THIRD AMENDMENT TO CREDIT AGREEMENT
TMS THIRD AMENDNENT ("Amendment") is made as of August 10, 1998 to that
certain Credit Agreement dated as of August 28, 1995, as amended by that certain
Amendment to Credit Agreement dated as of April 7, 1997 and the Second Amendment
to Credit Agreement dated as of August 31, 1997 (as so amended, the "Credit
Agreement") among The West Company, Incorporated, a Pennsylvania corporation
("The West Company"), the Subsidiary Borrowers referred to therein, the banking
institutions signatories thereto (each, a "Bank" and collectively, the "Banks")
and CoreStates Bank, N.A., as agent for the Banks under the Credit Agreement (in
such capacity, the "Agent"). The West Company and the Subsidiary Borrowers are
sometimes referred to herein collectively as the "Borrowers" and individually as
a "Borrower." Capitalized terms not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
WHEREAS, the Borrowers, the Banks and the Agent desire to amend the
Credit Agreement and the Borrowers, the Banks and the Agent are each willing to
effect such amendment.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Amendment to Credit Agreement
(a) Restatement of Section 3.7 - Margin Regulations. Section 3.7 of the
Credit Agreement shall be deleted in its entirety and replaced with
the following:
"3.7 Margin Requirements. The West Company will not hold 'margin
stock', as defined by The Board of Governors of the Federal
Reserve System, to the extent that the value of such margin
stock, determined in accordance with The West Company's ordinary
business practices and GAAP, exceeds twenty-five percent (25%) of
the value of the assets of The West Company."
(b) Restatement of Section 5.9 - Use of Proceeds. Section 5.9 of the
Credit Agreement shall be deleted in its entirety and replaced with
the following:
"5.9 Use of Proceeds. Use the proceeds of the Loans (i) to
finance working capital, capital expenditures and acquisitions,
(ii) to repurchase outstanding shares of its common stock and
(iii) for general corporate purposes."
(c) Restatement of Section 6.5 - Margin Stock. Section 6.5 of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
"6.5 Margin Stock. Hold margin stock when the value of such
margin stock, determined in accordance with The West Company's
ordinary business practices and GAAP, exceeds twenty-five
percent (25%) of the value of the assets of The West Company."
2. Counterparts; Effectiveness. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective when the Agent shall have received signed
counterparts or notice by telecopy of the signature page that the counterpart
has been signed and is being delivered to the Agent or facsimile that such
counterparts have been signed by all the parties hereto or thereto.
3. Effect of Amendment. Except as herein modified and amended, all terms and
conditions of the Credit Agrcement shall remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, the Borrowers and the Banks have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized as of the day and year first above written.
000 Xxxxxx Xxxxx XXX XXXX COMPANY,
X.X. Xxx 000 XXXXXXXXXXXX
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
c/o The West Company, Incorporated PACO PHARMACEUTICAL
000 Xxxxxx Xxxxx SERVICES, INC.
X.X. Xxx 000
Xxxxxxxxx. XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: VP
2
x/x Xxx Xxxx Xxxxxxx, Xxxxxxxxxxxx XXX XX XXXXXXX, INCORPORATED
000 Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000 By: /s/ Xxxxxxx X. Xxxxxxx
Attn: Xxxxxxx X. Xxxxxxx ---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: VP
c/o The West Company, Incorporated THE WEST COMPANY GROUP LTD.
000 Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: VP
0000 Xxxxxxxx Xxxxx, Xxxxx 000 PNC BANK, NATIONAL ASSOCIATION
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxx By: /s/ Xxx X. Xxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
00 Xxxx Xxxxxx XXXXXXXX XXXX XX, XXX XXXX
Xxx Xxxx XX 00000-0000 AND GRAND CAYMAN BRANCHES
Attn: Xxxxxxx Xxxxxx
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
By: /s/ J. Xxxxxxx Xxxxxxx
---------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Senior Vice President
000 Xxxxxxxxx Xxxxxx X.X. WACHOVIA BANK, N.A.
MC 000 00xx Xxxxx
Xxxxxxx, XX 00000 By: /s/ Xxxx X. Xxxxxx
Attn: Xxxx X. Xxxxxx ---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
000 Xxxx Xxxxxx THE CHASE MANHATTAN BANK
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
3
0000 Xxxxxxxx Xxxxxx XXXXXXXXXX XXXX, X.X., individually
Xxxxxxxxxxxx, XX 00000 and as Agent
FC 1-8-3-16
Attn: Xxxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
CoreStates Bank, N.A. has merged
into First Union National Bank
4
First Union National Bank
PA 4830
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
[LOGO]
August 25, 1998
Xx. Xxxx Xxxxxxxxxx Xx. Xxx Xxxxxxxx
First Union PNC Bank, N.A.
0000 Xxxxxx Xxxx Valley Forge Regional Banking Center
PA 5091 0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx XX 00000 Xxxxxx, XX 00000
Mr. Xxxxx Xxxxxxxx Xx. Xxxx X. Xxxxxx
Dresdner Bank AG Wachovia Bank of Georgia, N.A.
00 Xxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx X.X.
Xxx Xxxx, XX 00000 MC 000 00xx Xxxxx
Xxxxxxx, XX 00000
Xx. Xxxxx Xxxxxxxx
The Chase Manhattan Bank
Healthcare Group
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
RE: The West Company Credit Agreement dated as of August 28, 1995 and as
amended by Amendment to Credit Agreement dated as of April 7, 1997
Extension of $70,000,000.00 364 Day Facility Termination Date to
August 24, 1999
----------------------------------------------------------------
Please be advised in accordance with Section II, 2.1 (a) of the above Credit
Agreement, the Banks have unanimously agreed to establish a new 364 Day Facility
on the existing 364 Day Facility Termination Date of August 25, 1998. Based on
this approval, the Credit Agreement is now deemed to be amended to reflect this
new 364 Day Facility with a new 364 Day Facility Termination Date of August 24,
1999.
Please adjust your records accordingly. A copy of each Bank's approval letter
will be forwarded to you by mail. If you have any questions, please call me at
(000)-000-0000.
Sincerely yours,
/s/ Xxxxx Xxxxxx
------------------------
Xxxxx Xxxxxx
Assistant Vice President
CoreStates Bank, N.A.
FC 1-8-3-14
XX Xxx 0000
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx XX 00000-0000
000 000 0000
Fax 000 000 0000
Email xxxxxxxx@xxxxxxxxxx.xxx
Xxxx X. Xxxxxxxxxx
Vice President and
Senior Relationship Officer
Corporate Banking [LOGO]
June 22, 1998
Xx. Xxxxx Xxxxxx
Assistant Vice President
First Union National Bank
0000 Xxxxxxxx Xxxxxx
X.X. 0-0-00-0
Xxxxxxxxxxxx XX 00000
RE: The West Company Credit Agreement dated as of August 28, 1995 and as
amended by Amendment to Credit Agreement dated as of April 7, 1997
364 Day Facility Termination Date of August 25, 1998
----------------------------------------------------
Dear Xx. Xxxxxx:
Pursuant to Section II, 2.1 (a) of the Credit Agreement dated as of August 28,
1995 and as amended by Amendment to Credit Agreement dated as of April 7, 1997,
among The West Company, Incorporated, certain subsidiaries thereof and the
banking institutions named therein, with First Union National Bank (as successor
to CoreStates Bank, N.A.), as Agent, the undersigned hereby agrees to establish
a new 364 Day Facility on August 25, 1998. The new 364 Day Termination Date will
be August 24, 1999.
Sincerely,
/s/ Xxxx Xxxxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxxxx
Vice President
[DRESDNER KLEINWORT XXXXXX LETTERHEAD]
June 29, 1998
Xx. Xxxxx Xxxxxx
Assistant Vice President
First Union National Bank
0000 Xxxxxxxx Xxxxxx
X.X. 0-0-00-0
Xxxxxxxxxxxx, XX 00000
Re: The West Company Credit Agreement dated as of August 28, 1995 and as
amended by Amendment to Credit Agreement dated as of April 7, 1997
364 Day Facility Termination Date of August 25, 1998
----------------------------------------------------
Dear Xx. Xxxxxx:
Pursuant to Section II, 2.1 (a) of the Credit Agreement dated as of August 28,
1995 and as amended by Amendment to Credit Agreement dated as of April 7, 1997,
among The West Company, Incorporated, certain subsidiaries thereof and the
banking institutions named therein, with First Union National Bank (as successor
to CoreStates Bank, N.A.), as Agent, the undersigned hereby agrees to establish
a new 364 Day Facility on August 25, 1998. The new 364 Day Termination Date will
be August 24, 1999.
For and on behalf of Dresdner Bank AG, New York and Grand Cayman Branches
By: /s/ A. R. Xxxxxx By: /s/ X. X. Xxxxxxxx
----------------------- ------------------
Title: First Vice President Title: Vice President
[LOGO]
The Chase Manhattan Bank Xxxxxxx X. Xxxxxxxx
Healthcare Group Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel 000-000-0000
Fax 000-000-0000
xxxxxxx.xxxxxxxx@xxxxx.xxxx
June 29, 1998
Xx. Xxxxx Xxxxxx
Assistant Vice President
First Union National Bank
0000 Xxxxxxxx Xxxxxx
X.X. 0-0-00-0
Xxxxxxxxxxxx, XX 00000
RE: The West Company Credit Agreement dated as of August 28, 1995 and as
amended by Amendment to Credit Agreement dated as of April 7, 1997
364 Day Facility Termination Date of August 25, 1998
----------------------------------------------------
Dear Xx. Xxxxxx:
Pursuant to Section II, 2.1(a) of the Credit Agreement dated as of August 28,
1995 and as amended by Amendment to Credit Agreement dated as of April 7, 1997,
among The West Company, Incorporated, certain subsidiaries thereof and the
banking institutions named therein, with First Union National Bank (as successor
to CoreStates Bank, N.A.), as Agent, the undersigned hereby agrees to establish
a new 364 Day Facility on August 25, 1998. The new 364 Day Termination Date will
be August 24, 1999.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
PNC Bank, N.A. 000 000 0000 Tel Xxx X. Xxxxxxxx
Valley Forge Regional 000 000 0000 Fax Vice President
Banking Center xxx.xxxxxxxx@xxxxxxx.xxx Corporate Banking
0000 Xxxxxxxxx Xxxxx Senior Relationship Manager
Xxxxxx, XX 00000
{LOGO}
June 28, 1998
Xx. Xxxxx Xxxxxx
Assistant Vice President
First Union National Bank
0000 Xxxxxxxx Xxxxxx
X.X. 0-0-00-0
Xxxxxxxxxxxx, XX 00000
RE: The West Company Credit Agreement dated as of August 28, 1995 and as
amended by Amendment to Credit Agreement dated as of April 7, 1997
364 Day Facility Termination Date of August 25, 1998
----------------------------------------------------
Dear Xx. Xxxxxx:
Pursuant to Section II, 2.1(a) of the Credit Agreement dated as of August 28,
1995 and as amended by Amendment to Credit Agreement dated as of April 7, 1997,
among The West Company, Incorporated, certain subsidiaries thereof and the
banking institutions named therein, with First Union National Bank (as successor
to CoreStates Bank, N.A.), as Agent, the undersigned hereby agrees to establish
a new 364 Day Facility on August 25, 1998. The new 364 Day Termination Date
will be August 24, 1999.
Sincerely,
/s/ Xxx X. Xxxxxxxx
-------------------
Xxx X. Xxxxxxxx
Vice President
[WACHOVIA LETTERHEAD]
Xx. Xxxxx Xxxxxx July 6, 1998
Assistant Vice President
First Union National Bank
0000 Xxxxxxxx Xxxxxx
X.X. 0-0-00-0
Xxxxxxxxxxxx, XX 00000
RE: The West Company Credit Agreement dated August 28, 1995 and as amended by
Amendment to Credit Agreement dated as of April 7, 1997
364 Day Facility Termination Date of August 25, 1998
----------------------------------------------------
Dear Xx Xxxxxx,
Pursuant to Section 11, 2.1(a) of the Credit Agreement dated as of August 28,
1995 and as amended by Amendment to Credit Agreement dated as of April 7, 1997,
among the West Company, Incorporated, certain subsidiaries thereof and the
banking institutions named therein, with First Union National Bank (as successor
to CoreStates Bank, N.A.), as Agent, Wachovia Bank, N.A. hereby agrees to
establish a new 364 Day Facility on August 25, 1998. The new 364 Day Termination
Date will be August 24, 1999.
Sincerely,
/s/ Xxxx X. Xxxxxx
-------------------
Xxxx X. Xxxxxx, SVP
(000) 000-0000
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT ("Amendment") is made as of August 31, 1997 to that
certain Credit Agreement dated as of August 28, 1995, as amended by that certain
Amendment to Credit Agreement dated as of April 7, 1997 (as so amended, the
"Credit Agreement") among The West Company, Incorporated, a Pennsylvania
corporation ("The West Company"), the Subsidiary Borrowers referred to therein,
the banking institutions signatories thereto (each, a "Bank" and collectively,
the "Banks") and CoreStates Bank, N.A, as agent for the Banks under the Credit
Agreement (in such capacity, the "Agent"). The West Company and the Subsidiary
Borrowers are sometimes referred to herein collectively as the "Borrowers" and
individually as a "Borrower." Capitalized terms not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
WHEREAS, the Borrowers, the Banks and the Agent desire to amend the
Credit Agreement and the Borrowers, the Banks and the Agent are each willing to
effect such amendment.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Amendment to Credit Agreement
The definition of "Indebtedness for Borrowed Money" set forth in Section
1.1 of the Credit Agreement is amended to read in its entirety as follows:
"Indebtedness for Borrowed Money" shall mean (i) all indebtedness,
liabilities, and obligations, now existing or hereafter arising for money
borrowed by The West Company and its Subsidiaries determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles, (ii) standby
letter of credit outstandings, and (iii) all indebtedness of others for money
borrowed (including a West Affiliate) with respect to which The West Company or
any Subsidiary has become liable by way of a guarantee or indemnity to the
extent such indebtedness is not included in (i) or (ii) above.
2. Counterparts; Effectiveness. This Amendment maybe signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Amendment
shall become effective when the Agent shall have received signed counterparts or
notice by telecopy of the signature page that the counterpart has been signed
and is being delivered to the Agent or facsimile that such counterparts have
been signed by all the parties hereto or thereto.
3. Effect of Amendment. Except as herein modified and amended, all terms and
conditions of the Credit Agreement shall remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, the Borrowers and the Banks have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized as of the day and year first above written.
000 Xxxxxx Xxxxx XXX XXXX COMPANY, INCORPORATED
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000 By: /s/ Xxxxxxx X. Xxxxxxx
Aitn: Xxxxxx Xxxxxxxx --------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Treasurer
and Assistant Treasurer
c/o The West Company, Incorporated PACO PHARMACEUTICAL SERVICES, INC.
000 Xxxxxx Xxxxx
X.X. Xxx 000 By: /s/ Xxxxx X. Call
Xxxxxxxxx, XX 00000-0000 --------------------------------
Attn: Xxxxxx Xxxxxxxx Name: Xxxxx X. Call
Title: Secretary
x/x Xxx Xxxx Xxxxxxx, Xxxxxxxxxxxx XXX XX XXXXXX, INCORPORATED
000 Xxxxxx Xxxxx
X.X. Xxx 000 By: /s/ Xxxxxxx X. Xxxxxxx
Lionville, PA 19341-0645 --------------------------------
Attn: Xxxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
c/o The West Company, Incorporated THE WEST COMPANY GROUP LTD.
000 Xxxxxx Xxxxx
X.X. Xxx 000 By: /s/ Xxxx X. Xxxxxx III
Xxxxxxxxx, XX 00000-0000 --------------------------------
Attn: Xxxxxx Xxxxxxxx Name: Xxxx X. Xxxxxx III
Title: Director
0000 Xxxxxx Xxxxxx, 21st Floor PNC BANK, NATIONAL ASSOCIATION
Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx By: /s/ Xxx X.Xxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxx
Title:
2
00 Xxxx Xxxxxx XXXXXXXX XXXX XX, XXX XXXX BRANCH
Xxx Xxxx, XX 00000-0000 AND GRAND CAYMAN BRANCHES
Attn: Xxxxx Xxxxxxx
Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
000 Xxxxxxxxx Xxxxxx X.X. WACHOVIA BANK OF GEORGIA, N.A.
MC 000 00xx Xxxxx
Xxxxxxx, XX 00000 By: /s/ Xxxx X. Xxxxxx
Attn: Xxxx X. Ogbum --------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
000 Xxxx Xxxxxx THE CHASE MANHATTAN BANK
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
0000 Xxxxxxxx Xxxxxx XXXXXXXXXX BANK N.A., individually
Xxxxxxxxxxxx, XX 00000 and as Agent
FC 1-8-3-16
Attn: Xxxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
3
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT ("Amendment") is made as of April 7, 1997 to that certain
Credit Agreement dated as of August 28, 1995 (the "Credit Agreement") among The
West Company, Incorporated, a Pennsylvania corporation ("The West Company"), the
Subsidiary Borrowers referred to therein, the banking institutions signatories
thereto (each, a "Bank" and collectively, the "Banks") and CoreStates Bank,
N.A., as agent for the Banks under the Credit Agreement (in such capacity, the
"Agent"). The West Company and the Subsidiary Borrowers are sometimes referred
to herein collectively as the "Borrowers" and individually as a "Borrower."
Capitalized terms not defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
WHEREAS, the Borrowers, the Banks and the Agent desire to amend the Credit
Agreement and the Borrowers, the Banks and the Agent are each willing to effect
such amendment.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Amendment to Credit Agreement
(a) Addition of New Subsidiary Borrower. The definition of "Subsidiary
Borrower" in the Credit Agreement shall hereinafter include The West
Company Group Ltd.
(b) Addition of New Banks. The definition of "Bank" in the Credit
Agreement shall hereinafter include The Chase Manhattan Bank and
Wachovia Bank of Georgia, N.A.
(c) Restatement of Exhibit A. Exhibit A to the Credit Agreement shall be
deleted in its entirety and replaced with the "Restated Exhibit A"
attached hereto.
(d) Restatement of Schedule 1.1. Schedule 1.1 to the Credit Agreement
shall be deleted in its entirety and replaced with the "Restated
Schedule 1.1" attached hereto.
(e) Amendment to "LIBO Rate". The definition of "LIBO Rate" in Section 1
of the Credit Agreement is hereby amended by deleting from provision
(i) thereof the phrase "one-sixteenth of one percent" and replacing it
with "1/100th of 1%".
(f) Amendment to Section 2.1(a). The fourth paragraph of Section 2.1(a) of
the Credit Agreement shall be deleted in its entirety and replaced
with the following:
"On or before the 75th day (but not earlier than the 110th day) prior to
the 364 Day Facility Termination Date The West Company may on behalf of the
Borrowers request in writing to the Agent that a new 364 Day Facility be
established with a new 364 Day Facility Termination Date three hundred
sixty-four (364) days from the previous 364 Day Facility Termination Date. The
Agent will promptly distribute such notice to the Banks. The Banks shall notify
the Agent not more than 25 days following the request by The West Company of
their willingness, in their sole discretion, to establish a new 364 Day Facility
and the Agent shall notify The West Company of such decision promptly following
its receipt thereof, but not more than 30 days following the request by The West
Company. If all of the Banks agree to a new 364 Day Facility and a new 364 Day
Facility Termination Date, the Agent, on the then current 364 Day Facility
Termination Date, shall advise the Company and the Banks, in writing, that a new
364 Day Facility and 364 Day Facility Termination Date has been established and
this Agreement shall be deemed amended to such extent. Such new 364 Day Facility
Termination Date shall be the 364 Day Facility Termination Date for all purposes
under this Agreement. If a Bank or Banks with Commitment Percentages at such
time aggregating not more than 45% shall no longer be willing to continue the
364 Day Facility, The West Company may on behalf of the Borrowers request that
(i) the Banks willing to continue the 364 Day Facility increase their respective
Commitment Percentages (provided, however, that the Banks shall be under no
obligation to do so) or (ii) a new bank or banks become parties to this
Agreement to provide such Facility. The addition of any such new bank or banks
shall be subject to the consent of the Agent, which consent will not be
unreasonably withheld. Subject to such consent of the Agent, the remaining Banks
and the Agent agree to cooperate with The West Company in making such amendments
hereto as shall be required to add such new bank or banks."
(g) Amendment to Section 2.1(b). The fourth paragraph of Section 2.1(b) of
the Credit Agreement shall be deleted in its entirety and replaced
with the following:
"On August 27, 1998, and on each August 27th thereafter, The West Company
on behalf of the Borrowers may request in writing to the Agent that the Five
Year Facility be extended to a date with a new Five Year Facility Termination
Date one (1) year from the previous Five Year Facility Termination Date. The
Agent will promptly distribute such notice to the Banks. The Banks shall notify
the Agent not more than 60 days following the request by The West Company of
their willingness, in their sole discretion, to establish a new date and the
Agent shall notify The West Company of such decision promptly following its
receipt thereof, but not more than 70 days following the request by The West
Company. If all of the Banks agree to a new Five Year Facility Termination Date,
the Agent shall advise the Company and the Banks, in writing, that a new Five
Year Facility and Five Year Facility Termination Date has been established and
this
2
Agreement shall be deemed amended to such extent. Such new Five Year Facility
Termination Date shall be the Five Year Facility Termination Date for all
purposes under this Agreement. If a Bank or Banks with Commitment Percentages at
such time aggregating not more than 45% shall be unwilling to extend the Five
Year Facility, The West Company may on behalf of the Borrowers request that (i)
the Banks willing to extend the Five Year Facility increase their respective
Commitment Percentages (provided, however, that the Banks shall be under no
obligation to do so) or (ii) a new bank or banks become parties to this
Agreement to provide the Five Year Facility following the termination of the
Five Year Facility with respect to the Bank which is unwilling to extend its
Commitment. The addition of any such new bank or banks shall be subject to the
consent of Agent, which consent will not be unreasonably withheld. Subject to
such consent of the Agent, such Bank may be replaced by a new bank or banks any
time following receipt of notice by the Agent of such Bank's unwillingness to
extend its Five Year Facility Commitment and the Banks and the Agent agree to
cooperate with The West Company in making such amendments hereto as shall be
required to replace such Bank."
