Exhibit 4(c)(3)
JOINDER AND ASSUMPTION AGREEMENT
Joinder and Assumption Agreement, dated as of February 28, 2001, made
by PACO LABORATORIES, INC., WEST PHARMACEUTICAL SERVICES CANOVANAS, INC.,
WEST PHARMACEUTICAL SERVICES OF DELAWARE, INC., WEST PHARMACEUTICAL
SERVICES VEGA ALTA, INC., and WEST PHARMACEUTICAL CLEVELAND, INC.
(collectively the "Additional Borrowers"), in favor of the Banks and the
Agent (as each such term is defined in the Credit Agreement referred to
below).
WITNESSETH:
WHEREAS, West Pharmaceutical Services, Inc. ("West") and its
subsidiaries from time to time party thereto, the banks and other financial
institutions from time to time parties thereto and PNC Bank, National
Association, as Agent, are parties to a Credit Agreement, dated as of July
26, 2000 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, the Additional Borrowers are direct or indirect subsidiaries
of West and, in consideration for, among other things, the ability to
borrow under the Credit Agreement, the Additional Borrowers are executing
and delivering this Agreement.
NOW THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged,
the Additional Borrowers, intending to be legally bound, hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
defined in the Credit Agreement are used herein as therein defined.
2. Joinder. Each of the Additional Borrowers hereby agrees that
effective as of the date hereof, such Additional Borrower is, and shall be,
a Borrower under the Credit Agreement with all of the rights and
obligations of a Borrower thereunder, and the term Borrower when used in
the Credit Agreement or in any other Loan Document shall include such
Additional Borrower. As a result (i) each Additional Borrower shall be
entitled to borrow or have Letters of Credit issued for its account under
the Credit Agreement on the terms of, and subject to the conditions of, the
Credit Agreement to the same extent as if it were an original signatory to
that Agreement as a Borrower and (ii) each Additional Borrower shall be
liable to the Agent and the Banks for, and hereby assumes and agrees to be
liable for, all of the obligations and liabilities of a Borrower under the
Credit Agreement, the Notes and the other Loan Documents as applicable to
the same extent as if it were an original signatory to those documents as a
Borrower. Each of the Additional Borrowers hereby agrees with the Agent and
the Banks that it shall perform, comply with and be subject to and be bound
by, each of the terms, provisions and conditions of the Credit Agreement,
including, without limitation, the monetary payment provisions, and each
other Loan Document to which it is a party by virtue of this Agreement.
Without limiting the generality of the foregoing, each Additional Borrower
hereby represents and warrants that (i) each of the representations and
warranties set forth in Section 3 of the Credit Agreement is true and
correct as to such Additional Borrower on and as of the date hereof as if
made on and as of the date hereof by such Additional Borrower and (ii) such
Additional Borrower has heretofore received a true and correct copy of the
Credit Agreement and each of the other Loan Documents (including any
amendments, supplements or waivers thereto) as in effect on the date hereof
Each Additional Borrower hereby makes, affirms, and ratifies in favor
of the Banks and the Agent the Credit Agreement, the Notes and each of the
other Loan Documents given by one or more of the Borrowers to the Agent
and/or the Banks.
Each Additional Borrower also agrees to execute and deliver (or to
cause to be executed and delivered) at any time and from time to time such
further instruments and documents and do or cause to be done such further
acts as may be requested by the Agent to effectuate the provisions and
purposes of this Agreement, it being acknowledged, however, that no such
documents are needed in order for such Additional Borrower to become a
Borrower under the Credit Agreement and to be liable for all of the
obligations and liabilities of a Borrower thereunder as if it were an
original signatory thereto.
3. Additional Representations and Warranties. Each Additional Borrower
hereby represents and warrants to the Banks and the Agent that:
(a) There exists no Default or Event of Default under the Credit
Agreement; and
(b) The execution and delivery of this Agreement has been duly
authorized by all requisite action on behalf of such Additional Borrower,
and this Agreement and any other Loan Document to which it is a party by
virtue of this Agreement constitutes the legal, valid and binding
obligation of such Additional Borrower, enforceable against it 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).
4. Effectiveness. This Agreement shall become effective upon receipt
by the Agent of counterparts hereof duly executed by each Additional
Borrower and acknowledged by the Agent and West on behalf of the Borrowers
5. Limited Effect. Except as expressly amended by this Agreement, the
Credit Agreement and the other Loan Documents shall continue to be, and
shall remain, unaltered and in full force and effect in accordance with
their terms.
6. Miscellaneous.
(a) Expenses. Each Additional Borrower and each of the other Borrowers
jointly and severally agree to pay all of the Agent's reasonable
out-of-pocket expenses incurred in connection with the preparation,
negotiation and execution of this Agreement, including, without limitation,
the reasonable fees and expenses of counsel to the Agent.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
(c) Successor and Assigns. The terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of each Additional
Borrower, the other Borrowers, the Agent and the Banks and their respective
successors and assigns.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of
which shall constitute one and the same instrument.
(e) Headings. The headings of any paragraph of this Agreement are for
convenience only and shall not be used to interpret any provision hereof
(f) Modifications. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on
behalf of the party against whom enforcement is sought.
IN WITNESS WHEREOF, each Additional Borrower has caused this Agreement to
be duly executed and delivered by its proper and duly authorized officer as of
the date and year first above written and West has caused this Agreement to be
acknowledged, executed and delivered by its proper and duly authorized officer
as of the day and year first above written.
PACO LABORATORIES, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: President
WEST PHARMACEUTICAL SERVICES
CANOVANAS, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: President
WEST PHARMACEUTICAL SERVICES
OF DELAWARE, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: President
WEST PHARMACEUTICAL SERVICES
VEGA ALTA, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: President
WEST PHARMACEUTICAL
CLEVELAND, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: President
ACKNOWLEDGED, ACCEPTED AND AGREED:
WEST PHARMACEUTICAL SERVICES, INC., as
Borrowers' Representative
By:
Name:
Title:
PNC BANK NATIONAL ASSOCIATION,
as Agent
By: /s/ Amy T. Peterson
Name: Amy T. Peterson
Title: Vice President
ACKNOWLEDGED, ACCEPTED AND AGREED:
WEST PHARMACEUTICAL SERVICES, INC., as
Borrowers' Representative
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: Vice President
PNC BANK NATIONAL ASSOCIATION,
as Agent
By:
Name:
Title: