall be binding upon and shall inure to the benefit of the
Borrowers, the Agents and the Banks and their respective successors and
assigns.
(d) Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of
which shall constitute one and the same instrument.
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(e) Headings. The headings of any paragraph of this First Amendment are
for convenience only and shall not be used to interpret any provision hereof.
(f) Modifications. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf
of the party against whom enforcement is sought.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ATTEST: VWR SCIENTIFIC PRODUCTS CORPORATION
By: By:
----------------------------- ------------------------------
Name: Name:
Title: Title:
ATTEST: VWR SCIENTIFIC OF CANADA LTD.
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
SCIENTIFIC HOLDINGS CORP.
By:
----------------------------
Name:
Title:
ATTEST: VWR SCIENTIFIC INTERNATIONAL
CORPORATION
By: By:
---------------------------- ----------------------------
Name: Name:
Title: Title:
CORESTATES BANK, N.A.
as a Bank and as
Administrative Agent
59
By:
----------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
as a Bank and as
Documentation Agent
By:
---------------------------
Name:
Title:
SEATTLE-FIRST NATIONAL BANK
By:
---------------------------
Name:
Title:
BANK OF AMERICA CANADA
By:
---------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
----------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By:
----------------------------
60
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE,
Cayman Islands Branch
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title
COMMERZBANK, A.G.
By:
--------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
DEUTSCHE BANK AG, New York
Branch and/or Cayman Islands
Branch
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK,
New York Branch and/or
61
Cayman Islands Branch
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
DRESDNER BANK AG, New York
Branch and Grand Cayman
Branch
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
----------------------------
Name:
Title:
62
LTCB TRUST COMPANY
By:
----------------------------
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By:
----------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-----------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
-----------------------------
Name:
Title:
By:
-----------------------------
63
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:
NATIONAL CITY BANK
By:
-----------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc
By:
-----------------------------
Name:
Title:
64
SOCIETE GENERALE
By:
-----------------------------
Name:
Title:
(..continued)