2. Conditions to Effectiveness. This Amendment shall be effective upon the
satisfaction of the following conditions:
(a) Notes. Each Bank shall have received executed Notes (the "New Notes")
payable to the order of such Bank and otherwise in the forms of
Exhibits X-0, X-0 and B-3 hereto, and each Bank that was an original
party to the Credit Agreement shall cancel the original Notes issued
in connection therewith and promptly return such original Notes to the
Borrowers;
(b) Covenants; Representations. The Borrowers shall be in compliance with
all covenants, agreements and conditions in each Loan Document and
each representation and warranty contained in each Loan Document shall
be true in all material respects with the same effect as if such
representation or warranty had been made on the date of this
Amendment;
(c) Articles, Bylaws. The Banks shall have received copies of the Articles
or Certificates of Incorporation and Bylaws of each Borrower,
certified by the secretary or assistant secretary of such Borrower;
(d) Evidence of Authorization. The Banks shall have received certified
copies of all corporate or other action taken by each Borrower to
authorize the increase to the 364 Day Facility and to authorize its
execution and delivery and performance of this Amendment and the
agreements and documents contemplated hereby;
(e) Legal Opinion. The Banks shall have received a favorable written
opinion of Dechert, Price & Xxxxxx, counsel of the Borrowers, which
shall be addressed to
3
the Banks and be dated the date of this Amendment, in substantially
the form attached as Exhibit C;
(f) Inumbency. The Banks shall have received a certificate signed by the
secretary or assistant secretary of each Borrower signatory to this
Amendment together with the true signature of the officer or officers
authorized to execute and deliver this Amendment and the agreements
and documents contemplated hereby, upon which the Banks shall be
entitled to rely conclusively;
(g) Consents. The Borrowers shall have provided to the Banks evidence
satisfactory to the Banks that all governmental, shareholder and third
party consents and approvals necessary in connection with the
transactions contemplated by this Amendment have been obtained and
remain in effect;
(h) Change. No material adverse change shall have occurred in the
financial condition of The West Company and its Subsidiaries taken as
a whole since September 30, 1996;
(i) Pending or Threatened Litigation. There shall not be any pending
litigation, bankruptcy or insolvency, injunction, order or claim which
could reasonably have a Material Adverse Effect; and
(j) Defaults. After giving effect to this Amendment, no Event of Default
or Potential Default shall exist.
3. Governing Law. The Amendment Documents and all rights and obligations of the
parties thereunder shall be governed by and be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
Pennsylvania or federal principles of conflict of laws.
4. Counterparts, Effectiveness. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Amendment
shall become effective when the Agent shall have received signed counterparts or
notice by telecopy of the signature page that the counterpart has been signed
and is being delivered to the Agent or facsimile that such counterparts have
been signed by all the parties hereto or thereto.
5. Effect of Amendment. Except as herein modified and amended, all terms and
conditions of the Credit Agreement shall remain unchanged and in full force and
effect.
4
IN WITNESS WHEREOF, the Borrowers and the Banks have caused this Amendment
to be executed by their proper corporate officers thereunto duly authorized as
of the day and year first above written.
000 Xxxxxx Xxxxx XXX XXXX COMPANY,
X.X. Xxx 000 XXXXXXXXXXXX
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxx
By:_________________________________
Name:
Title:
c/o The West Company, Incorporated PACO PHARMACEUTICAL
000 Xxxxxx Xxxxx SERVICES, INC.
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxx By:_________________________________
Name:
Title:
x/x Xxx Xxxx Xxxxxxx, Xxxxxxxxxxxx XXX XX XXXXXXX, INCORPORATED
000 Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000 By:_________________________________
Attn: Xxxxxx Xxxxxxxx Name:
Title:
c/o The West Company, Incorporated THE WEST COMPANY GROUP LTD.
000 Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxx By:_________________________________
Name:
Title:
0000 Xxxxxx Xxxxxx, 21st Floor PNC BANK, NATIONAL ASSOCIATION
Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
By:_________________________________
Name:
Title:
5
00 Xxxx Xxxxxx XXXXXXXX XXXX XX, XXX XXXX
Xxx Xxxx, XX 00000-0000 AND GRAND CAYMAN BRANCHES
Attn: Xxxxx Xxxxxxxx
By:_________________________________
Name:
Title:
000 Xxxxxxxxx Xxxxxx X.X. WACHOVIA BANK OF GEORGIA, N.A.
MC 000 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx By:_________________________________
Name:
Title:
000 Xxxx Xxxxxx THE CHASE MANHATTAN BANK
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
By:_________________________________
Name:
Title:
0000 Xxxxxxxx Xxxxxx XXXXXXXXXX XXXX, X.X., individually
Xxxxxxxxxxxx, XX 00000 and as Agent
FC 1-8-3-16
Attention: Xxxxxx X. Xxxxxx
By:_________________________________
Name:
Title:
6
RESTATED EXMBIT A
COMMITMENTS
364 Day Five Year
Commitment Facility Facility
Percentage Commitment Commitment
---------- ---------- ----------
CoreStates Bank, N.A. 32.00% 22,400,000 17,600,000
PNC Bank, National 20.00% 14,000,000 11,000,000
Association
Dresdner Bank AG, 20.00% 14,000,000 11,000,000
New York and Grand
Cayman Branches
Wachovia Bank of 14.00% 9,800,000 7,700,000
Georgia, N.A.
The Chase Manhattan 14.00% 9,800,000 7,700,000
Bank
----------- -----------
$70,000,000 $55,000,000
A-1
--------------------------------------------------------------------------------
CREDIT AGREEMENT
among
THE WEST COMPANY, INCORPORATED,
CERTAIN SUBSIDIARIES THEREOF
and
THE BANKING INSTITUTIONS NAMED HEREIN
with
CORESTATES BANK, N.A.
as Agent
Dated as of August 28, 1995
--------------------------------------------------------------------------------
3.1 Organization, Standing .............................................30
3.2 Corporate Authority, Etc. ..........................................30
3.3 Validity of Documents ..............................................30
3.4 Litigation .........................................................30
3.5 ERISA ..............................................................30
3.6 Financial Statements ...............................................31
3.7 Margin Regulations .................................................32
3.8 Not in Default .....................................................32
3.9 Taxes ..............................................................32
3.10 Permits. Licenses, Etc..............................................32
3.11 Compliance With Laws ...............................................32
3.12 Solvency ...........................................................33
3.13 Title to Assets . ..................................................33
3.14 Insurance ..........................................................33
3.15 Subsidiaries, Etc. .................................................33
3.16 Disclosure Generally ...............................................34
IV. CONDITIONS PRECEDENT ....................................................34
4.1 Conditions to All Loans. ...........................................34
(a) Documents ..................................................34
(b) Covenants; Representations .................................34
(c) Defaults ...................................................34
4.2 Conditions to First Loan ...........................................34
(a) Articles, Bylaws ...........................................34
(b) Evidence of Authorization. .................................34
(c) Legal Opinions. ............................................35
(d) Incumbency. ................................................35
(e) Notes. .....................................................35
(f) Consents ...................................................35
(g) Change .....................................................35
(h) Pending or Threatened Litigation. ..........................35
(i) Other Agreements ...........................................35
V. AFFIRMATIVE COVENANTS ...................................................35
5.1 Financial Statements and Reports. ...................................36
(a) Annual Statements. .........................................36
(b) Quarterly Statements. ......................................36
(c) No Default. ................................................36
(d) Compliance. ................................................36
(e) ERISA. .....................................................37
(f) Material Changes. ..........................................37
(g) Other Information ..........................................37
5.2 Taxes and Other Charges. ...........................................37
5.3 Corporate Existence. ...............................................37
5.4 Compliance with ERISA ..............................................37
ii
5.5 Compliance with Regulations. .......................................39
5.6 Notice of Events. ..................................................39
5.7 Inspection Rights. .................................................39
5.8 Generally Accepted Accounting Principles. ..........................40
5.9 Use of Proceeds. ...................................................40
VI. NEGATIVE COVENANTS ......................................................40
6.1 Merger, Consolidation ..............................................40
6.2 Liens. ............................................................40
6.3 Sale of Stock of Subsidiary Borrowers ..............................40
6.4 Judgment, Attachment. ..............................................41
6.5 Margin Stock .......................................................41
6.6 Modification of Loan Agreements or Policies. .......................41
6.7 Discontinuance or Change of Business. ..............................41
6.8 Financial Ratios. .................................................41
VII. DEFAULT ................................................................41
7.1 Events of Default. .................................................41
(a) Principal, Interest or Other Amounts. .....................41
(b) Covenants. .................................................42
(c) Representations, Warranties, Etc. ..........................42
(d) Bankruptcy, Etc. ...........................................42
(e) Certain Other Defaults. ....................................42
VIII. AGENT .................................................................43
8.1 Appointment and Authorization. .....................................43
8.2 Duties and Obligations. ............................................43
8.3 The Agent as a Bank. ...............................................44
8.4 Independent Credit Decisions. ......................................44
8.5 Indemnification. ...................................................44
8.6 Successor Agent. ...................................................45
8.7 Allocations Made By Agent. .........................................45
IX. MISCELLANEOUS ...........................................................45
9.1 Waiver. ............................................................45
9.2 Amendments. ........................................................45
9.3 Governing Law. .....................................................46
9.4 Assignments and Participations. ....................................46
9.5 Captions ...........................................................46
9.6 Notices ............................................................46
9.7 Sharing of Collections, Proceeds and Set-Offs; Application of
Payments ...........................................................47
9.8 Expenses of the Agent; Indemnification of the Agent and the Banks ..48
9.9 Survival of Warranties and Certain Agreements ......................48
9.10 Severability. ......................................................49
iii
9.11 Banks' Obligations Several; Independent Nature of Banks' Rights. ...49
9.12 No Fiduciary Relationship. .........................................49
9.13 CONSENT TO JURISDICTION AND SERVICE OF PROCESS .....................49
9.14 WAIVER OF JURY TRIAL. ..............................................50
9.15 Counterparts; Effectiveness ........................................50
9.16 Use of Defined Terms ...............................................51
-iv
EXHIBITS
--------
A Commitments
B-1 364 Day Facility Note
B-2 Five Year Facility Note
C Form of Revolving Credit Loan Request
D-1 Bid Loan Note
D-2 Form of Competitive Bid Request
D-3 Form of Competitive Bid
D-4 Form of Bid Loan Notice
E Subsidiary Borrower Notice and Designation
F Opinion of Counsel for The West Company
SCHEDULES
---------
1.1(a) Applicable Margins and Facility Fee
1.1(b) Existing Liens
3.2 Consents
3.4 Litigation
3.11 Compliance with Laws
3.15 Subsidiaries
-v-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 28, 1995 (this "Agreement"), is
entered into by and among The West Company, Incorporated, a Pennsylvania
corporation ("The West Company"), the Subsidiary Borrowers referred to herein,
the banking institutions signatories hereto (each, a "Bank" and collectively,
the "Banks") and CoreStates Bank, N.A., as agent for the Banks under this
Agreement (in such capacity, the "Agent"). The West Company and the Subsidiary
Borrowers are sometimes referred to herein collectively as the "Borrowers" and
individually as a "Borrower."
WITNESSETH:
WHEREAS, The West Company owns, of record and beneficially, directly or
indirectly, all or substantially all of the outstanding capital stock of each of
the Subsidiary Borrowers;
WHEREAS, the Borrowers desire to obtain, and the Banks have agreed to
provide, a multicurrency revolving credit and bid loan facility for loans, which
facility will be used to finance working capital, capital expenditures,
acquisitions and for general corporate purposes;
WHEREAS, the Banks desire the Agent, and the Agent has agreed, to act as
the Agent of the Banks as provided herein.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
I. CERTAIN DEFINITIONS.
1.1 Definitions. As used in this Agreement, the following terms shall
have these meanings:
"Absolute Rate" shall have the meaning set forth in Section 2.6(c)(ii)(C)
hereof.
"Additional Amount" shall have the meaning set forth in Section 2.10(b).
"Aggregate Commitment" shall mean the sum of the 364 Day Facility and the
Five Year Facility.
"Applicable Margin" shall mean the margin applicable to LIBO Rate Loans
determined in accordance with Section 2.3(b) hereof and Schedule 1.1(a) hereto.
"Banking Business Day" shall mean any day on which all the Banks and the
Federal Reserve Bank for the Third Federal Reserve District are open for
business. "London Banking Business Day" shall mean any day on which both the
Agent and commercial banks in London, England are open for business dealings in
eurodollar and eurocurrency deposits.
"Base Rate" shall mean, for any day, the higher of the Federal Funds Rate plus
1/2 of 1% or the prime commercial lending rate of CoreStates Bank, N.A., as
announced from time to time at its head office, calculated on the basis of the
actual number of days elapsed in a year of 365/366 days.
"Base Rate Loans" shall mean Revolving Credit Loans accruing interest
based on the Base Rate.
"Bid Borrowing" means a borrowing hereunder consisting of one or more Bid
Loans made to a Borrower on the same Borrowing Date.
"Bid Loan" means a loan by a Bank to a Borrower pursuant to Sections 2.4
and 2.6 hereof.
"Bid Loan Duration" shall have the meaning set forth in Section 2.4(b)
hereof.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank making such
Bid Loan to Borrower.
"Bid Loan Note" means each note evidencing Bid Loans, substantially in
the form of Exhibit D-1 to this Agreement.
"Bid Loan Notice" shall have the meaning set forth in Section 2.6(e)
hereof.
"Borrowing" means a Revolving Credit Loan Borrowing or a Bid Borrowing.
"Borrowing Date" means the date on which a Borrower receives a Revolving
Credit Loan or a Bid Loan.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" of any Bank shall mean the sum of its 364 Day Facility
Commitment and its Five Year Facility Commitment.
"Commitment Percentage" shall mean with respect to each Bank the
percentage set forth opposite its name on Exhibit A hereto.
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
accordance with Section 2.6(c) hereof
"Competitive Bid Request" shall have the meaning set forth in Section
2.6(a) hereof
"Covered Plan" shall have the meaning set forth in Section 3.5.
-2-
"Default Rate" shall mean 2.0% per annum above the interest rate
otherwise applicable on all Loans.
"Dollars" or "$" shall mean the lawful currency of the United States of
America.
"Dollar Equivalent" of any amount of any Selected Currency other than
Dollars on any date shall mean the equivalent amount in Dollars, after giving
effect to a conversion of such amount of such Selected Currency to Dollars at
the buy spot rate quoted for wholesale transactions by the Agent at its London
office approximately 11:00 a.m. (London time) on such date in accordance with
its normal practice, calculated, with respect to a requested LIBO Rate Loan, as
of the date on which such LIBO Rate Loan is to be made or issued and, with
respect to such outstanding LIBO Rate Loan, as of the later of (a) the date on
which such LIBO Rate Loan was made or issued or (b) the most recent
Recomputation Date.
"Deutsche Xxxx" shall mean the lawful currency of the Federal Republic of
Germany.
"EBIT" shall mean, for any period, consolidated net income (or net loss)
plus the sum of (a) interest expense, (b) income tax expense, (c) extraordinary
or unusual losses or other losses not incurred in the ordinary course of
business included in the calculation of net income, (d) any non-cash charge
against net income required to be recognized in connection with the issuance of
capital stock to employees (whether upon lapse of vesting restrictions, exercise
of employee options or otherwise) and (e) any non-cash charge against net income
required to be recognized in connection with employee pension plans, less
extraordinary or unusual gains or other gains not incurred in the ordinary
course of business included in the calculation of net income, in each case
determined in accordance with Generally Accepted Accounting Principles for such
period.
"ERISA" means the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"ERISA Affiliate" means any corporation which is a member of the same
controlled group of corporations as The West Company within the meaning of
Section 414(b) of the Code, or any trade or business which is under common
control with The West Company within the meaning of Section 414(c) of the Code.
"Event of Default" shall have the meaning set forth in Section 7.1.
"Facility" shall mean either or both of the 364 Day Facility or the Five
Year Facility as the context requires.
"Facility Fee" shall have the meaning set forth in Section 2.8.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the
-3-
Banking Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Banking Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Banking Business Day as so published on the next succeeding Banking
Business Day.
"Five Year Facility" shall have the meaning set forth in Section 2.1(b)
hereof.
"Five Year Facility Commitment" shall have the meaning set forth in
Section 2.1(b) hereof.
"Five Year Facility Loans" shall have the meaning set forth in Section
2.1(b) hereof.
"Five Year Facility Termination Date" shall have the meaning set forth in
Section 2.1(b) hereof.
"French Francs" shall mean the lawful currency of the Republic of France.
"Funded Debt" shall mean (i) Indebtedness for Borrowed Money plus (ii)
capital lease obligations.
"Generally Accepted Accounting Principles" shall mean generally accepted
accounting principles as in effect from time to time in the United States,
consistently applied.
"Indebtedness for Borrowed Money" shall mean (i) all indebtedness,
liabilities, and obligations, now existing or hereafter arising for money
borrowed by any of the Borrowers, whether or not evidenced by any note,
indenture, or agreement (including, without limitation, the Notes and any
indebtedness for money borrowed from a West Affiliate, but not including trade
accounts payable) (ii) standby letter of credit outstandings, and (iii) all
indebtedness of others for money borrowed (including a West Affiliate) with
respect to which a Borrower has become liable by way of a guarantee or indemnity
to the extent such Indebtedness is not included in (i) or (ii) above.
"Indemnitees" shall have the meaning set forth in Section 9.8(b) hereof.
"Interest Coverage Ratio" shall mean (a) the sum of (i) EBIT plus (ii)
50% of depreciation and amortization for such period divided by (b) interest for
such period.
"Interest Period" shall mean with respect to any LIBO Rate Loan, each
period commencing on the date any such LIBO Rate Loan is made, or, with respect
to a LIBO Rate Loan being renewed, the last day of the next preceding Interest
Period with respect to a LIBO Rate Loan, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day of the calendar month) in the first, second, third or sixth calendar month
thereafter as selected under the procedures specified in Section 2.2 unless LIBO
Rate Loans for such period are unlawful or impossible for the Banks to fund at
such time; provided that:
-4-
(i) each LIBO Rate Loan Interest Period which would otherwise end on
a day which is not a Banking Business Day (or, for purposes of LIBO Rate Loans
to be repaid in London, such day is not a London Banking Business Day) shall end
on the next succeeding Banking Business Day (or London Banking Business Day, as
appropriate) unless such next succeeding Banking Business Day (or London Banking
Business Day, as appropriate) falls in the next succeeding calendar month, in
which case the Interest Period shall end on the next preceding Banking Business
Day (or London Banking Business Day, as appropriate); and
(ii) no Interest Period shall end later than the 364 Day Facility
Termination Date or the Five Year Facility Termination Date, as applicable.
The end of an Interest Period shall be deemed a maturity for purposes of
all Loans.
"LIBO Rate" shall mean, for the applicable Interest Period, (i) the rate,
rounded upwards to the next one-sixteenth of one percent, determined by the
Agent two London Banking Business Days prior to the date of the corresponding
LIBO Rate Loan, at which the Agent is offered deposits in the applicable
Selected Currency at approximately 11:00 a.m. (London time) on the second London
Banking Business Day preceding the date of such LIBO Rate Loan by leading banks
in the interbank eurodollar or eurocurrency market for delivery on the date of
such LIBO Rate Loan in an amount and for a period comparable to the amount and
Interest Period of such LIBO Rate Loan and in like funds, divided by (ii) a
number equal to one (1.0) minus the LIBO Rate Reserve Percentage. The LIBO Rate
shall be adjusted automatically with respect to any LIBO Rate Loan outstanding
on the effective date of any change in the LIBO Rate Reserve Percentage, as of
such effective date. LIBO Rate shall be calculated on the basis of the number of
days elapsed in a year of 360 days, except that if the Selected Currency is
Pounds Sterling, the LIBO Rate shall be calculated on the basis of the number of
days elapsed in a year of 365 days.
"LIBO Rate Loans" shall mean Revolving Credit Loans accruing interest
based on the LIBO Rate.
"LIBO Rate Reserve Percentage" means, relative to each Interest Period,
that percentage (expressed as a decimal) specified from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, supplemental, marginal and
emergency reserves) with respect to eurocurrency fundings of a member bank in
such system.
"Lien" means any lien, mortgage, security interest, chattel mortgage,
pledge or other encumbrance (statutory or otherwise) of any kind securing
satisfaction of an obligation, including any agreement to give any of the
foregoing, any conditional sales or other title retention agreement, any lease
in the nature thereof, and the filing of or the agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction or similar
evidence of any encumbrance, whether within or outside the United States.
-5-
"Loan" shall mean a Revolving Credit Loan or a Bid Loan.
"Loan Documents" shall mean this Agreement, the Notes and any Subsidiary
Borrower Notice and Designation.
"Material Adverse Effect" means any event which will have a material
adverse effect on the financial condition or results of operation of The West
Company and its Subsidiaries taken as a whole.
"Multiemployer Plan" means a multiemployer plan as defined in ERISA
Section 4001(a)(3).
