<PAGE>1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
(x) Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (no fee required).
For the fiscal year ended December 31, 1998
-----------------
( ) Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (no fee required).
For the transition period from to
--------------- -----------
Commission file Number 0-14139
-------
VWR Scientific Products Corporation
- - ---------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Pennsylvania 91-1319190
------------ ----------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1310 Goshen Parkway, West Chester, PA 19380
- - ------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Registrants telephone number, including area code: (610) 431-1700
--------------
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
Registered
None N/A
- - ------------------- ----------------------------------
Securities registered pursuant to Section 12(g) of the Act:
Common Stock $1.00 Par Value
- - -------------------------------------------------------------------------
(Title of Class)
<PAGE>2
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve (12) months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. YES XX NO
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrants knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K.
As of February 28, 1999, the aggregate market value of the voting stock held
by non-affiliates was approximately $317 million. In calculating this value,
the Registrant has treated as voting stock held by affiliates only the voting
stock held by EM Laboratories, Inc. and its affiliates, and by the Companys
directors and executive officers. This calculation does not reflect a
determination by the Company that any or all such holders are in fact
affiliates.
As of February 28, 1999, there were 28,962,527 shares of common stock issued
and outstanding.
<PAGE>3
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the Companys definitive Proxy Statement to be mailed to
shareholders on or about April 6, 1999 are incorporated by reference into
Part III of this Form 10-K.
<PAGE>4
PART I.
ITEM I. - BUSINESS
- - ------ --------
General
- - -------
VWR Scientific Products Corporation (VWR, the Corporation, or the
Company) is a leading distributor serving the North American research
and development community. The Company distributes laboratory supplies,
chemicals and equipment to life science, educational and industrial
organizations throughout the United States and Canada. The Company also
distributes critical environment (cleanroom) supplies and apparel to
manufacturers of electronics, medical devices and pharmaceuticals and
is the largest national supplier in this industry. The Company offers a
line of more than 250,000 products from more than 2,000 manufacturers
through its network of five highly automated regional distribution
centers and over 50 smaller service centers and just-in-time (JIT)
facilities.
The Companys history extends more than 100 years, and in 1986 it became
a public company when it was spun off from Univar Corporation. VWR was
incorporated in Delaware (as VWR Corporation) on January 3, 1986, in
order to complete the Distribution Plan of Univar Corporation. In
1994, the Company changed its State of Incorporation to Pennsylvania.
In 1995, the Company changed its name from VWR Corporation to VWR
Scientific Products Corporation. The Company is 49.89% owned by
affiliates of Merck KGaA, Darmstadt, Germany.
During 1998, the Company made three acquisitions with annualized
revenues of approximately $100 million. On July 31, 1998, the Company
acquired all of the outstanding shares of The Science Kit Group of
Companies (Science Kit), a privately held supplier of science education
products to school systems and educational institutions in the United
States and Canada, for $110 million, subject to adjustment. Revenues
for Science Kit were $66 million in 1997. The Science Kit acquisition
significantly strengthened the Companys position in the science
education market. The science education market is expected to account
for approximately 8% of the Companys annualized revenues. In addition,
in 1998 the Company acquired two other companies, A.J. Reynolds Co.,
Inc. and HPC Scientific & Technology, Inc., for an aggregate purchase
price of $22.6 million. Combined fiscal year 1997 revenues for these
two companies were approximately $32 million. Both of these companies
sell primarily critical environment products.
Services
- - --------
The Company offers a comprehensive range of distribution and supply-
chain management services. These services can be tailored to meet the
diversified needs of customers ranging from single-site laboratories to
large multinational corporations, and include the following:
Distribution Services:
The Company distributes more than 250,000 brand name and private label
products through a network of five highly automated regional
distribution centers and over 50 smaller service centers and JIT
facilities. VWR uses advanced forecasting technology to manage
inventory levels to maintain high service levels to customers of all
<PAGE>5
sizes. The Company differentiates itself by the overall quality and
reliability of its distribution services as evidenced by the fact that
over 95% of orders are filled and shipped within 24 hours. In addition,
the Company employs sophisticated telephone technology to manage calls
from customers. Incoming calls are automatically routed to the call
center and customer service representative that can most efficiently
respond to the customer inquiry or order. Detailed information about
the customer is automatically provided to the customer service
representative taking the call. Call Centers are staffed from 7:00 a.m.
Eastern Standard Time to 6:00 p.m. Pacific Standard Time to support
customers varying working schedules. Ordering through the VWR website
is available 24 hours per day.
The Company customizes the delivery of products to individual customers
to meet the needs of their internal scheduling and receiving
operations. Products are palletized and delivered to specific customer
locations, buildings, individual laboratories or production lines.
Specialized labeling and bar-coding assist customers in streamlining
the receiving and stocking processes.
The Company further differentiates itself by providing superior
customer service. The Company has invested in employee training and in
building the infrastructure and systems which enable customers to
obtain information on products, place orders and track delivery
schedules. The Company offers numerous order entry options, including
direct call-in orders, faxed orders, mail orders or electronic orders,
including electronic data interface (EDI), and direct input of orders
via the Internet.
Supply-Chain Management Services:
The Company offers a full range of supply-chain management services.
These services are designed to assist customers in the administration
of their particular supply requirements, allowing them to become more
efficient, reduce costs and logistical burdens and focus on their core
businesses.
The Company provides customers with one or more of the following
products and services:
. software solutions for all aspects of on-site supply-chain
management including inventory management, demand forecasting,
procurement and replenishment;
. paperless electronic commerce solutions to integrate customer
systems with those of the Company, providing customized reporting
and order tracking (LabLogic(TM));
. storeroom management operations including deliveries, usage
tracking, order replenishment and billing by utilizing the
Companys on-site personnel and PC-based workroom management
System (StockLogic(TM)); and
. third-party purchasing of products not normally supplied by the
Company.
<PAGE>6
Some customers utilize the entire spectrum of the Companys supply-chain
services to procure, manage and supply products at the customers site.
Other customers require a less-comprehensive array of services, and the
Company has the flexibility to implement only those services needed by
the customer. The Company believes that its customers needs will
continue to evolve, and it will seek to maintain the capability to
provide whatever level of integration and service its customers may
require. The Company either incorporates the price for these services
in its product prices or charges the customer a separate fee.
The development and delivery of these and other supply-chain and cost-
management services require extensive knowledge of customer
requirements in the areas of laboratory science, the procurement
process and information technology. The Company has trained specialists
in the areas of distribution and inventory logistics, as well as a team
of business systems information technology professionals who work
directly with customers and suppliers to ensure the delivery of value
and quality. The Company has capitalized on its knowledge of customer
needs, skilled professional staff and relationships with manufacturers
to establish over 100 large partnership accounts.
Distribution Network
- - --------------------
The Companys distribution network consists of five regional
distribution centers called Customer Fulfillment Centers (CFCs) and
over 50 smaller distribution centers, service centers and JIT
facilities for customer-specific requirements. CFCs are located in
Philadelphia, Chicago, Atlanta, San Francisco and Toronto. Within these
centers are two operational units, the Call Center and the Distribution
Center. The Call Centers have responsibility for order entry and
customer service. The Distribution Centers order and receive products
from suppliers, manage inventory and fill and ship customer orders.
The Company operates several smaller, more focused facilities (Service
Centers) adjacent to selected customer locations. Service Centers are
designed to supply a limited number of products to those customers that
require higher-than-standard service levels. Most of the Service
Centers support the large critical environment customers, and several
also house cleanroom laundry and garment re-processing lines, operated
by G&K Technologies, an alliance partner of VWR. The Company also
operates JIT facilities at or near customer sites to meet customer
needs promptly.
The Companys domestic CFC operations are coordinated through a
paperless warehouse management system known as its Quality Service
System (QSS). This system provides the Company with speed, accuracy and
flexibility in shipping orders while allowing the Company to operate
the centers efficiently and economically. The QSS system uses radio-
frequency hand-held computers and bar-coded labels that identify
location, routing and inventory picking and replacement, allowing the
Company to monitor inventory and track individual customer orders
throughout its distribution system.
<PAGE>7
During 1998, as part of the implementation of a new enterprise-wide
systems upgrade, the Company developed a version of the QSS system that
uses the computerized tracking components of QSS but does not include
the automated conveyer system to route orders through the warehouse.
This QSS Lite system is intended to be used in the Companys smaller
distribution centers and some of the larger Service Centers.
Sales and Marketing
- - -------------------
VWRs principal marketing arm is its field sales organization,
consisting of approximately 725 employee sales professionals. The field
sales organization is divided into three groups, the first focused on
servicing the large partnership accounts, the second dedicated to
critical environment customers and the third responsible for general
sales. Augmenting the field sales organization is an in-house direct
telemarketing group, VWR Direct, which calls primarily on customers in
areas not covered by a field sales representative. Supporting the sales
organization are three specialist groups, for laboratory furniture,
electronic commerce and logistics.
There are approximately 550 customer service representatives in the
Call Centers. These customer service representatives, many of whom have
a science background, provide technical support and are responsible for
assisting customers in purchasing decisions. They utilize on-line
computer terminals to enter customer orders and to access information
about products, product availability, pricing, promotions and customer
buying history. Customer service representatives also market
complimentary and promotional products.
The Companys Internet site (www.vwrsp.com) features a fully indexed and
searchable catalog covering the Companys entire product line of over
250,000 products. This electronic catalog includes product
descriptions, technical specifications and cross-referenced data. The
website allows customers to enter orders directly and the Company to
communicate new product releases, promotions and other Company news.
During 1998, the Company enhanced its website to include customer-
specific contract pricing and product availability. Order volume over
the Internet has dramatically increased in the past year. January 1998
orders totaled approximately $230,000 while December 1998 orders
totaled approximately $1.6 million. The Company believes that there are
significant opportunities to increase the volume of orders placed over
the Internet. The Company estimates that as much as 25-30% of its
total sales may be placed over the Internet within the next two years.
The Company also markets its products through the VWR Scientific
Products Catalog, a 2,400-page biannual publication covering over
55,000 products. The Catalog is supplemented by several specialty
catalogs for safety products, critical environment applications and
other, more specific, laboratory focus areas.
Customers
- - ---------
VWRs customers include many of the nations leading
companies in important research-driven industries, such as
pharmaceuticals, biotechnology, petrochemical, consumer products and
microelectronics. VWR has over 125,000 active customers, whose
individual annual purchases of the Companys products range in size
<PAGE>8
from less than $1,000 to over $35 million. The 100 largest customers
represent approximately one-third of the Companys revenues, but no
single customer accounts for more than 3% of total revenues.
Supplier Relationships
- - ----------------------
The Company distributes products from more than 2,000 manufacturers,
representing substantially all of the major manufacturers in the
laboratory chemical, glass and plasticware and equipment markets. The
Company continually evaluates new suppliers and product additions to
keep its product lines up-to-date and to reflect advancements in
laboratory technology. In many cases, the Company has established
exclusive supply and distribution arrangements with major
manufacturers. The Company believes that its volume of purchases,
national presence and ability to provide manufacturers with access to
multiple markets enable it to obtain attractive terms from
manufacturers, including volume discounts. VWR is pursuing initiatives
with manufacturers to reduce supply-chain costs and develop more
effective joint-marketing programs. In addition, the Company applies
its knowledge of customer needs and purchasing patterns to assist
manufacturers in rationalizing and enhancing their product lines,
product packaging and design.
Information Systems
- - -------------------
The Company is dependent on its core computer systems to efficiently
operate its business. During 1997, the Company purchased an enterprise-
wide computer system package to better meet future requirements. This
is resulting in the replacement of many of the Companys systems
including order entry, purchasing, and financial systems. The Company
completed the initial roll-out of the new systems during the fourth
quarter of 1998. The Company is transitioning to the new system on a
regional basis and expects to be completed early in the third quarter
of 1999. The Companys system project, together with other planned
system changes, is also intended to correct the Year 2000 issue.
Competition
- - -----------
The Company operates in a highly competitive environment. VWR competes
primarily with one other large national distributor and with many
smaller regional, local and specialty distributors. The Company also
competes with manufacturers that sell directly to end users.
Competitive factors include price, service and delivery, breadth of
product line, customer support and the ability to meet the special
requirements of customers.
The Company believes that most of its customers place a high value on
services such as regional and local inventory centers and a single-
source of supply. In addition, the Company believes its value-added
services, such as on-site storeroom management and customized delivery
programs, as well as increased connectivity between VWRs and the
customers information systems, will become more important competitive
factors. The Company believes that it can compete effectively due to
its complete package of products and services promoted by its
professional sales organization.
<PAGE>9
1998 Acquisitions
- - -------------------------------
On July 31, 1998, the Company acquired all of the outstanding shares of
Science Kit, a privately held supplier of science education products to
school systems and educational institutions in the United States and
Canada, for $110 million, subject to adjustment. Revenues for Science
Kit were $66 million in 1997. The acquisition has been accounted for
under the purchase method of accounting and the Company has included
Science Kits results of operations from the date of the acquisition.
In addition, in 1998 the Company acquired two other companies, A.J.
Reynolds Co., Inc. and HPC Scientific & Technology, Inc., for an
aggregate purchase price of $22.6 million. Combined fiscal year 1997
revenues for these two companies were approximately $32 million. Both
were accounted for under the purchase method of accounting.
Relationship with Merck KGaA
- - ----------------------------
The Company has a strategic relationship with Merck KGaA, a
manufacturer and distributor of pharmaceuticals, laboratory supplies
and products, and specialty chemicals. Merck KGaA owns 49.89% of the
outstanding Common Shares and is represented by five members on the
Companys Board of Directors. EM Laboratories, Incorporated, (EML), an
affiliate of Merck KGaA, entered into a Standstill Agreement with the
Company in connection with Merck KGaAs investment in the Company,
pursuant to which EML agreed that it and its affiliates would not,
subject to certain specified exceptions, increase its beneficial
ownership of the Companys common shares above 49.89% without prior
consent of the Company.
On September 15, 1995, in conjunction with acquisition of the
Industrial Distribution Business (Baxter Industrial) of Baxter
Healthcare Corporation, the Company issued a Debenture to EML in the
principal amount of $135 million. The Debenture has been assigned to
another affiliate of EML. The Debenture matures in a single installment
in September 2005. The Debenture is callable at face value, at the
Companys option, beginning in September 2000. The Debenture bears
interest at 13% per annum, due quarterly. Until such time as Merck KGaA
and its affiliates obtained an ownership of 49.89% of the aggregate
number of issued and outstanding common shares, interest was payable
solely in common shares at a price of $12.44 per share, and thereafter,
until September 1, 1997, interest on the Debenture is deferred, with
accumulated interest thereon, until the Debenture matures. Interest on
the Debenture is payable quarterly in cash after September 1, 1997
through the maturity date.
During 1996, the Company issued 1,230,315 common shares as payment of
interest on the Debenture. In conjunction with the Companys public
offering in 1997, affiliates of Merck KGaA purchased 3,011,719 common
shares, for an aggregate cash purchase price of approximately $68.5
million, in order to maintain Merck KGaAs 49.89% beneficial ownership.
Merck KGaA purchased 239,599 and 52,163 common shares in 1998 and 1997,
respectively, in order to maintain Merck KGaAs 49.89% beneficial
ownership as a result of the Companys issuance of common shares under
its stock incentive plans at prices ranging from $7.79 to $32.13. The
common shares sold to affiliates of Merck KGaA have not been registered
<PAGE>10
under the Securities Act of 1993 in reliance upon the exemption
afforded by Section 4(2) of that Act.
Merck KGaA has been a supplier of chemicals and other products to the
Company for over 15 years. Merck KGaA is currently the Companys second
largest supplier of chemicals.
Chemdex Transaction
- - -------------------
In March 1999, the Company agreed to sell its third-party purchasing
services to Chemdex Corporation in return for a 10% equity position in
Chemdex. In addition, the companies have agreed that Chemdex will
provide third-party purchasing services to VWR customers through an
electronic ordering system. The sale of the third-party purchasing
services, which represented approximately $85 million of sales in 1998,
is not expected to have a material impact on 1999 earnings because this
business generally has lower gross margins. The Company expects to
realize a gain on the sale of the third-party purchasing services.
Governmental Regulation
- - ------------------------
The Company is subject to various U.S. federal and state laws,
regulations, agency actions and court decisions as well as
international laws and regulations relating to the storage, handling,
disposal and transportation of toxic or other hazardous substances.
Failure to comply with these laws and regulations or to correct any
problems or violations to the satisfaction of government authorities
could lead to fines or other liabilities. The Company believes that it
is in compliance in all material respects with all government
regulations.
VWR has been designated by the EPA as a potentially responsible party
in connection with several sites. Management believes that the
Companys alleged contribution to each of these sites is de minimis and
that the potential financial impact of these matters is not material to
the Companys consolidated financial statements.
Employees
- - ---------
There were 2,725 persons employed by VWR as of February 28, 1999.
Approximately 9% of the Companys employees are represented by unions.
The Company believes its relations with employees are good.
Foreign Operations and Export Sales
- - -----------------------------------
The Company has operations in Canada which serve that countrys
industrial, educational, governmental and biomedical markets. Canadian
operations represent less than 10 percent of consolidated assets and
revenues as of and for the year ended December 31, 1998.
The Company also exports scientific equipment to 78 countries worldwide, with
primary markets in the Middle East, Central America, South America, and the
Pacific Rim. The export business represents less than 10 percent of
consolidated revenues for the year ended December 31, 1998.
<PAGE>11
EXECUTIVE OFFICERS OF THE REGISTRANT
- - ------------------------------------
NAME AGE BUSINESS EXPERIENCE POSITION HELD
LAST FIVE YEARS SINCE
- - ----------------- --- ------------------- -------------
Jerrold B. Harris 56 President and Chief March 1990
Executive Officer to Present
Paul J. Nowak 44 Executive Vice President January 1998
to Present
Senior Vice President November 1992
Eastern Sales to December 1997
David M. Bronson 45 Senior Vice President November 1995
Finance, Chief to Present
Financial Officer and
Corporate Secretary
Vice President Finance and May 1992 to
Business Development November 1995
Scientific Products Division
Baxter Healthcare Corp.
David S. Barth 46 Senior Vice President September 1995
Western Sales to Present
Area Vice President, July 1992 to
Industrial and Life September 1995
Sciences Division,
Baxter Healthcare Corp.
Matthew Malenfant 37 Senior Vice President January 1998
Eastern Sales to Present
Vice President Sales September 1995 to
Midwest Region December 1997
Area Vice President, May 1993 to
Scientific Products September 1995
Division,
Baxter Healthcare Corp.
Hal G. Nichter 52 Senior Vice President October 1995
Customer Fulfillment to Present
Vice President Marketing October 1992 to
October 1995
John G. Griffith 55 Senior Vice President August 1995 to
International Present
Director of Finance, December 1990 to
Merck Ltd, England August 1995
<PAGE>12
ITEM 2 - PROPERTIES
- - ------ ----------
VWR owns and leases office and warehouse space throughout the United States
and Canada for distribution of the products supplied by it as follows:
Chicago, Illinois Owned
Bridgeport, New Jersey (Philadelphia) Owned
Buffalo, New York Owned
Rochester, New York Owned
St. Catharines, Ontario, Canada Owned
San Francisco, California Leased
Suwanee, Georgia (Atlanta) Leased
Mississauga, Ontario, Canada (Toronto) Leased
Aurora, Colorado Leased
Marietta, Georgia Leased
Bridgeport, New Jersey Leased
Houston, Texas Leased
Tualatin, Oregon Leased
San Dimas, California Leased
The Company also leases 30 smaller facilities throughout the United States
and two smaller facilities in Canada which support the sales and warehouse
functions. The Company leases office space in West Chester, Pennsylvania, for
executive, financial, information systems, marketing, and other
administrative activities.
All facilities have been designed to serve the Companys purposes (warehouse
functions and generic office). The facilities are sufficient for current
operations.
ITEM 3. - LEGAL PROCEEDINGS
- - ------ -----------------
The Company is not currently a party to any material litigation. In the
ordinary course of business, the Company is from time to time involved
in various environmental, contractual, warranty, product liability and
other cases and claims. None of the cases or claims currently pending
is expected, individually or in the aggregate, to have a material
adverse effect on the Company.
ITEM 4. - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- - ------ ---------------------------------------------------
No matters were submitted to a vote of security holders during the fourth
quarter of the fiscal year ended December 31, 1998.
<PAGE>13
PART II.
- - --------
ITEM 5 - MARKET FOR REGISTRANTS COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
- - ----------------------------------------------------------------------
VWR common shares, $1.00 par value, are traded on the NASDAQ Stock Market
under the VWRX symbol. On February 28, 1999, there were approximately 6,700
shareholders represented by 1,472 holders of record.
The quarterly ranges of high and low sale prices of the Corporations common
shares during the years ended December 31, 1998 and 1997 as reported by
NASDAQ are set forth below.
VWR Common Stock 1998 1997
- - ---------------------------- ---------------- ---------------
Quarter High Low High Low
------- ---- --- ---- ---
First $36.50 $27.25 $17.75 $13.00
Second 37.00 19.50 17.38 14.50
Third 29.78 21.75 24.00 15.75
Fourth 32.13 15.75 29.63 20.63
The Company has not paid any cash dividends to its stockholders on its Common
Stock, and anticipates that for the foreseeable future its earnings will be
retained for use in its business. Payment of dividends is within the
discretion of the Companys Board of Directors and will depend, among other
factors, upon the Companys earnings, financial condition and capital
requirements and the terms of the Companys financing agreements. Under the
terms of a former credit facility, which was replaced on July 31, 1998, the
Company was prohibited from making dividend payments.
Refer to the caption Relationship with Merck KGaA in Part I, Item I for
information concerning common shares issued by the Company which are not
registered under the Securities Act of 1933.
<PAGE>14
ITEM 6. - SELECTED FINANCIAL DATA
- - ------ -----------------------
The following table of selected financial data should be read in conjunction
with the Consolidated Financial Statements and Notes thereto included
elsewhere herein.
<TABLE>
<CAPTION>
For the Years Ended December 31,
-------------------------------------------------
(Thousands of dollars,
except per share data) 1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Operations:
Sales $1,349,948 $1,244,795 $1,117,286 $ 718,684 $535,179
Gross margin 312,177 277,715 246,907 159,119 113,198
Income before
extraordinary charge 34,937 24,735 7,023 1,935 2,053
Extraordinary charge,
net of tax (689) (406)
---------------------------------------------------
Net income $ 34,248 $ 24,329 $ 7,023 $ 1,935 $ 2,053
- - -----------------------------------------------------------------------------
Per Share Data:
Dividends $ $ $ $ 0.08 $ 0.34
Book value 13.24 12.01 8.21 7.60 3.63
Basic Per Share Data:
Income before
extraordinary charge $ 1.21 $ 1.08 $ .32 $ .13 $ .19
Extraordinary charge,
net of tax (.02) (.02)
---------------------------------------------------
Net income per share $ 1.19 $ 1.06 $ .32 $ .13 $ .19
- - -----------------------------------------------------------------------------
Diluted Per Share Data:
Income before
extraordinary charge $ 1.18 $ 1.05 $ .32 $ .13 $ .18
Extraordinary charge,
net of tax (.02) (.01)*
---------------------------------------------------
Net income per share $ 1.16 $ 1.04 $ .32 $ .13 $ .18
- - -----------------------------------------------------------------------------
<FN>
* Difference due to rounding.
