Exhibit 4(c)(7)
FIFTH AMENDMENT
FIFTH AMENDMENT, dated as of July17, 2002, 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").
W I T N E S S E T H:
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 2.14(d) of the Credit Agreement, the Borrowers
have requested an extension of the 364 Day Commitments under the Credit
Agreement from July 22, 2002 until July 20, 2003;
WHEREAS, the Borrowers have requested that they be permitted to increase
from time to time the amount of the 364 Day Commitments, up to a maximum of to
$65 million, which is the original amount of the 364 Day Commitments; and
WHEREAS, each of the 364 Day Banks has agreed to extend its 364 Day
Commitment until July 20, 2003 and the Required Banks have agreed to permit the
Borrowers to increase the 364 Day Commitments, in each case on the terms and
subject to the 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. Extension of 364 Day Commitments. Effective on and as of July 23, 2002,
the 364 Day Commitments of each of the 364 Day Banks shall be extended until
July 20, 2003. In furtherance thereof, clause (a) of the definition of "364 Day
Termination Date" is hereby amended by deleting the date "July 22, 2002" and
inserting in lieu thereof the date "July 20, 2003".
3. Increase in 364 Day Commitments.
(a) Effective on and as of July 23, 2002, Section 2.14 of the Credit
Agreement is hereby amended by adding at the end thereto the following new
subsection (e):
"(e) (i) The Borrowers may at any time and from time to time, subject
to the last sentence hereof, request an increase in the 364 Day Commitments
of the 364 Day Banks by sending a written notice thereof to all of the 364
Day Banks and the Agent. Such notice shall specify the total amount of the
increase requested by the Borrowers (the "Requested Increase"); provided
that, the aggregate amount of the 364 Day Commitments shall not at any time
exceed $65,000,000 less than the aggregate amount of any permanent
reductions of the 364 Day Commitments pursuant to subsection 2.14(b)
hereof. The fees, if any, for any increase in the 364 Day Commitments shall
be determined at the time of any request for any such increase. Each 364
Day Bank shall respond in writing to the Borrowers (with a copy
simultaneously sent to the Agent), within thirty (30) days of receipt of a
Requested Increase (or such shorter period as the Agent and the Borrowers
shall agree), stating the maximum amount, if any, by which such 364 Day
Bank is willing to increase its 364 Day Commitment (the "Offered Amount").
If the total of the Offered Amount for all of the 364 Day Banks is greater
than the Requested Increase, the Requested Increase shall be allocated
amongst the offering 364 Day Banks as the Borrowers and the Agent shall
agree and, absent any such agreement, pro rata based on each 364 Day Bank's
then existing 364 Day Commitment Percentage. Any 364 Day Bank that
increases its 364 Day Commitment shall execute and deliver to the Agent a
duly completed commitment and acceptance in form and substance acceptable
to the Agent, and the Borrowers shall pay to the Agent a processing and
recordation fee of $3,000. If the total of the Offered Amount for all of
the 364 Day Banks is equal to or less than the Requested Increase (x)
unless the Borrowers and the Agent shall otherwise agree, each 364 Day
Bank's 364 Day Commitment shall increase by its Offered Amount and (y) the
Borrowers may, subject to the consent of the Agent, offer the difference,
if any, between the Requested Increase and the amount of the increase in
the 364 Day Commitments pursuant to clause (x) above to one or more new
banks or other financial institutions (each a "Proposed New Bank"). If the
Borrowers request that a Proposed New Bank join this Agreement and provide
a 364 Day Commitment hereunder, the Borrowers shall at least seven (7) days
prior to the date (or such other period as the Agent and the Borrowers
shall agree) on which such Proposed New Bank proposes to join this
Agreement notify the Agent of the name of the Proposed New Bank and the
amount of its proposed 364 Day Commitment and deliver a duly completed
joinder agreement with respect to such Proposed New Bank in form and
substance acceptable to Agent (the "New 364 Day Bank Joinder"), together
with a processing and recordation fee of $3,000. Upon the consent of the
Agent to a Proposed New Bank joining this Agreement (which consent shall
not be unreasonably withheld or delayed), such Proposed New Bank shall join
this Agreement pursuant to the provisions of subsection 9.6(j), including
that its minimum 364 Day Commitment be at least $5,000,000 or such lesser
amount as the Agent shall agree. The Borrowers may make two (2) Requested
Increases.
(ii) Following any increase in 364 Day Commitments pursuant to this
subsection 2.14(e), the Agent shall send to the Banks and the Borrowers a
revised Schedule I setting forth the new 364 Day Commitments of the 364 Day
Banks. Such schedule shall replace the existing Schedule I if no Bank
objects thereto within ten (10) days of its receipt thereof.
(iii) Notwithstanding anything to the contrary in this subsection
2.14(e), (x) the Borrowers may not request an increase in the 364 Day
Commitments if at the time of such request a Default or Event of Default
shall exist and (y) no increase in the 364 Day Commitments (including by
way of the addition of a Proposed New Bank) shall become effective if on
the date that such increase would become effective, a Default or Event of
Default shall exist.