"Net Worth" shall mean the aggregate amount of the capital stock accounts
(including paid-in-capital and excluding treasury shares) plus (or minus in the
case of a deficit) the retained earnings of The West Company and its
Subsidiaries determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles, plus non-current financial obligations
subordinated to payment of the Obligations in a manner satisfactory to the
Banks.
"Notes" shall mean the Revolver Notes and the Bid Loan Notes.
"Obligations" shall mean all now existing or hereafter arising debts,
obligations, covenants, and duties of payment or performance of every kind,
matured or unmatured, direct or contingent, owing, arising, due, or payable to
the Banks or the Agent by or from the Borrowers arising out of this Agreement or
any other Loan Document, including, without limitation, all obligations to repay
principal of and interest on all the Loans, and to pay interest, fees, costs,
charges, expenses, professional fees, and all sums chargeable to the Borrowers
under the Loan Documents, whether or not evidenced by any note or other
instrument.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Pension Plan" shall mean, at any time, any Plan (including a
Multiemployer Plan) that is an employee pension benefit plan as defined in
Section 3(2) of ERISA, the funding requirements of which (under ERISA Section
302 or Code Section 412) are, or at any time within the six years immediately
preceding the time in question, were in whole or in part, the responsibility of
any Borrower or any ERISA Affiliate.
"Permitted Liens" shall mean:
(a) any Liens for current taxes, assessments and other governmental
charges not yet due and payable or being contested in good faith by The West
Company or any Subsidiary by appropriate proceedings and for which adequate
reserves have been established by The West Company and its Subsidiaries on a
consolidated bases as reflected in its financial statements;
-6-
(b) any mechanic's, landlord's, materialman's, carrier's,
warehousemen's or similar Liens for sums not yet due or being contested in
good faith by The West Company or any Subsidiary by appropriate proceedings
and for which adequate reserves have been established by The West Company
and its Subsidiaries on a consolidated basis as reflected in its financial
statements;
(c) easements, rights-of-way, restrictions and other similar
encumbrances on the real property or fixtures of The West Company or any
Subsidiary incurred in the ordinary course of business which individually
or in the aggregate are not substantial in amount and which do not in any
case materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of any of The West
Company or any Subsidiary;
(d) Liens (other than Liens imposed on any property of the Borrowers
or any ERISA Affiliate pursuant to ERISA or section 412 of the Code)
incurred or deposits made in the ordinary course of business, including
Liens in connection with workers' compensation, unemployment insurance and
other types of social security and Liens to secure performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases that are not
capitalized leases, performance bonds, sales contracts and other similar
obligations, in each case, not incurred in connection with the obtaining of
credit or the payment of a deferred purchase price, and which do not, in
the aggregate, result in a Material Adverse Effect;
(e) purchase money security interests or Liens incurred with any
conditional sale or title retention agreement or capital lease, in each
case securing amounts which do not exceed the purchase price of the
property subject to such security interests;
(f) Liens existing on real property or equipment of a Subsidiary which
Lien existed at the time of the acquisition of such Subsidiary and, for a
period of ninety (90) days from the date of acquisition of such Subsidiary,
Liens upon any other personal property of such Subsidiary;
(g) Liens existing upon the date hereof as set forth in Schedule
1.1(b) hereto;
(h) Judgment and other similar Liens arising in connection with court
proceedings, in existence less than thirty (30) days after entry thereof or
with respect to which execution has been stayed or the payment of which is
covered in full (subject to a customary deductible) by insurance maintained
with responsible insurance companies and the claims secured thereby are
being actively contested in good faith and by appropriate legal
proceedings;
(i) Liens in favor of any governmental agency or authority for the
purpose of financing, through industrial revenue bonds or notes, the
construction, acquisition or
7
purchase of facilities, or machinery, equipment or other assets, or of any
air, water or solid waste pollution control facilities to be used in
connection with any such property;
(j) Other Liens incidental to the conduct of the Borrower's businesses
conducted in the ordinary course (including without limitation, Liens on
goods securing trade letters of credit issued in respect of importation of
goods in the ordinary course of business) or the ownership of any
Borrower's property and assets which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do
not in the aggregate materially detract from the value of such Borrower's
property or assets or materially impair the use thereof in its business;
and
(k) Liens in favor of The West Company on the assets of its
Subsidiaries and Liens of Borrower Subsidiaries on the assets of other
Subsidiaries.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, company, business trust or entity.
"Plan" means an employee benefit plan as defined in Section 3(3) of ERISA.
"Potential Default" shall mean an event that with the giving of notice or
lapse of time or both would become an Event of Default.
"Pounds Sterling" shall mean the lawful currency of the United Kingdom.
"Prohibited Transaction" means a transaction that is prohibited under Code
Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408 which reasonably could cause a Material Adverse Effect.
"Recomputation Date" shall have the meaning set forth in Section 2.9(d).
"Regulation" means any statute, law, ordinance, regulation, order or rule
of any foreign, federal, state, local or other government or governmental body,
including, without limitation, those covering or related to banking, financial
transactions, securities, public utilities, environmental control, energy,
safety, health, transportation, bribery, record keeping, zoning,
antidiscrimination, antitrust, wages and hours, employee benefits, and price and
wage control matters.
"Regulatory Change" shall mean any change after the date of this Agreement
in United States, federal, state or foreign laws or regulations (including
Regulation D of the Board of Governors of the Federal Reserve System) or the
adoption or making after such date of any interpretations, directives or
requests of or under any United States federal, state, or foreign laws or
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration thereof
applying to a class of banks including any one of the Banks but excluding any
foreign office of any Bank.
8
"Reportable Event" means, with respect to a Pension Plan: (a) Any of the
events set forth in ERISA Sections 4043(b) (other than a reportable event as to
which the provision of 30 days' notice to the PBGC is waived under applicable
regulations) or 4063(a) or the regulations thereunder, (b) an event requiring
any Borrower or any ERISA Affiliate to provide security to a Pension Plan under
Code Section 401 (a)(29) and (c) any failure by any Borrower or any ERISA
Affiliate to make payments required by Code Section 412(m).
"Required Banks" at any time shall mean Banks whose outstanding Commitments
equal or exceed 51% of the total of the Aggregate Commitment.
"Revolver Notes" shall mean the 364 Day Facility Notes and the Five Year
Facility Notes.
"Revolving Credit Loan" shall mean a 364 Day Facility Loan or a Five Year
Facility Loan.
"Revolving Credit Loan Borrowing" shall mean a borrowing under the 364 Day
Facility or the Five Year Facility.
"Revolving Credit Loan Request" shall have the meaning set forth in Section
2.2 hereof.
"Selected Currency" shall mean the currency selected by the Borrowers as
the currency in which the Banks will issue any LIBO Rate Loan or Bid Loan, which
currencies will be limited to Dollars, Deutsche Marks, French Francs, Pounds
Sterling and such other currencies as are readily tradeable in the eurocurrency
market in London and are agreed to by each of the Banks, which agreement will
not be unreasonably withheld or delayed.
"Solvent" shall have the meaning set forth in Section 3.12.
"Subsidiary" shall mean any Person greater than 50% of the voting stock of
which is held, directly or indirectly, by The West Company.
"Subsidiary Borrower" means each Subsidiary (i) all of the capital stock of
which is held, directly or indirectly, by The West Company other than shares
issued to officers, directors and employees not in excess of 25% of all shares
of capital stock of such Subsidiary, (ii) which has been designated as such by
The West Company in a Subsidiary Borrower Notice and Designation and (iii) whose
designation as a Subsidiary Borrower has not been terminated pursuant to Section
2.7. A Subsidiary shall become a Subsidiary Borrower by delivery to the Agent of
a Subsidiary Borrower Notice and Designation executed by such Subsidiary and
acknowledged by The West Company under which it shall undertake the obligations
of a Borrower hereunder.
"Subsidiary Borrower Notice and Designation" means a Notice and Designation
substantially in the form of Exhibit E.
-9-
"Termination Date" means August 27, 2000 or any extension of such date
pursuant to the provisions of Section 2.1 hereof or early termination pursuant
to the provisions of Sections 2.9 and 7.1 hereof.
"Termination Event" means, with respect to a Pension Plan: (a) a Reportable
Event, (b) the termination of a Pension Plan, or the filing of a notice of
intent to terminate a Pension Plan, or the treatment of a Pension Plan amendment
as a termination under ERISA Section 4041(c), (c) the institution of proceedings
to terminate a Pension Plan under ERISA Section 4042 or (d) the appointment of a
trustee to administer any Pension Plan under ERISA Section 4042 which reasonably
could cause a Material Adverse Effect.
"364 Day Facility" shall have the meaning set forth in Section 2.1(a)
hereof.
"364 Day Facility Commitment" shall have the meaning set forth in Section
2.1(a) hereof.
"364 Day Facility Loans" shall have the meaning set forth in Section 2.1(a)
hereof.
"364 Day Facility Termination Date" shall have the meaning set forth in
Section 2.1(a) hereof.
"Total Capitalization" shall mean Funded Debt plus Net Worth.
"Transaction" shall mean the establishment of the facility contemplated by
this Agreement.
"Unfunded Pension Liabilities" means, with respect to any Pension Plan at
any time, the excess, if any, of the accumulated benefit obligation, as
disclosed in accordance with Statement of Accounting Standards No. 87, over the
fair market value of Pension Plan assets.
"Unrecognized Retiree Welfare Liability" means, with respect to any Plan
that provides post-retirement benefits other than pension benefits, the amount
of the accumulated post-retirement benefit obligation, as determined in
accordance with Statement of Financial Accounting Standards No. 106, as of the
most recent valuation date. Prior to the date such statement is applicable to
any Borrower, such amount of the obligation shall be based on an estimate made
in good faith. For purposes of determining the aggregate amount of the
Unrecognized Retiree Welfare Liability, Plans maintained by a subsidiary that is
not otherwise a ERISA Affiliate shall be taken into account.
"West Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, The West
Company. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise.
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1.2 Accounting Terms. All accounting terms used herein shall be construed
in accordance with Generally Accepted Accounting Principles.
II. THE CREDIT
2.1 The Revolving Credit Loans.
(a) The 364 Day Facility. Each Bank severally agrees, upon the terms and
conditions hereinafter set forth, to make loans to the Borrowers (the "364 Day
Facility Loans") from time to time during the period beginning on the date
hereof and ending on August 27, 1996 or on the earlier date of termination in
full, pursuant to Section 2.9 or Section 7.1 hereof, of the obligations of such
Bank under this Section 2.1(a) (August 27, 1996 or such earlier date of
termination being herein called the "364 Day Facility Termination Date") in
amounts not to exceed at any time outstanding in the aggregate the commitment
amount set forth opposite the name of such Bank on Exhibit A hereto (each such
amount, as the same may be reduced pursuant to Section 2.9 hereof, being
hereinafter called such Bank's "364 Day Facility Commitment" and, collectively
with each other Bank's 364 Day Facility Commitment, the "364 Day Facility"). All
364 Day Facility Loans shall be made to the Borrowers at the main office of the
Agent, Broad and Chestnut Streets, Philadelphia, Pennsylvania 19101 or at such
other office as may be designated from time to time by the Agent. Within the
limits of each Bank's 364 Day Facility Commitment and subject to Section 2.10,
the Borrowers may borrow, prepay pursuant to Section 2.10 and reborrow under
this Section 2.1(a). Any Bank may make, carry or transfer LIBO Rate Loans at, to
or for the account of, its LIBO lending office or affiliate or such other
offices or affiliates all as may be designated from time to time in writing by
any Bank to the Agent.
The obligation of each Bank to make a 364 Day Facility Loan to the
Borrowers at any time shall be limited to its percentage (the "Commitment
Percentage") as set forth opposite the name of such Bank on Exhibit A hereto
multiplied by the aggregate amount of the 364 Day Facility Loans requested. The
principal amounts of the respective 364 Day Facility Loans made by the Banks on
the occasion of each Borrowing shall be pro rata in accordance with their
respective Commitment Percentages under the 364 Day Facility. No Bank shall be
required or permitted to make any 364 Day Facility Loan if, immediately after
giving effect to such 364 Day Facility Loan, and the application of the proceeds
thereof to the extent applied to the repayment of the 364 Day Facility Loans,
(i) the sum of (a) the aggregate principal amount of such Bank's 364 Day
Facility Loans in Dollars outstanding to the Borrowers and (b) the Dollar
Equivalent of the aggregate principal amount of such Bank's 364 Day Facility
Loans in a Selected Currency other than Dollars outstanding to the Borrowers
would exceed such Bank's 364 Day Facility Commitment or (ii) the aggregate
outstanding principal amount of all 364 Day Facility Loans, Five Year Facility
Loans and Bid Loans would exceed the Aggregate Commitment.
The failure of any one or more of the Banks to make 364 Day Facility Loans
in accordance with its or their obligations shall not relieve the other Banks of
their several obligations hereunder, but in no event shall the aggregate amount
at any one time outstanding,
-11-
which any Bank shall be required to lend under this 364 Day Facility, exceed its
364 Day Facility Commitment.
On or before the 75th day (but not earlier than the 105th day) prior to the
364 Day Facility Termination Date The West Company may on behalf of the
Borrowers request in writing to the Agent that a new 364 Day Facility be
established with a new 364 Day Facility Termination Date three hundred
sixty-four (364) days from the previous 364 Day Facility Termination Date. The
Agent will promptly distribute such notice to the Banks. The Banks shall notify
the Agent not less than 45 days prior to the then current 364 Day Facility
Termination Date of their willingness, in their sole discretion, to establish a
new 364 Day Facility and the Agent shall notify The West Company of such
decision promptly following its receipt thereof, but not later than 40 days
prior to the 364 Day Facility Termination Date. If all of the Banks agree to a
new 364 Day Facility and a new 364 Day Facility Termination Date, the Agent, on
the then current 364 Day Facility Termination Date, shall advise the Company and
the Banks, in writing, that a new 364 Day Facility and 364 Day Facility
Termination Date has been established and this Agreement shall be deemed amended
to such extent. Such new 364 Day Facility Termination Date shall be the 364 Day
Facility Termination Date for all purposes under this Agreement. If a Bank or
Banks with Commitment Percentages at such time aggregating not more than 45%
shall no longer be willing to continue the 364 Day Facility, The West Company
may on behalf of the Borrowers request that a new bank or banks become parties
to this Agreement to provide such Facility. The addition of any such new bank or
banks shall be subject to the consent of the Agent, which consent will not be
unreasonably withheld. Subject to such consent of the Agent, the remaining Banks
and the Agent agree to cooperate with The West Company in making such amendments
hereto as shall be required to add such new bank or banks.
(b) Five Year Facility. Each Bank severally agrees, upon the terms and
conditions hereinafter set forth, to make loans to the Borrowers (the "Five Year
Facility Loans") from time to time during the period beginning on the date
hereof and ending on August 27, 2000 or on the earlier date of termination in
full, pursuant to Section 2.9 or Section 7.1 hereof, of the obligations of such
Bank under this Section 2.1(b) (August 27, 2000 or such earlier date of
termination being herein called the "Five Year Facility Termination Date") in
amounts not to exceed at any time outstanding in the aggregate the commitment
amount set forth opposite the name of such Bank on Exhibit A hereto (each such
amount, as the same may be reduced pursuant to Section 2.9 hereof being
hereinafter called such Bank's "Five Year Facility Commitment" and, collectively
with each other Bank's Five Year Facility Commitment, the "Five Year Facility").
All Five Year Facility Loans shall be made to the Borrowers at the main office
of the Agent, Broad and Chestnut Streets, Philadelphia, Pennsylvania 19101 or at
such other office as may be designated from time to time by the Agent. Within
the limits of each Bank's Five Year Facility Commitment and subject to Section
2.10, the Borrowers may borrow, prepay pursuant to Section 2.10 and reborrow
under this Section 2.1(b). Any Bank may make, carry or transfer LIBO Rate
Loans at, to or for the account of, its LIBO lending office or affiliate or such
other offices or affiliates all as may be designated from time to time in
writing by any Bank to the Agent.
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The obligation of each Bank to make a Five Year Facility Loan to the
Borrowers at any time shall be limited to the Bank's Commitment Percentage times
the aggregate amount of the Five Year Facility Loans requested. The principal
amounts of the respective Five Year Facility Loans made by the Banks on the
occasion of each Borrowing shall be pro rata in accordance with their respective
Commitment Percentages under the Five Year Facility. No Bank shall be required
or permitted to make any Five Year Facility Loan if, immediately after giving
effect to such Five Year Facility Loan, and the application of the proceeds
thereof to the extent applied to the repayment of the Five Year Facility Loans,
(i) the sum of (a) the aggregate principal amount of such Bank's Five Year
Facility Loans in Dollars outstanding to the Borrowers and (b) the Dollar
Equivalent of the aggregate principal amount of such Bank's Five Year Facility
Loans in a Selected Currency other than Dollars outstanding to the Borrowers
would exceed such Bank's Five Year Facility Commitment or (ii) the aggregate
outstanding principal amount of all 364 Day Facility Loans, Five Year Facility
Loans and Bid Loans would exceed the Aggregate Commitment.
The failure of any one or more of the Banks to make Five Year Facility
Loans in accordance with its or their obligations shall not relieve the other
Banks of their several obligations hereunder, but in no event shall the
aggregate amount at any one time outstanding which any Bank shall be required to
lend under this Five Year Facility exceed its Five Year Facility Commitment.
On August 27, 1998, and on each August 27th thereafter, The West Company on
behalf of the Borrowers may request in writing to the Agent that the Five Year
Facility be extended to a date with a new Five Year Facility Termination Date
one (1) year from the previous Five Year Facility Termination Date. The Agent
will promptly distribute such notice to the Banks. The Banks shall notify the
Agent not more than 60 days following the request by The West Company of their
willingness, in their sole discretion, to establish a new date and the Agent
shall notify The West Company of such decision promptly following its receipt
thereof, but not more than 70 days following the request by The West Company. If
all of the Banks agree to a new Five Year Facility Termination Date, the Agent,
shall advise the Company and the Banks, in writing, that a new Five Year
Facility and Five Year Facility Termination Date has been established and this
Agreement shall be deemed amended to such extent. Such new Five Year Facility
Termination Date shall be the Five Year Facility Termination Date for all
purposes under this Agreement. If a Bank or Banks with Commitment Percentages at
such time aggregating not more than 45% shall be unwilling to extend the Five
Year Facility, The West Company may on behalf of the Borrowers request that a
new bank or banks become parties to this Agreement to provide the Five Year
Facility following the termination of the Five Year Facility with respect to the
Bank which is unwilling to extend its Commitment. The addition of any such new
bank or banks shall be subject to the consent of Agent, which consent will not
be unreasonably withheld. Subject to such consent of the Agent, such Bank may be
replaced by a new bank or banks any time following receipt of notice by the
Agent of such Bank's unwillingness to extend its Five Year Facility Commitment
and the Banks and the Agent agree to cooperate with The West Company in making
such amendments hereto as shall be required to replace such Bank.
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(c) The Revolver Notes. The obligation of Borrowers to repay the 364 Day
Facility Loans and the Five Year Facility Loans, respectively, of each Bank
shall be evidenced by a separate promissory note issued by the Borrowers in the
forms attached hereto as Exhibit B-1 (collectively, the "364 Day Facility
Notes") and Exhibit B-2 (collectively, the "Five Year Facility Notes" and,
together with the 364 Day Facility Notes, the "Revolver Notes"). Each 364 Day
Facility Note shall be in a stated amount equal to the 364 Day Facility
Commitment of such Bank, and each Five Year Facility Note shall be in a stated
amount equal to the Five Year Facility Commitment of such Bank. Each Revolver
Note shall bear interest as provided herein and be payable at the times and in
the manner herein provided; provided, however, that notwithstanding the stated
amount of such Revolver Notes, the Borrowers' liability under the Revolver Notes
shall be limited at all times to the outstanding principal amount of the Loans
evidenced thereby (which principal amount may be less than or may exceed the
stated amount of such Revolver Note), plus all interest accrued thereon and the
amount of all costs and expenses then payable thereunder, as established by each
such Bank's books and records.
2.2 Funding Procedures for Revolving Credit Loans.
(a) Each request for a Revolving Credit Loan or the conversion or renewal
of an interest rate with respect to a Revolving Credit Loan shall be made not
later than 11:00 a.m. (Philadelphia time) on a Banking Business Day by delivery
to the Agent of a written request signed by The West Company on behalf of the
applicable Borrower, or in the alternative a telephone request followed promptly
by written confirmation of the request, in substantially the form reasonably
requested by the Agent from time to time (the "Revolving Credit Loan Request"),
stating:
(i) the date and amount of the Revolving Credit Loan Borrowing,
conversion or renewal;
(ii) the applicable Borrower;
(iii) whether the Revolving Credit Loans comprising such Borrowing,
conversion or renewal are to be Base Rate Loans or LIBO Rate Loans;
(iv) if the Borrowing, conversion or renewal is to be comprised of
LIBO Rate Loans, the Selected Currency and the duration of the Interest
Period applicable thereto;
(v) whether the Borrowing, conversion or renewal is under the 364 Day
Facility or the Five Year Facility; and
(vi) Borrower's account to which the proceeds of the Revolving Credit
Loan should be credited.
-14-
Until such time as the Agent shall reasonably direct the use of a different
form of request, the form of request attached hereto as Exhibit C shall be used
to request the making, conversion or renewal of Revolving Credit Loans. Each
request shall be received by 11:00 a.m. (Philadelphia time) not less than one
Banking Business Day prior to the date of the proposed borrowing, conversion or
renewal in the case of Base Rate Loans, and 11:00 a.m (Philadelphia time) three
London Banking Business Days prior to the date of the proposed borrowing,
conversion or renewal in the case of LIBO Rate Loans. No request shall be
effective until actually received by the Agent.