</FN>
<PAGE>15
<CAPTION>
For the Years Ended December 31,
-----------------------------------------------
(Thousands of dollars,
except statistical data) 1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Financial Position:
Working capital $237,546 $182,064 $143,975 $ 87,940 $ 75,120
Property and equipment-net 91,072 50,846 48,184 37,648 38,259
Total assets 911,589 717,566 705,302 621,472 173,375
Short-term debt 22,500 20,000 2,250
Long-term debt 355,665 232,409 367,965 334,327 79,170
Shareholders equity 383,547 342,007 183,437 160,089 40,168
Total invested capital 739,212 574,416 573,902 514,416 121,588
- - -----------------------------------------------------------------------------
Operating and Financial Statistics:
Gross margin to sales 23.13% 22.31% 22.10% 22.14% 21.15%
Income, before
extraordinary charge,
to sales 2.59% 1.99% 0.63% 0.27% 0.38%
Current ratio 2.79 2.52 2.02 1.75 2.67
Return on average
shareholders equity 9.47% 11.38% 4.07% 2.29% 5.05%
- - -----------------------------------------------------------------------------
<FN>
Note: Results include acquisition-related expenses from the Baxter
Industrial acquisition of $0.3 million, $5.1 million and $3.8
million for 1997, 1996 and 1995, respectively. 1994 results include
acquisition-related expenses of $0.9 million from the Canlab
acquisition.
</FN>
</TABLE>
<PAGE>16
ITEM 7 - MANAGEMENTS DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION
- - -----------------------------------------------------------------------
The following commentary should be read in conjunction with the
Consolidated Financial Statements, Notes to Consolidated Financial
Statements (Notes), and Selected Financial Data included elsewhere
herein. Capitalized terms have the same meanings as defined in the
Consolidated Financial Statements and the Notes.
Results of Operations
- - ---------------------
Sales over the last three years are as follows (in millions):
1998 1997 1996
---- ---- ----
$1,350 $1,245 $1,117
The gross margin percentage over the last three years is as follows:
1998 1997 1996
---- ---- ----
23.1% 22.3% 22.1%
Total operating expenses, excluding acquisition-related expenses, as a
percentage of sales over the last three years are as follows:
1998 1997 1996
---- ---- ----
16.8% 16.1% 17.3%
1998 versus 1997
- - ----------------
Sales in 1998 increased by $105.2 million, or 8.4%, to $1.35 billion
from $1.24 billion in 1997. Approximately 56% of the sales increase was
due to growth in the Companys core laboratory supply business,
including pharmaceutical, biotechnology and chemical markets and, to a
lesser extent, growth in sales of cleanroom products and improved
pricing. The remaining increase was due to 1998 acquisitions.
Gross margin for 1998 increased $34.5 million, or 12.4%, to $312.2
million from $277.7 million in 1997. As a percentage of sales, gross
margin for 1998 increased to 23.1% from 22.3% compared to 1997. The
increase in the Companys gross margin percentage for 1998 is primarily
attributable to increased sales of products to the education market,
which earns higher margins. This increase is primarily the result of
the July 31, 1998 acquisition of the Science Kit Group of Companies
(Science Kit) as described in Note 2.
Total operating expenses increased by $26.3 million, or 13.1%, to
$226.7 million in 1998 from $200.4 million in 1997. Total operating
expenses, as a percentage of sales, increased to 16.8% in 1998 from
16.1% in 1997. The increase in total operating expenses, as a
percentage of sales, is primarily due to the Science Kit acquisition.
Also contributing to higher expenses as a percentage of sales are
efforts the Company has taken to redirect and increase its sales
<PAGE>17
coverage. Depreciation and amortization increased in 1998 primarily as
a result of goodwill amortization for the 1998 acquisitions,
accelerated amortization on current information systems that are being
replaced by the Companys new enterprise-wide computer systems, and
amortization for the Companys new computer systems.
Interest expense for 1998 decreased $7.4 million, or 21.1%, to $27.9
million in 1998 from $35.4 million in 1997. The decrease in interest
expense is largely attributable to lower average borrowings under the
Companys credit facilities and, to a lesser extent, lower interest
rates on the credit facilities. Lower average borrowings are the result
of cash generated from operations and the Companys 1997 public
offering, and concurrent private placement to affiliates of Merck KGaA,
which raised net proceeds of $132.7 million in November 1997.
Offsetting the effects of the 1997 offering on average borrowings are
the $131.8 million in borrowings, primarily during the second half of
1998, used for acquisitions.
The Company recorded an extraordinary charge in the fourth quarter of
1998 of $0.7 million (net of tax) for the early extinguishment of debt
resulting from the replacement of its then-outstanding credit facility,
with a new credit facility.
The Companys effective tax rate, before extraordinary charges, for 1998
decreased to 39.3% from 41.1% in 1997. The decrease in the effective
tax rate is primarily due to a one-time tax credit related to the
Companys new systems project and a decreased Canadian effective tax
rate. See Note 6 for a description of the differences between the
statutory and effective income tax rates.
The increase in weighted average shares outstanding, for earnings per
share calculations, reflects the full-year effect of the Companys
public offering and concurrent private placement to affiliates of Merck
KGaA totaling approximately 6 million common shares in November 1997,
as discussed in Note 7.
1997 versus 1996
- - ----------------
Sales for 1997 increased by $127.5 million, or 11.4%, to $1.24 billion
from $1.12 billion in 1996. The sales increase was principally due to
increased sales to the Companys large partnership accounts, increased
growth in sales to small to medium-size customers, growth in the
Companys critical environment business and, to a lesser extent,
improved pricing.
Gross margin increased by $30.8 million, or 12.5%, to $277.7 million in
1997 from $246.9 million in 1996. As a percentage of sales, gross
margin increased from 22.1% in 1996 to 22.3% in 1997. The increase in
the Companys gross margin percentage was primarily attributable to the
continued focus on margin improvement through internal programs.
Total operating expenses increased $2.1 million, or 1.1%, to $200.4
million from $198.3 million in 1996. As a percentage of sales, total
operating expenses decreased from 17.7% in 1996 to 16.1% in 1997.
Excluding the effect of acquisition-related expenses, total operating
expenses increased $7.0 million, or 3.6%, to $200.1 million from $193.1
<PAGE>18
million in 1996. Excluding the impact of acquisition-related expenses,
total operating expenses as a percentage of sales decreased from 17.3%
in 1996 to 16.1% in 1997. The decreases in the ratios were principally
due to continued synergies realized as a result of the Baxter
Industrial acquisition. Depreciation and amortization expense increased
primarily as a result of 1996 distribution infrastructure investments
related to the Baxter Industrial acquisition. Acquisition-related
expenses consisted primarily of relocation, severance and integration
charges directly attributable to the Baxter Industrial acquisition.
Interest expense was $35.4 million for 1997 and $36.8 million for 1996.
The interest expense decrease in 1997 was largely attributable to the
effect of the Companys public offering and concurrent private placement
in the fourth quarter (described in Note 7), the proceeds of which were
used to repay debt, and the Companys lower interest rates under the
credit facility during 1997. These decreases were partially offset by
the higher outstanding balance of the Companys Debenture (as described
in Note 5).
In 1997, the effective tax rate, before the extraordinary charge,
increased from 40.5% to 41.1% primarily due to increased foreign
effective tax rates. See Note 6 for a description of the differences
between the statutory and effective income tax rates.
In the fourth quarter of 1997, the Company recorded an extraordinary
charge of $0.4 million (net of tax) for the early extinguishment of
debt as a result of the public offering and concurrent private
placement.
The increase in weighted average shares outstanding, for earnings per
share calculations, reflected the Companys public offering and
concurrent private placement to affiliates of Merck KGaA totaling
approximately 6 million common shares in November 1997, as discussed in
Note 7.
Liquidity and Capital Resources
- - -------------------------------
The ratio of debt to equity at December 31 for each of the past three
years is as follows:
1998 1997 1996
---- ---- ----
0.9 0.7 2.1
The ratio of operating income, plus depreciation and amortization, to
interest expense paid over the past three years is as follows:
1998 1997 1996
---- ---- ----
4.5 4.8 3.7
The current ratio at December 31 for each of the last three years is as
follows:
1998 1997 1996
---- ---- ----
2.8 2.5 2.0
<PAGE>19
In 1998, operations generated $60.0 million of cash compared to $48.0
million in 1997. During 1998, trade receivables, excluding the effect
of acquisitions, decreased by $10.1 million as a result of increased
collection efforts. Other receivables increased in 1998 primarily due
to income tax refunds and purchase price adjustments from the Science
Kit acquisition. The 1998 inventory increase of $15.2 million,
excluding the effect of acquisitions, was primarily due to increased
sales and the timing of required purchases under distribution
agreements. Accounts payable and other accrued liabilities, excluding
the effect of acquisitions, were comparable to the prior year balances.
Interest on the Debenture increased cash flow from operations by $2.2
million in 1998 compared to $12.1 million in 1997. Prior to September
1997, interest on the Debenture was payable in the Companys common
shares until Merck KGaA increased its beneficial ownership to 49.89%
and then interest was deferred (Deferred Interest). In September 1997,
under the terms of the Debenture, interest on the Debenture became
payable in cash on a quarterly basis, excluding interest on Deferred
Interest which continues to be deferred. The provision for deferred
income taxes increased operating cash flow by $16.4 million in 1998
primarily related to an increase in deferred tax liabilities related to
intangible assets and depreciation of capitalized systems costs.
Debt increased in 1998 primarily as a result of funding three
acquisitions with a total purchase price of $132.6 million, including
the acquisition of Science Kit as described below and in Note 2. In
connection with the Science Kit acquisition, the Company entered into a
new five-year credit facility (Credit Facility) on July 31, 1998. The
Credit Facility consists of a $250 million unsecured revolving line of
credit and replaced the former credit facility entered into in
September 1995. The debt increase was partially offset by cash
generated from operations, net of capital expenditures, which was used
to pay down outstanding borrowings under the Companys credit facility.
The Credit Facility provides that the available line of credit will
decrease to $225 million in July 2001 and to $200 million in July 2002.
The Credit Facility expires in July 2003 and $202.5 million was
outstanding at December 31, 1998.
Debt decreased in 1997 due to the application of cash generated from
operations and the public offering and concurrent private placement of
approximately 6 million shares, the net proceeds of which were $132.7
million. Proceeds from the offering and private placement were used to
repay outstanding borrowings under the Companys former credit facility.
Equity increases reflect the 1997 public offering and concurrent
private placement and the 1996 issuance of shares to Merck KGaA in lieu
of payment for interest on the Debenture as well as net income for each
period.
As discussed in Note 5, in 1995 the Company incurred indebtedness of
$135 million evidenced by the Debenture. The Debenture matures in a
single installment in September 2005 and is callable at face value, at
the Companys option, beginning in September 2000. The Debenture bears
interest at 13% per annum, due quarterly. Until such time as Merck KGaA
and its affiliates obtained an ownership of 49.89% of the aggregate
number of issued and outstanding common shares, interest was payable
solely in common shares at a price of $12.44 per share, and thereafter
until September 1, 1997, interest on the Debenture was deferred, with
<PAGE>20
accumulated interest thereon, until the Debenture matures. Interest on
the Debenture is payable quarterly in cash from September 1, 1997
through the maturity date.
The Companys primary exposure to market risk consists of changes in
interest rates on borrowings and foreign currency rates. An increase in
interest rates would adversely affect the Companys operating results
and cash flows. The Company has entered into various interest rate swap
agreements with financial institutions which effectively change the
Companys interest rate exposure on a notional amount of debt from
variable rates to fixed rates. The Company provides protection to meet
actual exposures and does not speculate in derivatives. For every $100
million of unhedged variable rate debt, a 100 basis point increase in
interest rates would increase the Companys annual interest rate expense
by approximately $1 million. At December 31, 1998, the Company had a
notional amount of $40 million of swaps in effect that expire
in 1999 and 2000. The amount of floating rate debt protected by the
swaps ranges from $40 million to $10 million during the period
outstanding with fixed rates ranging from 5.9% to 6.4%. Net receipts or
payments under the agreements are recognized as an adjustment to
interest expense. The Companys use of swaps for interest rate
protection increased interest expense by $0.2 million, $0.2 million,
and $0.7 million in 1998, 1997, and 1996, respectively. During 1998,
the Company terminated $25 million of swap agreements. As a result of
the fourth quarter 1997 public offering and concurrent private
placement, the Company terminated $60 million of swap agreements due to
the repayment of existing debt balances. In addition, $35 million of
swap agreements expired under their original terms during 1997. At
December 31, 1998, the fair market value of the swap agreements, which
is not recorded in the consolidated financial statements, is a net
payable of approximately $0.2 million. The fair market value of the
swap agreements is based on the present value of the future cash flows
determined by the difference between the contracts fixed interest rate
and the then-current replacement interest rate. The other parties to
the interest rate swap agreements expose the Company to credit loss in
the event of nonperformance although the Company does not anticipate
such nonperformance.
The Company utilizes foreign currency contracts to reduce its exposure
to market risks from changes in foreign exchange rates. The Company
hedges foreign currency transactions on a continuous basis for periods
consistent with its committed exposures. The primary purpose of the
foreign currency hedging activities is to protect Canadian purchases of
United States supplied goods from currency exchange rate fluctuations.
At December 31, 1998, open foreign exchange contracts were $13.3
million. However, the market risk on the foreign exchange contracts is
separate from the impact that other foreign-country economic factors
could have on the Companys Canadian subsidiaries performance.
The Company is party to various distribution agreements which require
the Company to purchase a minimum dollar amount of products. The
minimum for 1998 was $100 million. The accumulated shortfall under
these agreements at December 31, 1998 was approximately $20 million.
The Company has renegotiated or is in the process of renegotiating
certain of these contracts and the Company expects that the accumulated
deficiency will be satisfied through a combination of purchases and
contract extensions. Obligations under these contracts for the years
<PAGE>21
1999 and 2000 are expected to be $92 million and $120 million,
respectively. Such purchases are not expected to have a material effect
on the Companys financial condition or results of operations for 1999.
VWR has been designated by the EPA as a potentially responsible party
for various sites. Management believes that any required expenditures
would be immaterial to the Companys Consolidated Financial Statements.
On July 31, 1998, the Company acquired all of the outstanding shares of
Science Kit, a privately held supplier of science education products to
school systems and educational institutions in the United States and
Canada. The purchase price was $110 million, subject to adjustment.
Revenues for Science Kit were $66 million in 1997. The acquisition has
been accounted for under the purchase method of accounting. The
purchase price was financed by a portion of the proceeds received from
borrowings under the Credit Facility. In addition, the Company acquired
two other companies, A.J. Reynolds Co., Inc. and HPC Scientific &
Technology, Inc., for an aggregate purchase price of $22.6 million.
Combined 1997 revenues for these two companies were approximately $32
million. Both were accounted for under the purchase method of
accounting and were financed from the Companys credit facility.
In March 1999, the Company agreed to sell its third-party purchasing
services to Chemdex Corporation in return for a 10% equity position in
Chemdex. In addition, the companies have agreed that Chemdex will
provide third-party purchasing services to VWR customers through an
electronic ordering system. The sale of the third-party purchasing
services, which represented approximately $85 million of sales in 1998,
is not expected to have a material impact on 1999 earnings because this
business generally has lower gross margins. The Company expects to
realize a gain on the sale of the third-party purchasing services.
The Company expects that estimated working capital requirements and
estimated capital expenditures will be funded by cash from operations
and availability under the Credit Facility.
Computer Systems and Year 2000
- - ------------------------------
The Company is implementing enhancements to its computer systems to
satisfy its future requirements. This is resulting in the replacement
of many of the Companys systems including order entry, purchasing, and
financial systems. A substantial portion of the costs associated with
the replacement of existing systems has been recorded as assets and are
being amortized. As of December 31, 1998, the Company has expended
approximately $42 million for the new systems. The Company estimates
that the remaining amounts to be expended will range from $4 to $5
million, which will be incurred over the next six to nine months.
<PAGE>22
The Year 2000 issue is the result of computer programs being written
using two digits (rather than four) to define the applicable year. Any
of the Companys programs that have time-sensitive software may
recognize a date using 00 as the year 1900 rather than the year 2000,
which could cause the Companys computer systems to perform inaccurate
calculations. Such inaccurate calculations could have a material
adverse effect on the Company. In addition, the Year 2000 issue could
affect non-computer systems used in the Companys operations.
The Companys system enhancement project, together with other planned
system changes, is intended to correct the Year 2000 issue. The Company
completed the initial implementation of its new systems during the
fourth quarter of 1998. The Company is transitioning to the new systems
on a regional basis and expects to be completed early in the third
quarter of 1999. The Company had an external review conducted by an
independent information technology consulting firm to identify the
Companys legacy computer systems that could be affected by the Year
2000 issue, when they would be affected, and how the Year 2000 issues
may be remedied. The extent of Year 2000 remediation performed by the
Company was coordinated with the new systems implementation timetable.
The amounts expensed to correct the Year 2000 issue on the Companys
legacy system which will not be replaced by the systems enhancement
project did not have a material effect on the results of operations.
With respect to its non-computer systems, the Company has reviewed its
significant operational systems and has remediated those requiring such
action.
The Company is also making inquiries of its significant suppliers and
large customers to assess their Year 2000 readiness where their systems
interface with the Companys systems or otherwise impact its operations.
Based on the nature of their responses, the Company will develop
contingency plans as appropriate.
Factors that could cause the Companys Year 2000 efforts to be less than
fully effective include the Companys failure to implement its new
systems in a timely and successful manner, and customers and vendors
failure to be Year 2000 compliant. In addition, the Year 2000 issues
present a number of other risks that are beyond the Companys reasonable
control, such as continued service from outside parties including
utility companies, financial institutions, and transportation and
delivery companies. While the Company does not currently foresee any
material problems, there can be no assurance that the Company and its
material customers and vendors will be Year 2000 compliant by January
1, 2000 and that any such noncompliance will not have a material
adverse effect on the Company.
Certain information in this report contains forward-looking statements
as such term is defined in Section 27A of the Securities Act and
Section 21E of the Exchange Act. Certain factors such as competitive
pressures, customer and product mix, system conversion and Year 2000
issues, regulatory changes, and capital markets could cause actual
results to differ materially from those in forward-looking statements.
ITEM 7A - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- - ------- ----------------------------------------------------------
Information regarding market risk is included in Item 7 of this Form 10-K.
<PAGE>23
ITEM 8. - FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- - ------ -------------------------------------------
<TABLE>
<CAPTION>
VWR SCIENTIFIC PRODUCTS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
Year Ended December 31,
1998 1997 1996
- - -----------------------------------------------------------------------------
(Thousands, except per share data)
<S> <C> <C> <C>
Sales $1,349,948 $1,244,795 $1,117,286
Cost of sales 1,037,771 967,080 870,379
---------- ---------- ----------
Gross margin 312,177 277,715 246,907
Operating expenses 201,478 177,995 172,407
Depreciation and amortization 25,267 22,148 20,740
Acquisition-related expenses 253 5,128
---------- ---------- ----------
Total operating expenses 226,745 200,396 198,275
---------- ---------- ----------
Operating income 85,432 77,319 48,632
Interest expense 27,910 35,355 36,827
---------- ---------- ----------
Income before income taxes
and extraordinary charge 57,522 41,964 11,805
Income taxes 22,585 17,229 4,782
---------- ---------- ----------
Income before extraordinary
charge 34,937 24,735 7,023
Extraordinary charge, net of
income taxes 689 406
---------- ---------- ----------
Net income $ 34,248 $ 24,329 $ 7,023
========== ========== ==========
Basic earnings per share:
Income before extraordinary
charge $ 1.21 $ 1.08 $ 0.32
Extraordinary charge (.02) (.02)
---------- ---------- ----------
Net income $ 1.19 $ 1.06 $ 0.32
========== ========== ==========
Diluted earnings per share:
Income before extraordinary
charge $ 1.18 $ 1.05 $ 0.32
Extraordinary charge (.02) (.01)*
---------- ---------- ----------
Net income $ 1.16 $ 1.04 $ 0.32
========== ========== ==========
</TABLE>
<PAGE>24
Weighted average shares outstanding:
Basic 28,790 22,969 21,892
Diluted 29,594 23,494 22,290
* Difference due to rounding.
See Notes to Consolidated Financial Statements.
<PAGE>25
<TABLE>
<CAPTION>
VWR SCIENTIFIC PRODUCTS CORPORATION
CONSOLIDATED BALANCE SHEETS
(Thousands of dollars,
except per share data)
December 31,
ASSETS 1998 1997
- - -----------------------------------------------------------------------------
<S> <C> <C>
Current assets:
Trade receivables,
less reserves of $3,417 and $2,512 $191,068 $180,345
Other receivables 24,564 6,632
Inventories 140,826 103,445
Other 13,431 11,166
-------- --------
Total current assets 369,889 301,588
Property and equipment--net 91,072 50,846
Excess of cost over net assets of
businesses acquired--net 439,091 354,961
Other assets--net 11,537 10,171
-------- --------
$911,589 $717,566
======== ========
</TABLE>
<PAGE>26
<TABLE>
<CAPTION>
VWR SCIENTIFIC PRODUCTS CORPORATION
CONSOLIDATED BALANCE SHEETS (cont.)
(Thousands of dollars,
except per share data)
December 31,
LIABILITIES AND SHAREHOLDERS EQUITY 1998 1997
- - -----------------------------------------------------------------------------
<S> <C> <C>
Current liabilities:
Bank checks outstanding, less cash in bank $ 9,658 $ 10,077
Accounts payable 102,125 91,887
Accrued liabilities 20,560 17,560
-------- --------
Total current liabilities 132,343 119,524
-------- --------
Long-term debt:
Revolving credit facility 202,490 81,462
Debenture 153,175 150,947
-------- --------
Total long-term debt 355,665 232,409
-------- --------
Deferred income taxes and other 40,034 23,626
Shareholders equity:
Preferred stock, $1 par value, 25,000,000
shares authorized, none issued
Common stock, $1 par value, 120,000,000
shares authorized, 28,967,505 and
28,487,251 shares issued, respectively 28,968 28,487
Additional paid-in capital 287,149 280,068
Retained earnings 70,046 35,798
Treasury stock at cost, 4,978 shares (94) (94)
Unamortized ESOP contribution (795) (1,144)
Unamortized restricted stock awards (142) (184)
Accumulated other comprehensive loss (1,585) (924)
-------- --------
Total shareholders equity 383,547 342,007
-------- --------
$911,589 $717,566
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>27
<TABLE>
<CAPTION>
VWR SCIENTIFIC PRODUCTS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended December 31,
(Thousands of dollars) 1998 1997 1996
- - -----------------------------------------------------------------------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income $ 34,248 $ 24,329 $ 7,023
Adjustments to reconcile net income
to cash provided by (used in)
operating activities:
Depreciation and amortization,
including deferred debt
issuance costs 25,686 23,234 22,051
Debentures and stock issued in lieu of
payment of interest 2,228 12,138 19,114
Provision for deferred taxes 16,377 7,372 4,284
Loss on early extinguishment
of debt 1,138 680
Change in operating assets and
liabilities, net of effect
of businesses acquired:
Trade receivables 10,122 (19,110) (27,723)
Other receivables (14,452) 527 (3,851)
Inventories (15,206) 3,364 (55,262)
Other current assets (2,226) (5,927) (2,367)
Accounts payable 4,172 (1,112) 19,761
Accrued liabilities and other (2,061) 2,490 (11,162)
--------- --------- ----------
Cash provided by (used in)
operating activities 60,026 47,985 (28,132)
--------- --------- ----------
INVESTING ACTIVITIES
Acquisition of businesses, net of cash
acquired (131,814) 1,683
Sale of joint venture investment 2,881
Capital expenditures, net (40,488) (11,551) (23,417)
Proceeds from sale of property
and equipment 5,664
Other (165)
--------- --------- ----------
Cash used in investing activities (172,302) (11,551) (13,354)
--------- --------- ----------
<PAGE>28
<CAPTION>
VWR SCIENTIFIC PRODUCTS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended December 31,
(Thousands of dollars) 1998 1997 1996
- - -----------------------------------------------------------------------------
<S> <C> <C> <C>
FINANCING ACTIVITIES
Proceeds from long-term debt $ 469,778 $ 224,006 $ 206,788
Repayment of long-term debt (361,993) (394,200) (174,459)
Net proceeds from common stock issuance 132,708
Net change in bank checks outstanding (419) (197) 8,526
Proceeds from exercise of stock options 3,003 560 308
Proceeds from shares issued
under Merck KGaA ownership rights 3,084 547
Deferred debt issuance costs and other (1,177) 142 323
--------- --------- ----------
Cash provided by (used in)
financing activities 112,276 (36,434) 41,486
--------- --------- ----------
Net change in cash 0 0 0
Cash at beginning of year 0 0 0
--------- --------- ----------
Cash at end of year $ 0 $ 0 $ 0
========= ========= ==========
</TABLE>
Supplemental disclosures of cash flow information
Cash paid during the year for:
Interest, net of 1998 capitalized
interest of $1,185 $ 24,872 $ 20,797 $ 18,584
Income taxes 17,036 7,101 1,175
See Notes to Consolidated Financial Statements.
