Exhibit 4(c)(4)
THIRD AMENDMENT
THIRD AMENDMENT, dated as of February 28, 2001, among WEST
PHARMACEUTICAL SERVICES, INC., a Pennsylvania corporation (the "Company'),
the direct and indirect subsidiaries of the Company listed on the signature
pages hereto (together with the Company, collectively, the "Borrowers"),
the several banks and other financial institutions parties to the Credit
Agreement (as hereinafter defined) (collectively, the "Banks"), and PNC
BANK, NATIONAL ASSOCIATION, as Agent for the Banks (in such capacity, the
"Agent").
WITNESETH:
WHEREAS, the Borrowers, the Banks and the Agent are parties to a Credit
Agreement, dated as of July 26, 2000 (as heretofore amended, supplemented or
otherwise modified, the "Credit Agreement");
WHEREAS, pursuant to Section 5.9 of the Credit Agreement, the Borrowers are
required to cause certain of their Subsidiaries to become co-borrowers under the
Credit Agreement;
WHEREAS, the Agent and the Banks are entering into a Sharing Agreement,
dated as of the date hereof, with the holders of certain notes of one or more of
the Borrowers (as amended, supplemented or otherwise modified, the "Sharing
Agreement"); and
WHEREAS, the Borrowers and the Required Banks have agreed to amend the
Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement are used herein as therein defined.
2. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting
the following definition in the appropriate alphabetical order:
"Sharing Agreement": the Sharing Agreement, dated as of February
28, 2001, among the Agent, the Banks and the holders of notes of one
or more of the Borrowers, as amended, supplemented or otherwise
modified from time to time.
(b) The following definitions in Section 1.1 of the Credit Agreement
are hereby amended and restated in full as follows:
"Loan Documents": this Agreement, the Notes, the Joinder and
Assumption Agreements, the Applications and the Sharing Agreement, as
the same may be supplemented or amended from time to time in
accordance herewith or therewith, and "Loan Document" shall mean any
of the Loan Documents.
"Priority Debt": at any time, without duplication (a) all Indebtedness
and Preferred Stock of Subsidiaries (other than (i) Indebtedness of
any Subsidiary owed to, or Preferred Stock of any Subsidiary held by,
the Company or any Wholly-Owned Subsidiary, and (ii) Indebtedness of
any Subsidiary which is a Borrower other than Indebtedness of a
Foreign Borrower), plus (b) all Indebtedness of a Subsidiary secured
by a Lien permitted under clause (g) of the definition of Permitted
Lien.
(c) Section 7.1 of the Credit Agreement is hereby amended by inserting
the word "or" at the end of subsection (j) and inserting the following
subsection (k) immediately thereafter:
(k) The Agent shall have received a Notice of Election to Share as
defined in, and pursuant to, the Sharing Agreement.
3. Representations and Warranties. The Borrowers hereby represent and
warrant to the Banks and the Agent
(a) There exists no Default or Event of Default under the Credit Agreement
as amended hereby;
(b) The representations and warranties made in the Credit Agreement are
true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof; and
(c) The execution and delivery of this Amendment by and on behalf of the
Borrowers has been duly authorized by all requisite action on behalf of the
Borrowers and this Amendment constitutes the legal, valid and binding obligation
of the Borrowers, enforceable against them in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, 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 Amendment shall become effective upon the Agent
receiving (a) counterparts hereof duly executed by the Borrowers and the Banks,
(b) counterparts of the Sharing Agreement executed by each Person listed on the
signature pages thereto, and (c) counterparts of the Joinder and Assumption
Agreement, dated the date hereof, and executed by the Persons listed on the
signature pages thereto, pursuant to which certain subsidiaries of the Company
shall become Borrowers under the Credit Agreement and the other Loan Documents.
5. Limited Effect. Except as expressly amended by this Amendment, the
Credit Agreement shall continue to be, and shall remain, unaltered and in full
force and effect in accordance with its terms and the Borrowers hereby confirm
all of the provisions of the Credit Agreement and the other Loan Documents.
6. Release. Recognizing and in consideration of the Banks' and the Agent's
agreement to the amendments set forth herein, each of the Borrowers hereby
waives and releases the Banks and the Agent and their officers, attorneys,
agents, and employees from any liability, suit, damage, claim, loss or expense
of any kind or nature whatsoever and howsoever arising that such Borrower ever
had or now has against any of them arising out of or relating to any Bank's or
the Agent's acts or omissions with respect to this Amendment, the Credit
Agreement, the other Loan Documents or any other matters described or referred
to herein or therein.
7. Miscellaneous.
(a) Expenses. Each of the Borrowers agrees to pay all of the Agent's
reasonable out-of-pocket expenses incurred in connection with the
preparation, negotiation and execution of this Amendment and the other
documents executed in connection herewith (including the Sharing Agreement
and the Joinder and Assumption Agreement), including, without limitation,
the reasonable fees and expenses of Ballard Spahr Andrews & Ingersoll, LLP.
(b) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
(c) Successor and Assigns. The terms and provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrowers, the
Agent and the Banks and their respective successors and assigns.
(d) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of
which shall constitute one and the same instrument.
(e) Headings. The headings of any paragraph of this Amendment are for
convenience only and shall not be used - to interpret any provision hereof.
(f) Modifications. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on
behalf of the party against whom enforcement is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
WEST PHARMACEUTICAL SERVICES, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: Vice President
WEST PHARMACEUTICAL SERVICES
OF FLORIDA, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: Vice President
WEST PHARMACEUTICAL SERVICES
LAKEWOOD, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: Vice President
WEST PHARMACEUTICAL SERVICES
GROUP LIMITED
By: /s/ John R. Gailey
Name: John R. Gailey
Title: Director
PNC BANK NATIONAL ASSOCIATION,
as a Bank and as Agent
By: /s/ Amy T. Peterson
Name: Amy T. Peterson
Title: Vice President
FIRST UNION NATIONAL BANK, as a Bank
By:
Name:
Title:
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By:
Name:
Title:
By:
Name:
Title:
NATIONAL CITY BANK, as a Bank
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ Constantin E. Chepurny
Name: Constantin E. Chepurny
Title: Senior Vice President
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By:
Name:
Title:
By:
Name:
Title:
NATIONAL CITY BANK, as a Bank
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as a Bank
By:
Name:
Title:
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By: /s/ Richard Morris
Name: Richard Morris
Title: Senior Vice President
By: /s/ Deborah Carlson
Name: Deborah Carlson
Title: First Vice President
NATIONAL CITY BANK, as a Bank
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as a Bank
By:
Name:
Title:
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By:
Name:
Title:
By:
Name:
Title:
NATIONAL CITY BANK, as a Bank
By: /s/ Thomas J. McDonnell
Name: Thomas J. McDonnell
Title: Senior Vice President
THE CHASE MANHANTAN BANK,
as a Bank
By: /s/ Thomas F. Conroy, Jr.
Name: Thomas F. Conroy, Jr.
Title: Vice President
MELLON BANK, N.A., as a Bank
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Bank
By:
Name:
Title:
MELLON BANK N.A., as a Bank
By: /s/ Mark W. Torie
Name: Mark W. Torie
Tide: VP