(b) Upon receipt of a request for a Revolving Credit Loan and if the
conditions precedent provided herein shall be satisfied at the time of such
request, the Agent promptly shall notify each Bank of such request and of such
Bank's ratable share of such Revolving Credit Loan. Upon receipt by the Agent
the request for a Revolving Credit Loan shall not be revocable by the Borrowers.
(c) Not later than 11:00 a.m. (Philadelphia time) on the date of each
Revolving Credit Loan, each Bank shall make available (except as provided in
clause (d) below) its ratable share of such Revolving Credit Loan, in the
Selected Currency of such Revolving Credit Loan and in immediately available
funds, to the Agent at the address set forth opposite its name on the signature
page hereof or at such office or account as the Agent shall specify to the
Borrower and the Banks. Unless an officer of the Agent active on the Borrowers'
accounts knows that any applicable condition specified in Article IV has not
been satisfied, the Agent will make the funds so received from the Banks
immediately available to the Borrower on the date of each Revolving Credit Loan
by a credit to the account of the Borrower set forth in the Revolving Credit
Loan Request.
(d) Unless the Agent shall have been notified by any Bank at least one
Banking Business Day prior to the date of the making, conversion or renewal of
any LIBO Rate Loan, or by 1:00 p.m. (Philadelphia time) on the date a Base Rate
Loan is requested, that such Bank does not intend to make available to the Agent
such Bank's portion of the total amount of the Revolving Credit Loan to be made,
converted or renewed on such date, the Agent may assume that such Bank has made
such amount available to the Agent on the date of the Revolving Credit Loan and
the Agent may, in reliance upon such assumption, make available to the Borrowers
a corresponding amount. If and to the extent such Bank shall not have so made
such funds available to the Agent, such Bank agrees to repay the Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrowers until the date such
amount is repaid to the Agent, at the Federal Funds Rate for three Banking
Business Days, and thereafter at the Base Rate. If such Bank shall repay to the
Agent such corresponding amount, such amounts so repaid shall constitute such
Bank's Revolving Credit Loan for purposes of this Agreement. If such Bank does
not repay such corresponding amount forthwith upon the Agent's demand therefor,
the Agent shall promptly notify the Borrowers, and the Borrowers shall
immediately pay such corresponding amount to the Agent, without any prepayment
penalty or premium, but with interest on the amount repaid, for each day from
the date such amount is made available to the Borrowers until the date such
amount is repaid to the Agent, at the rate of interest applicable at the time to
such Revolving
-15-
Credit Loan. Nothing herein shall be deemed to relieve any Bank of its
obligation to fulfill its Commitment hereunder or to prejudice any rights which
the Borrowers may have against any Bank as a result of any default by such Bank
hereunder.
(e) If the Banks make, convert or renew a Revolving Credit Loan on a day on
which all or any part of an outstanding Revolving Credit Loan from the Banks is
to be repaid, each Bank shall apply the proceeds of its new Revolving Credit
Loan to make such repayment and only an amount equal to the difference (if any)
between the amount being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in clause (c).
2.3 Interest.
(a) Base Rate. Each Base Rate Loan shall bear interest on the principal
amount thereof from the date made until such Base Rate Loan is paid in full or
converted, at a rate per annum equal to the Base Rate determined from time to
time.
(b) LIBO Rate. Each LIBO Rate Loan shall bear interest on the principal
amount thereof from the date made until such LIBO Rate Loan is paid in full or
converted, at a fixed rate per annum equal to the LIBO Rate plus the Applicable
Margin determined from time to time. For purposes of calculating the Applicable
Margin, Funded Debt to Total Capitalization shall be measured by reference to
The West Company's financial statements for each quarter ending March 31, June
30, September 30 and December 31. Changes in the Applicable Margin resulting
from changes in the Funded Debt to Total Capitalization ratio shall become
effective fifty (50) days after each of the fiscal quarters ending March 31,
June 30 and September 30 and ninety-five (95) days after the fiscal years ending
December 31.
After receipt of a request for a LIBO Rate Loan, the Agent shall proceed to
determine the LIBO Rate to be applicable thereto. The Agent shall give prompt
notice by telephone or facsimile to The West Company on behalf of the Borrowers
and to each Bank of the LIBO Rate thus determined in respect of each LIBO Rate
Loan or any change therein. If the Agent shall not so notify The West Company
and each Bank of a rate, or if otherwise the Agent shall determine (which
determination will be made after consultation with any Bank requesting same and
shall be, in the absence of fraud or manifest error, conclusive and binding upon
all parties hereto) that by reason of abnormal circumstances affecting the
interbank eurodollar or applicable eurocurrency market adequate and reasonable
means do not exist for ascertaining the LIBO Rate to be applicable to the
requested LIBO Rate Loan or that eurodollar or eurocurrency funds in amounts
sufficient to fund all the LIBO Rate Loans are not obtainable on reasonable
terms, the Agent shall give notice of such inability or determination by
telephone to The West Company on behalf of the Borrowers and to each Bank at
least two Banking Business Days prior to the date of the proposed LIBO Rate Loan
and thereupon the obligations of the Banks to make, convert other Revolving
Credit Loans to, or renew such LIBO Rate Loan shall be excused, subject,
however, to the right of the Borrowers at any time thereafter to submit another
request.
In the event the Borrowers fail or are not permitted to select an Interest
Period for any LIBO Rate Loan within the time period and otherwise as provided
herein, such Loan shall be
-16-
automatically converted into a Base Rate Loan on the last day of the Interest
Period for such loan.
(c) Conversions of Loans. The Borrowers shall have the right to convert
Base Rate Loans into LIBO Rate Loans, and vice versa, from time to time,
provided that: (i) borrowers shall give the Agent notice of each permitted
conversion as provided in Section 2.2 thereof; (ii) LIBO Rate Loans may be
converted only as of the last day of the applicable Interest period for such
Loans; (iii) only LIBO Rate Loans with a Selected Currency of Dollars may be
converted; and (iv) without the consent of each of the Banks, no Base Rate Loan
may be converted into a LIBO Rate Loan, no LIBO Rate Loan may be converted into
a Base Rate Loan and no Interest Period may be renewed if on the proposed date
of conversion an Event of Default, or Potential Default exists or would thereby
occur. The Agent shall use its best efforts to notify The West Company on behalf
of the Borrowers of the effectiveness of such conversion, and the new interest
rate to which the converted Loan is subject, as soon as practicable after the
conversion; provided, however, that any failure to give such notice shall not
affect the Borrowers' obligations or the Banks' rights and remedies hereunder in
any way whatsoever.
(d) Minimum Borrowing and Conversion Amounts. Except for Revolving Credit
Loans which exhaust the full remaining amount of the Aggregate Commitment,
conversions which result in the conversion of all Revolving Credit Loans subject
to a particular interest rate option and conversions made pursuant to Section
2.13, each of which hereof may be in lesser amounts, each Loan when made and
each conversion of Loans of one type into Loans of another type hereunder shall
be in an amount at least equal to $3,000,000 or, if greater, then such minimum
amount plus $100,000 multiples.
(e) Default Rate.
(i) If any Event of Default specified in Section 7.1(a) or Section
7.1(d) shall occur; or
(ii) If any other Event of Default occurs and the Banks declare the
Notes to be immediately due and payable;
THEN, the rate of interest applicable to each Loan then outstanding shall be the
Default Rate. Unless waived by the Required Banks, the Default Rate shall apply
from the date of the Event of Default (or the date on which notice of an Event
of Default is given to The West Company with respect to (e)(ii)) until the date
such Event of Default or breach is cured, and interest accruing at the Default
Rate shall be payable upon demand.
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?????????????????
C O P Y M I S S I N G
-18-
Days prior to the proposed Borrowing Date of a Bid Borrowing in Dollars and
three Banking Business Days prior to the proposed Borrowing Date of a Bid
Borrowing in a Selected Currency other than Dollars, specifying:
(i) the date of such Bid Borrowing, which shall be a Banking Business
Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $3,000,000 or in any integral multiple of $100,000 in
excess thereof;
(iii) the Bid Loan Duration applicable thereto;
(iv) the Selected Currency; and
(v) the Borrower's account to which the proceeds of the Bid Loan
should be credited.
The Borrowers may neither request Competitive Bids for more than two Bid Loan
Durations in a single Competitive Bid Request nor request Competitive Bids
more frequently than once every three Banking Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will promptly
notify each Bank by facsimile transmission of the Competitive Bid Request. Such
notification shall constitute an invitation by the Borrower to each Bank to
submit Competitive Bids to make the Bid Loans to which such Competitive Bid
Request relates in accordance with this Section 2.6.
(c) (i) Each Bank may at its sole discretion submit a bid ("Competitive
Bid") containing an offer or offers to make Bid Loans in response to any
Competitive Bid Request. Each Competitive Bid must comply with the requirements
of this Section 2.6(c) and must be submitted to the Agent (which may be by
facsimile transmission) at the Agent's office set forth on the signature page
hereto not later than 9:45 a.m. (Philadelphia time) on the proposed Borrowing
Date; provided that Competitive Bids submitted by the Agent (or any Affiliate of
the Agent) may only be submitted if the Agent or such Affiliate notifies the
Borrower of the terms of its Competitive Bid not later than 9:30 a.m.
(Philadelphia time) on the proposed Borrowing Date.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit D-3, specifying therein:
(A) the proposed Borrowing Date;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be equal
to, greater than or less than the Commitment of the quoting Bank, (y)
must be $3,000,000 or in multiples
-19-
of $100,000 in excess thereof, and (z) may not exceed the principal
amount of the Bid Loan for which Competitive Bids were requested;
(C) the rate of interest per annum (rounded upward to the
nearest 1/100th of 1%) (the "Absolute Rate") offered for each such Bid
Loan and the Bid Loan Duration applicable thereto; and
(D) the identity of the quoting Bank.
A Competitive Bid may contain separate offers by the quoting Bank with
respect to each Bid Loan Duration specified in the related Competitive
Bid Request.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D-3 or does
not specify all of the information required by subsection (c)(ii) of
this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in subsection (c)(i) of this
Section.
(d) Promptly on receipt and not later than 10:30 a.m. (Philadelphia time)
on the proposed Borrowing Date, the Agent will notify the Borrower by telephone
(confirmed the same day by facsimile transmission) of the terms (i) of any
Competitive Bid submitted by a Bank that is in accordance with Section 2.6(c),
and (ii) of any Competitive Bid that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid submitted by such Bank with respect
to the same Competitive Bid Request. Any such subsequent Competitive Bid shall
be disregarded by the Agent unless such subsequent Competitive Bid is submitted
solely to correct a manifest error in such former Competitive Bid and only if
received within the times set forth in Section 2.6(c). The Agent's notice to the
Borrower shall specify (1) the aggregate principal amount of Bid Loans for which
offers have been received for each Bid Loan Duration specified in the related
Competitive Bid Request; and (2) the respective principal so offered and the Bid
Loan Durations applicable thereto. Subject only to the provisions of this
subsection (d), any Competitive Bid shall be irrevocable except with the written
consent of the Borrower.
(e) Not later than 11:00 a.m. (Philadelphia time) on the proposed Borrowing
Date, the Borrower shall notify the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to Section 2.6(d) by telephone, such
verbal notice to be confirmed the same day by facsimile transmission of a
written notice substantially in the form of Exhibit D-4 hereto (the "Bid Loan
Notice"), which notice shall set forth the amounts, interest rates, Selected
Currency, dates of borrowings and maturities of each Bid Loan comprising such
Borrowing and
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of the Banks making such Loans. The Borrower shall be under no obligation to
accept any offer and may choose to reject all offers. The Borrower's failure to
accept an offer in accordance with the provisions of this Section 2.6(e) shall
constitute the Borrower's rejection of such offer. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers for each Bid
Loan Duration that is accepted. The Borrower may accept any Competitive Bid in
whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) each Bid Borrowing must be in a minimum aggregate principal
amount of $3,000,000 or in any multiple of $100,000 in excess thereof
and each Bid Loan must be in a minimum principal amount of $3,000,000
or in any multiple of $100,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of
ascending Absolute Rates within each Bid Loan Duration; and
(iv) the Borrower may not accept any offer that is required to be
disregarded pursuant to Section 2.6(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Banks with the same Absolute Rates
for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Bid Loan Duration, the principal amount
of Bid Loans in respect of which such offers are accepted shall be allocated by
the Borrower in consultation with the Agent among such Banks as nearly as
possible (in such multiples, not less than $1,000,000, as the Borrower in
consultation with the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Borrower in consultation
with the Agent of the amounts of Bid Loans shall be conclusive in the absence of
manifest error.
(g) Promptly upon receipt of notice from the Borrower in accordance with
Section 2.6(e), the Agent shall notify each Bank having submitted a Competitive
Bid whether or not its offer has been accepted and, if its offer has been
accepted, of the amount of the Bid Loan or Bid Loans to be made by it on the
Borrowing Date. Promptly following each Bid Borrowing, the Agent shall notify
each Bank that submitted a Competitive Bid (and each other Bank that so
requests) of the ranges of the bids submitted and the highest and lowest bids
accepted for each Bid Loan Duration requested by the Borrower and the aggregate
amount borrowed pursuant to such Bid Borrowing.
(h) On the Borrowing Date, upon satisfaction of all applicable conditions
specified in Section 4.1, each Bank whose Competitive Bid was accepted by the
Borrower shall make the proceeds of its Bid Loan available to the Agent at the
address set forth opposite its
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name on the signature page hereof or at such office or account as the Agent
shall specify to the Banks. The Agent will make the funds so received from the
Banks immediately available to the Borrower on the Bid Loan Borrowing Date by a
credit to the account of the Borrower set forth in the Bid Loan Notice.
2.7 Joint and Several Liability; Adding Subsidiary Borrowers.
(a) The West Company unconditionally and irrevocably guarantees to each
Bank the due, prompt and complete payment by each other Borrower of its payment
of principal of and interest on each Revolving Credit Loan and Bid Loan when and
as the same shall become due and payable and any and all other amounts with
respect to which any other Borrower is obligated under any Loan Document. The
obligation of The West Company under this Section 2.7 is a guaranty of payment
and not of collectibility and is no way conditioned or contingent upon any
attempt to collect from or enforce compliance by any other Borrower or upon any
other event, contingency or circumstance whatsoever. The obligation of The West
Company under this Section 2.7 shall be primary, absolute and unconditional,
shall not be subject to any counterclaim, set-off, deduction, diminution,
abatement, recoupment, suspension, deferment, reduction, or defense based upon
any claim any Borrower or any other Person may have against any other Borrower
or any other Person, and shall remain in full force and effect without regard
to, and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever (whether or not any Borrower shall have any
knowledge or notice thereof). The West Company shall not be subrogated to the
rights of the Banks in respect of any payment or other obligation with respect
to which an amount has been payable by such Borrower under this Section 2.7 and
shall not seek to exercise any rights of subrogation, reimbursement or indemnity
arising from payments made by it pursuant to the provisions of this Section 2.7.
Except as set forth in this Section 2.7(a), no Borrower shall be liable for the
obligations of any other Borrower hereunder, and each Borrower shall be liable
solely for the Loans where it is designated as Borrower and for its pro rata
share of all fees and expenses and other sums due hereunder (other than
principal and interest on the Loans) based upon the ratio of Loans outstanding
to such Borrower to the total amount of Loans outstanding hereunder.
(b) The liability of The West Company under this Section 2.7 shall continue
to be effective or be automatically reinstated, as the case may be, if at any
time payment, in whole or in part, of any of the sums due to the Banks is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any other Borrower or
any other person, or upon or as a result of the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to any other
Borrower or other person or any substantial part of its property, or otherwise,
all as though such payment had not been made.
(c) Any Subsidiary which is not a signatory to this Agreement and therefore
not a Borrower as of the date hereof but meeting the criteria set forth in the
definition of Subsidiary Borrower may become a Borrower by providing to the
Agent a Subsidiary Borrower Notice and Designation signed by The West Company
and such Subsidiary designating such Subsidiary as a Subsidiary Borrower.
Following receipt of such Subsidiary Borrower Notice and
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Designation by the Agent, such Subsidiary shall be a Subsidiary Borrower
hereunder and shall be subject to all duties and obligations of a Borrower
hereunder. The West Company and any Subsidiary Borrower may from time to time
deliver a subsequent Subsidiary Borrower Notice and Designation with respect to
such Subsidiary Borrower for the purpose of terminating such Subsidiary
Borrower's designation hereunder. Such termination shall be effective upon
receipt by the Agent so long as all of the Obligations of such Subsidiary
Borrower in respect of Loans made to it have been paid in full. Following
receipt of a Subsidiary Borrower Notice and Designation terminating a Subsidiary
Borrower's designation as a Borrower, no further Loans may be borrowed by such
Subsidiary Borrower hereunder.
2.8 Facility Fee. The Borrowers shall pay to the Agent on behalf of each
Bank as compensation for such Bank's Commitment a fee (the "Facility Fee")
computed at the rate determined in accordance with Schedule 1.1(a) hereto
based on the Company's Funded Debt to Total Capitalization. Changes in the
Facility Fee resulting from changes in the Funded Debt to Total Capitalization
ratio shall become effective fifty (50) days after each of the fiscal quarters
ending March 31, June 30 and September 30 and ninety-five (95) days after the
fiscal year ending December 31. The Facility Fee shall be payable quarterly in
arrears on the last day of each March, June, September and December, commencing
September 30, 1995 (for the three month period or portion thereof ended on the
preceding day), and on the Termination Date. Payment shall be made to the Agent
on behalf of the Banks and the Agent shall promptly forward to each Bank the
amount due such Bank. The Facility Fee shall be calculated on the basis of a 365
or 366-day year for the actual number of days elapsed.
2.9 Reduction or Termination of Aggregate Commitment; Recomputation Date.
(a) Notice. The Borrowers may at any time, on not less than three Banking
Business Days' written notice, terminate or permanently reduce the Aggregate
Commitment pro rata among the Banks, provided that any reduction shall be in the
amount of $1,000,000 or a multiple thereof.
(b) Termination. In the event the Aggregate Commitment is terminated by the
Borrowers, the Termination Date shall accelerate and the Borrowers shall,
simultaneously with such termination, repay all Loans in accordance with Section
2.10 hereof.
(c) Reduction. In the event the Aggregate Commitment is reduced, the
Borrowers shall, simultaneously with such reduction, make a prepayment of
principal and interest in respect of the Base Rate Loans in such amounts as is
necessary to assure that the aggregate principal amount of Loans outstanding
immediately after such reduction will not exceed the Aggregate Commitment as
reduced. If prepayment in full of the Base Rate Loans does not reduce the amount
of all Loans outstanding to an amount that will not exceed the Aggregate
Commitment as reduced, the Borrowers shall make a prepayment of principal and
interest in respect of the Bid Loans in such amounts as is necessary to assure
that the aggregate principal amount of the Loans outstanding immediately after
such reduction will not exceed the Aggregate Commitment as reduced. If
prepayment in full of the Base Rate Loans and the Bid Loans does not reduce the
amount of all Loans outstanding to an amount that will not exceed the Aggregate
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Commitment as reduced, the Borrowers shall deposit with the Agent cash in an
amount sufficient to repay that portion of the principal amount of LIBO Rate
Loans outstanding, with interest thereon through the end of each applicable
Interest Period, as is necessary to assure that the aggregate principal amount
of Loans outstanding immediately after such reduction less the principal amount
of LIBO Rate Loans repaid by such collateral will not exceed the Aggregate
Commitment as reduced, such collateral to be held by the Agent on behalf of the
Banks until each such maturity date and then applied to the repayment of such
Loans.
(d) Recomputation Date. Notwithstanding any other provisions of this
Agreement to the contrary, if there are any LIBO Rate Loans or Bid Loans, the
Selected Currency of which is not Dollars, the Agent shall recompute, on and as
of the last day of each calendar quarter (each such date, a "Recomputation
Date"), the Dollar Equivalent of such LIBO Rate Loans or Bid Loans and if
pursuant to such recomputations the Agent determines that the aggregate
principal amount of the Dollar denominated Loans then outstanding plus the
Dollar Equivalent of the aggregate principal amount of all other Loans then
outstanding is greater than 105% of the Aggregate Commitment as then in effect,
the Agent shall so advise The West Company, and the Borrowers shall prepay the
amount that exceeds 100%, together with accrued interest on the amount so
prepaid, within five Banking Business Days of receipt of such notice from the
Agent.
2.10 Prepayments.
(a) Base Rate Loans. On one Banking Business Day's notice to the Agent, the
Borrowers may, at their option, prepay the Base Rate Loans in whole at any time
or in part from time to time, provided that each partial prepayment shall be in
the principal amount of $1,000,000 or, if greater, then in $100,000 multiples.
(b) LIBO Rate Loans. The Borrowers may prepay any LIBO Rate Loan provided
however that if any principal of a LIBO Rate Loan is prepaid or becomes due
(whether upon prepayment or acceleration) prior to the last day of the Interest
Period applicable to such LIBO Rate Loan or if the Borrowers fail to borrow a
LIBO Rate Loan after giving irrevocable notice pursuant to Section 2.2, the
Borrowers shall pay to each Bank, in addition to the principal and interest then
to be paid, such additional amounts as may be necessary to compensate each Bank
for all direct and indirect costs and losses (including losses resulting from
redeployment of prepaid or unborrowed funds at rates lower than the cost of such
funds to such Bank) incurred or sustained by such Bank (the "Additional Amount")
as a result of such prepayment or failure to borrow. The Additional Amount
(which each Bank shall take reasonable measures to minimize) shall be specified
in a written notice or certificate delivered to The West Company by the Agent in
the form provided by each Bank sustaining such costs or losses. Such notice or
certificate shall contain a calculation in reasonable detail of the Additional
Amount to be compensated and shall be conclusive as to the facts and the amounts
stated therein, absent manifest error. For purposes of this subsection, a
prepayment of all the LIBO Rate Loans shall be deemed to occur whenever the
interest rate thereon is converted under the provisions of Section 2.13.