<PAGE>29
<TABLE>
<CAPTION>
VWR SCIENTIFIC PRODUCTS CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS EQUITY
(Thousands of dollars,
except share data)
Unamortized
Common ESOP Accumulated
Stock Additional Contribution, Other
$1 Par Paid-in Retained Treasury Restricted Comprehensive
Value Capital Earnings Stock Stock Awards Income/(Loss)* Total
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995 $ 21,068 $ 137,753 $ 4,457 $ (9) $ (2,468) $ (712) $ 160,089
Comprehensive income
Net income 7,023 7,023
Other comprehensive income -
foreign currency translation
adjustment 40 40
Total comprehensive income --------
7,063
========
Issuance of 1,230,315
shares of common stock as
payment for debenture interest 1,230 14,075 15,305
Allocation of shares
to ESOP participants 293 293
Restricted stock awards 4 52 (56)
Amortization of
restricted stock 398 398
Exercise of stock options 44 264 308
Other 1 13 (9) (36) 12 (19)
---------------------------------------------------------------------------
Balance at December 31, 1996 22,347 152,157 11,471 (45) (1,821) (672) 183,437
---------------------------------------------------------------------------
<PAGE>30
<CAPTION>
(Thousands of dollars,
except share data)
Unamortized
Common ESOP Accumulated
Stock Additional Contribution, Other
$1 Par Paid-in Retained Treasury Restricted Comprehensive
Value Capital Earnings Stock Stock Awards Income/(Loss)* Total
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Comprehensive income
Net income 24,329 24,329
Other comprehensive loss -
foreign currency translation
adjustment (252) (252)
Total comprehensive income --------
24,077
========
Issuance of 6,036,719
shares of common stock 6,037 126,671 132,708
Allocation of shares
to ESOP participants 320 320
Amortization of
restricted stock 173 173
Exercise of stock options 51 509 560
Shares issued under
Merck KGaA ownership
rights 52 495 547
Tax benefit on exercise
of stock options 236 236
Other (2) (49) (51)
---------------------------------------------------------------------------
Balance at December 31, 1997 28,487 280,068 35,798 (94) (1,328) (924) 342,007
---------------------------------------------------------------------------
<PAGE>31
<CAPTION>
(Thousands of dollars,
except share data)
Unamortized
Common ESOP Accumulated
Stock Additional Contribution, Other
$1 Par Paid-in Retained Treasury Restricted Comprehensive
Value Capital Earnings Stock Stock Awards Income/(Loss)* Total
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Comprehensive income
Net income 34,248 34,248
Other comprehensive loss -
foreign currency translation
adjustment (661) (661)
-------
Total comprehensive income 33,587
=======
Allocation of shares
to ESOP participants 349 349
Restricted stock awards 3 92 (95)
Amortization of restricted stock 137 137
Exercise of stock options 238 2,765 3,003
Shares issued under
Merck KGaA ownership rights 240 2,844 3,084
Tax benefit on exercise
of stock options 1,380 1,380
---------------------------------------------------------------------------
Balance at December 31, 1998 $ 28,968 $ 287,149 $ 70,046 $ (94) $ (937) $ (1,585) $ 383,547
===========================================================================
<FN>
* - Accumulated other comprehensive income (loss) consists only of foreign currency translation adjustments.
</FN>
</TABLE>
See Notes to Consolidated Financial Statement
<PAGE>32
VWR SCIENTIFIC PRODUCTS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
------------------------------------------
Basis of Presentation
- - ---------------------
VWR Scientific Products Corporation (VWR or the Company) distributes
laboratory supplies, chemicals, and equipment to life science, educational
and industrial organizations throughout the United States and Canada. The
Company also distributes critical environment (cleanroom) supplies and
apparel to manufacturers of electronics, medical devices and pharmaceuticals.
The consolidated financial statements include the accounts of VWR
Scientific Products Corporation and all of its subsidiaries.
Significant intercompany accounts and transactions have been
eliminated.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from
those estimates.
Capitalization, Depreciation and Amortization
- - ---------------------------------------------
Property and equipment are recorded at cost. Depreciation is computed
using the straight-line method for financial reporting purposes and,
generally, accelerated methods for income tax purposes. Acquisition and
development costs for significant business systems and related software
for internal use are capitalized and amortized over their estimated
useful lives, ranging from two to twelve years. The Company capitalizes
the costs of developing and producing catalogs, which are used by
customers for ordering products. Such costs are amortized over the
period of use, generally two to three years.
Excess of Cost Over Net Assets of Businesses Acquired
- - -----------------------------------------------------
Excess of cost over net assets of businesses acquired is primarily the
result of the acquisition of the Industrial Distribution Business of
Baxter Healthcare in 1995 and The Science Kit Group of Companies
(Science Kit) in 1998 and is being amortized on a straight-line basis
over 40 years. Accumulated amortization at December 31, 1998 and 1997
was $34.5 million and $23.8 million, respectively. The carrying value
of excess of cost over net assets of businesses acquired is evaluated
periodically in relation to the operating performance and expected
future undiscounted cash flows of the underlying businesses.
Revenue Recognition
- - -------------------
The Company recognizes revenue when products are shipped.
Concentrations of Credit Risk
- - -----------------------------
Trade receivables reflect VWRs diverse customer base and the customer bases
wide geographic dispersion. As a result, at December 31, 1998, the Company
had no significant concentrations of credit risk.
<PAGE>33
Foreign Currency Transactions
- - -----------------------------
The Company utilizes foreign currency contracts to reduce its exposure to
market risks from changes in foreign exchange rates. The Company hedges
foreign currency transactions on a continuous basis for periods consistent
with its committed exposures. The primary purpose of the foreign currency
hedging activities is to protect Canadian purchases of United States supplied
goods from currency exchange rate fluctuations. Unrealized gains and losses
from these contracts are recognized in operations as the related transactions
occur. At December 31, 1998, open foreign exchange contracts were $13.3
million.
New Accounting Standards
- - ------------------------
In March 1998, the Accounting Standards Executive Committee issued
Statement of Position 98-1 (SOP 98-1), Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use. SOP 98-1
requires all costs related to the development of internal use software
other than those incurred during the application development stage to
be expensed as incurred. Costs incurred during the application
development stage are required to be capitalized and amortized over the
estimated useful life of the software. SOP 98-1 is effective for the
Companys first quarter ending March 31, 1999. Adoption is not expected
to have a material effect on the Companys consolidated financial
statements.
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (SFAS), Accounting for Derivative
Instruments and Hedging Activities. SFAS No. 133 is effective for
fiscal years beginning after June 15, 1999. SFAS No. 133 requires that
all derivative instruments be recorded on the balance sheet at their
fair value. Changes in the fair value of derivatives are recorded each
period in current earnings or other comprehensive income, depending on
whether a derivative is designed as part of a hedge transaction and, if
it is, the type of hedge transaction. The Company is evaluating the
effect of this standard on its financial statements.
2. Acquisitions
------------
On July 31, 1998, the Company acquired all of the outstanding shares of
Science Kit, a privately held supplier of science education products to
school systems and educational institutions in the United States and
Canada, for $110 million, subject to adjustment. Revenues for Science
Kit were $66 million in 1997. The acquisition has been accounted for
under the purchase method of accounting and the Company has included
Science Kits results of operations from the date of the acquisition.
The cost of the acquisition has been preliminarily allocated on the
basis of the estimated fair value of the assets acquired and
liabilities assumed. The purchase price was financed by a portion of
the proceeds received from borrowings under the Companys unsecured
five-year revolving credit facility entered into on July 31, 1998.
<PAGE>34
In addition, in 1998 the Company acquired two other companies, A.J.
Reynolds Co., Inc. and HPC Scientific & Technology, Inc., for an
aggregate purchase price of $22.6 million. Combined fiscal year 1997
revenues for these two companies were approximately $32 million. Both
were accounted for under the purchase method of accounting and were
financed by borrowings under the Companys credit facility in place at
the date of acquisition.
The following unaudited pro forma information has been prepared
assuming that the acquisitions had occurred at the beginning of the
years presented. Pro forma adjustments include: increased amortization
for the cost over net assets acquired; increased interest expense from
the acquisition debt; and related income tax effects.
The following unaudited pro forma information is provided for
information purposes only and does not purport to be indicative of VWRs
results of operations that would actually have been achieved had the
acquisitions been completed on January 1, 1997.
Year Ended December 31,
(Thousands of dollars, except per share data) 1998 1997
- - -----------------------------------------------------------------------------
Sales $ 1,402,790 $ 1,343,399
Net income $ 31,280 $ 24,000
Basic earnings per share $ 1.09 $ 1.04
Diluted earnings per share $ 1.06 $ 1.02
3. Inventories
-----------
Inventories consist of purchased goods for sale and are valued at the
lower of cost or market. Cost determined using the last-in, first-out
(LIFO) method comprised 95% and 89% of inventory carrying value at
December 31, 1998 and 1997, respectively. Cost of the remaining
inventories is determined using the first-in, first-out (FIFO) method.
LIFO cost at December 31, 1998 and 1997 was approximately $33.7 million
and $32.9 million, respectively, less than current cost.
4. Fixed Assets
------------
Net property and equipment at December 31, 1998 and 1997 is:
(Thousands of dollars) 1998 1997
- - ----------------------------------------------------------------------
Land $ 2,404 $ 738
Buildings 22,506 15,340
Computer software and equipment 124,478 76,636
Capital additions in process 1,257 7,247
----------------------------
150,645 99,961
Less accumulated depreciation (59,573) (49,115)
----------------------------
Net property and equipment $ 91,072 $ 50,846
============================
<PAGE>35
Depreciation expense for the years ended December 31, 1998, 1997 and 1996,
was $9.9 million, $8.7 million, and $7.2 million, respectively.
5. Long-Term Debt and Revolving Credit Facilities
----------------------------------------------
On July 31, 1998, the Company entered into a $250 million, five-year,
unsecured Revolving Credit Facility (Credit Facility). The Credit
Facility replaced the Companys former $150 million secured revolving
credit facility entered into on September 14, 1995. The Credit Facility
provides for the ability to borrow the equivalent in Canadian dollars
up to $17 million U.S. dollars. The Credit Facility provides that the
available line of credit will decrease to $225 million in July 2001 and
to $200 million in July 2002. The Credit Facility bears an interest
rate based on the London Interbank Offered Rate (LIBOR) or the prime
rate, plus the applicable margin. The Company is required to pay
commitment fees on the unused portion of the Credit Facility, between
.20% and .30%. The margin on interest and the commitment fees will vary
depending on the relationship between the Companys earnings before
interest, taxes, depreciation and amortization (EBITDA) and total debt.
The Credit Facility includes various financial covenants related to
total leverage, interest coverage, and net worth.
On September 15, 1995, the Company issued a debenture (Debenture) to EM
Laboratories, Incorporated, (EML) an affiliate of Merck KGaA, Germany
in the principal amount of $135 million. The Debenture has been
assigned to another affiliate of EML. The Debenture matures in a single
installment in September 2005 and is callable at face value, at the
Companys option, beginning in September 2000. The Debenture bears
interest at 13% per annum, due quarterly. Until such time as Merck KGaA
and its affiliates obtained an ownership of 49.89% of the aggregate
number of issued and outstanding common shares, interest was payable
solely in common shares at a price of $12.44 per share, and thereafter,
until September 1, 1997, interest on the Debenture was deferred, with
accumulated interest thereon, until the Debenture matures. Interest on
the Debenture is payable quarterly in cash after September 1, 1997
through the maturity date.
At December 31, 1998 and 1997, the approximate weighted average
interest rate on outstanding borrowings under the credit facilities was
6.4% and 6.9%, respectively. Interest expense under the credit
facilities for the years ended December 31, 1998, 1997, and 1996, was
$8.5 million, $15.9 million, and $17.6 million, respectively, resulting
in a weighted average interest rate of 6.4%, 7.1%, and 7.4%,
respectively.
The carrying value of the Credit Facility approximates its fair value.
The fair value of the Debenture is not readily determinable due to the
nature of the instrument.
In 1998, the Company recorded an extraordinary charge in the amount of
$1.1 million ($0.7 million net of tax) representing the write-off of
unamortized debt issuance costs related to the refinancing of the
Companys former $150 million revolving credit facility. Outstanding
borrowings under the term loan portion of the former credit facility
were repaid in 1997 using a portion of the net proceeds received from
the Companys sale of common shares as described in Note 7. As a result,
an extraordinary charge was recorded for 1997 of $0.7 million
<PAGE>36
($0.4 million net of tax) representing the write-off of $0.9 million of
unamortized debt issuance costs related to the early extinguishment of
the term loan under the Companys former credit facility, net of $0.2
million of gains on the termination of interest rate swap agreements
related to the former credit facility.
The Company has entered into various interest rate swap agreements with
financial institutions which effectively change the Companys interest
rate exposure on a notional amount of debt from variable rates to fixed
rates. The notional amounts of the swaps are based upon obligations
under the Credit Facility and expected actual debt levels during the
term of the Credit Facility. The Company provides protection to meet
actual exposures and does not speculate in derivatives. At December 31,
1998, the Company had a notional amount of $40 million of swaps in
effect. These swaps expire in 1999 and 2000. The amount of floating
rate debt protected by the swaps ranges from $40 million to $10 million
during the period outstanding with fixed rates ranging from 5.9% to
6.4%. Net receipts or payments under the agreements are recognized as
an adjustment to interest expense. At December 31, 1998, the fair
market value of the swap agreements, which is not recorded in the
consolidated financial statements, is a net payable of approximately
$0.2 million. The fair market value of the swap agreements is based on
the present value of the future cash flows determined by the difference
between the contracts fixed interest rate and the then-current
replacement interest rate. The other parties to the interest rate swap
agreements expose the Company to credit loss in the event of
nonperformance although the Company does not anticipate such
nonperformance.
6. Income Taxes
------------
Taxes on income are based on income before income taxes and extraordinary
charge as follows:
(Thousands of dollars) 1998 1997 1996
- - ----------------------------------------------------------------------------
Domestic $53,191 $38,148 $10,187
Canada 4,331 3,816 1,618
----------------------------------------
$57,522 $41,964 $11,805
========================================
<PAGE>37
The provision for income taxes consists of:
(Thousands of dollars) 1998 1997 1996
- - ----------------------------------------------------------------------------
Current:
Federal $ 3,014 $ 7,037 $ 70
State 731 697
Foreign 2,463 2,123 428
----------------------------------------
6,208 9,857 498
----------------------------------------
Deferred:
Federal 13,881 5,876 3,460
State 2,600 1,399 603
Foreign (104) 97 221
----------------------------------------
16,377 7,372 4,284
----------------------------------------
Total tax provision $22,585 $ 17,229 $ 4,782
========================================
The reconciliation of tax computed at the federal statutory tax rate of 35%
of income before income taxes to the actual income tax provision is as
follows:
(Thousands of dollars) 1998 1997 1996
- - -----------------------------------------------------------------------------
Statutory tax $20,133 $ 14,687 $4,132
State income taxes net
of federal tax benefit 2,165 1,362 392
Foreign rate differential 635 667 151
Other--net (348) 513 107
-----------------------------------------
Total tax provision $22,585 $ 17,229 $4,782
=========================================
<PAGE>38
Deferred tax liabilities (assets) as of December 31, 1998 and 1997 are
comprised of the following:
(Thousands of dollars) 1998 1997
- - -----------------------------------------------------------------------------
Depreciation $ 14,122 $ 3,438
Pension 3,395 3,718
Goodwill amortization 20,361 14,015
-------------------------
Deferred tax liabilities 37,878 21,171
-------------------------
Postretirement benefits (763) (698)
Other compensation benefits (1,896) (1,035)
State net operating loss carryforwards (485) (683)
Inventory capitalization (1,337) (1,610)
Other--net (2,264) (1,097)
-------------------------
Deferred tax assets (6,745) (5,123)
-------------------------
Net deferred tax liability $ 31,133 $ 16,048
=========================
In 1998 and 1997, tax benefits of $1.4 million and $0.2 million,
respectively related to the exercise of employee stock options were
recorded as additional paid-in capital. Net current deferred tax assets
are $5.0 million and $3.8 million at December 31, 1998 and 1997,
respectively. The Company has state net operating loss carryforwards
that expire at various times through 2013.
7. Shareholders Equity
--------------------
Merck KGaA and its affiliates, including EML, beneficially own 49.89%
of the issued and outstanding common shares as of December 31, 1998. In
connection with an April 1995 agreement to purchase securities from the
Company, EML entered into a Standstill Agreement with the Company,
pursuant to which EML agreed that it and its affiliates would not,
subject to certain specified exceptions, for a period of four years,
increase its beneficial ownership of the Companys common shares above
49.89% without the prior consent of the Company. Under the terms of the
Debenture, interest was payable in common shares, at an issue price per
share of $12.44, until Merck KGaAs beneficial ownership reached 49.89%.
In addition, upon issuance of stock by the Company, including its stock
incentive plans, Merck KGaA has the option to purchase additional
shares from the Company to retain its 49.89% ownership interest for
which the purchase price equals the price the Company receives for the
stock.
In November 1997, the Company completed a public offering of 3,025,000
common shares and a concurrent private placement with affiliates of
Merck KGaA of 3,011,719 common shares, resulting in proceeds of $132.7
million (net of issuance costs of $4.6 million). The net proceeds were
used to repay the outstanding amount of the Companys term loan of $88.8
million and $43.9 million of the revolver, both under the Companys
former credit facility.
<PAGE>39
8. Earnings Per Share
------------------
The following table sets forth the computation of basic and diluted
earnings per share (in thousands):
1998 1997 1996
-----------------------------------------
Basic weighted average
common shares outstanding 28,790 22,969 21,892
Net effect of dilutive
stock options 403 263 199
Effect of Merck KGaA
ownership rights 401 262 199
-----------------------------------------
Diluted weighted average
common shares outstanding 29,594 23,494 22,290
=========================================
Shares issued in connection with the 1997 public offering and
concurrent private placement with affiliates of Merck KGaA totaling
approximately 6 million shares are included in the weighted average
shares outstanding for approximately one month in 1997. Shares issued
in payment of Debenture interest during 1996 were included in the share
calculation as interest expense was recognized.
9. Stock and Incentive Programs
----------------------------
The Company follows Accounting Principles Board (APB) Opinion No. 25,
Accounting for Stock Issued to Employees, and related interpretations
in accounting for its employee stock-based compensation. The Company
has adopted the disclosure-only option under SFAS No. 123, Accounting
for Stock-Based Compensation.
The Companys stock incentive plans allow for the grant of nonqualified
and incentive stock options or restricted stock awards. In addition to
outstanding options, 572,400 shares were available for issuance at
December 31, 1998.
Stock Options
- - -------------
Options have been granted to certain officers and managers to purchase
common stock of the Company at its fair market value at the date of
grant. Options contain various vesting provisions ranging from 4 to 9
years. Beginning in 1995, grants issued vest at the earlier of nine
years following issuance or in 50% allotments based on the performance
of the Companys stock over a certain period of time.
<PAGE>40
Changes in options outstanding were:
Average
Shares Price
- - -----------------------------------------------------------------------------
Outstanding at December 31, 1995 1,241,601 $ 11.28
Exercised (43,983) 7.03
Granted 189,000 13.25
Cancelled (60,000) 12.00
-------------------------
Outstanding at December 31, 1996 1,326,618 $ 11.67
Exercised (51,460) 11.19
Granted 167,000 18.75
Cancelled (66,200) 11.82
-------------------------
Outstanding at December 31, 1997 1,375,958 $ 12.51
Exercised (237,774) 12.63
Granted 1,308,500 32.13
Cancelled (53,500) 22.86
-------------------------
Outstanding at December 31, 1998 2,393,184 $ 22.99
=========================
At December 31, 1998, there were 1,088,184 options exercisable at
exercise prices ranging from $7.79 to $18.75, with an average exercise
price of $12.15. Exercisable options at December 31, 1998 have a
weighted average remaining life of 6 years. In addition, there were
1,296,000 options outstanding at an exercise price of $32.13 with a
remaining life of 9 years, which were not included in the computation
of diluted earnings per share because the effect would be antidilutive.
Pro forma disclosure, as required by SFAS No. 123, regarding net income
and earnings per share has been determined as if the Company had
accounted for its employee stock options under the fair value method.
Option valuation models use highly subjective assumptions to determine
the fair value of traded options with no vesting or trading
restrictions. Because options granted under the Companys Stock Option
Plans have vesting requirements and cannot be traded, and because
changes in the assumptions can materially affect the fair value
estimate, in managements opinion, the existing valuation models do not
necessarily provide a reliable measure of the fair value of its
employee stock options.
The fair value for these options was estimated at the date of grant
using a Black-Scholes option pricing model with the following weighted
average assumptions for 1998, 1997 and 1996: risk-free interest rate of
5.3%, 6.4% and 5.6%, respectively; no dividends; a volatility factor of
the expected market price of the Companys common stock of 0.683, 0.476,
and 0.416, respectively; and a weighted average expected life of the
options of 7 years.
For purposes of pro forma disclosures, the estimated fair value of the
options ($22.37, $10.90, and $6.99 for the 1998, 1997 and 1996 grants,
respectively) is amortized to expense over the options assumed vesting
period. SFAS No. 123 requires only that the income effects of options
granted beginning in 1995 be included in the pro forma disclosures.
Since a portion of the Companys stock options vest over several years
and additional options may be granted each year, the pro forma effect
<PAGE>41
on net income reported below is not representative of the effect of
fair value stock option expense on future years pro forma net income.
The Companys pro forma information follows:
Year ended December 31,
(Thousands, except per share data) 1998 1997 1996
- - -----------------------------------------------------------------------------
Pro forma net income $ 30,857 $21,255 $6,152
Pro forma basic earnings per share 1.07 0.93 0.28
Pro forma diluted earnings per share 1.06 0.90 0.28
Savings Investment Plan
- - -----------------------
The Company has a savings investment plan whereby it matches 50% of the
employees contribution up to 3% of the employees pay. Depending on the
Companys profitability in any year, the Company will make an
additional match of 50% of the employee contributions between 3% and
7.5% of their pay. Expenses under this plan for the years ended
December 31, 1998, 1997, and 1996, were $1.1 million, $0.9 million, and
$0.9 million, respectively.
Employee Stock Ownership Plan
- - -----------------------------
In September 1990, the Company established an employee stock ownership
plan (ESOP) by, in effect, contributing 400,000 treasury shares ($2.9
million fair value) to the ESOP of which 290,360 shares have been
allocated to participants at December 31, 1998. All domestic full-time
and part-time employees, except certain union employees, are eligible
to participate in the plan.
The ESOP shares will be allocated equally to individual participants
accounts over a period up to ten years. Vesting occurs equally over an
employment period of five years at which time the employee is 100%
vested in the plan. The total number of shares to be allocated in a
year is the higher of an amount based on the Companys profitability or
the minimum allocation required per the ESOP agreement. Expenses are
recognized based on shares allocated for the year and are reduced for
dividends paid, if any, on unallocated shares.