(b) Effective on and as of July 23, 2002, Section 9.6 of the Credit
Agreement is hereby amended by adding at the end thereto the following new
subsection
(j): "(j) As provided in subsection 2.14(e) hereof, any Proposed New
Bank shall, at least seven (7) days before the proposed effective date of
such Proposed New Bank's joinder hereto, complete, execute and deliver to
the Agent a New 364 Day Bank Joinder, together with a processing and
recordation fee of $3,000. Such New 364 Day Bank Joinder shall include,
among other things, a joinder to this Agreement and otherwise be in form
and substance acceptable to the Agent and the Borrowers. Upon the effective
date of such joinder and the obtaining of the Agent's consent (which
consent shall not be unreasonably withheld or delayed), such Proposed New
Bank shall become a party hereto (hereinafter referred to as an "Additional
364 Day Bank") and shall be one of the 364 Day Banks hereunder for all
purposes, except as provided below. Such Additional 364 Day Bank's rights
and the rights of any existing 364 Day Bank which increases its 364 Day
Commitment pursuant to subsection 2.14(e) shall be limited in the following
respects: (i) on the effective date of such joinder or increase, the
Borrowers shall repay all outstanding 364 Day Loans that are Base Rate
Loans, if any, and reborrow a like amount of 364 Day Loans that are Base
Rate Loans from the 364 Day Banks, including the Additional 364 Day Bank,
according to their new 364 Day Commitment Percentages and (ii) such
Additional 364 Day Bank or existing 364 Day Bank which increases its 364
Day Commitment shall not participate in any 364 Day Loans that are LIBOR
Loans (except, with respect to an existing 364 Day Bank, with respect to
its existing interest) which are outstanding on the effective date of such
joinder or increase but shall participate in all new Loans made to the
Borrowers after the effective date of such joinder or increase in
accordance with its new 364 Day Commitment Percentage, including, without
limitation, new LIBOR Loans and renewals and conversions of LIBOR Loans. If
the Borrowers should (i) renew after the effective date of such joinder or
increase any 364 Day Loans that are LIBOR Loans existing on such effective
date or (ii) convert after the date of such joinder or increase any 364 Day
Loans that are LIBOR Loans existing on such effective date, the Borrowers
shall be deemed to repay the applicable LIBOR Loans on the conversion or
renewal date, as the case may be, and then reborrow a similar amount on
such date so that the Additional 364 Day Bank and any 364 Day Bank that
increases its 364 Day Commitment shall participate in such LIBOR Loans
after such renewal or conversion date in accordance with its 364 Day
Commitment Percentage. Simultaneously with the execution and delivery of
such joinder or the increase in a 364 Day Bank's 364 Day Commitment, the
Borrowers shall execute a new 364 Day Note for such Additional 364 Day Bank
or existing 364 Day Bank. Notwithstanding the foregoing, upon the
occurrence of an Event of Default prior to the date on which such
Additional 364 Day Bank or such existing 364 Day Bank that is increasing
its 364 Day Commitment is holding 364 Day Loans that are LIBOR Loans equal
to its pro rata share (in accordance with its then 364 Day Commitment
Percentage without giving effect to any termination of the 364 Day
Commitments), such 364 Day Bank shall, upon notice from the Agent, on or
after the date on which the Loans are accelerated or become due following
such Event of Default, pay to the Agent (for the account of the other 364
Day Banks, to which the Agent shall pay their pro rata share thereof
promptly after receipt) a sum equal to such 364 Day Bank's pro rata share
of each 364 Day Loan that is a LIBOR Loan then outstanding with respect to
which such 364 Day Bank does not then hold its pro rata share in accordance
with its 364 Day Commitment Percentage; such payment by such 364 Day Bank
shall constitute a Base Rate Loan hereunder.
4. Representations and Warranties. The Borrowers hereby represent and
warrant to the Banks and the Agent that:
(a) There exists no Default or Event of Default under the Credit Agreement
as amended hereby;
(b) The representations and warranties made in the Credit Agreement are
true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof; and
(c) The execution and delivery of this 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).
5. Effectiveness. This Amendment shall become effective on the date on
which the Agent shall have received (a) counterparts hereof duly executed by the
Borrowers and each 364 Day Bank, (b) an extension fee for the benefit of each
364 Day Bank in the amount of 10 basis points (0.10%) on the amount of such
Bank's 364 Day Commitment and (c) for the account of PNC Capital Markets, Inc.,
such arrangement fees as shall have been agreed to with the Borrowers.
6. 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.
7. Release. Recognizing and in consideration of each of the 364 Day Banks
extending its 364 Day Commitment and the other amendments provided herein, each
of the Borrowers hereby waives and releases all of 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.
8. 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, 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/ Michael A. Anderson
Name: Michael A. Anderson
Title: Vice President and Treasurer
WEST PHARMACEUTICAL SERVICES
OF FLORIDA, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: Vice President
WEST PHARMACEUTICAL SERVICES
LAKEWOOD, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: President
WEST PHARMACEUTICAL SERVICES
GROUP LIMITED
By: /s/ John R. Gailey III
Name: John R. Gailey III
Title: Director
PACO LABORATORIES, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: President
WEST PHARMACEUTICAL SERVICES
CANOVANAS, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: President
WEST PHARMACEUTICAL SERVICES
OF DELAWARE, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: President
WEST PHARMACEUTICAL SERVICES
VEGA ALTA, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: President
WEST PHARMACEUTICAL
CLEVELAND, INC.
By: /s/ Michael A. Anderson
Name: Michael A. Anderson
Title: President
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By: /s/ Frank A. Pugliese
Name: Frank A. Pugliese
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as
FIRST UNION NATIONAL BANK)
By: /s/ Jeanette A. Griffin
Name: Jeanette A. Griffin
Title: Vice President
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: _______________________________
Name:_____________________________
Title:______________________________
By:_______________________________
Name:_____________________________
Title:______________________________
NATIONAL CITY BANK
By: /s/ Thomas J. McDonnell
Name: Thomas J. McDonnell
Title: Senior Vice President
JP MORGAN CHASE BANK (formerly
known as THE CHASE MANHATTAN BANK)
By:_______________________________
Name:_____________________________
Title:______________________________
CITIZENS BANK OF PENNSYLVANIA
By: /s/ Mark Turie
Name: Mark Turie
Title: Vice President