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(c) Bid Loans. The Borrowers may, upon one Banking Business Days' notice,
repay any Bid Loan at any time in whole; provided, however, (i) if a Borrower
prepays any Bid Loan prior to the end of the Bid Loan Duration applicable to any
such Bid Loan, the Borrower shall promptly pay each Bid Loan Lender, in addition
to the principal and interest then to be paid, the applicable Additional Amount
as a result of such prepayment; and (ii) all Bid Loans having the same Bid Loan
Duration and comprising the same Borrowing shall be simultaneously prepaid in
full. The Additional Amount (which each Bank shall take reasonable measures to
minimize) shall be specified in a written notice or certificate delivered to The
West Company by the Agent in the form provided by each Bank sustaining such
costs or losses. Such notice or certificate shall contain a calculation in
reasonable detail of the Additional Amount to be compensated and shall be
conclusive as to the facts and the amounts stated therein, absent manifest
error.
2.11 Payments.
(a) LIBO Rate Loans. Accrued interest on LIBO Rate Loans with Interest
Periods of one, two or three months shall be due and payable on the last day of
such Interest Period. Accrued interest on LIBO Rate Loans with Interest Periods
of six months shall be due and payable at the end of the third month and on the
last day of such Interest Period.
(b) Base Rate Loans. Accrued interest on all Base Rate Loans shall be due
and payable on the first Banking Business Day of each calendar month and upon
the Termination Date.
(c) Bid Loans. Accrued interest on Bid Loans with Bid Loan Durations less
than three months shall be due and payable on the maturity of such Bid Loans.
Accrued interest on Bid Loans with Bid Loan Durations of three months or longer
shall be due and payable at the end of the third month and on the maturity of
the Bid Loan Duration of such Bid Loans.
(d) Form of Payments, Application of Payments, Payment Administration, Etc.
All payments (including prepayments) of principal of or interest on any Loan
shall be paid by the Borrowers in the Selected Currency applicable to such Loan.
All other payments required to be made by the Borrowers hereunder shall be made
in Dollars. All payments and prepayments shall be applied to the Loans in such
order and to such extent as shall be specified by the Borrowers, by written
notice to the Agent at the time of such payment or prepayment. If no such
written notice is received by the Agent or if an Event of Default then exists,
the payment or prepayment shall be applied to the Loans in such order and to
such extent as the Agent shall determine in accordance with Section 8.7. Except
as otherwise provided herein, all payments of principal, interest, fees, or
other amounts payable by the Borrowers hereunder shall be remitted to the Agent
on behalf of the Banks at the address set forth opposite its name on the
signature page hereof or at such office or account in London as the Agent shall
specify to the Borrowers and the Banks, in immediately available funds not later
than 11:00 a.m. on the day when due. The Agent will promptly distribute to each
Bank by wire transfer in immediately available funds each Bank's pro rata share
of such payment based upon such Bank's Commitment Percentage. Whenever any
payment is stated as due on a day which is not a Banking Business Day, the
maturity of such payment shall, except as otherwise provided in the definition
of "Interest Period"
-25-
in Section 1.1, be extended to the next succeeding Banking Business Day and
interest shall continue to accrue during such extension. The Borrowers authorize
the Agent to deduct from any account of any Borrower maintained at the Agent or
over which the Agent has control any amount payable under this Agreement, the
Notes or any other Loan Document which is not paid within any applicable grace
period therefor.
(e) Net Payments. (i) All payments made to the Banks and the Agent by the
Borrowers hereunder, under any Note or under any other Loan Document will be
made without setoff, counterclaim or other defense. All such payments will be
made free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or any political
subdivision or taxing authority thereof or therein (but excluding, except as
provided below, any tax imposed on or measured by the gross or net income of a
Bank (including all interest, penalties or similar liabilities related thereto)
pursuant to the laws of the United States of America or any foreign country or
any political subdivision thereof, or taxing authority of the United States of
America or any foreign country or any political subdivision thereof, in which
the principal office or applicable lending office of such Bank is located)
(collectively, together with any amounts payable pursuant to the next sentence,
"Taxes"). The Borrowers shall also reimburse each Bank, upon the written request
of such Bank, for Taxes imposed on or measured by the gross or net income of
such Bank pursuant to the laws of the United States of America or any foreign
country (or any State or political subdivision thereof), or the jurisdiction (or
any political subdivision or taxing authority thereof) in which the principal
office or applicable lending office of such Bank is located as such Bank shall
determine are payable by such Bank due to the amount of Taxes paid to or on
behalf of such Bank pursuant to this or the preceding sentence. If any Taxes are
so levied or imposed, the Borrowers agree to pay the full amount of such Taxes,
and such additional amounts as may be necessary so that every payment of all
amounts due hereunder, under any Note or under any other Loan Document, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. The Borrowers will furnish to
the Agent upon request certified copies of tax receipts evidencing such payment
by the Borrowers. The Borrowers will indemnify and hold harmless the Agent and
each Bank, and reimburse the Agent or such Bank upon its written request, for
the amount of any Taxes so levied or imposed and paid or withheld by such Bank.
Each Bank shall use reasonable efforts to designate a different principal office
or applicable lending office to avoid the need for the payment of any Taxes by
such Bank pursuant to this paragraph to the extent that such a designation would
not, in the reasonable opinion of such Bank, be disadvantageous to such Bank.
(ii) Each Bank that is organized under the laws of a jurisdiction other
than the United States shall, on or prior to the date hereof (in the case of
each Bank that is a party hereto on the date hereof) or on or prior to the date
of any assignment or participation hereunder and thereafter as reasonably
requested from time to time by The West Company or the Agent, execute and
deliver, if legally able to do so, to The West Company and the Agent one or more
(as The West Company or the Agent may reasonably request) United States Internal
Revenue Service Forms 4224 or Forms 1001 and Form W-8 or Form W-9 or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable
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to establish the extent, if any, to which a payment to such Bank is exempt from
or entitled to a reduced rate of, withholding or deduction of Taxes.
(iii) The Borrowers shall not be required to indemnify or to pay any
additional amounts to any Bank with respect to any Taxes pursuant to this
paragraph (e) to the extent that any obligation to withhold, deduct or pay
amounts with respect to such tax existed on the date such Bank became a party to
this Agreement (and, in such case, the Borrowers may deduct and withhold such
tax from payments to such Bank); provided, however, that such limitation on the
indemnification obligations of the Borrowers under this paragraph (e) shall not
apply to Taxes (a) relating to Loans made to a Borrower other than The West
Company that would not arise if such Loan had been made to The West Company or
(b) that arise because The West Company transfers or is deemed by the relevant
taxing authority to have transferred any Loan proceeds to any division or
affiliate, and such Taxes are imposed by the relevant taxing authority where
such division or affiliate resides, has locations or is incorporated. In
addition, the Borrowers shall not be required to indemnify or to pay any
additional amounts to any Bank with respect to any Taxes pursuant to this
paragraph (e) to the extent that such Bank fails to comply in full with the
provisions of subparagraph (e)(ii) above resulting in the claimed Taxes (and, in
such case, the Borrowers may deduct and withhold all Taxes required by law as a
result of such noncompliance from payments to such Bank).
(iv) No Bank shall be entitled to payment under this paragraph (e) unless
it shall have notified The West Company that it will demand such payment not
more than 120 days after the date on which it shall have become aware that it
was entitled to such payment and such Bank agrees to use its best efforts to
give such notice promptly after it shall have become aware thereof; provided,
that any failure to provide such notice shall in no way impair the rights of any
Bank to demand and receive compensation to the extent provided in this paragraph
(e).
(v) Notwithstanding any other provision of this paragraph (e), other than
payments due to Taxes (a) relating to Loans made to a Borrower other than The
West Company that would not arise if such Loan had been made to The West Company
or (b) that arise because The West Company transfers or is deemed by the
relevant taxing authority to have transferred any Loan proceeds to any division
or affiliate, and such Taxes are imposed by the relevant taxing authority where
such division or affiliate resides, has locations or is incorporated, no Bank
shall demand any payment referred to above unless at the time it is the general
policy or practice of such Bank to demand such compensation in substantially
similar circumstances under substantially comparable provisions of other credit
agreements.
(f) Obligation to Repay. The Agent's failure to deliver any xxxx, statement
or invoice with respect to amounts due under any Loan Document shall not affect
the Borrowers' obligation to pay any installment of principal, interest or any
other amount under this Agreement when due and payable.
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2.12 Changes in Circumstances; Yield Protection.
(a) If any Regulatory Change or compliance by the Banks with any request
made after the date of this Agreement by the Board of Governors of the Federal
Reserve System or by any Federal Reserve Bank or other central bank or fiscal,
monetary or similar authority (in each case whether or not having the force of
law) shall:
(i) impose, modify or make applicable any reserve, special deposit,
Federal Deposit Insurance Corporation premium or similar requirement or
imposition against assets held by, or deposits in or for the account of, or
loans made by, or any other acquisition of funds for loans or advances by,
the Banks;
(ii) impose on the Banks any other condition regarding the Notes;
(iii) subject the Banks to, or cause the withdrawal or termination of
any previously granted exemption with respect to, any tax (including any
withholding tax but not including any income tax not currently causing the
Banks to be subject to withholding) or any other levy, impost, duty,
charge, fee or deduction on or from any payments due from the Borrowers; or
(iv) change the basis of taxation of payments from the Borrowers to
the Banks (other than by reason of a change in the method of taxation of a
Bank's net income);
and the result of any of the foregoing events is to increase the cost to a Bank
of making or maintaining any Loan or to reduce the amount of principal, interest
or fees to be received by the Bank hereunder in respect of any Loan, the Agent
will immediately so notify the Borrowers. If a Bank determines in good faith
that the effects of the change resulting in such increased cost or reduced
amount cannot reasonably be avoided or the cost thereof mitigated, then upon
notice by the Agent to the Borrowers, the Borrowers shall pay to such Bank on
each interest payment date of the Loan such additional amount as shall be
necessary to compensate the Bank for such increased cost or reduced amount.
(b) If any Bank shall determine that any law, rule or regulation regarding
capital adequacy or the adoption of any law, rule or regulation regarding
capital adequacy made after the date of this Credit Agreement, which law, rule
or regulation is applicable to banks (or their holding companies) generally and
not such Bank (or its holding company) specifically, or any change in any law,
rule or regulation regarding capital adequacy, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof (which change occurs after the date of this Agreement), or compliance by
such Bank (or its holding company) with any such request or directive regarding
capital adequacy (whether or not having the force of law) of
-28-
any such authority, central bank or comparable agency, has the effect of
reducing the rate of return on such Bank's capital as a consequence of its
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount deemed by such
Bank to be material, the Borrowers shall promptly pay to the Agent for the
account of such Bank, upon the demand of such Bank, such additional amount or
amounts as will compensate such Bank for such reduction.
(c) Determination by a Bank for purposes of this Section 2.12 of the effect
of any Regulatory Change or other change or circumstance referred to above on
its costs of making or maintaining Loans or on amounts receivable by it in
respect of the Loans, and of the additional amounts required to compensate such
Bank in respect of any additional costs, shall be made in good faith and shall
be evidenced by a certificate, signed by an officer of such Bank and delivered
to the Borrowers, as to the fact and amount of the increased cost incurred by or
the reduced amount accruing to the Bank owing to such event or events. Such
certificate shall be prepared in reasonable detail and shall be conclusive as to
the facts and amounts stated therein, absent manifest error.
(d) No Bank shall be entitled to compensation under this Section 2.12 for
any costs incurred or reductions suffered with respect to any date that it has
such costs unless it shall have notified The West Company that it will demand
compensation for such costs or reductions under paragraph (a) or (b) above, as
applicable, not more than 120 days after the later of (i) such date and (ii) the
date on which it shall have become aware of such costs or reductions; provided
that the foregoing shall in no way operate in derogation of the undertaking
contained in the last sentence of this paragraph (d). Notwithstanding any other
provision of this Section 2.12, no Bank shall demand any payment referred to
above if it shall not at the time be the general policy or practice of such Bank
to demand such compensation in substantially similar circumstances under
substantially comparable provisions of other credit agreements. In the event
that any Bank determines that any event or circumstance that will lead to a
claim under this Section 2.12 has occurred or will occur, such Bank will use its
best efforts to so notify The West Company; provided that any failure to provide
such notice shall in no way impair the rights of any Bank to demand and receive
compensation under this Section 2.12, but without prejudice to any claims of The
West Company for failure to observe this undertaking.
2.13 Illegality. Notwithstanding any other provision in this Agreement, if
the adoption of any applicable law, rule, or regulation (including without
limitation any currency controls), or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by the Banks with any request or directive (whether or
not having the force of law) of any such authority, central bank, or comparable
agency shall make it unlawful or impossible for the Banks to (1) maintain their
Commitments, then upon notice to the Borrowers by the Agent, the Commitments
shall terminate; or (2) maintain or fund their LIBO Rate Loans, then upon notice
to the Borrowers of such event, the Borrowers' outstanding LIBO Rate Loans shall
be converted into Base Rate Loans.
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III. REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Banks that:
3.1 Organization, Standing. Each Borrower (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the corporate power and authority
necessary to own its assets, carry on its business and enter into and perform
its obligations hereunder, under each Loan Document to which it is a party and
(iii) is qualified to do business and is in good standing in each jurisdiction
where the nature of its business or the ownership of its properties requires
such qualification except where the failure to be so qualified would not have a
Material Adverse Effect.
3.2 Corporate Authority, Etc. The making and performance of the Loan
Documents to which it is a party are within the power and authority of each
Borrower and have been duly authorized by all necessary corporate action. The
making and performance of the Loan Documents do not and under present law will
not require any consent or approval of any of the Borrowers' shareholders or any
other person, do not and under present law will not violate any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award,
do not violate any provision of its charter or by-laws, do not and will not
result in any breach of any material agreement, lease or instrument to which it
is a party, by which it is bound or to which any of its assets are or may be
subject, and do not and will not give rise to any Lien upon any of its assets.
Further, no Borrower is in default under any such agreement, lease or instrument
except to the extent such default reasonably could not have a Material Adverse
Effect. Except as set forth on Schedule 3.2, no authorizations, approvals or
consents of, and no filings or registrations with, any governmental or
regulatory authority or agency (other than filings or notices required to
perfect any security interests in favor of the Banks) are necessary for the
execution, delivery or performance by any Borrower of any Loan Document to which
such Borrower is a party or for the validity or enforceability thereof.
3.3 Validity of Documents. Each Loan Document, when executed and
delivered, will be the legal, valid and binding obligation of each Borrower that
is a party thereto, enforceable against such party in accordance with its terms.
3.4 Litigation. Except as set forth in Schedule 3.4 hereto, there are no
actions, suits or proceedings pending or, to the Borrowers' knowledge,
threatened against or affecting any Borrower or any assets of any Borrower
before any court, government agency, or other tribunal which if adversely
determined reasonably could have a Material Adverse Effect or could materially
adversely affect the ability of any Borrower to perform under the Loan
Documents. The status (including the tribunal, the nature of the claim and the
amount in controversy) of each such litigation matter as of the date of this
Agreement is set forth in such Schedule.
3.5 ERISA. The provisions of each Plan in which any Borrower or ERISA
Affiliate participates or to which any Borrower or ERISA Affiliate contributes,
whether or not they are the sole participant or contributor, comply, in all
material respects, with all applicable requirements of ERISA and of the Code,
and with all applicable rulings and regulations issued
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under the provisions of ERISA and the Code setting forth those requirements. No
event has occurred with respect to any Plan in which any Borrower or ERISA
Affiliate participates or to which any of them contributes (hereinafter referred
to as a "Covered Plan") which constitutes a Reportable Event, or, if such event
has occurred, the employer and plan administrator have complied with Section
4043 of ERISA and the regulations thereunder, and have discharged all
notification obligations, if any, imposed on either of them by Section 4043 of
ERISA, to the extent that the employer or plan administrator has not been
relieved of such obligations by regulation or otherwise by the PBGC; there does
not exist with respect to any Covered Plan any material accumulated funding
deficiency within the meaning of Section 412 of the Code nor has there been
issued either a variance or a waiver of the minimum funding standards imposed by
the Code with respect to any Covered Plan, nor are there any excise taxes due or
hereafter to become due under Section 4971 of the Code with respect to the
funding of any covered Plan for any plan year or fiscal period ending prior to
the date of this Agreement; no Covered Plan to which Section 4021 of ERISA
applies has been terminated or, if such termination has occurred, the
requirements of ERISA Sections 4041 and 4044 have been satisfied and the
Internal Revenue Service has issued a letter of determination that the Covered
Plan met the requirements of Code Section 401(a) at the time of such
termination; no Covered Plan has incurred any material liability to the PBGC
under Sections 4062, 4063 or 4064 of ERISA which has not been satisfied or
discharged; and no Covered Plan has engaged in any Prohibited Transaction.
Neither the Borrowers nor any ERISA Affiliate is now or has been at any time a
contributor or obligated to contribute to any Multiemployer Plan or if any
Borrower or ERISA Affiliate is or has been a contributor to a Multiemployer
Plan, any Borrower or ERISA Affiliate has not incurred any material withdrawal
liability within the meaning of Section 4201 of ERISA which has not been fully
satisfied. As of the date of this Agreement, neither the Borrowers nor any ERISA
Affiliate has established or maintained any Plan or arrangement which provides
post-employment welfare benefits or coverage (other than as required pursuant to
Section 4980B of the Code and other than allowing retirees' participation in
group health plans at the expense of such participating retirees). Each Borrower
and each ERISA Affiliate has, as of the date of this Agreement, made all
contributions or payments to or under each such Plan required by law or the
terms of such Plan to be made on or before that date.
3.6 Financial Statements. The consolidated financial statements of The
West Company and its Subsidiaries as of and for the fiscal years ending December
31, 1994 and December 31, 1993, consisting in each case of a balance sheet, a
statement of operations, a statement of shareholders' equity, a statement of
cash flows and accompanying footnotes, and the interim consolidated financial
statements of The West Company and its Subsidiaries as of March 31, 1995 and
March 31, 1994 furnished to the Banks in connection herewith, present fairly, in
all material respects, the financial position, results of operations and cash
flows of The West Company and its Subsidiaries as of the dates and for the
periods referred to, in conformity with Generally Accepted Accounting Principles
(subject to normal year-end adjustments and the absence of notes). There has
been no material adverse change in the business or financial condition of The
West Company and its Subsidiaries taken as a whole since March 31, 1995.
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3.7 Margin Regulations. No proceeds of any Loan will be applied for the
purpose, whether immediate, incidental or ultimate, of buying or carrying or
trading in any securities, including "margin stock" as defined by The Board of
Governors of the Federal Reserve System.
3.8 Not in Default. No Event of Default or Potential Default under any
Loan Document has occurred and is continuing.
3.9 Taxes. The West Company and each Subsidiary has filed all federal and
all other material state, local and foreign tax returns and reports which it is
required by law to file and has paid all taxes, including wage taxes,
assessments, withholdings and other governmental charges which are presently
due and payable (other than those being contested in good faith by appropriate
proceedings), other than any such taxes or charges that would not individually
or in the aggregate result in a Material Adverse Effect. The tax charges,
accruals and reserves on the books of The West Company and each Subsidiary are
adequate to pay all such taxes that have accrued but are not presently due and
payable. The West Company is a member of an affiliated group of corporations
filing consolidated returns for United States federal income tax purposes, and
is the "common parent" of such group.
3.10 Permits, Licenses, Etc. The West Company and each Subsidiary
possesses all permits, licenses, franchises, trademarks, tradenames, copyrights
and patents necessary to the conduct of its business as presently conducted or
as presently proposed to be conducted, except where the failure to possess the
same would not have a Material Adverse Effect.
3.11 Compliance With Laws.
(a) The West Company and each Subsidiary is in compliance in all
material respects with all Regulations applicable to its business (including
obtaining all authorizations, consents, approvals, orders, licenses, exemptions
from, and making all filings or registrations or qualifications with, any court
or governmental department, public body or authority, commission, board, bureau,
agency, or instrumentality), the noncompliance with which reasonably could have
a Material Adverse Effect.
(b) Except as set forth on Schedule 3.11 hereto, The West Company and
each Subsidiary has obtained all permits, licenses and other authorizations
required under any Regulation relating to pollution or protection of the
environment, including laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, groundwater, or land), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes except where the failure to
possess the same would not have a Material Adverse Effect. The West Company and
each Subsidiary is in compliance in all material respects with all terms and
conditions of the required permits, licenses and authorizations, and is also in
compliance in all material respects with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any Regulation, order, decree,
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judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder which has the force of law except where the failure to so
comply would not have a Material Adverse Effect. No Borrower has received
written notice of any past or present events, conditions, circumstances,
activities, practices, incidents or actions which may interfere with or prevent
compliance or continued compliance with those laws or with any regulation, code,
plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder which has the force of law, or which
may give rise to any common law or legal liability, or otherwise form the basis
of any claim, action, demand, suit, proceeding, hearing, study or investigation,
based on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission,
discharge, release or threatened release into the environment, of any pollutant,
contaminant, chemical, or industrial, toxic or hazardous substance or waste,
except where such events, conditions, circumstances, activities, practices,
incidents or actions would not result in a Material Adverse Effect.
3.12 Solvency. The West Company and each Subsidiary Borrower is, and
after giving effect to the transactions contemplated hereby, will be, Solvent.