10. Postretirement Benefits
-----------------------
Pension Plan
- - ------------
The Company has a defined benefit pension plan covering substantially
all of its domestic employees, except for employees covered by
independently operated collective bargaining plans. The following table
summarizes the balance sheet impact, including the benefit obligations,
assets, funded status and rate assumptions associated with the Companys
pension plan.
<PAGE>42
Pension Benefits
(Thousands of dollars) 1998 1997
--------------------------
Change in projected benefit obligation:
Projected benefit obligation at January 1 $53,158 $44,927
Service cost 2,947 2,179
Interest cost 4,355 3,587
Plan amendments 689 0
Actuarial losses 7,527 4,950
Acquisitions 6,146 0
Benefits paid (2,395) (2,485)
- - ---------------------------------------------------------------------------
Benefit obligation at December 31 $72,427 $53,158
- - ---------------------------------------------------------------------------
Change in plan assets:
Fair value of plan assets at January 1 $62,339 $50,043
Actual return on plan assets 13,421 12,272
Company contributions 928 2,509
Acquisitions 8,527 0
Benefits paid (2,395) (2,485)
- - ---------------------------------------------------------------------------
Fair value of plan assets at December 31 $82,820 $62,339
- - ---------------------------------------------------------------------------
Reconciliation of funded status:
Funded status of plans $10,393 $ 9,181
Unrecognized transition obligation 164 216
Unrecognized net gain (1,181) (1,481)
Unrecognized prior service cost 382 (362)
- - ---------------------------------------------------------------------------
Prepaid benefit cost $ 9,758 $ 7,554
===========================================================================
Assumptions as of December 31:
Discount rate 7.00% 7.50%
Assumed rate of return on plan assets 10.00% 10.00%
Assumed annual rate of compensation increase 4.00% 4.00%
===========================================================================
Net periodic pension cost includes the following components:
(Thousands of dollars) 1998 1997 1996
----------------------------------------
Service cost $ 2,947 $ 2,180 $ 2,234
Interest cost 4,355 3,587 3,289
Assumed return on plan assets (6,381) (4,983) (4,305)
Amortization of transition asset 16 51 51
Amortization of prior service cost (57) (101) (101)
Recognition of actuarial losses 0 2 233
- - ----------------------------------------------------------------------------
Net periodic pension cost $ 880 $ 736 $ 1,401
============================================================================
<PAGE>43
The Company maintains a supplemental pension plan for certain senior
officers. Expenses incurred under this plan in 1998, 1997, and 1996
were approximately $0.1 million, $0.1 million, and $0.2 million,
respectively.
Certain employees are covered under union-sponsored, collectively
bargained plans. Expenses under these plans for each of the years ended
December 31, 1998, 1997, and 1996, were $0.6 million, $0.3 million, and
$0.5 million, respectively, as determined in accordance with negotiated
labor contracts.
Retiree Medical Benefits Program
- - --------------------------------
The Company provides health benefits to certain retirees and a limited
number of active employees and their spouses. These benefit plans are
unfunded. The accumulated postretirement benefit obligation was $1.8
million and $1.7 million at December 31, 1998 and 1997, respectively.
The weighted average discount rate used in determining the accumulated
postretirement benefit obligation was 7.0% and 7.5% at December 31,
1998 and 1997, respectively. The annual expense for such benefits was
not material.
11. Leases
------
The Company leases office and warehouse space and computer equipment
under operating leases, certain of which extend up to 16 years, subject
to renewal options. Rental expense was $10.9 million, $9.8 million, and
$9.8 million for the years ended December 31, 1998, 1997, and 1996,
respectively.
Future minimum lease payments as of December 31, 1998, under
noncancelable operating leases having initial lease terms of more than
one year are:
Years Ending December 31
(Thousands of dollars)
- - ------------------------------------------------------------------
1999 $ 8,096
2000 7,277
2001 6,065
2002 5,482
2003 3,914
Thereafter 25,041
--------
Total minimum payments $55,875
========
<PAGE>44
12. Contingencies and Commitments
-----------------------------
The Company is involved in various environmental,
contractual, and product liability cases and claims, which are
considered routine to the Companys business. In the opinion of
management, the potential financial impact of these matters is not
material to the consolidated financial statements.
The Company is party to various distribution agreements which require
the Company to purchase a minimum dollar amount of products. The
minimum for 1998 was $100 million. The accumulated shortfall under
these agreements at December 31, 1998 was approximately $20 million.
The Company has renegotiated or is in the process of renegotiating
certain of these contracts and the Company expects that the accumulated
deficiency will be satisfied through a combination of purchases
and contract extensions. Obligations under these contracts for the
years 1999 and 2000 are expected to be $92 million and $120 million,
respectively. Purchases under this contract are not expected to have a
material effect on the Companys financial condition or results
of operations for 1999.
13. Transactions with Affiliates
----------------------------
In the ordinary course of business, the Company purchases inventory from
affiliates of Merck KGaA. Such purchases represent less than 5% of total
purchases.
<PAGE>45
14. Quarterly Financial Data (Unaudited)
-----------------------------------
(Thousands of dollars,
except per share data)
Basic Diluted
Gross Operating Net Earnings Earnings
Sales Margin Income Income Per Share Per Share
- - -----------------------------------------------------------------------------
Year Ended - December 31, 1998
First Quarter $ 320,478 $ 71,638 $ 19,612 $ 7,918 $ .28 $ .27
Second Quarter 330,998 73,330 20,530 8,826 .31 .30
Third Quarter 360,515 86,003 27,313 11,029 .38 .37
Fourth Quarter 337,957 81,206 17,977 6,475 .22 .22
---------------------------------------------------------
Total $1,349,948 $312,177 $ 85,432 $34,248 $ 1.19 $ 1.16
=========================================================
Year Ended - December 31, 1997
First Quarter $ 290,826 $ 63,416 $15,393 $ 3,551 $ .16 $ .16
Second Quarter 310,513 68,504 19,881 6,080 .27 .27
Third Quarter 329,079 74,113 22,984 8,395 .38 .37
Fourth Quarter 314,377 71,682 19,061 6,303 .25 .25
---------------------------------------------------------
Total $1,244,795 $277,715 $77,319 $24,329 $1.06 $1.04*
=========================================================
Note: The first quarter of 1997 includes $253 of acquisition-related
expenses from the Baxter Industrial acquisition. The third quarter of
1998 and the fourth quarter of 1997 include extraordinary charges of
$689 (net of tax) or $0.02 per basic and diluted share, and $406 (net
of tax) or $0.02 per basic share and $0.01 per diluted share,
respectively, due to the early extinguishment of debt.
* The sum of the quarterly earnings per share does not equal the total
earnings per share due to different weighted average share amounts
outstanding for quarterly and annual reporting purposes.
<PAGE>46
REPORT OF INDEPENDENT AUDITORS
- - ------------------------------
To the Shareholders of VWR Scientific Products Corporation:
We have audited the accompanying consolidated balance sheets of VWR
Scientific Products Corporation as of December 31, 1998 and 1997, and the
related consolidated statements of operations, shareholders equity, and cash
flows for each of the three years in the period ended December 31, 1998. Our
audits also include the financial statement schedule listed in the index at
Item 14(a). These financial statements and schedule are the responsibility of
the Companys management. Our responsibility is to express an opinion on these
financial statements and schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position
of VWR Scientific Products Corporation at December 31, 1998 and 1997, and the
consolidated results of its operations and its cash flows for each of the
three years in the period ended December 31, 1998, in conformity with
generally accepted accounting principles. Also, in our opinion, the related
financial statement schedule, when considered in relation to the basic
financial statements taken as a whole, presents fairly in all material
respects the information set forth therein.
BY (SIGNATURE)
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
February 25, 1999
<PAGE>47
ITEM 9. - CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
- - ------ --------------------------------------------------------------
None.
PART III.
- - --------
ITEM 10. - DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- - -------- ---------------------------------------------------
The information required by this item is incorporated by reference from the
section captioned Election of Directors and the section captioned Ownership
of VWR Scientific Products Corporation Common Shares - Section 16(a)
Beneficial Ownership Reporting Compliance contained in the Companys
definitive Proxy Statement, which the Company will have filed with the
Commission pursuant to Regulation 14A on or about April 6, 1999.
Information regarding executive officers of the Company is included in Part I
of this Form 10-K.
ITEM 11. - EXECUTIVE COMPENSATION
- - ------- ----------------------
The information required by this item is incorporated by reference from the
sections captioned Fees to Directors and Committees of the Board and
Executive Compensation contained in the Companys definitive Proxy Statement,
which the Company will have filed with the Commission pursuant to Regulation
14A on or about April 6, 1999.
ITEM 12. - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- - ---------- ----------------------------------------------------------
The information required by this item is incorporated by reference from the
section captioned Ownership of VWR Scientific Products Corporation Common
Shares contained in the Companys definitive Proxy Statement, which the
Company will have filed with the Commission pursuant to Regulation 14A on or
about April 6, 1999.
ITEM 13. - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- - ------- ----------------------------------------------
The information required by this item is incorporated by reference from the
section captioned Election of Directors contained in the Companys definitive
Proxy Statement, which the Company will have filed with the Commission
pursuant to Regulation 14A on or about April 6, 1999.
<PAGE>48
PART IV.
- - -------
ITEM 14. - EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
- - -------- ------------------------------------------------------------
(a)(1) Financial Statements
The following financial statements have been included as part of this report:
Form 10-K
Page
---------
Consolidated Statements of Operations 23
Consolidated Balance Sheets 25
Consolidated Statements of Cash Flows 27
Consolidated Statements of Shareholders Equity 29
Notes to Consolidated Financial Statements 32
Report of Independent Auditors 46
(2) Financial Statement Schedules
(a) The following financial statement schedule is submitted herewith:
-Schedule II - Valuation and Qualifying Accounts
All other schedules for which provision is made in the
applicable accounting regulation of the Securities and
Exchange Commission are not required under the related
instructions or are inapplicable, and have therefore been
omitted.
<PAGE>49
(3) Exhibits
Exhibit Number and Description
------------------------------
2(a) Asset Purchase Agreement dated as of May 24, 1995 by and among VWR
Corporation, Baxter Healthcare Corporation and EM Laboratories,
Incorporated; incorporated by reference to Exhibit VI of Registrants
definitive proxy statement filed with the Commission on
August 11, 1995.
2(b) Amendment to Asset Purchase Agreement dated as of September 15, 1995
by and among VWR Corporation, Baxter Healthcare Corporation and
EM Laboratories, Incorporated; incorporated by reference to Exhibit 2(b)
of the Registrants Form 8-K dated September 15, 1995.
2(c) Agreement and Plan of Merger between VWR Corporation and
VWR New Corporation; incorporated by reference to Exhibit 2 of the
Registrants Form 10-K for the year ended December 31, 1994.
2(d) Stock Purchase Agreement dated as of July 21, 1998 by and among VWR
Scientific Products Corporation, Charles. E. Balbach, Paul F.
Eckel, Science Kit, Inc., Boreal Laboratories, Ltd., Wards Natural
Science Establishment, Inc., Central Scientific Company, Arbor
Scientific Co. Limited, Central Scientific Company of Canada
Limited, and Wards Natural Science Ltd.; incorporated by reference
to Exhibit 2.1 of the Registrants Form 8-K dated July 31, 1998.
3(a) Amended and Restated Articles of Incorporation; incorporated by
reference to Exhibit 3 of the Registrants Form 10-K for the year
ended December 31, 1994.
3(b) Amendment to Articles of Incorporation dated September 15, 1995;
incorporated by reference to Exhibit 1 of the Registrants Form
8-K dated September 15, 1995.
3(c) Amended and Restated Bylaws; incorporated by reference to Exhibit 3.1
of the Registrants Form 10-K for the year ended December 31, 1994.
4(a) Standstill Agreement between VWR Corporation and EM Industries,
Incorporated dated February 27, 1995; incorporated by reference to
Exhibit 4(a) of Registrants Form 8-K dated April 13, 1995.
4(b) Amendment Number One to the Standstill Agreement dated September
15, 1995 by and among VWR Corporation, EM Industries, Incorporated
and EM Laboratories, Incorporated; incorporated by reference to
Exhibit 4(b) of the Registrants Form 8-K dated September 15, 1995.
<PAGE>50
4(c) Subordinated Debenture dated as of September 15, 1995 in the
principal amount of $135,000,000 payable to the order of
EM Laboratories, Incorporated; incorporated by reference to
Exhibit 4(c) of the Registrants Form 8-K dated September 15, 1995.
4(d) Warrant to Purchase Common Shares of VWR Corporation dated April
13, 1995; incorporated by reference to Exhibit 4 of the Registrants
Form 8-K dated April 13, 1995.
4(e) Credit Agreement dated as of July 31, 1998 by and among
the Registrant, PNC Bank, N.A., Bank of America National Trust
and Savings Association et al; included herein.
10(a) Common Share and Debenture Purchase Agreement dated as of May 24,
1995 between VWR Corporation and EM Industries, Incorporated;
incorporated by reference to Exhibit II of Registrants definitive
proxy statement filed with the Commission on August 11, 1995.
10(b) Distribution Agreement between VWR Corporation and Baxter
Healthcare Corporation dated as of September 15, 1995;
incorporated by reference to Exhibit 10(b) of the Registrants
Form 8-K dated September 15, 1995.
10(c) Employment Agreement between Jerrold B. Harris and VWR Corporation
dated as of September 15, 1995; incorporated by reference to
Exhibit 10(e) of the Registrants Form 8-K dated September 15, 1995.
10(d) Change of Control Agreement between VWR Corporation and
Paul J. Nowak; incorporated by reference to Exhibit 10 of
the Registrants Form 10-K Report for the year ended
December 31, 1992. (1)
10(e) VWR Corporation Executive Bonus Plan dated January 1, 1990;
incorporated by reference to Exhibit 10 of the Registrants Form
10-K for the year ended December 31, 1991. (1)
10(f) VWR Corporation Supplemental Benefits Plan dated November 1,
1990; incorporated by reference to Exhibit 10 of the Registrants
Form 10-K for the year ended December 31, 1991. (1)
21 Subsidiaries of the Company
23 Consent of Independent Auditors
24 Power of Attorney
27 Financial Data Schedule for year ended December 31, 1998 (submitted
only in electronic format pursuant to Item 601(c)(1)(v) of
Regulation S-K).
(1)May be deemed a management contract or compensatory plan or
arrangement.
(b) Reports on Form 8-K
None
<PAGE>51
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
VWR SCIENTIFIC PRODUCTS CORPORATION
Date BY (SIGNATURE)
Jerrold B. Harris,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on the behalf of the
Registrant in the capacities and on the dates indicated.
Date BY (SIGNATURE)
David M. Bronson
Senior Vice President Finance
(Principal Financial and
Accounting Officer)
DIRECTORS
James W. Bernard
Richard E. Engebrecht
Jerrold B. Harris
Wolfgang Honn BY (SIGNATURE)
Dieter Janssen
Stephen J. Kunst
Edward A. McGrath, Jr.
Donald P. Nielsen
N. Stewart Rogers Jerrold B. Harris
Harald Schroder
Walter W. Zywottek Attorney-in-fact
Power of Attorney
dated March 29, 1999
Date: March 29, 1999
<PAGE>52
VWR SCIENTIFIC PRODUCTS CORPORATION
------------------------------------
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
-----------------------------------------------
(Thousands of dollars)
Balance at Charged to Balance
Beginning Costs and at End
Description of Year Expenses Deductions (1) Other of Year
- - ----------- --------- ---------- -------------- ----- --------
Allowances for losses
(deducted from trade
receivables) for:
Year Ended
December 31, 1998 $2,512 $3,057 $2,225 $ 73 $3,417
====== ====== ====== ==== ======
Year Ended
December 31, 1997 $1,505 $2,196 $1,189 $2,512
====== ====== ====== ==== ======
Year Ended
December 31, 1996 $ 739 $ 909 $ 943 $800(2) $1,505
====== ====== ====== ==== ======
(1) Uncollectible accounts written off, net of recoveries.
(2) Reserves established in connection with acquisitions.
<PAGE>53
Exhibit Index
Exhibit Number and Description
------------------------------
2(a) Asset Purchase Agreement dated as of May 24, 1995 by and among VWR
Corporation, Baxter Healthcare Corporation and EM Laboratories,
Incorporated; incorporated by reference to Exhibit VI of Registrants
definitive proxy statement filed with the Commission on
August 11, 1995.
2(b) Amendment to Asset Purchase Agreement dated as of September 15, 1995
by and among VWR Corporation, Baxter Healthcare Corporation and
EM Laboratories, Incorporated; incorporated by reference to Exhibit 2(b)
of the Registrants Form 8-K dated September 15, 1995.
2(c) Agreement and Plan of Merger between VWR Corporation and
VWR New Corporation; incorporated by reference to Exhibit 2 of the
Registrants Form 10-K for the year ended December 31, 1994.
2(d) Stock Purchase Agreement dated as of July 21, 1998 by and among VWR
Scientific Products Corporation, Charles. E. Balbach, Paul F.
Eckel, Science Kit, Inc., Boreal Laboratories, Ltd., Wards Natural
Science Establishment, Inc., Central Scientific Company, Arbor
Scientific Co. Limited, Central Scientific Company of Canada
Limited, and Wards Natural Science Ltd.; incorporated by reference
to Exhibit 2.1 of the Registrants Form 8-K dated July 31, 1998.
3(a) Amended and Restated Articles of Incorporation; incorporated by
reference to Exhibit 3 of the Registrants Form 10-K for the year
ended December 31, 1994.
3(b) Amendment to Articles of Incorporation dated September 15, 1995;
incorporated by reference to Exhibit 1 of the Registrants Form
8-K dated September 15, 1995.
3(c) Amended and Restated Bylaws; incorporated by reference to Exhibit 3.1
of the Registrants Form 10-K for the year ended December 31, 1994.
4(a) Standstill Agreement between VWR Corporation and EM Industries,
Incorporated dated February 27, 1995; incorporated by reference to
Exhibit 4(a) of Registrants Form 8-K dated April 13, 1995.
4(b) Amendment Number One to the Standstill Agreement dated September
15, 1995 by and among VWR Corporation, EM Industries, Incorporated
and EM Laboratories, Incorporated; incorporated by reference to
Exhibit 4(b) of the Registrants Form 8-K dated September 15, 1995.
<PAGE>54
4(c) Subordinated Debenture dated as of September 15, 1995 in the
principal amount of $135,000,000 payable to the order of
EM Laboratories, Incorporated; incorporated by reference to
Exhibit 4(c) of the Registrants Form 8-K dated September 15, 1995.
4(d) Warrant to Purchase Common Shares of VWR Corporation dated April
13, 1995; incorporated by reference to Exhibit 4 of the Registrants
Form 8-K dated April 13, 1995.
4(e) Credit Agreement dated as of July 31, 1998 by and among
the Registrant, PNC Bank, N.A., Bank of America National Trust
and Savings Association et al; included herein on page 55.
10(a) Common Share and Debenture Purchase Agreement dated as of May 24,
1995 between VWR Corporation and EM Industries, Incorporated;
incorporated by reference to Exhibit II of Registrants definitive
proxy statement filed with the Commission on August 11, 1995.
10(b) Distribution Agreement between VWR Corporation and Baxter
Healthcare Corporation dated as of September 15, 1995;
incorporated by reference to Exhibit 10(b) of the Registrants
Form 8-K dated September 15, 1995.
10(c) Employment Agreement between Jerrold B. Harris and VWR Corporation
dated as of September 15, 1995; incorporated by reference to
Exhibit 10(e) of the Registrants Form 8-K dated September 15, 1995.(1)
10(d) Change of Control Agreement between VWR Corporation and
Paul J. Nowak; incorporated by reference to Exhibit 10 of
the Registrants Form 10-K Report for the year
ended December 31, 1992.
10(e) VWR Corporation Executive Bonus Plan dated January 1, 1990;
incorporated by reference to Exhibit 10 of the Registrants Form
10-K for the year ended December 31, 1991.
10(f) VWR Corporation Supplemental Benefits Plan dated November 1,
1990; incorporated by reference to Exhibit 10 of the Registrants
Form 10-K for the year ended December 31, 1991.
21 Subsidiaries of the Company, page 140.
23 Consent of Independent Auditors, page 141.
24 Power of Attorney, page 142.
27 Financial Data Schedule for year ended December 31, 1998 (submitted
only in electronic format pursuant to Item 601(c)(1)(v) of
Regulation S-K).
1
1
1
<PAGE 55>
CREDIT AGREEMENT
Dated as of July 31, 1998
among
VWR SCIENTIFIC PRODUCTS CORPORATION,
VWR SCIENTIFIC OF CANADA LTD.,
SCIENTIFIC HOLDINGS CORP.,
SCIENCE KIT, INC.,
WARDS NATURAL SCIENCE ESTABLISHMENT, INC.,
CENTRAL SCIENTIFIC COMPANY
and
A.J. REYNOLDS COMPANY, LLC
as Borrowers,
The Several Lenders From Time to Time
Parties Hereto
and
PNC BANK, NATIONAL ASSOCIATION
as Administrative Agent
______________________________
PNC BANK, NATIONAL ASSOCIATION
As Documentation Agent
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
As Syndication Agent
Arranged By
BANCAMERICA ROBERTSON STEPHENS
and
PNC CAPITAL MARKETS, INC.
$250,000,000 CREDIT FACILITIES
<PAGE 56>
CREDIT AGREEMENT
AGREEMENT, dated as of July 31, 1998, among VWR SCIENTIFIC
PRODUCTS CORPORATION (VWR), VWR SCIENTIFIC OF CANADA LTD. (VWR Canada),
SCIENTIFIC HOLDINGS CORP., SCIENCE KIT, INC., WARDS NATURAL SCIENCE
ESTABLISHMENT, INC., CENTRAL SCIENTIFIC COMPANY and A.J. REYNOLDS
COMPANY, LLC (each a Borrower; collectively, the Borrowers); the
several banks and other financial institutions from time to time
parties hereto (each a Lender; collectively, the Lenders); and PNC
BANK, NATIONAL ASSOCIATION, as Administrative Agent (in such capacity,
the Administrative Agent).
W I T N E S S E T H:
WHEREAS, this Agreement and the Loans (as defined below)
hereunder are and shall be considered to be a refinancing and refunding
of indebtedness under the Existing Credit Agreement (as defined below).
NOW THEREFORE, 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:
. As used in this Agreement, the following terms shall have the
following meanings:
Affiliate: as to any Person, any other Person which,
directly or 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 Documentation Agent, the Syndication Agent and the
Arrangers.
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, Euro-Rate, Canadian Base Rate or Canadian COF
Rate, as appropriate, opposite the Leverage Ratio shown on the
last Compliance Certificate delivered by the Borrowers to the
<PAGE 57>
Administrative Agent pursuant to subsection 7.2(b) prior to such
date:
Leverage Canadian
Level Ratio Base Rate Euro-Rate Base Rate COF RATE
1 Less than 1.50 to 1 0 .45% 0.45%
2 Less than 2.00 to 1
but greater than or
equal to 1.50 to 1 0 .50% 0.50%
3 Less than 2.50 to 1
but greater than or
equal to 2.00 to 1 0 .625% 0.625%
4 Less than 3.00 to 1
but greater than or
equal to 2.50 to 1 0 .75% 0.75%
5 Less than 3.50 to 1
but greater than or
equal to 3.00 to 1 0 .875% 0.875%
6 Equal to or greater
than 3.50 to 1 0 1.25% 01.25%
; provided, however, that (a) adjustments, if any, to the
Applicable Margin resulting from a change in the Leverage Ratio
shall be effective two Business Days after the Administrative
Agent has received a Compliance Certificate, (b) in the event
that no Compliance Certificate has been delivered for a fiscal
quarter prior to the last date on which it can be delivered
without violation of subsection 7.2(b), the Applicable Margin
from such date until two Business Days after such Compliance
Certificate is actually delivered shall be that applicable when
the Leverage Ratio is in Level 6 and (c) notwithstanding anything
to the contrary herein, until two Business Days after receipt by
the Administrative Agent of the Compliance Certificate for the
period ended September 30, 1998, the Applicable Margin shall be
that applicable when the Leverage Ratio is in Level 5.
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.
Arrangers: BancAmerica Robertson Stephens and PNC Capital
Markets, Inc.
Assignment and Acceptance: an assignment and acceptance
entered into by a Lender and a Purchasing Lender, and accepted by
the Administrative Agent, in the form of Exhibit H, or such other
form as shall be approved by the Administrative Agent.
<PAGE 58>
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 Equivalent of the
U.S. Dollar 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 U.S. Dollar Loans, the
Swing Line Loans and the Canadian Dollar Loans outstanding at
such time and (b) the L/C Obligations outstanding at such time.
Available U.S. Dollar Commitment: at any particular time,
an amount equal to the excess, if any, of the U.S. Dollar
Commitments at such time over the sum of (a) the aggregate unpaid
principal amount of the U.S. Dollar 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
4.1(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 1/100th 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.
BOA Canada: means Bank of America Canada, a Canadian
chartered bank.
Borrowing: either (a) a borrowing of Base Rate Loans,
Swing Line Loans or Canadian Base Rate Loans or (b) in the case
of Eurodollar Loans or Canadian COF Rate Loans, a group of Loans
<PAGE 59>
of a single Type made by the U.S. Dollar Lenders or the Canadian
Dollar Lenders, 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.
Business Day: any day other than a Saturday, Sunday or
other day on which commercial banks in Philadelphia, Pennsylvania
or New York, New York 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 the London interbank market;
provided, further, however, that when used in connection with a
Canadian Dollar Loan, the term Business Day shall also exclude
any day on which banks in Toronto or Vancouver, Canada are
authorized or required by law to close.
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 Commitment: as to any Canadian Dollar
Lender, the obligation of such Lender to make Canadian Dollar
Loans in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such
Lenders 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
Dollar Lender at any time, the percentage which such Lenders
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 been
terminated, the percentage which the amount of such Lenders
Canadian Dollar Exposure constitutes of the aggregate amount of
the Canadian Dollar Exposure at such time).
Canadian Dollar Exposure: as to any Canadian Dollar Lender
at any date, an amount equal to the U.S. Dollar Equivalent
<PAGE 60>
of the aggregate principal amount of the Canadian Dollar Loans
made by such Lender then outstanding.
Canadian Dollar Lender: at any time, the Lender or Lenders
which at that time are obligated, subject to the terms of this
Agreement, to make Canadian Dollar Loans (or, at any time after
the Canadian Dollar Commitments shall have expired or been
terminated, any Lender that has Canadian Dollar Loans then
outstanding).
Canadian Dollar Loans: as defined in subsection 3.1.
Canadian Dollar Note: as defined in subsection 3.2, 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 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 Subsidiary Guaranty: a Guaranty executed by a
Subsidiary of VWR in favor of the Canadian Dollar Lenders
pursuant to which such Subsidiary shall guarantee the repayment
of the Canadian Dollar Loans, substantially in the form of
Exhibit C-2 hereto, as the same may be amended, supplemented or
otherwise modified from time to time.
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.
Capital Lease Obligation: at any time, the amount of the
obligations under Capital Leases which would be shown at such
time as a liability on a consolidated balance of VWR and its
consolidated Subsidiaries prepared in accordance with 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.
Cash Equivalents:
(a) marketable direct obligations issued or
unconditionally guaranteed by the United States of America
or any agency thereof or guaranteed by the United States of
America or any agency thereof, in each case maturing within
one year from the date of acquisition thereof;
<PAGE 61>
(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 Moodys;
(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 Moodys;
(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 Keefe Bank
Watch Rating of C or better and (C) commercial paper having
a rating of A-2 (or the equivalent) from S&Ps or P-2 (or
the equivalent) of higher from Moodys;
(e) domestic and Eurodollar certificates of
deposit, time or demand deposits or bankers acceptances
maturing within one year from the date of acquisition
issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by:
(i) any Lender,
(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,
(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 Cash Equivalents under this
clause (e)(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
<PAGE 62>
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.
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 Affiliate 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 Affiliates
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, or (iii) 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
constitute a majority of the Board of Directors of VWR then in
office.
Closing Date: the date on which the Lenders make their
initial Loans.
Code: the Internal Revenue Code of 1986, as amended from
time to time.
Commercial Letter of Credit: as defined in subsection
2.4(b)(i)(B).
Commitment Fee: as defined in subsection 4.1(a).
Commitment Fee Rate: on any date the percentage per annum
set forth below opposite the Leverage Ratio shown on the last
Compliance Certificate delivered by the Borrowers to the
Administrative Agent pursuant to subsection 7.2(b) prior to such
date:
Level Leverage Ratio Commitment Fee Rate
1 Less than 1.50 to 1.0 .20%
2 Less than 2.00 to 1.0 but
greater than or equal to
<PAGE 63>
1.50 to 1.0 .20%
3 Less than 2.50 to 1.0 but
greater than or equal to
2.00 to 1 .25%
4 Less than 3.00 to 1 but
greater than or equal to
2.50 to 1 .30%
5 Less than 3.50 to 1.0 but
greater than or equal to
3.00 to 1.0 .30%
6 Equal to or greater than
3.50 to 1.0 .30%
; provided, however, that, (a) adjustments, if any, to the
Commitment Fee Rate resulting from a change in the Leverage Ratio
shall be effective two Business Days after the Administrative
Agent has received a Compliance Certificate, (b) in the event
that no Compliance Certificate has been delivered for a fiscal
quarter prior to the last day on which it can be delivered
without violation of subsection 7.2(b), the Commitment Fee Rate
from such date until two Business Days after such Compliance
Certificate is actually delivered shall be that applicable when
the Leverage Ratio is in Level 6 and (c) notwithstanding anything
to the contrary contained herein, until two Business Days after
receipt by the Administrative Agent of the Compliance Certificate
for the period ending September 30, 1998, the Commitment Fee Rate
shall be that applicable when the Leverage Ratio is in Level 5.
Commitment Period: with respect to the U.S. Dollar
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 have
terminated as provided herein.
Commitments: the U.S. Dollar 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.
Compliance Certificate: means a Certificate substantially
in the form of Exhibit B.
Consolidated Assets: at any time, the total consolidated
assets of VWR and its Subsidiaries at such time, as determined in
accordance with GAAP.
<PAGE 64>
Consolidated EBITDA: for any period of four consecutive
fiscal quarters, Consolidated Net Income for such period, plus
the amount of income taxes, interest expense, depreciation and
amortization expense deducted from earnings in determining such
Consolidated Net Income in each case determined on a consolidated
basis for VWR and its Subsidiaries in accordance with GAAP;
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 Interest Expense: for any period of four
consecutive fiscal quarters, the amount of 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 period of four
consecutive fiscal quarters, 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 any 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 determined in accordance with GAAP.
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.
Default: any of the events specified in Section 9, 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 such 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 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.
Documentation Agent: PNC Bank, National Association, in
its capacity as Documentation Agent.
<PAGE 65>
Dollars and $: dollars in lawful currency of the United
States of America, except when preceded by the word Canadian or
the abbreviation CAN.
E-Merck Subordinated Debt: Indebtedness of VWR under that
certain Common Share and Debenture Agreement dated May 24, 1995,
as amended 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, 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.
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.
Eurodollar Loan: any Loan bearing interest at a rate
determined by reference to the Euro-Rate.
Euro-Rate: with respect to any Eurodollar Loan for any
Interest Period, the interest rate per annum determined by the
Administrative Agent by dividing (the resulting quotient rounded
upwards, if necessary, to the nearest 1/100th of 1% per annum)
(i) the rate of interest determined by the Administrative Agent
in accordance with its usual procedures (which determination
shall be conclusive absent manifest error) to be the average of
the London interbank offered rates for U.S. Dollars quoted by the
British Bankers Association as set forth on Dow Jones Markets
Service (formerly known as Telerate) (or appropriate successor
or, if British Bankers Association or its successor ceases to
provide such quotes, a comparable replacement determined by the
Administrative Agent) display page 3750 (or such other display
page on the Dow Jones Markets Service system as may replace
display page 3750) two (2) Business Days prior to the first day
of such Interest Period for an amount comparable to the amount of
such Eurodollar Loan and having a borrowing date and a maturity
comparable to such Interest Period by (ii) a number equal to 1.00
minus the Euro-Rate Reserve Percentage. The Euro-Rate may also
be expressed by the following formula:
Average of London interbank offered rates quoted by
BBA as shown Euro-Rate = on Dow Jones Markets Service display page 3750
or appropriate successor
1.00 - Euro-Rate Reserve Percentage
<PAGE 66>
Euro-Rate Reserve Percentage: the maximum effective
percentage in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without
limitation, supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently
referred to as Eurocurrency liabilities).
Event of Default : any of the events specified in Section
9, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been
satisfied.
Existing Credit Agreement: means the Credit Agreement
among certain of the Borrowers, the banks and other financial
institutions parties thereto and the agents, arrangers and lead
manager party thereto, as heretofore amended, supplemented or
otherwise modified.
Existing Letters of Credit: as defined in subsection 2.12.
Exposure: as to any Lender at any date, an amount equal to
the sum of its (a) U.S. Dollar Exposure at such date and (b)
Canadian Dollar Exposure at such date.
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: the letter agreement among VWR and the Agents
dated June 29, 1998 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: generally accepted accounting principles in the
United States of America as in effect from time to time.
Notwithstanding the foregoing, if either the Borrowers or the
Required Lenders determine that a change in GAAP from that in
effect on the date hereof has altered the treatment of certain
financial data to its detriment under this Agreement, such party
may seek of the other a renegotiation of any financial covenant
or other provision affected thereby. If the Borrowers and the
Required Lenders cannot agree on renegotiated covenants, then,
for the purposes of this Agreement (other than Section 6.1(a)),
<PAGE 67>
GAAP will refer to generally accepted accounting principles on
the date just prior to the date on which the change that gave
rise to the renegotiation occurred.
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.
Guarantee: a Guarantee executed and delivered by a
Subsidiary of VWR in favor of the Administrative Agent and the
Lenders pursuant to which such Subsidiary shall guarantee the
repayment of the Loans and the L/C Obligations, substantially in
the form of Exhibit E hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
Guarantee Obligation: means, as to any Person, any direct
or indirect liability of that Person, whether or not contingent,
with or without recourse, with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (the
primary obligations) of another Person (the primary obligor),
including any obligations of that Person (a) to purchase,
repurchase or otherwise acquire such primary obligations or any
security therefor, (b) to advance or provide funds for the
payment or discharge of any such primary obligation, or to
maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency or any balance
sheet item, level of income or financial condition of the primary
obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or
hold harmless the holder of any such primary obligation against
loss in respect thereof. The amount of any Guarantee Obligation
shall be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation
is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof.
Guarantor: a Subsidiary of VWR which is not a Borrower and
which executes and delivers the Guaranty of Canadian Dollar
Loans, a Canadian Subsidiary Guarantee or a Guarantee.
Guaranty of Canadian Dollar Loans: The collective reference
to the two Guarantees executed and delivered on the Closing Date
by VWR and certain Subsidiaries of VWR pursuant to which VWR and
such Subsidiaries guarantee the repayment of the Canadian Dollar
Loans, substantially in the form of Exhibits C-1 and C-2 hereto,
as the same may be amended, supplemented or otherwise modified
from time to time.
Indebtedness: of any Person at any date:
<PAGE 68>
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person issued,
undertaken or assumed as 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);
(c) any other indebtedness which is evidenced by a
note, bond, debenture or similar instrument;
(d) all Capital Lease Obligations of such Person;
(e) all obligations of such Person in respect of
outstanding letters of credit, acceptances and similar
obligations created for the account of such Person;
(f) all indebtedness created or arising under any
conditional sale or other title retention agreement or
incurred as a financing, in either case with respect to
property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale
of such property);
(g) Indebtedness referred to in clauses (a) through
(f) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on any property
(including accounts and contract rights) owned by such
Person even though such Person has not assumed or otherwise
become liable for the payment thereof;
(h) Guarantee Obligations of such Person in respect
of obligations of the kind referred to in clauses (a)
through (g) above; and
(i) for purposes of Section 9.1(e) only, 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).
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.
<PAGE 69>
Intellectual Property: has the meaning ascribed thereto in
subsection 5.15.
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, (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 first day of such Interest Period and (ii) the
last day of such Interest Period and (f) as to any Swing Line
Loan, the last day of each March, June, September and December
while such Loan is outstanding and the date payment of such Loan
is due pursuant to subsection 2.13(b).
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, one hundred and twenty 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, one hundred and twenty or one hundred and eighty
days thereafter, as selected by VWR Canada by irrevocable
notice to the Canadian Dollar Lenders and the
<PAGE 70>
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;
(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.
Issuing Bank: PNC, or such other Lender as designated by
VWR and approved by the Required Lenders.
Joinder Agreement: a Joinder Agreement, substantially in
the form of Exhibit D, executed and delivered by a Subsidiary of
VWR pursuant to subsection 7.10 pursuant to which such Subsidiary
shall become a U.S. Dollar Borrower hereunder, as the same may be
amended, supplemented or otherwise modified from time to time.
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 Lender (other than the Issuing Bank) in its
<PAGE 71>
capacity as the holder of a participating interest in such Letter
of Credit.
Lending Office: means, as to any Lender, the office or
offices of such Lender specified as its Lending Office or
Domestic Lending Office, as the case may be, on Schedule I, or
such other office or offices as such Lender may from time to time
notify VWR and the Administrative Agent.
Letter of Credit: as defined in subsection 2.4(a).
Leverage Ratio: at any date of determination, the ratio of
Total Debt on such date to Consolidated EBITDA for the four
consecutive fiscal quarters most recently ended on or prior to
such date.
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 substantially the same economic effect as
any of the foregoing).
Loan Documents : this Agreement, the Notes, the
Applications, the Guaranty of Canadian Dollar Loans, the Joinder
Agreements, the Guarantees and the Canadian Subsidiary
Guarantees.
Loan Parties: the collective reference to the Borrowers
and the Guarantors.
Loans: the collective reference to the U.S. Dollar Loans,
the Swing Line Loans and the Canadian Dollar Loans.
Material Adverse Effect: a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of VWR and the other Loan Parties taken as a whole,
(b) the ability of VWR and the other Loan Parties to perform
their obligations under this Agreement or any other Loan Document
or (c) the validity or enforceability of this Agreement or any of
the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders 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 biphenyls, and ureaformaldehyde insulation.
Moodys: Moodys Investors Services, Inc.
<PAGE 72>
Multiemployer Plan: a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
Notes: the collective reference to the U.S. Dollar Notes,
the Swing Line Note and the Canadian Dollar Notes.
Notice of Borrowing: a notice in substantially the form as
Exhibit F-1 or F-2, as the case may be.
Notice of Swing Line Refunding: as defined in subsection
2.16(a).
Other Agents: the Agents other than the Administrative
Agent.
PBGC: the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
PNC: PNC Bank, National Association.
Permitted Receivables Facility: a sale or other
disposition by VWR or any of its Subsidiaries of its or their
accounts receivable pursuant to a securitization program in an
amount not to exceed $100,000,000 at any time.
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.
Prime Rate: the rate of interest per annum publicly
announced from time to time by PNC as its prime rate in effect at
its principal office in Philadelphia, Pennsylvania; each change
in the Prime Rate shall be 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.
Purchasing Lender: as defined in subsection 12.6(b).
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.
<PAGE 73>
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
403(c)(1), (2), (4), (5), (6), (10) and (13) of ERISA.
Required Lenders: at any time, (a) so long as the U.S.
Dollar Commitments, the Swing Line Commitment or the Canadian
Dollar Commitments are in effect, Lenders 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, Lenders the Exposure of which constitute at least 51%
of the aggregate Exposure at such time.
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 Loan Party, the
chief executive officer, president, chief financial officer,
treasurer, assistant treasurer or vice president for financial or
legal affairs of such Loan Party 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.
Science Kit Acquisition: means the acquisition by one or
more Loan Parties of certain assets of or stock in Science Kit,
Inc., Boreal Laboratories, Inc., Wards National Science
Establishment, Inc. and Central Scientific Company.
Science Kit Acquisition Agreements: the Purchase
Agreement, dated as of July 21, 1998, among VWR, Charles E.
Balbach, Paul F. Eckel, Science Kit, Inc., Boreal Laboratories,
Ltd., Wards Natural Science Establishment, Inc., Central
Scientific Company, Arbor Scientific Co. Limited, Central
Scientific Company of Canada Limited and Wards Natural Science
Ltd, and the other documents and agreements entered into in
connection therewith.
S&P: Standard & Poors Rating Services.
Securitization Subsidiary: as defined in subsection 7.10.
<PAGE 74>
Security: security as defined in Section 2(1) of the
Securities Act of 1933, as amended.
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: the E-Merck Subordinated Debt and any
other Indebtedness of VWR or any of its Subsidiaries which is
subordinated to the Loans on terms and conditions acceptable to
the Administrative Agent and the Syndication Agent.
Subsidiary: as to any Person, a corporation, partnership,
limited liability company, business trust 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, limited
liability company, business trust 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: PNCs obligation to make Swing Line
Loans pursuant to subsection 2.13.
Swing Line Lender: PNC, or such other Lender as designated
by VWR and approved by the Required Lenders.
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).
Syndication Agent: Bank of America, in its capacity as
Syndication Agent.
Taxes: as defined in subsection 4.10.
Termination Date: July 30, 2003.
Total Commitment Percentage: as to any Lender at any time,
the percentage which the sum of such Lenders U.S. Dollar
Commitment and the U.S. Dollar Equivalent of its Canadian Dollar
Commitment then constitutes of the aggregate U.S. Dollar
Commitments and U.S. Dollar Equivalent of the Canadian Dollar
Commitments at such time (or at any time after the Commitments
<PAGE 75>
have expired or terminated, the percentage which the amount of
such Lenders Exposure constitutes of the aggregate amount of the
Exposure of all the Lenders at such time).
Total Debt: at any date, without duplication, the
aggregate of all Indebtedness of VWR and its Subsidiaries,
determined on a consolidated basis, including in any event all
Indebtedness incurred in connection with a Permitted Receivables
Facility.
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 Euro-Rate, the Base
Rate, the Canadian Base Rate and the Canadian COF Rate.
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.
U.S. Dollar Borrowers: the Borrowers other than VWR
Canada, including any Subsidiary of VWR that joins this Agreement
after the Closing Date as a U.S. Dollar Borrower pursuant to a
Joinder Agreement.
U.S. Dollar Commitment: as to any U.S. Dollar Lender, the
obligation of such Lender to make U.S. Dollar 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
Lenders name on Schedule I hereto under the caption U.S. Dollar
Commitment, as such amount may be changed from time to time in
accordance with the provisions of this Agreement.
U.S. Dollar Commitment Percentage: as to any U.S. Dollar
Lender at any time, the percentage which such Lenders U.S. Dollar
Commitment then constitutes of the aggregate U.S. Dollar
Commitments at such time (or, at any time after the U.S. Dollar
Commitments shall have expired or terminated, the percentage
which the amount of such Lenders U.S. Dollar Exposure constitutes
of the aggregate amount of the U.S. Dollar Exposure of all U.S.
Dollar Lenders at such time).
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
<PAGE 76>
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. Dollar Exposure: as to any U.S. Dollar Lender at any
date, an amount equal to the sum of (a) the aggregate principal
amount of U.S. Dollar Loans made by such Lender then outstanding,
(b) the L/C Obligations of such Lender then outstanding and (c)
such Lenders U.S. Dollar Commitment Percentage of the principal
amount of the Swing Line Loans then outstanding.
U.S. Dollar Lenders: the Lenders other than the Canadian
Dollar Lenders; provided that, a Canadian Dollar Lender that has
a U.S. Dollar Commitment or has outstanding U.S. Dollar Loans
shall be considered both a Canadian Dollar Lender and a U.S.
Dollar Lender.
U.S. Dollar Loans: the meaning ascribed thereto in
subsection 2.1.
U.S. Dollar Note: as defined in subsection 2.2, 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).
. (a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in 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.
<PAGE 77>
. (a) Subject to the terms and conditions hereof, each U.S. Dollar
Lender severally agrees to make revolving credit loans in U.S. Dollars
(the U.S. Dollar 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 Lenders U.S. Dollar Commitment Percentage of the then
outstanding L/C Obligations and such Lenders Swing Loan Participation
Amount, does not exceed the amount of such Lenders U.S. Dollar
Commitment; provided that, no U.S. 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 U.S.
Dollar Exposure at such time would exceed the aggregate amount of the
U.S. Dollar Commitments at such time. The U.S. Dollar Commitments may
be terminated or reduced from time to time pursuant to subsection 4.5.
Within the foregoing limits, the U.S. Dollar Borrowers may during the
Commitment Period borrow, repay and reborrow under the U.S. Dollar
Commitments, subject to and in accordance with the terms and
limitations hereof.
(b) The U.S. Dollar Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof,
as determined by the U.S. Dollar Borrowers and notified to the
Administrative Agent in accordance with subsections 2.3 and 4.14;
provided that, no U.S. Dollar 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 Lender to make any
U.S. Dollar Loan shall not in itself relieve any other U.S. Dollar
Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other
Lender). Each U.S. Dollar Loan shall be made in accordance with the
procedures set forth in subsection 2.3.
. (a) The U.S. Dollar Loans made by each U.S. Dollar Lender shall be
evidenced by one or more accounts or records maintained by such U.S.
Dollar Lender in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and a U.S. Dollar Lender
shall be prima facie evidence of the amount of the U.S. Dollar Loans
made by such U.S. Dollar Lender to the U.S. Dollar Borrowers, and
interest and payments thereon. Any failure so to record or any error
in doing so shall not, however, limit or otherwise affect the
obligation of a U.S. Dollar Borrower hereunder to pay any amount owing
with respect to the U.S. Dollar Loans.
(b) Upon the request of any U.S. Dollar Lender made through the
Administrative Agent, the U.S. Dollar Loans made by such U.S. Dollar
Lender shall be evidenced by a promissory note, instead of or in
addition to loan accounts. The U.S. Dollar Borrowers agree that upon
such request to the Administrative Agent by a U.S. Dollar Lender, the
U.S. Dollar Borrowers shall execute at their cost a promissory note,
substantially in the form of Exhibit A-1, with appropriate insertions
as to payee, date and principal amount (a U.S. Dollar Note), payable to
the order of such U.S. Dollar Lender and in a principal amount equal to
the amount of the U.S. Dollar Commitment of such U.S. Dollar Lender.
Each U.S. Dollar Lender is hereby authorized to record the date, Type
<PAGE 78>
and amount of each U.S. Dollar Loan made by such Lender, 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 U.S. 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 U.S.
Dollar Lender 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.
. (a) The U.S. Dollar Borrowers may borrow under the U.S. Dollar
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 U.S.
Dollar 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 U.S. Dollar 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)
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
U.S. Dollar 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 U.S. Dollar Commitments at such time are less than
$5,000,000, such lesser amount). Each borrowing under the U.S. Dollar
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
U.S. Dollar 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 Lender thereof. Each U.S. Dollar Lender will make the amount of
its pro rata share of each borrowing (based on its U.S. Dollar
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 11.2 prior to 12:00 Noon,
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 U.S. Dollar Lenders and in like funds as
received by the Administrative Agent.
Unless the Administrative Agent shall have received notice from a
U.S. Dollar Lender prior to the date of any borrowing of U.S. Dollar
Loans that such Lender will not make available to the Administrative
Agent such Lenders pro rata portion of such borrowing, the
<PAGE 79>
Administrative Agent may assume that such Lender 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 Lender shall not have made such portion available to the
Administrative Agent, such Lender and the U.S. Dollar Borrowers
(without prejudice to the U.S. Dollar Borrowers rights against such
Lender) 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 U.S. Dollar Loans comprising such
borrowing and (ii) in the case of such Lender, the Federal Funds
Effective Rate, provided, that, if such Lender 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 Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lenders U.S.