"Solvent" means that the aggregate present fair saleable value of such Person's
assets is in excess of the total amount of its probable liability on its
existing debts as they become absolute and matured, such Person has not incurred
debts beyond its foreseeable ability to pay such debts as they mature, and such
Person has capital adequate to conduct the business it is presently engaged in
or is about to engage in.
3.13 Title to Assets. The West Company and each Subsidiary has good and
marketable title to all of its properties and assets, free and clear of all
Liens, other than Permitted Liens.
3.14 Insurance. The West Company and its Subsidiaries have at their own
cost and expense obtained in commercially reasonable kind and form and with
financially sound and reputable insurers, insuring against such risks as are
prudently insured against by corporations engaged in the same business and
similarly situated with The West Company and its Subsidiaries, in an amount
usually carried by corporations engaged in the same business and similarly
situated with The West Company and its Subsidiaries.
3.15 Subsidiaries, Etc. Set forth in Schedule 3.15 hereto is a complete
and correct list, as of the date of this Agreement, of all Subsidiaries (and the
respective jurisdiction of incorporation of each such Subsidiary). Except as
disclosed in Schedule 3.15 hereto, as of the date hereof, The West Company owns,
directly or through a Subsidiary, free and clear of Liens, all outstanding
shares of each Subsidiary Borrower and all such shares are validly issued, fully
paid and non-assessable. Schedule 3.15 also sets forth as to each Subsidiary the
number of shares of each class of capital stock issued and outstanding and held
in treasury and the record and beneficial owners of all such issued and
outstanding shares as of the date hereof. Except as set forth on Schedule 3.15,
all of the issued and outstanding shares of capital stock of each Subsidiary
owned by The West Company or any Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable and held free and clear of
all Liens whatsoever, and there are no outstanding subscriptions, options,
warrants, calls, conversion or exchange rights, commitments or agreements of any
character obligating any Subsidiary to issue,
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deliver or sell additional shares of its capital stock of any class or any
securities convertible into or exchangeable for any such capital stock.
3.16 Disclosure Generally. To the best of The West Company's knowledge,
the representations and statements made by or on behalf of any Borrower in
connection with this credit facility and each Loan hereunder, including
representations and statements in each of the Loan Documents, do not contain any
untrue statement of a material fact or omit to state a material fact or any fact
necessary to make the representations made not materially misleading in light of
the circumstances in which they were made. No written information, exhibit,
report or financial statement furnished by any Borrower to the Banks in
connection with this Agreement, the Loans or any Loan Document, contains any
material misstatement of fact or omits to state a material fact or any fact
necessary to make the statements contained therein not materially misleading.
IV. CONDITIONS PRECEDENT.
4.1 Conditions to All Loans. The obligation of each Bank to make any Loan
is conditioned upon the following:
(a) Documents. The West Company shall have d elivered and the Agent
shall have received a request for a Loan, as provided in Sections 2.2 or 2.6.
(b) Covenants; Representations. Each Person that is a party thereto
other than the Banks and the Agent shall be in compliance with all covenants,
agreements and conditions in each Loan Document and each representation and
warranty contained in each Loan Document shall be true in all material respects
with the same effect as if such representation or warranty had been made on the
date such Loan is made or issued and the making of a request for a Loan by The
West Company shall be deemed a certification to the foregoing effect.
(c) Defaults. After giving effect to such transaction, no Event of
Default or Potential Default shall exist.
(d) If the Borrower is a Subsidiary Borrower who has not previously
provided the items required by paragraphs (a), (b) and (d) of Section 4.2, such
items shall have been received by the Agent.
4.2 Conditions to First Loan. In addition to the conditions set forth in
Section 4.1, the obligation of each Bank to make the first Loan hereunder is
conditioned upon the following:
(a) Articles, Bylaws. The Banks shall have received copies of the
Articles or Certificates of Incorporation and Bylaws of each Borrower, certified
by the secretary or assistant secretary of such Borrower;
(b) Evidence of Authorization. The Banks shall have received
certified copies of all corporate or other action taken by each Person other
than a Bank who is a party to any
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Loan Document to authorize its execution and delivery and performance of the
Loan Documents and to authorize the Revolving Credit Loans and Bid Loans
hereunder, together with such other related papers as the Banks shall reasonably
require;
(c) Legal Opinions. The Banks shall have received a favorable written
opinion of Dechert, Price & Xxxxxx, counsel of the Borrowers, which shall be
addressed to the Banks and be dated the date of the first Loan, in substantially
the form attached as Exhibit F;
(d) Incumbency. The Banks shall have received a certificate signed by
the secretary or assistant secretary of each corporate signatory to the Loan
Documents other than a Bank, together with the true signature of the officer or
officers authorized to execute and deliver the Loan Documents and certificates
thereunder, upon which the Banks shall be entitled to rely conclusively until
the Agent shall have received a further certificate of the appropriate secretary
or assistant secretary amending the prior certificate and submitting the
signature of the officer or officers named in the new certificate as being
authorized to execute and deliver Loan Documents and certificates thereunder;
(e) Notes. Each Bank shall have received executed Notes payable to
the order of such Bank and otherwise in the forms of Exhibits X-0, X-0 and D-1
hereto. In addition, the Agent shall have received all certificates, instruments
and other documents then required to be delivered pursuant to any Loan
Documents, in each instance in form and substance reasonably satisfactory to the
Agent and the Banks;
(f) Consents. The Borrowers shall have provided to the Banks evidence
satisfactory to the Banks that all governmental, shareholder and third party
consents and approvals necessary in connection with the transactions
contemplated hereby have been obtained and remain in effect;
(g) Change. No material adverse change shall have occurred in the
financial condition of The West Company and its Subsidiaries taken as a whole
since March 31, 1995;
(h) Pending or Threatened Litigation. There shall not be any pending
litigation, bankruptcy or insolvency, injunction, order or claim which could
reasonably have a Material Adverse Effect; and
(i) Other Agreements. The Borrowers shall have executed and delivered
each other Loan Document required hereunder.
V. AFFIRMATIVE COVENANTS
The Borrowers covenant and agree that, without the prior written consent
of the Required Banks, from and after the date hereof and so long as the
Commitments are in effect or any Obligations remain unpaid or outstanding, the
Borrowers will, and will cause each Subsidiary, as applicable, to:
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5.1 Financial Statements and Reports. Furnish to the Banks the following
financial information:
(a) Annual Statements. As soon as available but no later than ninety
(90) days after the end of each fiscal year, a consolidated balance sheet of The
West Company as of the end of such year and the prior year in comparative form,
and related statements of operations, shareholders' equity, and consolidated
cash flows for The West Company for the fiscal year and the prior fiscal year in
comparative form (it being understood and agreed that the delivery of The West
Company's 10-K (as filed with the Securities and Exchange Commission) shall
satisfy the delivery requirements of this Section). The financial statements
shall be in reasonable detail with appropriate notes and be prepared in
accordance with Generally Accepted Accounting Principles. The annual financial
statements shall be certified (without any qualification or exception) by
independent public accountants of nationally recognized standing. Each financial
statement provided under this subsection (a) shall be accompanied by a
certificate signed by such accountants either stating that during the course of
their examination nothing came to their attention which would cause them to
believe that any event has occurred and is continuing which constitutes an Event
of Default or Potential Default, or describing each such event.
(b) Quarterly Statements. As soon as available but no later than
forty-five (45) calendar days after the end of each of the first three fiscal
quarters of each fiscal year, a consolidated balance sheet of The West Company
and related consolidated statements of operations, shareholders' equity and cash
flows for such quarterly period and for the period from the beginning of such
fiscal year to the end of such fiscal quarter and a corresponding financial
statement for the same periods in the preceding fiscal year certified by the
chief financial officer, treasurer or controller of The West Company as having
been prepared in accordance with Generally Accepted Accounting Principles
(subject to changes resulting from audits and year-end adjustments) (it being
understood and agreed that delivery of The West Company's 10-Q (as filed with
the Securities and Exchange Commission) shall satisfy the requirements of this
paragraph).
(c) No Default. Within forty-five (45) calendar days after the end of
each of the first three fiscal quarters of each fiscal year and within ninety
(90) calendar days after the end of each fiscal year, a certificate signed by
the chief financial officer, treasurer or controller of The West Company on
behalf of the Borrowers certifying that, to the best of such officer's
knowledge, after due inquiry, (i) the Borrowers have complied with all
covenants, agreements and conditions in each Loan Document and that each
representation and warranty contained in each Loan Document is true and correct
in all material respects with the same effect as though each such representation
and warranty had been made on the date of such certificate (except to the extent
such representation or warranty related to a specific prior date), and (ii) no
event has occurred and is continuing which constitutes an Event of Default or
Potential Default, or describing each such event and the remedial steps being
taken by the Borrowers.
(d) Compliance. Within forty-five (45) calendar days after the end of
each of the first three fiscal quarters of each fiscal year and within ninety
(90) calendar days after the end of each fiscal year, a certificate signed by
the chief financial officer, treasurer or controller of The West Company setting
forth (on a consolidated basis) the Interest Coverage Ratio and
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Funded Debt to Total Capitalization and compliance with all other financial
covenants and representations contained in this Agreement as of the end of such
period. The chief financial officer, treasurer or controller of The West Company
shall provide any and all reports, audits, and such other information as may be
reasonably requested by the Agent to substantiate such compliance by the
Borrowers or upon which said officer may have relied in signing such
certificate.
(e) ERISA. All reports and forms filed with respect to all Plans and
details of related information of a Reportable Event which, in either case,
could reasonably cause a Material Adverse Effect.
(f) Material Changes. The Borrowers shall promptly notify the Agent
and the Banks of any litigation, administrative proceeding, investigation,
business development, or change in financial condition which could reasonably
have a Material Adverse Effect.
(g) Other Information. The Borrowers will provide to the Agent and
the Banks all 8-K reports simultaneously with filing of such reports with the
Securities and Exchange Commission.
5.2 Taxes and Other Charges. Pay or cause to be paid after notice that
the same are due all taxes, assessments and governmental charges imposed upon
The West Company and its Subsidiaries or any of The West Company's or the
Subsidiaries' assets or which The West Company and its Subsidiaries are required
to withhold and pay over, except as may be contested in good faith by The West
Company or its Subsidiaries by appropriate proceedings and for which adequate
reserves have been established by The West Company or its Subsidiary as
reflected in The West Company's or the Subsidiary's financial statements and
except where the failure to so pay would not have a Material Adverse Effect.
5.3 Corporate Existence. The West Company will preserve its corporate
existence except as permitted by Section 6.1.
5.4 Compliance with ERISA. Maintain each Covered Plan in compliance in
all material respects with all applicable requirements of ERISA and the Code,
including all applicable rulings and regulations under ERISA and the Code. The
preceding sentence shall not be construed to limit the Borrower's or any ERISA
Affiliate's ability to amend or terminate a Plan so long as that amendment or
termination can be effected without resulting in any unfunded liability which
could reasonably have a Material Adverse Effect. As soon as practicable and, in
any event, within ten (10) calendar days after any Borrower or any ERISA
Affiliate knows, or has reason to know, that:
(a) any Termination Event with respect to a Pension Plan has occurred
or will occur; or
(b) any Borrower or any ERISA Affiliate has applied for a waiver of
the minimum funding standard under Section 412 of the Code with respect to a
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Pension Plan which otherwise would result in a material accumulated funding
deficiency; or
(c) the aggregate amount of the Unfunded Pension Liabilities (other
than non-cash charges against income required to be recognized pursuant to FASB
87) under all Pension Plans has increased materially; or
(d) the aggregate amount of Unrecognized Retiree Welfare Liability
under all applicable Plans has increased materially; or
(e) any Borrower or ERISA Affiliate has engaged in a Prohibited
Transaction with respect to a Plan; or
(f) there is a partial or complete withdrawal (as described in ERISA
Section 4203 or 4205) by any Borrower or any ERISA Affiliate from a
Multiemployer Plan which could reasonably result in a Material Adverse Effect;
or
(g) any Borrower or any ERISA Affiliate is in "default" (as defined
in ERISA Section 4219(c)(5)) with respect to payments to a Multiemployer Plan by
reason of its complete or partial withdrawal from such Multiemployer Plan which
could reasonably result in a Material Adverse Effect; or
(h) a Multiemployer Plan is in "reorganization" (as described in Code
Section 418 or Title IV or ERISA) which could reasonably result in a Material
Adverse Effect; or
(i) the potential withdrawal liability (as determined in accordance
with Title IV or ERISA) of any Borrower or any ERISA Affiliate with respect to
all Multiemployer Plans has, in any year, increased materially; or
(j) there is an action brought against any Borrower or any ERISA
Affiliate under ERISA Section 502 with respect to its failure to comply with
ERISA Section 515 which could reasonably result in a Material Adverse Effect;
The West Company shall, on behalf of the Borrowers and the ERISA Affiliates,
furnish or cause to be furnished to the Agent a notice of such event.
Any notice required hereunder shall include a certificate addressed to
the Agent and signed by the chief financial officer, treasurer or controller of
The West Company on behalf of the Borrowers, setting forth all pertinent details
relating to the events described in such notice is based and the action which is
proposed to be taken with respect thereto. The West Company shall also furnish
or cause to be furnished to the Agent notice within ten (10) calendar days after
any complete or partial withdrawal from a Multiemployer Plan within the meaning
of Sections
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4203 and 4205 of ERISA by The West Company or any other Borrower or ERISA
Affiliate which could reasonably cause a Material Adverse Effect.
5.5 Compliance with Regulations. Comply in all material respects with all
Regulations applicable to its business, the noncompliance with which reasonably
could have a Material Adverse Effect.
5.6 Notice of Events. Promptly upon discovery by any Borrower or any
officer of any Borrower of any of the events described in subsections (a)
through (e) hereof, The West Company shall, on behalf of the Borrowers, deliver
to an officer of the Agent active on the Borrowers' accounts telephone notice,
and within three calendar days of such telephone notice deliver to the Agent a
written notice, which describes the event and all action the Borrowers propose
to take with respect thereto:
(a) an Event of Default under this Agreement;
(b) any Potential Default;
(c) a default or event of default resulting from failure to make
required payments or breach of any financial covenant under or as defined in any
evidence of or agreements for Indebtedness for Borrowed Money under which any
Borrower's or Subsidiary's liability is equal to or in excess of $10,000,000
singularly or in the aggregate, whether or not an event of default thereunder
has been declared by any party to such agreement or any event which, upon the
lapse of time or the giving of notice or both, would become an event of default
under any such agreement or would permit any party to any such agreement to
terminate or suspend any commitment to lend to the Borrowers or the Subsidiaries
or to declare or to cause any such indebtedness to be accelerated or payable
before it would otherwise be due;
(d) the institution of, any material adverse determination in, or the
entry of any default judgment or order or stipulated judgment or order in, any
suit, action, arbitration, administrative proceeding, criminal prosecution or
governmental investigation in which the amount in controversy could reasonably
result in a Material Adverse Effect; or
(e) any change in any Regulation, including, without limitation,
changes in tax laws and regulations, which could reasonably have a material
adverse impact on the ability of the Borrowers to perform their obligations
under the Loan Documents or a Material Adverse Effect.
5.7 Inspection Rights. Following prior notice during regular business
hours and as often as reasonably requested of the Borrowers by any Bank, (i) if
an Event of Default or Potential Default has occurred and is continuing, permit
any Bank or any authorized officer, employee, agent, or representative of any
Bank, to examine and make abstracts from the records
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and books of account of the Borrowers, wherever located, and to visit the
properties of the Borrowers; and (ii) permit any Book or any authorized Officer,
employee, agent, or representative of any Bank to discuss the affairs, finances,
and accounts of the Borrowers with any of the Borrowers' Officers, which
activities shall be at the expense of such Bank.
5.8 Generally Accepted Accounting Principles. Maintain its books and
records at all times in accordance with Generally Accepted Amounting Principles.
5.9 Use of Proceeds. Use the proceeds of the Loans to finance working
capital and capital expenditures, acquisitions and for general corporate
purposes.
VI. NEGATIVE COVENANTS.
The Borrowers covenant and agree that, without the prior written consent
of the Required Banks, from and after the date hereof and so long as the
Commitments are in effect or any Obligations remain unpaid or outstanding, they
will not, and will not permit any Subsidiary, as applicable, to:
6.1 Merger, Consolidation. No Borrower will consolidate with or merge
with or into any other corporation unless (a) if The West Company is a party to
such merger or consolidation, The West Company shall be the surviving entity of
such merger or consolidation or (b) any Subsidiary Borrower party to such merger
or consolidation continues to meet the criteria set forth in the definition of
Subsidiary Borrower and, in any event, subsequent to such merger or
consolidation and after giving effect thereto, no Potential Default or Event of
Default shall have occurred and be continuing.
6.2 Liens. Create, assume or permit to exist any Lien on any of the
Borrowers' property or assets, whether now owned or hereafter acquired, or upon
any income or profits therefrom, except Permitted Liens.
6.3 Sale at Stock of Subsidiary Borrowers.
(a) Sell, assign, pledge or otherwise dispose of any shares of stock
or other equity interests in (or warrants, rights or options to acquire stock
of or equity interests in) any Subsidiary Borrower; or
(b) in the case of a Subsidiary Borrower, issue or sell any shares of
its stock or other equity, interests in itself (or warrants, rights or options
to acquire, or securities convertible into, such stock or other equity
interests) to any Person other than to The West Company or if such issuance or
sale is to the officers, directors or employees of The West Company or a
Subsidiary thereof, such shares or equity interests, when added to the equity
interests of such Subsidiary Borrower held by officers, directors and employees,
do not exceed 25% of the outstanding capital stock of such Subsidiary Borrower.
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6.4 Judgment, Attachment. Permit any of its assets to be subject to any
judgments, attachments or levies the aggregate amount of which exceeds
$5,000,000 and which judgments, attachments or levies have not been stayed by
appeal, satisfied, bonded or discharged within thirty (30) calendar days after
service of notice thereof to such Borrower or the repayment of which is covered
in full (subject to customary deductibles) by insurance maintained with
responsible insurance companies.
6.5 Margin Stock. Use or permit any proceeds of the Loans to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying margin stock within the meaning of Regulation U
of The Board of Governors of the Federal Reserve System, as amended from time to
time.
6.6 Modification of Loan Agreements or Policies. (i) Consent to or permit
any amendment, modification or waiver of any material provision or term
contained in any agreement or indenture governing any Indebtedness for Borrowed
Money subordinated to the Obligations that might accelerate any obligations of,
or delay any payments to, any Borrower or (ii) prepay, redeem, purchase or
otherwise acquire, or make any payment on account of any Indebtedness for
Borrowed Money subordinated to the Obligations, other than in accordance with
its terms.
6.7 Discontinuance or Change of Business. Discontinue any substantial
part of their existing businesses taken as a whole or change the nature of their
existing businesses taken as a whole, with such change resulting in a Material
Adverse Effect.
6.8 Financial Ratios. Permit on a consolidated basis, at the end of any
fiscal quarter, (i) the Interest Coverage Ratio to be less than 2.50 to 1.00, or
(ii) Funded Debt to Total Capitalization to exceed the ratio of 0.50 to 1.00, in
the case of subsection (i) above calculated based upon the preceding 12 month
period.
VII. DEFAULT.
7.1 Events of Default. The Borrowers shall be in default if any one or
more of the following events ("Event of Default") occurs:
(a) Principal, Interest or Other Amounts. Any Borrower fails to pay
any principal of or interest on any Note when due and payable (whether at
maturity, by notice of intention to prepay, or otherwise) and such failure
remains unremedied for three Banking Business Days or fails to pay (after
notice) when it is due and payable any other amount payable under any Loan
Document (and such failure remains unremedied for five Banking Business Days).
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(b) Covenants.
(i) Any Borrower fails to observe or perform as and when required any
of the terms, conditions or covenants contained in any Loan Document
(other than those referred to in clause (ii) below) and such failure
remains unremedied (if it is capable of being remedied in such period)
for five Banking Business Days thereafter; or
(ii) Any Borrower fails to observe or perform as and when required
any of the terms, conditions or covenants contained in Sections 5.2, 5.4,
or 5.5 of this Agreement, and such failure shall continue for thirty (30)
days after written notice to The West Company by the Agent.
(c) Representations, Warranties, Etc. Any representation or warranty made
by any Borrower herein or in any Loan Document or in any exhibit, schedule,
report or certificate delivered pursuant hereto or thereto shall prove to have
been false, misleading or incorrect in any material respect when made or deemed
to have been made;
(d) Bankruptcy, Etc. Any Borrower is dissolved or liquidated, makes an
assignment for the benefit of creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any
receiver or trustee, commences any proceeding relating to itself under any
bankruptcy, reorganization, readjustment of debt, dissolution or liquidation law
or statute of any jurisdiction, has commenced against it any such proceeding
which remains undismissed for a period of thirty (30) days, indicated its
consent to, approval of or acquiescence in any such proceeding, or any receiver
of or trustee for such Borrower or any substantial part of the property of such
Borrower is appointed, or any Borrower suffers any such receivership or
trusteeship to continue undischarged for a period of thirty (30) days provided,
however, if such bankruptcy relates to a Subsidiary Borrower, no Event of
Default shall have occurred if any Loans of such Subsidiary Borrower are repaid
in full by The West Company within thirty (30) days of any of the foregoing
events;
(e) Certain Other Defaults. If any Borrower shall fail to pay when due
any Indebtedness for Borrowed Money which singularly or in the aggregate exceeds
$10,000,000, and such failure shall continue beyond any applicable cure period,
or any Borrower shall suffer to exist any default or event of default in the
performance or observance, subject to any applicable grace period, of any
agreement, term, condition or covenant with respect to any agreement or
document, if the holders of any portion of such Indebtedness for Borrower Money
declare such Indebtedness for Borrowed Money to be due and payable prior to the
date on which it would otherwise be due and payable;
THEN and in every such event other than that specified in clause (d), the
Required Banks may terminate the Commitments and may declare the Loans and all
other Obligations, including without limitation accrued interest, to be, and the
Loans and all other Obligations shall thereupon become, due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers. Upon the occurrence of any event specified in
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clause (d) above, the Commitments shall automatically terminate and the Loans
and all other Obligations, including without limitation accrued interest, shall
immediately be due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers. Any date on
which the Loans and such other obligations are declared due and payable pursuant
to this Section 7.1, shall be a Termination Date for purposes of this Agreement,
VIII. AGENT.
8.1 Appointment and Authorization. Each Bank hereby irrevocably appoints
and authorizes the Agent to take such action on its behalf and to exercise such
powers under this Agreement and the Loan Documents as are specifically delegated
to the Agent by the terms hereof or thereof, together with such other powers as
are reasonably incidental thereto. The relationship between the Agent and each
Bank has no fiduciary aspects, and the Agent's duties (as Agent) hereunder are
acknowledged to be only ministerial and not involving the exercise of discretion
on its part. Nothing in this Agreement or any Loan Document shall be construed
to impose on the Agent any duties or responsibilities other than those for which
express provision is made herein or therein. In performing its duties and
functions hereunder, the Agent does not assume and shall not be deemed to have
assumed, and hereby expressly disclaims, any obligation with or for the
Borrowers. As to matters not expressly provided for in this Agreement or any
Loan Document, the Agent shall not be required to exercise any discretion or to
take any action or communicate any notice, but shall be fully protected in so
acting or refraining from acting upon the instructions of the Required Banks and
their respective successors and assigns; provided, however, that in no event
shall the Agent be required to take any action which exposes it to personal
liability or which is contrary to this Agreement, any Loan Document or
applicable law, and the Agent shall be fully justified in failing or refusing to
take any action hereunder unless it shall first be specifically indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or omitting to take any such action.
If an indemnity furnished to the Agent for any purpose shall, in the reasonable
opinion of the Agent, be insufficient or become impaired, the Agent may call for
additional indemnity from the Banks and not commence or cease to do the acts for
which such indemnity is requested until such additional indemnity is furnished.
8.2 Duties and Obligations. In performing its functions and duties
hereunder on behalf of the Banks, the Agent shall exercise the same care and
skill as it would exercise in dealing with loans for its own account. Neither
the Agent nor any of its directors, officers, employees or other agents shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any Loan Document except for its or their own
gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Agent (a) may consult with legal counsel and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith and in accordance with the advice of such experts; (b)
makes no representation or warranty to any Bank as to, and shall not be
responsible to any Bank for, any recital, statement, representation or warranty
made in or in connection with this Agreement, any Loan Document or in any
written or oral statement (including a financial or other such statement),
instrument or other document delivered in connection herewith or therewith or
furnished to any Bank by or on behalf of the Borrowers; (c)
-43-
shall have no duty to ascertain or inquire into the Borrowers' performance or
observance of any of the covenants or conditions contained herein or to inspect
any of the property (including the books and records) of the Borrowers or
inquire into the use of the proceeds of the Loans or (unless the officers of the
Agent active in their capacity as officers of the Agent on the Borrowers'
account have actual knowledge thereof or have been notified in writing thereof)
to inquire into the existence or possible existence of any Event of Default or
Potential Default; (d) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, effectiveness, genuineness,
sufficiency, collectibility or value of this Agreement or any other Loan
Document or any instrument or document executed or issued pursuant hereto or in
connection herewith, except to the extent that such may be dependent on the due
authorization and execution by the Agent itself; (e) except as expressly
provided herein in respect of information and data furnished to the Agent for
distribution to the Banks, shall have no duty or responsibility, either
initially or on a continuing basis, to provide to any Bank any credit or other
information with respect to the Borrowers, whether coming into its possession
before the making of the Loans or at any time or times thereafter; and (f) shall
incur no liability under or in respect of this Agreement or any other Loan
Document for, and shall be entitled to rely and act upon, any notice, consent,
certificate or other instrument or writing (which may be by facsimile
(telecopier), telegram, cable, or other electronic means) believed by it to be
genuine and correct and to have been signed or sent by the proper party or
parties.
8.3 The Agent as a Bank. With respect to its Commitment and the Loans
made and to be made by it, CoreStates Bank, N.A. shall have the same rights and
powers under this Agreement and all other Loan Documents as the other Banks and
may exercise the same as if it were not the Agent. The terms "Bank" and "Banks"
as used herein shall, unless otherwise expressly indicated, include CoreStates
Bank, N.A. in its individual capacity. CoreStates Bank, N.A. and any successor
Agent which is a commercial bank, and their respective affiliates, may accept
deposits from, lend money to, act as trustee under indentures of and generally
engage in any kind of business with, the Borrowers and their affiliates from
time to time, all as if such entity were not the Agent hereunder and without any
duty to account therefor to any Bank.
8.4 Independent Credit Decisions. Each Bank acknowledges to the Agent
that it has, independently and without reliance upon the Agent or any other
Bank, and based upon such documents and information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it will, independently or
through other advisers and representatives but without reliance upon the Agent
or any other Bank, and based upon such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or refraining from taking any action under this Agreement or any Loan
Document.
8.5 Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Borrowers), ratably in proportion to each Bank's
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in such capacity in any way relating to or
arising out of this Agreement or any Loan Document or any action taken or
omitted to be taken by the
-44-
Agent in such capacity hereunder or under any Loan Document; provided that none
of the Banks shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful misconduct.
Without limiting the generality of the foregoing, each Bank agrees to reimburse
the Agent, promptly on demand, for such Bank's ratable share (based upon the
aforesaid apportionment) of any out-of-pocket expenses (including counsel fees
and disbursements) incurred by the Agent in connection with the preparation,
execution, administration or enforcement of, or the preservation of any rights
under, this Agreement and the Loan Documents to the extent that the Agent is not
reimbursed for such expenses by the Borrowers.
8.6 Successor Agent. The Agent may resign at any time by giving written
notice of such resignation to the Banks and the Borrowers, such resignation to
be effective only upon the appointment of a successor Agent as hereinafter
provided. Upon any such notice of resignation, the Banks shall jointly appoint a
successor Agent upon consent of The West Company and written notice to the
retiring Agent. If no successor Agent shall have been jointly appointed by such
Banks and consented by The West Company and shall have accepted such appointment
within thirty (30) days after the retiring Agent shall have given notice of
resignation, the retiring Agent may, upon notice to the Borrowers and the Banks,
appoint a successor Agent. Upon its acceptance of any appointment as Agent
hereunder, the successor Agent shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as Agent under this
Agreement and the Loan Documents. After any retiring Agent's resignation
hereunder, the provisions hereof shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement
and the Loan Documents.
8.7 Allocations Made By Agent. As between the Agent and the Banks, unless
a Bank objecting to a determination or allocation made by the Agent pursuant to
this Agreement delivers to the Agent written notice of such objection within one
hundred twenty (120) days after the date any distribution was made by the Agent,
such determination or allocation shall be conclusive on such one hundred
twentieth day and only those items expressly objected to in such notice shall be
deemed disputed by such Bank. The Agent shall not have any duty to inquire as to
the application by the Banks of any amounts distributed to them.
IX. MISCELLANEOUS.
9.1 Waiver. No failure or delay on the part of the Agent or any Bank or
any holder of any Note in exercising any right, power or remedy under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under any
Loan Document. The remedies provided under the Loan Documents are cumulative and
not exclusive of any remedies provided by law.
9.2 Amendments. No amendment, modification, termination or waiver of any
Loan Document or any provision thereof nor any consent to any departure by any
Borrower therefrom
-45-
shall be effective unless the same shall have been approved by the Required
Banks, be in writing and be signed by the Agent (and The West Company on behalf
of the Borrowers in the case of any amendment, modification or termination) and
then any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on any
Borrower shall entitle any Borrower to any other or further notice or demand in
similar or other circumstances. Notwithstanding any other provision contained in
any Loan Document, no amendment, modification, termination or waiver shall
affect the payment of principal (including without limit the date when due),
reduce any interest rate margin or any fee provided herein, increase any
Commitment, modify the definition of "Required Bank", reduce the level of
required consent for any Selected Currency, release or modify the duties or
obligations of The West Company under Section 2.7 hereof or adversely affect any
voting rights of the Banks herein without the written consent of all the Banks.
9.3 Governing Law. The Loan Documents and all rights and obligations of
the parties thereunder shall be governed by and be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
Pennsylvania or federal principles of conflict of laws.
9.4 Assignments and Participations. Each Loan Document shall bind and
inure to the benefit of the Borrowers and each Bank and their respective
successors and assigns, except that no Borrower shall have the right to assign
any of its rights or interests under any Loan Document without the prior written
consent of all the Banks and no Bank shall have the right to assign any of its
rights or interest under any Loan Document (except (i) to an affiliated banking
institution and (ii) in the form of a participation in such Bank's Loans)
without the prior written consent of the Agent and The West Company, and any
assignment of an interest in the transferor bank's Commitment shall be in the
amount of $10,000,000 or any multiple thereof and the transferor Bank's
remaining interest shall be not less than 50% of its original Commitment. No
participant shall have any right to vote on any matter herein or governed hereby
except such matter as may involve a reduction in any interest rate margin or
affect the principal amounts or the maturity dates of the Loans. No person not a
party to any Loan Document is intended to be benefitted thereby.
The merger or consolidation of any Bank with and into a bank, regardless
of whether the surviving bank is or is not a Bank hereunder, or the sale of all
or substantially all the assets of one Bank to another bank shall not constitute
a transfer of such Bank's interest under this Section. The surviving or
successor bank of any such transaction shall be obligated hereunder and shall be
entitled to all the rights and benefits of the merged, consolidated or selling
Bank(s) based on the aggregate of the Commitment Percentages of each of such
Banks.
9.5 Captions. Captions in the Loan Documents are included for convenience
of reference only and shall not constitute a part of any Loan Document for any
other purpose.
9.6 Notices. All notices, requests, demands, directions, declarations and
other communications between the Banks and the Borrowers provided for in any
Loan Document shall, except as otherwise expressly provided, be mailed by
registered or certified mail, return receipt
-46-
requested, or telegraphed, or telefaxed, or delivered in hand to the applicable
party at its address indicated opposite its name on the signature pages hereto.
The foregoing shall be effective and deemed received three days after being
deposited in the mails, postage prepaid, addressed as aforesaid and shall
whenever sent by telegram, telegraph or telefax or delivered in hand be
effective when received. Any party may change its address by a communication in
accordance herewith.
9.7 Sharing of Collections, Proceeds and Set-Offs; Application of
Payments.
(a) If any Bank, by exercising any right of set-off, counterclaim or
foreclosure against trade collateral or otherwise, receives payment of principal
or interest or other amount due on any Loan which is greater than the percentage
share of such Bank (determined as set forth below), the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
held by the other Banks, and such other adjustments shall be made as may be
required, so that all such payments shall be shared by the Banks on the basis of
their percentage shares; provided that if all or any portion of such
proportionately greater payment of such indebtedness is thereafter recovered
from, or must otherwise be restored by, such purchasing Bank, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest being paid by such purchasing Bank. The percentage share of
each Bank shall be based on the portion of the outstanding Loans of such Bank
(prior to receiving any payment for which an adjustment must be made under this
Section 9.7(a)) in relation to the aggregate outstanding Loans of all the Banks.
The Borrowers agree, to the fullest extent each may effectively do so under
applicable law, that any holder of a participation in a Loan or reimbursement
obligation, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrowers in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Bank receives a
secured claim in lieu of a set-off to which this Section would apply, such Bank
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Banks entitled under this
Section to share in the benefits of any recovery on such secured claim.
(b) Subject to the provisions of Section 2.10, the Agent and each
Bank agree that all payments on account of the Loans shall be applied by the
Agent and the Banks as follows:
(1) First, to the Agent for any fees, costs or expenses (including
expenses provided in Section 9.8) incurred by the Agent under any of the
Loan Documents or this Agreement, then due and payable and not reimbursed
by the Borrowers or the Banks until such fees, costs and expenses are
paid in full;
(2) Second, to the Banks for their percentage shares of the Facility
Fee then due and payable under this Agreement until such fee is paid in
full;
-47-
(3) Third, to the Banks for their percentage shares of all interest
then due and payable from the Borrowers until such interest is paid in
full, which percentage shares shall be calculated by determining each
Bank's percentage share (determined as set forth in Section 9.7(a)) of
the amounts allocated in (a) above; and
(4) Fourth, to the Banks for their percentage shares of the principal
amount of the Loans then due and payable from the Borrowers until such
principal is paid in full, which percentage shares shall be calculated by
determining each Bank's percentage share (determined as set forth in
Section 9.7(a)) of the amounts allocated in (a) above.
9.8 Expenses of the Agent; Indemnification of the Agent and the Banks.
(a) The Borrowers will from time to time reimburse the Agent promptly
following demand for all out-of-pocket expenses (including the reasonable fees
and expenses of legal counsel) in connection with (i) the preparation of the
Loan Documents, (ii) the making of any Loans, (iii) the preparation of any
consent, amendment or waiver relating to the Loan Documents or the
interpretation of the Loan Documents, and (iv) the enforcement of the Loan
Documents; provided, however, that the Borrowers will not be responsible for the
fees and expenses of legal counsel separately retained by any Bank.
(b) In addition to the payment of the foregoing expenses, the
Borrowers hereby agree to indemnify, protect and hold the Agent, each Bank and
any holder of the Notes and the officers, directors, employees, agents,
affiliates and attorneys of the Agent, each Bank and such holder (collectively,
the "Indemnitees") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature, including reasonable fees and
expenses of legal counsel, which may be imposed on, incurred by, or asserted
against such Indemnitee by any Borrowers or other third parties and arise out of
or relate to this Agreement or the other Loan Documents or any other matter
whatsoever related to the transactions contemplated by or referred to in this
Agreement or the other Loan Documents (other than those fees and expenses
relating to disputes among the Banks or the Banks and the Agent or relating to
any assignment or participation); provided, however, that the Borrowers shall
have no obligation to an Indemnitee hereunder to the extent that the liability
incurred by such Indemnitee has been determined by a court of competent
jurisdiction to be the result of gross negligence or willful misconduct of such
Indemnitee with respect to any Person other than the Borrowers or the result of
the negligence of such Indemnitee with respect to the Borrowers.
9.9 Survival of Warranties and Certain Agreements. All agreements,
representations and warranties made or deemed made herein shall survive the
execution and delivery of this Agreement, the making of the Loans hereunder and
the execution and delivery of the Notes. Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of the Borrowers set
forth in Sections 2.11, 2.12 and 9.8, and the agreements of the Banks set forth
in Sections 8.1, 8.5 and 9.7 shall survive the payment of the Loans and the
-48-
Facility Fee and the termination of this Agreement. This Agreement shall remain
in full force and effect until the latest to occur of the termination of the
Aggregate Commitment or the repayment in full of all amounts owed by the
Borrowers under any Loan Document.
9.10 Severabilily. The invalidity, illegality or unenforceability in any
jurisdiction of any provision in or obligation under this Agreement, the Notes
or other Loan Documents shall not affect or impair the validity, legality or
enforceability of the remaining provisions or obligations under this Agreement,
the Notes or other Loan Documents or of such provision or obligation in any
other jurisdiction.
9.11 Banks' Obligations Several; Independent Nature of Banks' Rights. The
obligation of each Bank hereunder is several and not joint and no Bank shall be
the agent of any other (except to the extent the Agent is authorized to act as
such hereunder). No Bank shall be responsible for the obligation or commitment
of any other Bank hereunder. In the event that any Bank at any time should fail
to make a Loan as herein provided, the other Banks, or any of them as may then
be agreed upon, at their sole option, may make the Loan that was to have been
made by the Bank so failing to make such Loan. Nothing contained in any Loan
Document and no action taken by Agent or any Bank pursuant hereto or thereto
shall be deemed to constitute Banks to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time hereunder
to each Bank shall be a separate and independent debt, and, subject to the terms
of this Agreement, each Bank shall be entitled to protect and enforce its rights
arising out of this Agreement and it shall not be necessary for any other Bank
to be joined as an additional party in any proceeding for such purpose.
9.12 No Fiduciary Relationship. No provision in this Agreement or in any
of the other Loan Documents and no course of dealing between the parties shall
be deemed to create any fiduciary duty by Agent or any Bank to the Borrowers.
9.13 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE
BORROWERS HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COMMONWEALTH OF PENNSYLVANIA AND IRREVOCABLY AGREES THAT,
SUBJECT TO AGENT'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THE NOTES, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE
LITIGATED IN SUCH COURTS. EACH OF THE BORROWERS ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT, SUCH NOTE, OR SUCH OTHER LOAN DOCUMENT. EACH
OF THE BORROWERS DESIGNATES AND APPOINTS CT CORPORATION SYSTEM (OR SUCH OTHER
PERSON AS SHALL ACT AS REGISTERED AGENT OF A BORROWER IN PENNSYLVANIA AND AS TO
WHOM EACH BORROWER SHALL PROVIDE NOTICE IN WRITING TO EACH BANK AND THE AGENT)
AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY SUCH PERSON WHICH
IRREVOCABLY AGREE IN WRITING TO SO SERVE AS ITS AGENT
-49-
TO RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY
SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY BORROWERS TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL
BE MAILED BY REGISTERED MAIL TO BORROWERS, AS APPLICABLE, AT ITS ADDRESS SET
FORTH ON THE SIGNATURE PAGE HEREOF, EXCEPT THAT UNLESS OTHERWISE PROVIDED BY
APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF
SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY BORROWERS REFUSES TO ACCEPT
SERVICE, EACH OF THE BORROWERS HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL
CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY
BANK TO BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
9.14 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, AGENT AND EACH BANK
HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS,
OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT
AND THE LENDER/BORROWER RELATIONSHIP ESTABLISHED HEREBY. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE BORROWERS,
AGENT AND EACH BANK ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO THE
TRANSACTION, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. EACH OF THE BORROWERS, AGENT AND EACH BANK FURTHER WARRANTS AND
REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
9.15 Counterparts; Effectiveness. This Agreement and any amendment hereto
or waiver hereof may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement and any amendments hereto
or waivers hereof shall become effective when the Agent shall have received
signed counterparts or notice by telecopy of the signature page that the
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counterpart has been signed and is being delivered to the Agent or facsimile
that such counterparts have been signed by all the parties hereto or thereto.
9.16 Use of Defined Terms. All words used herein in the singular or
plural shall be deemed to have been used in the plural or singular where the
context or construction so requires. Any defined term used in the singular
preceded by "any" shall be taken to indicate any number of the members of the
relevant class.
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IN WITNESS WHEREOF, the Borrowers and the Banks have caused this
Agreement to be executed by their proper corporate officers thereunto duly
authorized as of the day and year first above written.
000 Xxxxxx Xxxxx XXX XXXX COMPANY, INCORPORATED
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Land
-------------------------------
Name: Xxxxxxx X. Land
Title: Sr. V.P. Finance and Administration
c/o The West Company, Incorporated PACO PHARMACEUTICAL
000 Xxxxxx Xxxxx SERVICES, INC.
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and President
x/x Xxx Xxxx Xxxxxxx, Xxxxxxxxxxxx XXX XX XXXXXXX, INCORPORATED
000 Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000 By: /s/ Xxxxxxx X. Land
Attn: Xxxxxx Xxxxxxxx ----------------------------------
Name: Xxxxxxx X. Land
Title: Vice President
Broad & Chestnut Streets PNC BANK, NATIONAL ASSOCIATION
Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
00 Xxxx Xxxxxx XXXXXXXX XXXX XX, XXX XXXX AND
Xxx Xxxx, XX 00000-0000 GRAND CAYMAN BRANCHES
Attn: Xxxxxx Xxxxxx
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
-52-
0000 Xxxxxxxx Xxxxxx XXXXXXXXXX XXXX, X.X., individually
Xxxxxxxxxxxx, XX 00000 and as Agent
FC 1-8-3-16
Attention: Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
-53-
EXHIBIT A
COMMITMENTS
Commitment 364 Day Facility Five Year Facility
Percentage Commitment Commitment
---------- ---------------- ------------------
CoreStates Bank, N.A. 41.1765% $12,353,000 $22,647,000
PNC Bank, National
Association 41.1765% 12,353,000 22,647,000
Dresdner Bank AG,
New York and Grand
Cayman Branches 17.6470% 5,294,000 9,706,000
----------- -----------
$30,000,000 $55,000,000
A-1
EXHIBIT B-1
364 DAY FACILITY NOTE
$ (Dollar Equivalent) Philadelphia, PA
[Bank's 364 Day Facility Commitment] August 28, 1995
FOR VALUE RECEIVED, THE WEST COMPANY, INCORPORATED, a Pennsylvania
corporation, PACO PHARMACEUTICAL SERVICES, INC., a Delaware corporation, TWC OF
FLORIDA, INCORPORATED, a Florida corporation, and each other Subsidiary Borrower
(as defined in the Credit Agreement described below) joined hereto from time to
time (individually a "Borrower" and together the "Borrowers"), as and to the
extent provided in Section 2.7 in the Credit Agreement, hereby promise to pay to
the order of _______________________________ (the "Bank"), in lawful currency of
the United States of America or in such other currencies as are provided in the
Credit Agreement, in immediately available funds, at the account of the Agent,
located at Broad and Chestnut Streets, Philadelphia, Pennsylvania, on the 364
Day Facility Termination Date, or on such earlier date or dates as provided in
the Credit Agreement, the principal sum of $[Bank's 364 Day Facility Commitment]
or $[Bank's 364 Day Facility Commitment] in Dollar Equivalent (or in a
combination of Dollars and Dollar Equivalent equal to $[Bank's 364 Day Facility
Commitment] in the aggregate) or, if less, the then aggregate unpaid principal
amount of all 364 Day Facility Loans made by the Bank to the Borrowers pursuant
to the Credit Agreement.