Dollar 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 U.S. Dollar Loan is specified, then the requested U.S. Dollar
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 months duration.
. (a) Subject to the terms and conditions hereof, the Issuing Bank,
in reliance on the agreements of the other U.S. Dollar Lenders 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 aggregate
amount of the U.S. Dollar Exposure at such time would exceed the
aggregate amount of the U.S. Dollar Commitments at such time 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) one year (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.
<PAGE 80>
(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.
(e) Notwithstanding the provisions of this subsection
2.4, the U.S. Dollar Lenders and the U.S. Dollar Borrowers hereby agree
that the Issuing Bank may issue upon the U.S. Dollar Borrowers request,
one or more Letter(s) of Credit which by its or their terms may be
extended for additional periods of up to one year each provided that
(i) the initial expiration date (or any subsequent expiration date) of
each such Letter of Credit is not later than 5 Business Days prior the
Termination Date, and (ii) renewal of such Letters of Credit, at the
Issuing Banks discretion, shall be available upon written request from
the U.S. Dollar Borrowers to the Issuing Bank at least 30 days (or such
other time period as agreed by the U.S. Dollar Borrowers and the
Administrative Agent) before the date upon which notice of renewal is
otherwise required.
. 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.
. (a) The U.S. Dollar Borrowers shall pay to the Administrative
Agent, for the account of the U.S. Dollar Lenders (including the
Issuing Bank) pro rata according to their respective U.S. Dollar
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 each Letter of Credit, and on the Termination Date or such
earlier date as the U.S. Dollar Commitments are terminated, and shall
be nonrefundable. The U.S. Dollar Borrowers shall also pay to the
<PAGE 81>
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 U.S. Dollar 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
Lenders all fees and commissions received by the Administrative Agent
for their respective accounts pursuant to this subsection.
. (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
Participants own account and risk, an undivided interest equal to such
L/C Participants U.S. Dollar Commitment Percentage in the Issuing Banks
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 Banks address for notices specified
herein an amount equal to such L/C Participants U.S. Dollar 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
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 Lender.
(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
<PAGE 82>
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.
. (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 a draft presented under such Letter of Credit is 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 11.2 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 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 2.0% and shall be payable on demand by the
Issuing Bank.
. (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
<PAGE 83>
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
Banks 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.
. 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 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.
. 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.
. The U.S. Dollar Borrowers may request that the Issuing Bank issue a
Letter of Credit to support any letters of credit issued under the
Existing Credit Agreement which are in existence on the Closing Date
(the Existing Letters of Credit).
. (a) Subject to the terms and conditions hereof, the Swing Line
Lender 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 $15,000,000; 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 aggregate amount of the U.S. Dollar Exposure at such time
would exceed the aggregate amount of the U.S. Dollar Commitments at
such time. The Swing Line Commitment may be terminated or reduced from
time to time pursuant to subsection 4.5. 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) Each Swing Line Loan shall be due and payable on the
date agreed by the Swing Line Lender and the U.S. Dollar Borrowers at
<PAGE 84>
the time such Swing Line Loan is borrowed, together with all accrued
interest thereon. The interest rate for a Swing Line Loan shall be the
rate that is mutually agreed by the U.S. Dollar Borrowers and the Swing
Line Lender at the time such Swing Line Loan is made or, if the due
date of a Swing Line Loan is extended with the consent of the Swing
Line Lender, at the time of such extension.
. (a) The Swing Line Loans made by the Swing Line Lender shall be
evidenced by one or more accounts or records maintained by the Swing
Line Lender in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and the Swing Line
Lender shall be prima facie evidence of the amount of the Swing Line
Loans made by the Swing Line Lender to the U.S. Dollar Borrowers, and
interest and payments thereon. Any failure so to record or any error
in doing so shall not, however, limit or otherwise affect the
obligation of a U.S. Dollar Borrower hereunder to pay any amount owing
with respect to the Swing Line Loans.
(b) Upon the request of the Swing Line Lender made
through the Administrative Agent, the Swing Line Loans made by the
Swing Line Lender shall be evidenced by a promissory note, instead of
or in addition to loan accounts. The U.S. Dollar Borrowers agree that
upon such request to the Administrative Agent by the Swing Line Lender,
the U.S. Dollar Borrowers shall execute at their cost a promissory
note, substantially in the form of Exhibit A-3 with appropriate
insertion as to date (the Swing Line Note), payable to the order of the
Swing Line Lender. The Swing Line Lender 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 Note, and
any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded, provided, that, the failure of
the Swing Line Lender 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 U.S. Dollar Borrowers may request to borrow under the Swing Line
Commitment during the Commitment Period on any Business Day. The U.S.
Dollar Borrowers shall give the Swing Line Lender irrevocable notice,
which notice must be received by the Swing Line Lender prior to
12:00 Noon, 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 the Swing Line Lender to the
U.S. Dollar Borrowers by the Swing Line Lender crediting the account of
VWR on the books of its office specified in subsection 11.2 with such
proceeds.
. (a) If an Event of Default shall occur and be continuing, the Swing
Line Lender 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 Lender and, unless
an Event of Default described in subsection 9.1(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
<PAGE 85>
of Borrowing of Base Rate Loans in an amount equal to the amount of the
Swing Line Loans of the Swing Line Lender outstanding on such date plus
accrued interest thereon. 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 Lender (including the
Swing Line Lender in its capacity as a U.S. Dollar Lender) shall (i)
make a U.S. Dollar Loan to the U.S. Dollar Borrowers pursuant to
subsection 2.3 in an amount equal to such Lenders U.S. Dollar
Commitment Percentage of the aggregate principal amount of the Swing
Line Loans of the Swing Line Lender outstanding on the date of delivery
of the applicable Notice of Swing Line Refunding plus accrued interest
thereon and (ii) make the proceeds of its U.S. Dollar Loan available to
the Administrative Agent for the account of the Swing Line Lender at
the office of the Administrative Agent specified in subsection 11.2
prior to 2:00 P.M., Philadelphia time, in funds immediately available
to the Administrative Agent on the Business Day next succeeding the
date such notice is given. The proceeds of such U.S. Dollar Loans
shall be immediately applied to repay the outstanding Swing Line Loans
of the Swing Line Lender plus accrued interest thereon.
(b) If prior to the time a U.S. Dollar 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 Lender (other than the Swing Line Lender) shall, on
the date such U.S. Dollar 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 Lenders U.S. Dollar
Commitment Percentage times (ii) the aggregate principal amount of the
Swing Line Loans then outstanding plus accrued interest thereon which
were to have been repaid with U.S. Dollar Loans (the Swing Line
Participation Amount). On the Refunding Date, each U.S. Dollar Lender
shall transfer to the Swing Line Lender, in immediately available
funds, such Lenders Swing Line Participation Amount.
(c) Whenever, at any time after the Swing Line Lender has
received from any U.S. Dollar Lender such Lenders Swing Line
Participation Amount, the Swing Line Lender receives any payment on
account thereof, the Swing Line Lender will distribute to such Lender
its participating interest in such amount in like funds as received;
provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Lender will return
to the Swing Line Lender any portion thereof previously distributed by
the Administrative Agent to it in like funds as such payment is
required to be returned by the Swing Line Lender.
(d) Each U.S. Dollar Lenders obligation to make U.S.
Dollar 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 Lender may
have against any other Lender or any U.S. Dollar Borrower, or any U.S.
Dollar Borrower may have against any Lender or any other Person, as the
case may be, for any reason whatsoever; (ii) the occurrence or
<PAGE 86>
continuance of a Default or Event of Default; (iii) any adverse change
in the condition (financial or otherwise) of any U.S. Dollar Borrower
or 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 Lender shall have any
obligation to make U.S. Dollar Loans pursuant to subsection 2.16(a) or
purchase participating interests pursuant to subsection 2.16(b) to the
extent that the aggregate outstanding principal amount of the Swing
Line Loans made by the Swing Line Lender exceeds $15,000,000.
. (a) Subject to the terms and conditions hereof, each Canadian
Dollar Lender 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 Lender. The Canadian Dollar
Commitments may be terminated or reduced from time to time pursuant to
subsection 4.5. 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 Dollar Lenders and the Administrative Agent in accordance with
subsections 3.3 and 4.14; provided that, no Canadian Dollar Loan shall
be made as a Canadian COF Rate Loan after the date that is thirty (30)
days prior to the Termination Date.
(c) The failure of any Canadian Dollar Lender to make any
Canadian Dollar Loan shall not in itself relieve any other Canadian
Dollar Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other
Lender). Each Canadian Dollar Loan shall be made in accordance with
the procedures set forth in subsection 3.3.
. (a) The Loans made by each Canadian Dollar Lender shall be
evidenced by one or more accounts or records maintained by such
Canadian Dollar Lender in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and a
Canadian Dollar Lender shall be prima facie evidence of the amount of
the Canadian Dollar Loans made by such Canadian Dollar Lender to VWR
Canada, and interest and payments thereon. Any failure so to record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of VWR Canada hereunder to pay any amount owing with respect
to the Canadian Dollar Loans.
<PAGE 87>
(b) Upon the request of any Canadian Dollar Lender made
through the Administrative Agent, the Canadian Dollar Loans made by
such Canadian Dollar Lender shall be evidenced by a promissory note,
instead of or in addition to loan accounts. VWR Canada agrees that,
upon such request to the Administrative Agent by a Canadian Dollar
Lender, VWR Canada shall execute at its cost a promissory note,
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 Dollar Lender. Each Canadian
Dollar Lender is hereby authorized to record the date, Type and amount
of each Canadian Dollar Loan made by such Lender, 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
Dollar Lender 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.
. (a) VWR Canada may borrow under the Canadian Dollar Commitments
during the Commitment Period on any Business Day. VWR Canada shall
give each Canadian Dollar Lender and the Administrative Agent
irrevocable notice (which notice must be received by all such parties
prior to twelve oclock (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).
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 Dollar Lender in writing of (i) the aggregate
amount of the U.S. Dollar 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 and (iv) the
Applicable Margin for Canadian COF Rate Loans then in effect. Each
Canadian Dollar Lender 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 Canadas deposit account with such Canadian Dollar Lender
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 Dollar Lenders. The Administrative Agent
shall within ten days after the end of each month send to each
<PAGE 88>
Lender 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, 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.
. (a) The U.S. Dollar Borrowers jointly and severally agree to pay to
the Administrative Agent for the account of each U.S. Dollar Lender, on
each March 31, June 30, September 30 and December 31 during the
Commitment Period and on the date on which the U.S. Dollar Commitments
shall be terminated as provided herein, a commitment fee (the
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
U.S. 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 U.S. Dollar Commitments shall be terminated). As
provided in the definition of Available U.S. Dollar Commitments, any
Swing Line Loans by the Swing Line Lender outstanding during any
quarter shall not reduce the Commitment Fees payable to the
Administrative Agent in such quarter. VWR Canada agrees to pay to the
Administrative Agent for the account of each Canadian Dollar Lender, 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 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 Lender 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 Lender
as provided herein. The Administrative Agent shall distribute (a) the
Commitment Fees on the Available U.S. Dollar Commitments among the U.S.
Dollar Lenders pro rata in accordance with their respective U.S. Dollar
Commitment Percentages and (b) the Commitment Fees on the Available
Canadian Dollar Commitments among the Canadian Dollar Lenders 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.
<PAGE 89>
(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 Lenders. Once paid,
none of the foregoing fees shall be refundable under any circumstances.
. (a) Subject to the provisions of subsection 4.3, 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 4.3, 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 Euro-Rate for the Interest Period in effect for such
Eurodollar Loan plus the Applicable Margin.
(c) Subject to the provisions of subsection 4.3, each
Canadian 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 Canadian Base Rate
plus the Applicable Margin.
(d) Subject to the provisions of subsection 4.3, each
Canadian COF 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 Canadian COF Rate for
the Interest Period in effect for such Canadian COF Rate Loan plus the
Applicable Margin.
(e) Subject to the provisions of subsection 4.3, each
Swing Line Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at the rate per
annum mutually agreed to for such Swing Line Loan by the U.S. Dollar
Borrowers and the Swing Line Lender.
(f) 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 4.3 shall
be payable on demand as provided in such subsection.
(g) As soon as practicable the Administrative Agent shall
notify VWR and the U.S. Dollar Lenders of (i) each determination of a
Euro-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 Dollar Lenders 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 this subsection 4.2 and
subsection 4.3) shall be conclusive and binding on the Borrowers and
the Lenders 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
<PAGE 90>
quotations used by it in determining any interest rate pursuant to
subsections 4.2(a) through 4.2(d).
(h) For the purposes of the Interest Act (Canada), in
order to effectuate the agreed rates of interest or commitment fees
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 Notes,
(ii) the rates of interest stipulated under this Agreement and the
Canadian Dollar Notes are intended to be nominal rates and not
effective rates or yields, and (iii) each rate of interest or
commitment fees determined on a basis of 360 days is equivalent to such
rate multiplied by the actual number of days in the calendar year in
which the same is to be ascertained and divided by 360.
. 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 4.2) 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,
Swing Line Loan or a Eurodollar Loan, at a rate determined by the
Administrative Agent 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 or (ii) the maximum rate permitted under applicable
law;
(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 2% per
annum above the Base 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 Lenders 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 Euro-Rate, the Administrative Agent shall, as soon as practicable
thereafter, give written, telegraphic or telephonic notice of such
determination to VWR and the Lenders. After such notice shall have
been given and until the circumstances giving rise to such notice no
<PAGE 91>
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.
. (a) The Commitments shall be automatically terminated on the
Termination Date, whereupon the entire outstanding principal balance of
the Loans, plus all accrued and unpaid interest thereon, and any fees
or other amounts owed under the Loan Documents, shall become due and
payable.
(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 U.S. Dollar 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 U.S. Dollar Commitments may not
be reduced or terminated such that after such reduction or termination,
the U.S. Dollar 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 U.S. Dollar Loans, the Swing Line Loans and/or the
Canadian Dollar Loans made on the effective date thereof (A) the
aggregate amount of the U.S. Dollar Exposure at such time would exceed
the aggregate amount of the U.S. Dollar Commitments at such time, (B)
the aggregate principal amount of the Swing Line Loans then outstanding
would exceed the Swing Line Commitment at such time or (C) 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) The aggregate amount of the U.S. Dollar Commitments
shall be automatically and permanently reduced on each date set forth
below by the amount set forth opposite such date:
Commitment Reduction Date Commitment Reduction Amount
July 30, 2001 $25,000,000
July 30, 2002 $25,000,000.
In addition, to the extent that VWR and/or any Subsidiary enters into a
Permitted Receivables Facility in an amount in excess of seventy-five
million dollars ($75,000,000), the aggregate amount of the U.S. Dollar
Commitments shall on the date such Permitted Receivables Facility
becomes effective be automatically and permanently reduced by an amount
equal to the amount by which such Permitted Receivables Facility
exceeds $75,000,000. Simultaneously with each mandatory permanent
reduction of the U.S. Dollar Commitments pursuant to this paragraph
(c), the U.S. Dollar Borrowers shall make a payment of the U.S. Dollar
Loans and/or the Swing Line Loans to the extent required so that, after
giving effect to such reductions and such payments (i) the aggregate
amount of the U.S. Dollar Exposure at such time does not exceed the
<PAGE 92>
aggregate amount of the U.S. Dollar Commitments at such time and (ii)
the aggregate principal amount of the Swing Line Loans then outstanding
does not exceed the Swing Line Commitment at such time. All such
reductions and payments shall be without penalty or premium (except for
the amounts owing pursuant to subsection 4.11, if any). Unless the
U.S. Dollar Borrowers otherwise direct, all mandatory prepayments of
the U.S. Dollar Loans pursuant to this clause (c) shall be applied by
the Administrative Agent to repay Base Rate Loans and any excess shall
be applied to repay Eurodollar Loans, with payments applied to
Eurodollar Loans being applied in the order of next maturing Interest
Periods.
(d) Each reduction in the U.S. Dollar Commitments
hereunder shall be made ratably among the U.S. Dollar Lenders in
accordance with their respective U.S. Dollar Commitment Percentages.
. (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 any event subject to subsection 4.11), upon prior
written, telecopy or telephonic notice to the Administrative Agent and,
in the case of Canadian Dollar Loans, each Canadian Dollar Lender
given, in the case of Base Rate Loans or Swing Line 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 oclock (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) U.S. Dollar Loans, Swing Line Loans, Canadian Dollar 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, that each such partial prepayment shall be in the principal
amount of at least (A) with respect to prepayments of U.S. Dollar Loans
bearing interest at a Euro-Rate, $5,000,000 or in whole multiples of
$1,000,000 in excess thereof, (B) with respect to prepayments of U.S.
Dollar 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. There shall be no minimum
principal amount with respect to any prepayments of Swing Line Loans.
(b) Each notice of prepayment shall be irrevocable and
shall commit the applicable Borrower(s) to prepay the amount specified
in such notice.
(c) Upon receipt of any notice of prepayment (other than
in respect of Swing Line Loans), the Administrative Agent shall
promptly notify each Lender thereof.
(d) Amounts prepaid pursuant to subsection 4.6(a) on
account of the U.S. Dollars Loans, the Swing Line Loans or the Canadian
<PAGE 93>
Dollar Loans may be reborrowed, subject to the terms and conditions
hereof.
. (a) If at any time, as a result of fluctuations in exchange rates
between U.S. Dollars and Canadian Dollars, 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 Dollar Lenders for their own account an
amount equal to such excess. Any payments in respect of the Canadian
Dollar Loans shall be made in Canadian Dollars and be paid to the
Canadian Dollar Lenders pro rata based on their respective Canadian
Dollar Commitment Percentages.
(b) Any prepayment of the Canadian Dollar Loans pursuant
to subsection 4.7(a) may, subject to the terms and conditions relating
to borrowings hereunder, be reborrowed by VWR Canada.
(c) All prepayments of the Canadian Dollar Loans under
this subsection 4.7 shall be applied, unless otherwise directed by VWR
Canada, 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 Canadian COF Rate Loans
shall be subject to subsection 4.11.
. 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 Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment
of such Lender 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 Lenders 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 Lender such
amounts, if any, as may be required pursuant to subsection 4.11.
. (a) In the event that any change in any Requirement of Law or in
the interpretation, or application thereof or compliance by any Lender
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 Lender 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 Lender in respect thereof (except
for taxes covered by subsection 4.10 and changes in the rate of
tax (including, with respect to Canadian Dollar Lenders, surtax)
on the net income or, with respect to Canadian Dollar Lenders,
capital of such Lender);
<PAGE 94>
(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 Lender 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
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender 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 Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender 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 Lender, 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 Loans and all other amounts
payable hereunder.
(b) In the event that any Lender 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
Lender or any corporation controlling such Lender 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 Lenders or such corporations capital as a consequence of its
obligations hereunder or under any Letter of Credit to a level below
that which such Lender or such corporation could have achieved but for
such change or compliance (taking into consideration such Lenders or
such corporations policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time,
the Borrowers shall as promptly as practicable pay such Lender, upon
its demand, such additional amount or amounts as will compensate such
Lender for such reduction. If any Lender 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 Lender, 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
Loans and all other amounts payable hereunder.
<PAGE 95>
(c) Each Lender 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 4.9(a) or (b); provided, however, that no Lender shall be
obligated to incur any expense, cost or other amount in connection with
utilizing such reasonable efforts.
. (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 Lender, net income taxes and franchise or
gross receipts taxes imposed on the Administrative Agent or such
Lender, 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 Lender
(excluding a connection arising solely from the Administrative Agent or
such Lender 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 Lender hereunder or under the Notes, the
amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent
or such Lender (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 Lender, 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 Lenders for any incremental
taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each U.S. Dollar Lender 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 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, or such other properly completed documentation prescribed by
applicable law, as will permit payments hereunder to be made without
withholding or at a reduced rate. Each such Lender 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
<PAGE 96>
forms or other manner of certification, as the case may be, or such
other properly completed documentation prescribed by applicable law, as
will permit payments hereunder to be made without withholding or at a
reduced rate, 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 Lender from duly completing and delivering
any such form with respect to it and such Lender so advises VWR and the
Administrative Agent. Each such Lender 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 Dollar Lender agrees that, on the
Closing Date, it will deliver to VWR Canada and the Administrative
Agent an instrument in writing certifying that such Canadian Dollar
Lender 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
Dollar Lender agrees to advise VWR Canada and the Administrative Agent
of any changes in respect of the foregoing.
(d) Notwithstanding the foregoing subsections 4.10(a) or
4.10(b), the Borrowers shall not be required to pay any additional
amounts to any Lender 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
Lender to comply with the requirements of subsection 4.10(b) or
(ii) such Lender shall not have furnished VWR with such forms listed in
subsection 4.10(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 to obtain an exemption from, or
reduction (to the lowest applicable rate) of, such United States
withholding tax.
(e) Notwithstanding the foregoing subsections 4.10(a) or
4.10(c), VWR Canada shall not be required to pay any additional amounts
to any Canadian Dollar Lender 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 Dollar Lender or any Person having a participation or other
interest in the Canadian Dollar Loans of such Canadian Dollar Lender as
a non-resident of Canada for the purposes of Part XIII of the Income
Tax Act (Canada), or (ii) such Canadian Dollar Lender shall not have
<PAGE 97>
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.
. (a) The Borrowers jointly and severally agree to indemnify each
Lender and to hold each Lender harmless from any loss or expense which
such Lender 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, Swing Line Loan or Canadian COF Rate Loan, (ii)
default by a Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans, Swing Line 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, Swing Line
Loans or Canadian COF Rate Loans on a day which is not the last day of
an Interest Period with respect thereto or, in the case of a Swing Line
Loan, on the date such Swing Line Loan is due, 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 Lender is entitled to receive under this subsection
4.11 submitted by such Lender, 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 Lender. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) For the purpose of calculation of all amounts payable
to a Lender under this subsection, each Lender shall be deemed to have
actually funded its relevant Eurodollar Loan, Swing Line Loan or
Canadian COF Rate Loan through the purchase of a deposit bearing
interest at the Euro-Rate, the applicable rate on such Swing Line Loan
or the Canadian COF Rate, as the case may be, in an amount equal to the
amount of that Eurodollar Loan, Swing Line Loan or Canadian COF Rate
Loan, as the case may be, and having a maturity comparable to the
relevant Interest Period or due date; provided, however, that each
Lender may fund each of its Eurodollar Loans or Canadian COF Rate
Loans, and the Swing Line Lender may fund its Swing Line Loans, in any
manner it sees fit, and the foregoing assumptions 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 Loans and all other amounts payable hereunder.
(a) Except as required under subsection 4.8, each borrowing of U.S.
Dollar Loans, each payment or prepayment of principal of any U.S.
Dollar Loans, each payment of interest on the U.S. Dollar Loans, each
payment of Commitment Fees with respect to the U.S. Dollar Commitments,
each payment of a Reimbursement Obligation, and each reduction of the
U.S. Dollar Commitments, shall be made pro rata among the U.S. Dollar
<PAGE 98>
Lenders in accordance with their respective U.S. Dollar Commitment
Percentages.
(b) 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 Dollar Lenders in accordance with their respective Canadian
Dollar Commitment Percentages.
(c) 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 the Swing Line Lender.
(d) Each Lender agrees that in computing such Lenders
portion of any borrowing to be made hereunder, the Administrative Agent
(or, with respect to Canadian Dollar Loans, the Canadian Dollar
Lenders) may, in its (or their) discretion, round each Lenders
percentage of such borrowing to the next higher or lower whole dollar
amount.