Each Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at such office from the date hereof until paid at
the rates and at the times provided in Article II of the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, dated
as of August 28, 1995 (as such may be further amended or modified from time to
time after such date) among the Borrowers, the financial institutions from time
to time party thereto (including the Bank) and the Agent (as amended, modified
or supplemented from time to time, the "Credit Agreement") and is entitled to
the benefits thereof. This Note is subject to voluntary prepayment and mandatory
repayment prior to the 364 Day Facility Termination Date, in whole or in part,
as provided in the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal
of and the accrued interest on this Note may be declared to be due and payable
in the manner and with the effect provided in the Credit Agreement.
Each Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
Notwithstanding the face amount of this Note, the undersigneds' liability
hereunder shall be limited at all times to the actual aggregate outstanding
indebtedness to the Bank relating to such Bank's 364 Day Facility Loans,
including all principal and interest, together with all fees
B-1-1
and expenses as provided in the Credit Agreement, all as established by the
Bank's books and records.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO PENNSYLVANIA OR
FEDERAL PRINCIPLES OR CONFLICT OF LAWS.
THE WEST COMPANY, INCORPORATED
By:______________________________
Title:
PACO PHARMACEUTICAL SERVICES, INC.
By:______________________________
Title:
TWC OF FLORIDA, INCORPORATED
By:______________________________
Title:
X-0-0
XXXXXXX X-0
FIVE YEAR FACILITY NOTE
$ (Dollar Equivalent) Philadelphia, PA
[Bank's Five Year Facility Commitment] August 28, 1995
FOR VALUE RECEIVED, THE WEST COMPANY, INCORPORATED, a Pennsylvania
corporation, PACO PHARMACEUTICAL SERVICES, INC., a Delaware corporation, TWC OF
FLORIDA, INCORPORATED, a Florida corporation, and each other Subsidiary Borrower
(as defined in the Credit Agreement described below) joined hereto from time to
time (individually a "Borrower" and together the "Borrowers"), as and to the
extent provided in Section 2.7 in the Credit Agreement, hereby promise to pay to
the order of ________________________________ (the "Bank"), in lawful currency
of the United States of America or in such other currencies as are provided in
the Credit Agreement, in immediately available funds, at the account of the
Agent, located at Broad and Chestnut Streets, Philadelphia, Pennsylvania, on the
Five Year Facility Termination Date, or on such earlier date or dates as
provided in the Credit Agreement, the principal sum of $[Bank's Five Year
Facility Commitment] or $[Bank's Five Year Facility Commitment] in Dollar
Equivalent (or in a combination of Dollars and Dollar Equivalent equal to
$[Bank's Five Year Facility Commitment] in the aggregate) or, if less, the then
aggregate unpaid principal amount of all Five Year Facility Loans made by the
Bank to the Borrowers pursuant to the Credit Agreement.
Each Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at such office from the date hereof until paid at
the rates and at the times provided in Article II of the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, dated
as of August 28, 1995 (as such may be further amended or modified from time to
time after such date) among the Borrowers, the financial institutions from time
to time party thereto (including the Bank) and the Agent (as amended, modified
or supplemented from time to time, the "Credit Agreement") and is entitled to
the benefits thereof. This Note is subject to voluntary prepayment and mandatory
repayment prior to the Five Year Facility Termination Date, in whole or in part,
as provided in the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal
of and the accrued interest on this Note may be declared to be due and payable
in the manner and with the effect provided in the Credit Agreement.
Each Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
Notwithstanding the face amount of this Note, the undersigneds' liability
hereunder shall be limited at all times to the actual aggregate outstanding
indebtedness to the Bank relating to such Bank's Five Year Facility Loans,
including all principal and interest, together with all fees
B-2-1
and expenses as provided in the Credit Agreement, all as established by the
Bank's books and records.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO PENNSYLVANIA OR
FEDERAL PRINCIPLES OR CONFLICT OF LAWS.
THE WEST COMPANY, INCORPORATED
By:___________________________
Title:
PACO PHARMACEUTICAL SERVICES, INC.
By:___________________________
Title:
TWC OF FLORIDA, INCORPORATED
By:___________________________
Title:
B-2-2
EXHIBIT C
FORM OF REVOLVING CREDIT LOAN REQUEST
____________, 19__
CORESTATES BANK, N.A., as Agent
FC 1-8-3-16
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Re: Credit Agreement dated as of August 28, 1995 (as from time
to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") among The West Company,
Incorporated ("The West Company"), certain Subsidiaries
party thereto, certain Banks party thereto, and CoreStates
Bank, N.A., as agent (the "Agent").
Ladies and Gentlemen:
Pursuant to Section 2.2(a) of the Credit Agreement, The West Company, on
behalf of _________________ (the "Borrower"), hereby requests a Revolving Credit
Loan Borrowing, conversion or renewal (the terms defined in the Credit Agreement
being used herein as therein defined):
(1) The date of the requested Revolving Credit Loan Borrowing, conversion
or renewal is ____________, 199_ (which day is a Banking Business Day).
(2) The aggregate amount of the requested Revolving Credit Loan
Borrowing, conversion or renewal is $___________.*
(3) (a) The requested Revolving Credit Loan Borrowing, conversion or
renewal, is to be a [check one]:
_____ Base Rate Loan
_____ LIBO Rate Loan
(b) If a LIBO Rate Loan, the requested Selected Currency is
_________________ and the requested Interest Period is ___________________.
___________________
* Insert an amount which is a minimum amount of $3,000,000 or any multiple of
$100,000 in excess thereof.
C-1
(4) The requested Revolving Credit Loan Borrowing, conversion or renewal,
is to be made under the [check one]:
_____ 364 Day Facility
_____ Five Year Facility
(5) Borrower's Account to which the proceeds of the requested Revolving
Credit Loan should be credited:
The West Company, on behalf of the Borrower, hereby certifies that the
following statements are true and correct on and as of the date hereof, and will
be true and correct on and as of the date of the proposed Revolving Credit Loan
Borrowing, conversion or renewal before and after giving effect thereto and to
the application of the proceeds therefrom:
(a) the representations and warranties of the Borrower contained in the
Credit Agreement (except to the extent such representations and warranties by
their express terms relate to an earlier date) are true and correct in all
material respects and will be true and correct in all material respects on the
date of the Revolving Credit Loan Borrowing, conversion or renewal as if made on
and as of such date;
(b) the Borrower has complied and on the date of the proposed Revolving
Credit Loan Borrowing, conversion or renewal will be in compliance with all the
terms, covenants and conditions of the Credit Agreement;
(c) no Event of Default or Potential Default exists or shall result from
the proposed Revolving Credit Loan Borrowing, conversion or renewal; and
(d) the Borrower has provided the Agent with items required by paragraphs
(a), (b) and (d) of Section 4.2 of the Credit Agreement.
Very truly yours,
THE WEST COMPANY, INCORPORATED
By:______________________________
Title:
X-0
XXXXXXX X-0
BID LOAN NOTE
$85,000,000.00 Philadelphia, PA
August 28, 1995
FOR VALUE RECEIVED, THE WEST COMPANY, INCORPORATED, a Pennsylvania
corporation, PACO PHARMACEUTICAL SERVICES, INC., a Delaware corporation, TWC OF
FLORIDA, INCORPORATED, a Florida corporation, and each other Subsidiary Borrower
(as defined in the Credit Agreement described below) joined hereto from time to
time (individually a "Borrower" and together the "Borrowers"), as and to the
extent provided in Section 2.7 in the Credit Agreement, hereby promise to pay to
the order of ______________________________ (the "Bank"), in lawful currency of
the United States of America or in such other currencies as are provided in the
Credit Agreement, in immediately available funds, at the account of the Agent,
located at Broad and Chestnut Streets, Philadelphia, Pennsylvania, on
Termination Date, or on such earlier date or dates as provided in the Credit
Agreement, the principal sum of $85,000,000.00 or $85,000,000.00 in Dollar
Equivalent (or in a combination of Dollars and Dollar Equivalent equal to
$85,000,000.00 in the aggregate) or, if less, the then aggregate unpaid
principal amount of all Bid Loans made by the Bank to the Borrowers pursuant to
the Credit Agreement.
Each Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at such office from the date hereof until paid at the rates
and at the times provided in the Credit Agreement and the related Bid Loan
Notice.
This Note is one of the Notes referred to in the Credit Agreement, dated as
of August 28, 1995 (as such may be further amended or modified from time to time
after such date) among the Borrowers, the financial institutions from time to
time party thereto (including the Bank) and the Agent (as amended, modified or
supplemented from time to time, the "Credit Agreement") and is entitled to the
benefits thereof. This Note is subject to voluntary prepayment and mandatory
repayment prior to the Termination Date, in whole or in part, as provided in the
Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal of
and the accrued interest on this Note may be declared to be due and payable in
the manner and with the effect provided in the Credit Agreement.
Each Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
Notwithstanding the face amount of this Note, the undersigneds' liability
hereunder shall be limited at all times to the actual aggregate outstanding
indebtedness to the Bank relating to such Bank's Bid Loans, including all
principal and interest, together with all fees and expenses as provided in the
Credit Agreement and the related Bid Loan Notices, all as established by the
Bank's books and records.
D-1-1
Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO PENNSYLVANIA OR FEDERAL
PRINCIPLES OR CONFLICT OF LAWS.
THE WEST COMPANY, INCORPORATED
By:________________________________
Title:
PACO PHARMACEUTICAL SERVICES, INC.
By:________________________________
Title:
TWC OF FLORIDA, INCORPORATED
By:________________________________
Title:
X-0-0
XXXXXXX X-0
FORM OF COMPETITIVE BID REQUEST
_________________, 19__
CORESTATES BANK, N.A., as Agent
FC 1-8-3-16
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Re: Credit Agreement dated as of August 28, 1995 (as from time
to time amended, restated, supplemented or otherwise modified,
the "Credit Agreement") among The West Company, Incorporated
("The West Company"), certain Subsidiaries party thereto,
certain Banks party thereto, and CoreStates Bank, N.A., as
agent (the "Agent").
Ladies and Gentlemen:
Pursuant to Section 2.6(a) of the Credit Agreement, The West Company, on
behalf of (the "Borrower"), hereby requests offers to make the Bid Loans
specified herein (the terms defined in the Credit Agreement being used herein as
therein defined):
(1) The date of the proposed Bid Borrowing is ______, 199_ (which day is a
Banking Business Day).
(2) The aggregate amount of the proposed Bid Borrowing is $_______.**
(3) The Competitive Bids requested are for Bid Loans in the following
amounts and having the following Bid Loan Durations:
Principal Amount Bid Loan Duration*** Selected Currency
---------------- -------------------- -----------------
----------------------- ------------------------- --------------------
----------------------- ------------------------- --------------------
(4) Borrower's Account to which the proceeds of the Bid Loan should be
credited.
-------------------
** Insert an amount which is a minimum amount of $3,000,000 or any
multiple of $100,000 in excess thereof.
*** The minimum Bid Loan Duration is 7 days and the maximum Bid Loan
Duration is 180 days and no more than two Bid Loan Durations may be
requested in a single Competitive Bid Request.
D-2-1
The West Company, on behalf of the Borrower, hereby certifies that the
following statements are true and correct on and as of the date hereof, and will
be true and correct on and as of the date of the proposed Bid Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Borrower contained in the
Credit Agreement (except to the extent such representations and warranties by
their express terms relate to an earlier date) are true and correct in all
material respects and will be true and correct in all material respects on the
date of the Bid Borrowing as if made on and as of such date;
(b) the Borrower has complied and on the date of the proposed Bid Borrowing
will be in compliance with all the terms, covenants and conditions of the Credit
Agreement; and
(c) no Event of Default or Potential Default exists or shall result from
the proposed Bid Borrowing.
You are hereby authorized to debit our demand deposit account in the amount
of $250 in payment of the service fee due the Agent in connection with this
request.
Very truly yours,
THE WEST COMPANY, INCORPORATED
By:______________________________
Title:
X-0-0
XXXXXXX X-0
FORM OF COMPETITIVE BID
_________________, 19__
CORESTATES BANK, N.A., as Agent
FC 1-8-3-16
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Re: Credit Agreement dated as of August 28, 1995 (as from time
to time amended, restated, supplemented or otherwise modified,
the "Credit Agreement") among The West Company, Incorporated
("The West Company"), certain Subsidiaries party thereto,
certain Banks party thereto, and CoreStates Bank, N.A., as
agent (the "Agent").
Ladies and Gentlemen:
In response to the Competitive Bid Request made by The West Company on
behalf of ____________________ (the "Borrower") dated _____________ __, 19__ and
in accordance with Section 2.6(c) of the Credit Agreement, the undersigned Bank
offers to make Bid Loans(s) thereunder in the following principal amount(s) at
the following interest rate(s) for the following Bid Loan Durations (the terms
defined in the Credit Agreement being used herein as therein defined):
Borrowing Date: __________________ __, 19__
Offer 1: Maximum Amount $___________________; Minimum Amount $________________.*
BID LOAN DURATION PRINCIPAL AMOUNT ABSOLUTE RATE
----------------- ---------------- -------------
----------------- ---------------- -------------
Offer 2: Maximum Amount $___________________; Minimum Amount $________________.*
BID LOAN DURATION PRINCIPAL AMOUNT ABSOLUTE RATE
----------------- ---------------- -------------
----------------- ---------------- -------------
* Not less than $3,000,000
D-3-1
Acceptance of any bid contained herein is subject to compliance with the
terms and conditions of the Credit Agreement.
[NAME OF BANK]
By:______________________________________
Title_________________________________
X-0-0
XXXXXXX X-0
FORM OF BID LOAN NOTICE
______________ __, 19__
CORESTATES BANK, N.A., as Agent
FC 1-8-3-16
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Re: Credit Agreement dated as of August 28, 1995 (as from time
to time amended, restated, supplemented or otherwise modified,
the "Credit Agreement") among The West Company, Incorporated
("The West Company"), certain Subsidiaries party thereto,
certain Banks party thereto, and CoreStates Bank, N.A., as
agent (the "Agent").
Ladies and Gentlemen:
Pursuant to Section 2.6(e) of the Credit Agreement, The West Company, on
behalf of ______________ (the "Borrower"), hereby notifies you of the Borrower's
acceptance of the following offers made by the Banks in response to the
Competitive Bid Request submitted on _______________, 19__, (the terms defined
in the Credit Agreement being used herein as therein defined):
Borrowing Date: ____________________, 19__
Principal
Name of Bid Loan Absolute Amount Selected
Bank Duration Rate of Bid Loan* Currency
------- -------- -------- ------------ --------
------------- -------------- -------------- ---------------- -----------
------------- -------------- -------------- ---------------- -----------
------------- -------------- -------------- ---------------- -----------
------------- -------------- -------------- ---------------- -----------
D-4-1
The West Company, on behalf of the Borrower, hereby certifies that the
Borrower's acceptance of the offers listed above complies with the terms of the
Credit Agreement, including, but not limited to, Section 2.6(e). The West
Company, on behalf of the Borrower, hereby confirms and restates each of the
statements certified by it in the Competitive Bid Request relating to this Bid
Loan Notice and further certifies that after giving effect to the above Bid
Loans, there will not be more than five (5) Bid Loans outstanding and the
outstanding aggregate principal amount of all Loans will not exceed the
Aggregate Commitment.
Very truly yours,
THE WEST COMPANY, INCORPORATED
By:________________________________
Title:
-----------------
* Acceptance of each Bid Borrowing must be in a minimum aggregate principal
amount of $3,000,000 or in any multiple of $100,000 in excess thereof, and
acceptance of each Bid Loan must be in a minimum principal amount of
$3,000,000 or in any multiple of $100,000 in excess thereof.
D-4-2
EXHIBIT E
SUBSIDIARY BORROWER NOTICE
AND DESIGNATION
____________ __, 19__
CORESTATES BANK, N.A., as Agent
FC 1-8-3-16
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Re: Credit Agreement dated as of August 28, 1995 (as from time to time
amended, restated, supplemented or otherwise modified, the "Credit
Agreement") among The West Company, Incorporated ("The West Company"),
certain Subsidiaries party thereto, certain Banks party thereto, and
CoreStates Bank, N.A., as agent (the "Agent") (terms defined in the
Credit Agreement being used herein as defined therein).
Ladies and Gentlemen:
[Designation of Subsidiary Borrower
Pursuant to Section 2.7(c) of the Credit Agreement, The West Company and
_______________________________ (the "Designated Company") hereby request that
the Designated Company be designated as a Subsidiary Borrower under the Credit
Agreement. This designation shall be effective upon its receipt by the Agent
(the "Designation Effective Date").
The West Company and the Designated Company hereby represent and warrant
to the Agent and the Banks that the Designated Company meets, and will continue
to meet as of the Designation Effective Date, the criteria set forth in the
definition of Subsidiary Borrower in the Credit Agreement.
The Designated Company hereby agrees to be subject to all duties and
obligations of a Subsidiary Borrower under the Credit Agreement.]
[Termination of Subsidiary Borrower Designation
Pursuant to Section 2.7(c) of the Credit Agreement, The West Company and
_______________________________ (the "Terminating Company") hereby request that
the Terminating Company's designation as a Subsidiary Borrower under the Credit
Agreement be terminated.
E-1
This termination shall be effective upon the later of (i) receipt of this notice
by the Agent and (ii) repayment in full of all Obligations of the Terminating
Company in respect of the Loans.]
Very truly yours,
THE WEST COMPANY, INCORPORATED
By:
-------------------------------
Title:
[DESIGNATING COMPANY OR
TERMINATING COMPANY]
By:
-------------------------------
Title:
E-2
EXHIBIT F
OPINION OF COUNSEL FOR
THE WEST COMPANY
1. Each of the Company and the Subsidiary Borrowers is a corporation
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. Each of the Company and the Subsidiary Borrowers has the
corporate power and authority necessary to own its assets, carry on its business
and enter into and perform its obligations under the Loan Documents.
2. The Company and each Subsidiary Borrower have duly executed and
delivered the Loan Documents to which each is a party, and such Loan Documents
constitute valid and binding obligations of the Company and of each of the
Subsidiary Borrowers that is a party thereto, enforceable against each such
party in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws that affect creditors' rights
generally, and by equitable limitations on the availability of specific remedies
(whether at law or in equity).
3. The execution, delivery and performance by each of the Company and the
Subsidiary Borrowers of the Loan Documents are within each party's corporate
powers, have been duly authorized by all necessary corporate action (including
any necessary shareholder action), and do not and will not (i) violate any
provision of any law, rule or regulation applicable to the Company or any
Subsidiary Borrower, (ii) to our knowledge violate any judgment, order, writ,
injunction, decree, determination, award or ruling of any court or governmental
agency application to the Company or any Subsidiary Borrower, (iii) violate any
provision of the Articles of Incorporation, Certificate of Incorporation or
By-laws of the Company or any Subsidiary Borrower, (iv) to our knowledge
violate, be in conflict with, result in a breach of, or constitute with notice
or lapse of time or both a default under any provision of any material
agreement, lease or instrument to which the Company or any Subsidiary Borrower
is party, by which they are bound or to which any of their assets are or may be
subject, or (v) to our knowledge result in the creation of any lien upon any of
the properties or assets of the Company or any Subsidiary Borrower.
4. No authorization, consent, approval, order, license, execution or
other action by or notice to or filing with any federal, Pennsylvania or
Delaware court or administrative or governmental body is required in connection
with the execution and delivery of the Loan Documents or fulfillment of or
compliance with the terms and provisions thereof by the Company and the
Subsidiary Borrowers.
5. To our knowledge, there is no action, suit, investigation or
proceeding pending or threatened against the Company or any Subsidiary Borrower
or any assets of the Company or any Subsidiary Borrower by or before any court,
government agency or other tribunal which, if adversely determined, reasonably
could have a Material Adverse Effect or could materially adversely affect the
ability of the Company or any Subsidiary Borrower to perform under the Loan
Documents.
F-1
SCHEDULE 1.1
APPLICABLE MARGINS AND FACILITY FEES
364 Day Facility
Funded Debt to Total Capitalization Ratios:
-------------------------------------------
Is equal
to or
greater
than
< 20% 20% to < 35% 35% to < 43% 43%
----- ------------ ------------ --------
Facility Fee 6 8 10 12.5
LIBOR Margin:
Dollars 13 16 19 24
Deutsche Marks 13 16 19 24
French Francs 13 16 19 24
Pounds Sterling 13 16 19 24
Five Year Facility
Funded Debt to Total Capitalization Ratios:
-------------------------------------------
Is equal
to or
greater
than
< 20% 20% to < 35% 35% to < 43% 43%
---- ------------ ------------ --------
Facility Fee: 7 9 12 15
LIBOR Margin:
Dollars 16 19 24 30
Deutsche Marks 16 19 24 30
French Francs 16 19 24 30
Pounds Sterling 16 19 24 30
F-2
SCHEDULE 1.1(b)
EXISTING LIENS
See attached
F-3
SCHEDULE 3.2
CONSENTS
None
F-4
SCHEDULE 3.4
LITIGATION
None
F-5
SCHEDULE 3.11
COMPLIANCE WITH LAWS
None
F-6
SCHEDULE 3.15
SUBSIDIARIES
See attached
F-7