(e) Unless the Administrative Agent shall have been
notified in writing by the applicable Borrower(s) prior to the date of
any payment being made hereunder that such Borrower(s) will not make
such payment to the Administrative Agent, the Administrative Agent may
assume that such Borrower(s) will make such payment, and the
Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective
pro rata shares of the corresponding amount. If such payment is not
made to the Administrative Agent by the applicable Borrower(s) within
three Business Days of such required date, the Administrative Agent
shall be entitled to recover, on demand, from each Lender to which any
amount was made available pursuant to the preceding sentence, the
amount so made available with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing
herein shall be deemed to limit the rights of the Administrative Agent
or any Lender against any Borrower.
. (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, 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 11.2, in immediately available funds. Such
payments shall be made without set off or counterclaim of any kind.
The Administrative Agent shall distribute to the Lenders any payments
received by the Administrative Agent promptly upon receipt in like
funds as received.
<PAGE 99>
(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 the Swing Line Lender. 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 the Swing Line Lender set
forth in subsection 11.2 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
Dollar Lenders at their respective offices set forth in section 11.2 in
Canadian Dollars in immediately available funds not later than 12:00
(noon) Philadelphia time on the date due. Such payments shall be made
without set off or counterclaim of any kind. As provided in subsection
4.1, any payments of Commitment Fees by VWR Canada to the Canadian
Dollar Lenders shall be made to the Administrative Agent, for the
account of the Canadian Dollar Lenders, at its offices set forth in
subsection 11.2 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.
. 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 Dollar Lender (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 required to be repaid in less
than one month or maturing within one month of the Termination Date may
<PAGE 100>
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 Lenders 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
4.14(b) or 4.14(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
4.14(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 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 4.14(b) or 4.14(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 4.14(g), such
Loans shall be converted to Canadian Base Rate Loans on the last day of
such then expiring Interest Period;
(i) Swing Line Loans may not be converted to Eurodollar
Loans or Base Rate 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.
. (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
<PAGE 101>
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.
. (a) U.S. Dollar and Canadian Dollar Loans. The proceeds of the
U.S. Dollar Loans and Canadian Dollar Loans shall be used by the
applicable Borrower(s) (i) for working capital and general corporate
purposes (including acquisitions to the extent permitted hereunder,
prepayment of the E-Merck Subordinated Debt, repaying Reimbursement
Obligations and Swing Line Loans and lending the proceeds thereof to a
Subsidiary of VWR), and (ii) to repay Indebtedness under the Existing
Credit Agreement.
(b) 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 and lending the proceeds thereof to a Subsidiary of VWR).
. Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of subsections 4.8, 4.9 and/or 4.10(a) with
respect to such Lender, it will, if requested by the Borrowers or if it
makes any demand for compensation under any such subsection, use
reasonable efforts to designate another lending office for any Loans
affected by such event with the goal of avoiding the consequences of
such event; provided, that such designation is made on terms that, in
the sole judgment of such Lender, cause such Lender and its lending
office(s) to suffer no economic, legal or regulatory disadvantage, and
provided, further, that nothing in this subsection shall affect or
postpone any of the obligations of any Borrowers or the rights of any
Lender pursuant to subsections 4.8, 4.9 and 4.10(a).
. Notwithstanding anything to the contrary contained in subsections
4.9, 4.10 and 4.11, VWR Canada shall have no obligation to the U.S.
Dollar Lenders under such subsections except in respect of Canadian
Dollar Loans.
To induce the Agents and the Lenders 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 Lender that:
. The consolidated balance sheet of VWR and its consolidated
Subsidiaries as at December 31, 1997 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
Lender, 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
<PAGE 102>
VWR and its consolidated Subsidiaries as at March 31, 1998 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 Lender, 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.
. Since December 31, 1997, there has been no development or event
which has had or could reasonably be expected to have a Material
Adverse Effect.
. Each of the Loan Parties 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.
. Each of the Loan Parties 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 has taken all necessary
corporate action 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 Loan Parties) is required in
connection with the Extensions of Credit hereunder or with the
execution, delivery, performance, validity or enforceability of this
Agreement 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 Loan Party. This Agreement constitutes and
each other Loan Document when executed and delivered will constitute, a
legal, valid and binding obligation of each Loan Party party thereto
enforceable against such Loan Parties in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
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).
<PAGE 103>
. The execution, delivery and performance of this Agreement and the
other Loan Documents by the Loan Parties, the Extensions of Credit
hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of any Loan Party 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 Loan Party
pursuant to any such Requirement of Law or Contractual Obligation.
. 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 Loan Party or any of their
respective Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to this Agreement, the other
Loan Documents or any of the transactions contemplated hereby, 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.
. Neither VWR, any other Loan Party 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.
. Each of the Loan Parties 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 Loan Parties or
any of their Subsidiaries, and, to the knowledge of each of the Loan
Parties, no claim is being asserted, with respect to any such tax, fee
or other charges.
. 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 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 Lender or
the Administrative Agent, the Borrowers will furnish to the
Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-
l referred to in said Regulation U.
. Each Plan (such representations in respect of any Multiemployer Plan
being made to the best knowledge of each Loan Party) 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 9.1(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
<PAGE 104>
Loan Party or a Commonly Controlled Entity is a sponsor (based on those
assumptions used to fund the Plans), as calculated by such Loan Partys
actuaries, did not, as of the last annual valuation date, which in the
case of any Plan was not earlier than January 1, 1998, exceed the value
of the assets of the Plans allocable to such benefits. Neither any
Loan Party nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan and neither any Loan
Party nor any Commonly Controlled Entity would become subject under
ERISA to any liability if any Loan Party 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 Loan Parties 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 $5,000,000. Neither any Loan Party 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 prior to the date on which this representation is made
or deemed made with respect to any Single Employer Plan or
Multiemployer Plan. No termination of a Single Employer Plan has
occurred, and no Lien on assets of any of the Loan Parties or any
Commonly Controlled Entity in favor of the PBGC or a Plan has arisen
during such five-year period.
. None of the Loan Parties is an investment company, or a company
controlled by an investment company, within the meaning of the
Investment Company Act of 1940, as amended.
. The proceeds of the Loans shall be used by the Borrowers only for
the purposes permitted by subsection 4.16
. (a) Except to the extent that all of the following could not
reasonably be expected to have a Material Adverse Effect:
(i) 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.
(ii) 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
<PAGE 105>
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business
operated by any Loan Party 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 Loan
Parties or any of their respective Subsidiaries have assumed any
liability of any Person under Environmental Laws.
(iii) Neither VWR, any other Loan Party, 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 Loan Party, or such
Subsidiary, nor is VWR nor any other Loan Party aware or have reason to
believe that any such action is being contemplated, considered or
threatened.
(iv) 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 Loan Parties 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.
(v) 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 Loan Party 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.
(vi) To the best knowledge of the Borrowers after
reasonable inquiry, there has been no release or threat of release of
Materials 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.
(vii) To the best knowledge of the Borrowers after
reasonable inquiry, each of the representations and warranties set
forth in paragraphs 5.13(a)(i) through 5.13(a)(vii) is true and correct
with respect to each Property.
(b) Set forth on Schedule 5.13 is a description of one action
relating to Environmental Laws in which the amount sought is not
<PAGE 106>
stated, although the Borrowers do not believe that such action will
result in a Material Adverse Effect.
. No financial statement, exhibit or schedule furnished by or on
behalf of any Loan Party to any Agent or any Lender in connection with
the negotiation of this Agreement 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
Lenders with respect to the performance of a Loan Party of its
obligations hereunder or thereunder. Prior to the date hereof, the
Borrowers have disclosed to the Lenders in writing 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 Loan Parties to perform their obligations under this
Agreement and the other Loan Documents.
. Each of the Loan Parties 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 Loan Party know of any valid
basis for any such claim. The use of such Intellectual Property by the
Loan Parties 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.
. All of the Subsidiaries of a Borrower at the date hereof are listed
on Schedule 5.16 of this Agreement under its name.
.
(a) Each Borrower 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 Science Kit
Acquisition Agreements to which it is a party; all actions (corporate
or otherwise) necessary or appropriate for the execution and
performance of the Science Kit Acquisition Agreements by the Borrowers
party thereto have been taken; and the Science Kit Acquisition
Agreements constitute the valid and binding obligation of each party
thereto, enforceable in accordance with their respective terms.
(b) The making and performance of the Science Kit
Acquisition Agreements will not violate any provision of any law or
regulation, federal, state or local, including precedents of the
jurisdiction of incorporation of any Borrower, and will not violate any
provisions of the articles of incorporation and by-laws of any
Borrower, or constitute a default under any agreement by which any
Borrower or its property may be bound.
<PAGE 107>
. The obligations of the Borrowers under this Agreement rank senior in
priority of payment to the E-Merck Subordinated Debt and any other
Subordinated Debt.
. No Loan Party 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.
. Each of the Loan Parties and their Subsidiaries have reviewed the
areas within their businesses and operations which could be adversely
affected by, and have developed or are developing a program to address
on a timely basis, the risk that certain computer applications used by
the Loan Parties or their Subsidiaries (or any of their respective
material suppliers, customers or vendors) may be unable to recognize
and perform properly date-sensitive functions involving dates prior to
and after December 31, 1999 (the Year 2000 Problem). The Year 2000
Problem is not reasonably expected to result in any Material Adverse
Effect.
. Each of the Loan Parties 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.
. The agreement of each Lender 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. The Administrative Agent shall
have received (i) this Agreement, executed and delivered by each
Borrower, Lender and Agent party hereto, (ii) for the account of each
U.S. Dollar Lender that has made a request therefor, a U.S. Dollar Note
executed by the U.S. Dollar Borrowers, (iii) if requested, for the
account of the Swing Line Lender, a Swing Line Note executed by the
U.S. Dollar Borrowers, and (iv) for the account of each Canadian Dollar
Lender that has made a request therefor, a Canadian Dollar Note
executed by VWR Canada.
(b) Other Loan Documents. The Administrative Agent shall
have received (a) the Guaranty of Canadian Dollars Loans executed and
delivered by the parties thereto and (b) a Guarantee executed and
delivered by VWR Scientific International Corporation and HPC
Scientific & Technology, Inc.
(c) Corporate Proceedings. The Administrative Agent
shall have received a certificate of the Secretary or an Assistant
Secretary of each Loan Party 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
<PAGE 108>
Agent, of the Board of Directors of such Loan Party authorizing (i) the
execution, delivery and performance of this Agreement and the other
Loan Documents to which it is a party, and (ii) the Extensions of
Credit 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 Loan Party; and such
certificate and the attachments thereto shall be in form and substance
satisfactory to the Administrative Agent.
(d) Corporate Documents. The Administrative Agent shall
have received true and complete copies of the certificate or articles
of incorporation and by-laws of each Loan Party, certified as of the
Closing Date as complete and correct copies thereof by the Secretary or
an Assistant Secretary of such Loan Party.
(e) Fees. The Administrative Agent shall have received
the fees to be received on the Closing Date referred to in the Fee
Letter.
(f) Legal Opinions. The Administrative Agent shall have
received the following legal opinions, each dated the Closing Date:
(i) the executed legal opinion of Drinker Biddle &
Reath, counsel to the Loan Parties, substantially in the form of
Exhibit G-1; and
(ii) the executed legal opinion of Stikeman,
Elliott, special Canadian counsel, substantially in the form of
Exhibit G-2.
(g) Existing Credit Agreement. The Existing Credit
Agreement and any Liens thereunder shall be terminated and all
Indebtedness thereunder shall have been repaid in full.
(h) Science Kit Acquisition. The Science Kit Acquisition
shall be consummated substantially on the terms set forth in the
Science Kit Acquisition Agreements. The total cost to VWR and its
Subsidiaries to consummate such transaction shall not exceed One
Hundred Twenty Five Million Dollars ($125,000,000), plus certain fees
for services rendered in connection with the acquisition, all as
contemplated in the Science Kit Acquisition Agreements, and the Agents
shall be satisfied with all material aspects of the Science Kit
Acquisition.
(i) 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
Loan Party.
(j) UCC and Other Searches. The Administrative Agent
shall have received the results of (i) Uniform Commercial Code and/or
similar searches made with respect to the Loan Parties in the states or
provinces in which their chief executive offices are located and such
<PAGE 109>
other locations selected by the Agents and (ii) such tax and judgment
lien searches as the Agents shall request, and each of the foregoing
searches shall disclose no Liens on any assets, 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.
. The agreement of each Lender to make any Extension of Credit
requested to be made by it on any date (including, without limitation,
its 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 Loan Party 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 6.2 have been satisfied.
Each of the Borrowers hereby agrees that, so long as any
Commitment remains in effect, any Note remains outstanding and unpaid,
any Letter of Credit remains outstanding or any other amount is owing
to any Lender 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:
. 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 Lender:
(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 consolidated
<PAGE 110>
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 VWRs independent certified public accountants, such
financial statements to be certified by Ernst & Young LLP or other
independent certified public accountants selected by VWR and reasonably
acceptable to the Administrative Agent, 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).
. 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 Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of VWRs
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;
(b) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a) and (b), a Compliance
Certificate executed by the chief financial officer, Treasurer or
Assistant Treasurer of VWR;
(c) 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
<PAGE 111>
statements and reports which any Loan Party may make to, or file with,
the Securities and Exchange Commission or any successor of analogous
Governmental Authority;
(d) promptly, such additional financial and other
information as the Administrative Agent or any Lender may from time to
time reasonably request.
. 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.
. Except as otherwise permitted in subsection 8.4, 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, reasonably be expected to have a
Material Adverse Effect.
. 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; and furnish to each Lender,
upon written request, full information as to the insurance carried.
. Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and 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 Lender 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.
. Promptly give notice to the Administrative Agent and each Lender 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,
<PAGE 112>
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 VWRs 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
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.
. (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 Lenders, 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
Loan Party, any Property or any activities relating to any other
property or business of a Loan Party 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,
<PAGE 113>
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
Loans.
. Notify the Administrative Agent in writing prior to entering into
any new credit agreement or facility or any amendment or modification
of any existing credit arrangement or facility, pursuant to which a
Loan Party agrees to financial, affirmative and/or negative covenants
which are less favorable in any material respect to a Loan Party than
those contained in this Agreement. Effective upon a Loan Partys entry
into any such agreement or facility, amendment or modification, the
corresponding covenants, terms and conditions of this Agreement shall,
unless otherwise agreed by the Required Lenders, be deemed to be
automatically and immediately amended to conform with and to include
the applicable covenant, terms and/or conditions of such other
agreement (until such agreement is terminated and all amounts owing
thereunder are repaid); provided, however, that the foregoing shall not
be applicable to or be deemed to affect any provision of this Agreement
which is less favorable to such Loan Party or Loan Parties than any
such agreement, facility, amendment or modification. The Borrowers
hereby agree promptly to execute and deliver any and all such documents
and instruments and to take all such further actions as the
Administrative Agent may, in its sole discretion, deem necessary or
appropriate to effectuate the provisions of this subsection 7.9.
. Notify the Administrative Agent as soon as practicable after
acquiring or creating a new Subsidiary, and, if requested by the
Administrative Agent, cause such new Subsidiary to execute and deliver
to the Administrative Agent, at the Administrative Agents sole
election, either a Joinder Agreement pursuant to which such Subsidiary
shall become a U.S. Dollar Borrower hereunder or a Guarantee pursuant
to which such Subsidiary shall guarantee the obligations of the
Borrowers hereunder and under the other Loan Documents. The Borrowers
shall execute and deliver and cause any Guarantor to execute and
deliver to the Administrative Agent such further documents and take
such actions as the Administrative Agent may reasonably request.
Notwithstanding the foregoing, no Subsidiary of VWR shall be required
to execute and deliver a Joinder Agreement or a Guarantee if (x) such
Subsidiary is formed under the laws of a jurisdiction other than the
United States and, in the reasonable opinion of VWR and its outside
counsel, the execution of such document would result in adverse tax
consequences to VWR and/or its Subsidiaries; provided that, in such
circumstances such Subsidiary shall execute a Canadian Subsidiary
Guarantee unless in the reasonable opinion of VWR and its outside
counsel, the execution of such document would result in adverse tax
consequences to VWR and/or its Subsidiaries or (y) such Subsidiary is
formed in connection with a Permitted Receivables Facility and is the
Subsidiary (the Securitization Subsidiary) which purchases in
connection therewith accounts receivables from one or more Loan
Parties.
<PAGE 114>
Each of the Borrowers hereby agrees that, so long as any
Commitment remains in effect, any Note remains outstanding and unpaid,
any Letter of Credit remains outstanding or any other amount is owing
to any Lender or Agent hereunder, such Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly (except
that subsection 8.3 shall not apply to VWR and instead shall apply only
to the Subsidiaries of VWR):
.
(a) Leverage Ratio. At the end of each fiscal quarter of
VWR ending during each period set forth below, permit the Leverage
Ratio to be greater than the ratio set forth opposite such period
below:
Period Ratio
Closing - 3rd Quarter 1998 3.75 to
1.00
4th Quarter 1998 - 3rd Quarter 1999 3.50 to
1.00
4th Quarter 1999 and thereafter 3.00 to
1.00
(b) Maintenance of Consolidated Net Worth. Permit
Consolidated Net Worth on any day to be less than (i) from the Closing
Date until December 31, 1998, $326,000,000 and (ii) thereafter, the sum
of (x) $326,000,000 plus (y) seventy-five percent (75%) of Consolidated
Net Income for each fiscal year commencing with the fiscal year ending
December 31, 1998, exclusive of any fiscal year (or, in the case of
fiscal year 1998, partial fiscal year) in which Consolidated Net Income
is a negative; provided that, for the fiscal year ending December 31,
1998, clause (y) above shall only include Consolidated Net Income for
the third and fourth fiscal quarters of such fiscal year.
(c) Interest Coverage Ratio. Permit the ratio for any
period of four consecutive fiscal quarters ending during any period set
forth below of (i) Consolidated EBITDA for such period to (ii)
Consolidated Interest Expense for such period to be less than the ratio
set forth opposite such period below:
Period Ratio
Closing to 3rd Quarter 1998 2.75 to
1.00
4th Quarter 1998 - 3rd Quarter 2000 3.00 to
1.00
4th Quarter 2000 - 3rd Quarter 2001 3.25 to
1.00
4th Quarter 2001 and thereafter 3.50 to
1.00
<PAGE 115>
. 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 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;
(b) carriers, warehousemens, mechanics, materialmens,
repairmens 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;
(c) pledges or deposits in connection with workers
compensation, unemployment insurance and other social security
legislation;
(d) 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;
(e) 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;
(f) Liens securing Indebtedness of a Borrower or its
Subsidiary 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 or within
ninety days after the acquisition of such fixed or capital assets or
such Liens shall have existed on such assets prior to their acquisition
and were by created in anticipation of their acquisition, (ii) such
Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (iii) the Liens are not modified to
secure other Indebtedness and the amount of Indebtedness secured
thereby is not increased;
(g) Liens on the property or assets of a corporation
which becomes a Subsidiary after the date hereof, 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;
<PAGE 116>
(h) Any lien created for the direct or indirect benefit
of the purchasers or lenders in connection with a Permitted Receivables
Facility;
(i) cash collateral provided by VWR to cash collateralize
the Existing Letters of Credit; and
(j) Liens not otherwise permitted hereunder which secure
Indebtedness not exceeding, as to the Loan Parties and all Subsidiaries
thereof taken together, $5,000,000 in aggregate amount at any one time
outstanding.
. Create, incur, assume
or suffer to exist any Indebtedness except:
(a) Indebtedness in respect of the Loans, the Letters of
Credit and other obligations of the Loan Parties under the Loan
Documents;
(b) Indebtedness of any Subsidiary to VWR or any other
Subsidiary;
(c) Indebtedness of any Subsidiary incurred solely in
order to finance the acquisition (including through Capital Leases) of
fixed or capital assets and secured by Liens permitted by subsection
8.2(g);
(d) Indebtedness of a corporation which becomes a
Subsidiary after the date hereof, provided that, such Indebtedness
existed at the time such corporation became a Subsidiary and was not
created in anticipation of the acquisition; and, renewals, extensions
and modifications thereof which do not increase the principal amount
thereof;
(e) Subordinated Debt (including the E-Merck Subordinated
Debt);
(f) amounts outstanding under a Permitted Receivables
Facility up to $100,000,000;
(g) guarantees made in the ordinary course of business by
any of the Loan Parties of the Indebtedness of any other Loan Party;
(h) Indebtedness of a Securitization Subsidiary in
connection with a Permitted Receivables Facility; and
(i) additional unsecured Indebtedness not exceeding
$15,000,000 in aggregate amount at any time outstanding.
. 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
<PAGE 117>
surviving corporation) or with or into any other Borrower or Guarantor
(provided that if any such transaction shall be between a Subsidiary
which is not a Borrower or Guarantor and a Subsidiary which is a
Borrower or Guarantor, such Borrower or Guarantor shall be the
continuing or surviving corporation);
(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 Borrower or Guarantor; and
(c) any subsidiary of VWR (other than VWR Canada) may,
subject to the limitations contained in subsection 8.5, sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise), including Capital Stock in any
Subsidiary (other than VWR Canada), or consolidate or merge with any
other Person whereupon, in the case of a sale of all of the Capital
Stock of a Subsidiary, the Subsidiary whose stock has been sold shall
be released of its obligations hereunder and under the other Loan
Documents without the need for any further action on the part of any
party hereto and, if requested by the Administrative Agent, the
remaining Borrowers shall execute new Notes;
provided that, immediately after any such transaction referred to in
paragraphs (a), (b) and (c) above and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing or
result from such transaction;
. 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 8.4;
(e) the sale of accounts receivable pursuant to a
Permitted Receivables Facility in an amount not to exceed $100,000,000;
(f) transfers between VWR and its Subsidiaries or between
one Subsidiary and another Subsidiary; and
(g) in addition to the above subsections (a) through (f)
inclusive, sales of assets of VWR and its Subsidiaries for fair market
value, provided that the aggregate amount of such sales, determined in
accordance with GAAP, in any period of four consecutive fiscal quarters
<PAGE 118>
does not exceed ten percent (10%) of VWRs Consolidated Assets as at the
beginning of such four-quarter period.
. 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 Loan Party and (b) so
long as no Default exists or would be caused thereby, VWR may make
Distributions to its shareholders in any amounts.
. 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, as to all of the foregoing
in the ordinary course of and pursuant to the reasonable requirements
of such Borrowers 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 arms length
transaction with a Person not an Affiliate.
. 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:
(a) extensions of trade credit to customers in the
ordinary course of business;
(b) Cash Equivalents;
(c) loans to officers of the Loan Parties or their
Subsidiaries in an aggregate principal amount outstanding at any time
not to exceed $5,000,000;
(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 not to exceed
$5,000,000 at any one time outstanding;
(e) Capital Stock of any Subsidiary;
(f) loans and advances by a Borrower or its Subsidiary to
another Borrower or its Subsidiary; and
(g) acquisitions by a Borrower or any Subsidiary of all
or substantially all of the Capital Stock or assets of a Person (or of
any segment or division of a Person) that is in a business that is
directly or indirectly related to the business of such Borrower or such
Subsidiary; provided that (i) at the time that any definitive agreement
is entered into in respect of any such acquisition, no Default or Event
of Default shall exist or would exist if such acquisition were
consummated on such date (assuming for purposes of the covenants
contained in subsection 8.1 that pro forma adjustments are made to the
financial statements of the Borrower giving effect to such acquisition
<PAGE 119>
as if it had occurred on the last day of the Borrowers most recently
completed fiscal quarter), (ii) any such acquisition shall have been
approved by the board of directors of the entity whose stock or assets
are being acquired (or, if such entity is in bankruptcy, by the
bankruptcy or other court having jurisdiction over such entity), (iii)
the aggregate gross purchase price (including the amount of
Indebtedness assumed or incurred in connection therewith) for all such
acquisitions shall not exceed $50,000,000 in any calendar year, and
(iv) prior to consummating any acquisition involving a total
consideration (including Indebtedness assumed or incurred in connection
therewith) in excess of $30,000,000, VWR shall have furnished to the
Lenders financial statements, pro forma projections and other
information relating thereto demonstrating pro forma compliance with
the terms of this Agreement for the period of the next four consecutive
fiscal quarters after completion of such acquisition demonstrating that
no Default or Event of Default exists or would be caused thereby.
. Permit the fiscal year of a Loan Party to end on a day other than
December 31.
. 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 or
indirectly related to such existing businesses.
. If any of the following events shall occur and be continuing:
(a) A Borrower shall fail to pay any principal of any
Loan 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 Loan, 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 Loan Party 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 8 of this Agreement;
or
(d) A Loan Party 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
<PAGE 120>
(e) A Loan Party 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 Loans) beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created and the aggregate amount of such
Indebtedness in respect of which such default or defaults shall have
occurred is at least $5,000,000; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness 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, holders, beneficiary or
beneficiaries of such Indebtedness (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; or
(f) (i) A Loan Party 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
Loan Party or any of its Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced
against a Loan Party 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 Loan
Party 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 Loan Party 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 Loan Party
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 Loan Party 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 $5,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged, settled, satisfied or
<PAGE 121>
paid, or stayed or bonded pending appeal, within 60 days from the entry
thereof; or
(h) Any Change in Control shall occur, or
(i) A Loan Party 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
(j) (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 a Loan Party 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
Lenders, 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) a Loan Party or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders 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 any, could reasonably be expected to have a Material
Adverse Effect; or
(k) VWR shall cease to own, directly or indirectly, one-
hundred percent (100%) of the legal and beneficial ownership of VWR
Canada; or
(l) 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
<PAGE 122>
Letters of Credit shall have presented the documents required
thereunder) 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 Lenders, the Administrative Agent may, or upon the written
request of the Required Lenders, 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 Lenders, the Administrative Agent may, or
upon the written request of the Required Lenders, 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) 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
9.1, the U.S. Dollar Borrowers shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal
to the L/C Coverage Requirement for each such Letter of Credit. The
U.S. Dollar 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 Loan
Parties 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 Loan Parties hereunder and
under the other Loan Documents. 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 Loan Parties
hereunder and under the other Loan Documents 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 U.S. Dollar 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.
. Each Lender hereby irrevocably designates and appoints PNC as the
Administrative Agent of such Lender under this Agreement and the other
Loan Documents, and each such Lender irrevocably authorizes PNC, as the
Administrative Agent for such Lender, 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
<PAGE 123>
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 Lender, 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. PNC agrees to act as the Administrative
Agent on behalf of the Lenders to the extent provided in this Agreement
and the other Loan Documents.
. 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
Lenders for the negligence or misconduct of any agents or attorneys in-
fact selected by it with reasonable care.
. 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 Persons own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties
made by a Loan Party 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 any Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or for any
failure of the Loan Parties (or any of them) to perform their
obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender 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 Loan Parties (or any of
them).
. 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 Loan Parties), 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
<PAGE 124>
take any action under this Agreement or the other Loan Documents unless
it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders 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
or the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
. 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 Lender 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 Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders; 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
Lenders.
. Each Lender 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 Loan Parties, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without
reliance upon the Agents or any other Lender, 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 Loan Parties
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 Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, 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 Loan Parties. Except for
notices, reports and other documents expressly required to be furnished
to the Lenders by the Administrative Agent hereunder, the Agents shall
not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or
creditworthiness of the Loan Parties which may come into the possession
<PAGE 125>
of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
. The Lenders agree to indemnify each of the Agents in its capacity as
such (to the extent not reimbursed by the Loan Parties and without
limiting the obligation, if any, of the Loan Parties 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 Loans) 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 Lender 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 Agents gross negligence or
willful misconduct. The agreements in this subsection 10.7 shall
survive the payment of the Loans and all other amounts payable
hereunder.
. Each Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Loan Parties
(or any of them) as though such Agent were not an Agent hereunder.
With respect to its Loans made or renewed by 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 Lender and may exercise the same as though it were not
an Agent, and the terms Lender and Lenders shall include the Agent in
its individual capacity.
. The Administrative Agent may resign as Administrative Agent
hereunder and under the other Loan Documents upon 30 days notice to the
Lenders and VWR. If the Administrative Agent shall resign, then the
Required Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which appointment shall be
subject to (unless an Event of Default shall have occurred and be
continuing under Section 9.1(a) or 9.1(f)) the approval of VWR (which
approval shall not be unreasonably withheld). Any rejection by VWR of
a successor administrative agent shall specify the reasons for such
rejection. Failure of VWR to approve or reject a successor agent
within ten days following request for approval shall be deemed to
constitute approval. Upon such appointment and approval, 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 Agents 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 Loans.
After any retiring Administrative Agents resignation, the provisions of
this Section 10 shall inure to its benefit as to any actions taken
<PAGE 126>
or omitted to be taken by it while it was Administrative Agent under
this Agreement.
. Except as expressly provided herein, the provisions of this Section
10 are solely for the benefit of the Agents and the Lenders, and the
Loan Parties 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 Lenders 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 Loan Parties.
. The Other Agents, 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 10.
. Neither this Agreement, 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 Lenders, 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 other Loan Documents for the purpose of adding any provisions to
this Agreement or any other Loan Document or changing in any manner the
rights of the Lenders or of the Loan Parties 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
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 Loan or any installment
thereof, or reduce the rate of interest or extend the time of payment
of interest, or reduce any fee payable to any Lender hereunder or
extend the period for payment thereof, or change the duration or the
amount of any Lenders Commitment, in each case without the consent of
the Lender affected thereby or (b) amend, modify or waive any provision
of this subsection or reduce the percentage specified in the definition
of Required Lenders, or consent to the assignment or transfer by the
Loan Parties of any of their rights and obligations under this
Agreement and the other Loan Documents, in each case without the
written consent of all the Lenders, (c) amend, modify or waive any
provision of Section 10 without the written consent of the then Agents
or (d) amend, modify or waive any provision of subsections 2.13, 2.14,
2.15 and 2.16 without the written consent of the then Swing Line Lender
or (e) amend, modify or waive any provision of this Agreement relating
to any outstanding Letter of Credit without the written consent of the
Issuing Bank. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be
binding upon the Loan Parties, the Lenders, the Agents and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the
<PAGE 127>
Lenders and the Agents shall be restored to their former position and
rights hereunder and under the outstanding Loans, 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.
. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy,
telegraph or 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 with electronic confirmation, 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, the
Swing Line Lender, the Issuing Bank 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 Loans:
The Borrowers c/o VWR Scientific Products Corporation
or any of them: 1310 Goshen Parkway
West Chester, PA 19380
Attention: Deborah A. Corr,
Treasurer and Assistant
Secretary
Telecopy: (610) 436-1760
The Administrative PNC Bank, National Association
Agent, Swing Line 1600 Market Street
Lender and Issuing Philadelphia, PA 19103
Bank: Attention: Victoria R. Ziff,
Vice President
Telecopy: (215) 585-6795
With a Copy to: PNC Bank, National Association
Multi-Bank Loan Administration
One PNC Plaza, 22nd Floor
249 Fifth Avenue
Fourth Floor Annex
Pittsburgh, PA 15222-2707
Attention: Arlene Ohler
Telecopy: (412) 762-8672
BOA Canada: Bank of America Canada
1055 Dunsmuir Street
Suite 574, Four Bentall Centre
P.O. Box 49295
Vancouver, British Columbia V7X 1L3
Canada
<PAGE 128>
Attention: Albert Somody
Vice President
Telecopier: (604) 683-1940;
provided that (a) any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsections 2.3, 2.5,
2.15, 3.3, 4.6, 4.7 and 4.14 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.
. No failure to exercise and no delay in exercising, on the part of
the Administrative Agent or any Lender, 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.
. 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 and the other Loan Documents.
. 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 development, preparation and
execution of, administration of and the syndication of, this Agreement,
the other Loan Documents and any other documents executed and delivered
in connection herewith or therewith and the consummation of the
transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Agents, (b) 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 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, (c) pay or reimburse each Lender and each
Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, reasonable fees and disbursements of counsel to any Agent
and any Lender, (d) to pay, indemnify, and hold each Lender and the
Agents harmless from, any and all recording and filing fees 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 4.10) 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 other
Loan Documents and any such other documents, and (e) to pay, indemnify,
and hold each Lender 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
<PAGE 129>
or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents including, without
limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Laws applicable to the operations of the Loan Parties or
their Subsidiaries (all the foregoing, collectively, the indemnified
liabilities), provided, that the Borrowers shall have no obligation
hereunder to any Agent or any Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of
such Person. The agreements in this subsection shall survive repayment
of the Loans 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. The obligations of VWR Canada
under this subsection shall be limited to the amounts reasonably
related to the Canadian Dollar Loans.
. (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 the Borrowers, the Administrative Agent,
the Other Agents or the Lenders 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 Lender.
(b) Each Lender may, in accordance with applicable law,
sell to any Lender or Affiliate thereof (except that, in the case of an
assignment of the Canadian Dollar Commitment, the consent of VWR Canada
shall be required to the extent required by applicable law, which
consent VWR Canada shall give immediately in all circumstances) and,
with the consent of VWR and the Administrative Agent (or, with respect
to the Canadian Dollar Commitment, VWR Canada) (which consents shall
not be unreasonably withheld), to one or more banks, financial
institutions or other accredited investors (as defined in Regulation D
of the Securities Act of 1933, as amended) (each, a Purchasing Lender)
all or any part of its interests, rights and obligations under this
Agreement 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, if
any, 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 $5,000,000 (or such lesser amount as (x) VWR and the
Administrative Agent shall agree in their sole discretion or (y) is an
assignment of all of a Lenders interests under the U.S. Dollar
Commitments and/or the Canadian Dollar Commitments), (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 (if any)
subject to such assignment and a processing and recordation fee of
$3,500 and (iii) the Swing Line Lender may not assign in whole or in
part its Swing Line Commitment without the prior written consent of
VWR, unless the Swing Line Lender is no longer the Administrative
Agent. Upon acceptance and recording pursuant to paragraph (e) of this
subsection 11.6, from and after the effective date specified in an
<PAGE 130>
Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution and delivery thereof to VWR and the
Administrative Agent (or such shorter period as the Administrative
Agent and VWR may agree in their sole discretion), (A) such Purchasing
Lender 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 Lender under this Agreement and (B) the assigning
Lender 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 Lenders rights and
obligations under this Agreement and the other Loan Documents, such
Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of subsections 4.9, 4.10, 4.11 and 9.5 (to the
extent that such Lenders entitlement to such benefits arose out of such
Lenders position as a Lender prior to the applicable assignment). 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 Lender and the resulting amounts and percentages
held by the Lenders after giving effect to the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of
such assigning Lender under this Agreement and the other Loan
Documents. Notwithstanding any provision of this subsection 11.6, the
consent of VWR shall not be required for any assignment which occurs at
any time when any of the events described in subsection 9(f) shall have
occurred and be continuing.
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the Purchasing Lender
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender
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(s), (ii) except as set forth in (i) above, such
assigning Lender 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 instrument or document furnished
pursuant hereto or thereto, or the financial condition of the Loan
Parties or any Subsidiary thereof or the performance or observance by
the Loan Parties 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 Lender
confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to
subsection 7.1 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 Lender
will independently and without reliance upon any Agent, such assigning
Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
<PAGE 131>
credit decisions in taking or not taking action under this Agreement
and the other Loan Documents; (vi) such Purchasing Lender 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 Lender 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 Lender including, (A) if it is
becoming a U.S. Dollar Lender and is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to
subsection 4.10 to deliver the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Purchasing Lenders
exemption from United States withholding taxes with respect to all
payments to be made to the Purchasing Lender under this Agreement, and
(B) if it is becoming a Canadian Dollar Lender, its obligations under
subsection 4.10(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 Lenders, and the
Commitment(s) of, and principal amount of the Loans and L/C Obligations
owing to, each Lender 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 Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrowers and any Lender 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 Lender and a Purchasing Lender (and
in the case of a Purchasing Lender that is not then a Lender or an
Affiliate thereof, by VWR and the Administrative Agent) together with
the Note or Notes (if any) 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 Lenders.
(f) Each Lender 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 Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the
other Loan Documents, provided, however, that (i) such Lenders
obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such
Loan(s) (and, if applicable (Note(s)) for all purposes under this
Agreement and the other Loan Documents, (iv) the Borrowers, the Lenders
<PAGE 132>
and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lenders rights and obligations
under this Agreement and the other Loan Documents, (v) in any
proceeding under the Bankruptcy Code such Lender shall be, to the
extent permitted by law, the sole representative with respect to the
obligations held in the name of such Lender, whether for its own
account or for the account of any Participant, and (vi) such Lender
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 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, or releases any Loan Party liable on such
Loan.
(g) If amounts outstanding under this Agreement 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 the
other Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or, if applicable, 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 11.8.
The Borrowers also agree that each Participant shall be entitled to the
benefits of subsections 4,9, 4.10, 4.11 and 11.5 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 Lender
would have been entitled to receive in respect of the amount of the
participation transferred by such assigning Lender to such Participant
had no such transfer occurred.
(h) If any Participant of a U.S. Dollar Lender is
organized under the laws of any jurisdiction other than the United
States or any state thereof, the assigning Lender, concurrently with
the sale of a participating interest to such Participant, shall cause
such Participant (i) to represent to the assigning Lender (for the
benefit of the assigning Lender, the other Lenders, 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 Lender 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 Lender, the other
Lenders, the Administrative Agent and the Borrowers) that it will
deliver the tax forms and other documents required to be delivered
pursuant to paragraph 4.10(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 Lender which is a Canadian
Dollar Lender, the assigning Lender, concurrently with the sale of a
participating interest to such Participant, shall cause such
<PAGE 133>
Participant (i) to represent to the assigning Lender (for the benefit
of the assigning Lender, 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 Lender 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 Lender, the
Administrative Agent and VWR Canada) that it will comply with
subsection 4.10(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 Lender may at any time assign all or any portion
of its rights under this Agreement and any Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a
Lender from any of its obligations hereunder.
The Borrowers authorize each Lender to disclose to any Participant or
Purchasing Lender and any prospective Participant or Purchasing Lender
any and all information relating to the Loan Parties and their
Affiliates which has been furnished to such Lender by or on behalf of
the Loan Parties; provided that, each Lender agrees to cause each of
its Participants or potential Participants to agree in favor of VWR and
such Lender to take normal and reasonable precautions and exercise due
care to maintain the confidentiality of all information provided to it
by such Lender 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
regulatory authority or in connection with an examination of such
Participant or potential Participant by any such 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 Participant or potential
Participant conducts its business, or (e) to such Participants or
potential Participants independent auditors and other professional
advisors; provided, further, that no Lender 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.
. (a) Except to the extent that this Agreement provides for payment to
be allocated to a particular Lender or to the Lenders under a
particular facility, if any Lender (a benefitted Lender) 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 collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in subsection 9(f), or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lenders Loans or the
Reimbursement Obligation owing to it, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders such
portion of each such other Lenders Loan or the Reimbursement
<PAGE 134>
Obligation owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted
Lender, 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 Lender so purchasing a portion of another Lenders 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 Lender 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 Lender
shall be required to buy any participation or purchase any interest in
any Canadian Dollar Loans and (ii) no Canadian Dollar Lender shall be
required to buy any participation or purchase any interest in any U.S.
Dollar Loans, Swing Line Loans or any Reimbursement Obligation; except
to the extent, in each case, that a U.S. Dollar Lender is also a
Canadian Dollar Lender or a Canadian Dollar Lender is also a U.S.
Dollar Lender.
(c) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of an
Event of Default, each Lender 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 a Borrower hereunder
or, if applicable, 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 Lender to or for the credit or the account of
such Borrower. Each Lender agrees promptly to notify VWR and the
Administrative Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
. 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.
. 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.
<PAGE 135>
. 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 Lender 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 11.11.
. (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 Lender or 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 Agreement Currency), be discharged only to the
extent that on the Business Day following receipt by such Lender or
Agent of any sum in the Judgment Currency such Lender or Agent 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
Lender or Agent in the Agreement Currency, each Borrower jointly and
severally agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or Agent against such loss, and if
the amount of the Agreement Currency so purchased exceeds the sum
originally due to any Lender or Agent, such Lender or Agent agrees to
remit to such Borrower such excess.
. 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, Other Agent or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or
in the other Loan Documents.
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA.
. 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 any Note, or for
<PAGE 136>
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;
(c) waives and hereby acknowledges that it is estopped
from raising any objection based on forum non conveniens, any claim
that any of the above-referenced courts lack proper venue or any
objection that any of such courts lack personal jurisdiction over it so
as to prohibit such courts from adjudicating any issues raised in a
complaint filed with such courts against one or more Borrowers
concerning this Agreement or the other Loan Documents;
(d) acknowledges and agrees that the choice of forum
contained in this subsection 11.15 shall not be deemed to preclude the
enforcement of any judgment obtained in any forum or the taking of any
action under the Loan Documents to enforce the same in any appropriate
jurisdiction;
(e) 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 11.2 or at such
other address of which the Administrative Agent shall have been
notified pursuant to this Agreement;
(f) 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 sue in any other jurisdiction; and
(g) 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.
. Each of Borrowers hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither any Agent nor any Lender has any fiduciary
relationship to the Borrowers (or any of them) and the relationship
hereunder between the Agents and Lenders, 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 Lenders or among
the Borrowers (or any of them) and the Lenders or any Agent.
<PAGE 137>
. 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 Lenders against any U.S. Dollar Borrower, in respect of any
payments made pursuant to the Loan Documents, until all amounts owing
to the U.S. Dollar Lenders hereunder and under the other Loan Documents
are paid in full.
. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENT, THE DOCUMENTATION AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
MANDATORY COUNTERCLAIM THEREIN.
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.
VWR SCIENTIFIC PRODUCTS
CORPORATION
By:
Name: Deborah A. Corr
Title: Treasurer
VWR SCIENTIFIC OF CANADA LTD.
By:
Name: Deborah A. Corr
Title: Assistant
Secretary
SCIENTIFIC HOLDINGS CORP.
By:
Name: Deborah A. Corr
Title: Secretary
SCIENCE KIT, INC.
By:
Name: Deborah A. Corr
Title: Secretary
<PAGE 138>
WARDS NATURAL SCIENCE
ESTABLISHMENT, INC.
By:
Name: Deborah A. Corr
Title: Secretary
CENTRAL SCIENTIFIC COMPANY
By:
Name: Deborah A. Corr
Title: Secretary
A.J. REYNOLDS COMPANY, LLC
By:
Name: Deborah A. Corr
Title: Treasurer
PNC BANK, NATIONAL ASSOCIATION,
as a Lender and as
Administrative
Agent
By:
Name: Victoria R. Ziff
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
Name: John Pocalyko
Title: Managing Director
BANK OF AMERICA CANADA
By:
Name: Albert Somody
Title: Vice President
<PAGE 139>
TABLE OF CONTENTS
Page
SCHEDULES
SCHEDULE I Lender and Commitment Information
SCHEDULE 5.13 Environmental
SCHEDULE 5.16 List of Subsidiaries
EXHIBITS
EXHIBIT A-1 Form of U.S. Dollar Note
EXHIBIT A-2 Form of Canadian Dollar Note
EXHIBIT A-3 Form of Swing Line Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C-1 Form of Guaranty of Canadian Dollar Loans - US
EXHIBIT C-2 Form of Guaranty of Canadian Dollar Loans - Canada
EXHIBIT C-3 Form of Canadian Subsidiary Guaranty
EXHIBIT D Form of Joinder Agreement
EXHIBIT E Form of Guarantee
EXHIBIT F-1 Form of Notice of Borrowing For U.S. Dollar Loans
and Swing Line Loans
EXHIBIT F-2 Form of Notice of Borrowing For Canadian Dollar
Loans
EXHIBIT G-1 Form of Legal Opinion of Drinker, Biddle & Reath
EXHIBIT G-2 Form of Legal Opinion of Special Canadian Counsel
EXHIBIT H Form of Assignment and Assumption Agreement
<PAGE> 140
EXHIBIT 21
----------
SUBSIDIARIES
DECEMBER 31, 1998
Wholly-owned subsidiaries are:
VWR Scientific International Corporation - a Delaware
corporation
Scientific Holdings Corporation - a Delaware corporation
A.J. Reynolds Co., LLC - a Delaware corporation
HPC Scientific & Technology, LLC - a Delaware corporation
VWR Scientific of Canada Ltd. - a Canadian corporation, is a
wholly owned subsidiary of Scientific Holdings
Corporation.
Science Kit, Inc - a New York corporation
Ward's Natural Science Establishment, Inc. - a Delaware
corporation
Central Scientific Company - an Illinois corporation
Boreal Laboratories, Ltd. - a Canadian corporation, is a
wholly owned subsidiary of Science Kit, Inc.
Arbor Scientific Co. Limited - a Canadian corporation, is a
wholly owned subsidiary of Boreal Laboratories, Ltd.
Central Scientific Company of Canada Limited - a Canadian
corporation, is a wholly owned subsidiary of Boreal
Laboratories, Ltd.
Ward's Natural Science Ltd, - a Canadian corporation, is a
wholly owned subsidiary of Boreal Laboratories, Ltd.
<PAGE>141
EXHIBIT 23
----------
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statements No. 333-51369, 333-12343, 33-49807, 33-35684, 33-03991, 33-
34262, 33-05816, and 33-07590 on Forms S-8 and 33-32002 on Form S-3 of
VWR Scientific Products Corporation of our report dated February 25,
1999, with respect to the consolidated financial statements and schedule
of VWR Scientific Products Corporation included in this Annual Report
(Form 10-K) for the year ended December 31, 1998.
BY (SIGNATURE)
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
March 24, 1999
<PAGE>142
EXHIBIT 24
----------
POWER OF ATTORNEY
- - -----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jerrold B. Harris and David M. Bronson,
or either of them, their attorneys-in-fact, for them in any and all
capacities, to sign the Annual Report on Form 10-K of VWR Scientific
Products Corporation for the twelve months ended December 31, 1998, and
to file same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that said attorneys-in-fact, or their substitute or
substitutes, may do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
BY (SIGNATURE)
James W. Bernard
Director March 29, 1999
BY (SIGNATURE)
Richard E. Engebrecht
Director March 29, 1999
BY (SIGNATURE)
Jerrold B. Harris
Director March 29, 1999
BY (SIGNATURE)
Wolfgang Honn
Director March 29, 1999
BY (SIGNATURE)
Dieter Janssen
Director March 29, 1999
BY (SIGNATURE)
Stephen J. Kunst
Director March 29, 1999
BY (SIGNATURE)
Edward A. McGrath, Jr.
Director March 29, 1999
<PAGE>143
BY (SIGNATURE)
Donald P. Nielsen
Director March 29, 1999
BY (SIGNATURE)
N. Stewart Rogers
Director March 29, 1999
BY (SIGNATURE)
Harald J. Schroder
Director March 29, 1999
BY (SIGNATURE)
Walter W. Zywottek
Director March 29, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000788043
<NAME> VWR SCIENTIFIC PRODUCTS CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 219,049
<ALLOWANCES> 3,417
<INVENTORY> 140,826
<CURRENT-ASSETS> 369,889
<PP&E> 150,645
<DEPRECIATION> 59,573
<TOTAL-ASSETS> 911,589
<CURRENT-LIABILITIES> 132,343
<BONDS> 355,665
0
0
<COMMON> 28,968
<OTHER-SE> 354,579
<TOTAL-LIABILITY-AND-EQUITY> 911,589
<SALES> 1,349,948
<TOTAL-REVENUES> 1,349,948
<CGS> 1,037,771
<TOTAL-COSTS> 1,037,771
<OTHER-EXPENSES> 226,745
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 27,910
<INCOME-PRETAX> 57,522
<INCOME-TAX> 22,585
<INCOME-CONTINUING> 34,937
<DISCONTINUED> 0
<EXTRAORDINARY> 689
<CHANGES> 0
<NET-INCOME> 34,248
<EPS-PRIMARY> 1.19
<EPS-DILUTED> 1.16
</TABLE>
