WEST PHARMACEUTICAL SERVICES, INC.
and certain other Obligors
NOTE PURCHASE AGREEMENT
DATED AS OF APRIL 8,1999
$100,000,000 6.81% SENIOR NOTES DUE APRIL 8, 2009
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TABLE OF CONTENTS
PAGE
1. AUTHORIZATION OF NOTES................................................1
2. SALE AND PURCHASE OF NOTES............................................1
3. CLOSING...............................................................2
4. CONDITIONS TO CLOSING.................................................2
4.1 Representations and Warranties...............................2
4.2 Performance; No Default......................................2
4.3 Compliance Certificates......................................2
4.4 Opinions of Counsel..........................................3
4.5 Purchase Permitted By Applicable Law, etc....................3
4.6 Sale of Other Notes..........................................3
4.7 Payment of Special Counsel Fees..............................3
4.8 Private Placement Number.....................................3
4.9 Changes in Corporate Structure...............................4
4.10 Proceedings and Documents....................................4
5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.......................4
5.1 Organization; Power and Authority............................4
5.2 Authorization, etc...........................................4
5.3 Disclosure...................................................4
5.4 Organization and Ownership of Shares of Subsidiaries.........5
5.5 Financial Statements.........................................5
5.6 Compliance with Laws, Other Instruments, etc.................6
5.7 Governmental Authorizations, etc.............................6
5.8 Litigation; Observance of Statutes and Orders ......................6
5.9 Taxes ..............................................................6
5.10 Title to Property; Leases ..........................................7
5.11 Licenses, Permits, etc .............................................7
5.12 Compliance with ERISA ..............................................7
5.13 Private Offering by the Company ....................................8
5.14 Use of Proceeds; Margin Regulations ................................8
5.15 Existing Indebtedness ..............................................9
5.16 Foreign Assets Control Regulations, etc ............................9
5.17 Status under Certain Statutes ......................................9
5.18 Environmental Matters ..............................................9
5.19 Year 2000 .........................................................10
6. REPRESENTATIONS OF THE PURCHASER ..................................10
6.1 Purchase for Investment ...........................................10
6.2 Source of Funds ...................................................11
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TABLE OF CONTENTS
PAGE
7. INFORMATION AS TO OBLIGORS, ETC ...................................12
7.1 Financial and Business Information ................................12
7.2 Officer's Certificate .............................................14
7.3 Inspection ........................................................15
8. PREPAYMENT OF THE NOTES ...........................................15
8.1 Payment at Maturity ...............................................15
8.2 Optional Prepayments with Make-Whole Amount .......................15
8.3 Prepayment in connection with Asset Disposition ...................16
8.4 Allocation of Partial Prepayments .................................16
8.5 Maturity; Surrender, etc ..........................................16
8.6 Purchase of Notes .................................................17
8.7 Make-Whole Amount .................................................17
9. AFFIRMATIVE COVENANTS .............................................18
9.1 Compliance with Law ...............................................18
9.2 Insurance .........................................................18
9.3 Maintenance of Properties .........................................19
9.4 Payment of Taxes ..................................................19
9.5 Corporate Existence, etc ..........................................19
10. NEGATIVE COVENANTS ................................................19
10.1 Transactions with Affiliates ......................................20
10.2 Line of Business ..................................................20
10.3 Consolidated Funded Debt ..........................................20
10.4 Priority Debt .....................................................20
10.5 Interest Charges Coverage Ratio ...................................20
10.6 Merger, Consolidation, etc ........................................21
10.7 Sale of Assets, etc ...............................................22
10.8 Liens .............................................................22
11. EVENTS OF DEFAULT .................................................25
12. REMEDIES ON DEFAULT, ETC ..........................................27
12.1 Acceleration ......................................................27
12.2 Other Remedies ....................................................27
12.3 Rescission ........................................................28
12.4 No Waivers or Election of Remedies, Expenses, etc .................28
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES .....................28
13.1 Registration of Notes .............................................28
13.2 Transfer and Exchange of NOLL~ ....................................29
13.3 Replacement of Notes ..............................................29
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TABLE OF CONTENTS
PAGE
14. PAYMENTS ON NOTES ....................................................29
14.1 Place of Payment .....................................................29
14.2 Home Office Payment ..................................................30
15. EXPENSES, ETC ........................................................31
15.1 Transaction Expenses .................................................31
15.2 Survival .............................................................31
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;ENTIRE AGREEMENT ..........31
17. AMENDMENT AND WAIVER .................................................31
17.1 Requirements .........................................................31
17.2 Solicitation of Holders of Notes .....................................32
17.3 Binding Effect, etc ..................................................32
17.4 Notes held by Obligors, etc ..........................................32
18. NOTICES ..............................................................33
19. REPRODUCTION OF DOCUMENTS ............................................33
20. CONFIDENTIAL INFORMATION .............................................33
21. SUBSTITUTION OF PURCHASER ............................................35
22. MISCELLANEOUS ........................................................35
22.1 Successors and Assigns ...............................................35
22.2 Payments Due on Non-Business Days ....................................35
22.3 Severability .........................................................36
22.4 Construction .........................................................36
22.5 Counterparts .........................................................36
22.6 Governing Law ........................................................36
22.7 Release of Obligors ..................................................36
<PAGE>
SCHEDULES & EXHIBITS
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE -- Defined Terms
SCHEDULE C -- Payment Instructions
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5. -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.12 -- ERISA Affiliates
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
EXHIBIT 1 -- Form of 6.8 1% Senior Note due April 8, 2009
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Obligors
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
<PAGE>
WEST PHARMACEUTICAL SERVICES, INC.
and certain other Obligors
101 Gordon Drive
P.O. Box 645
Lionville, PA 19341-0645
$100,000,000 6.81% SENIOR NOTES DUE APRIL 8, 2009
Dated as of April 8, 1999
To Each of the Purchasers Listed in
the Attached Schedule A:
Ladies and Gentlemen:
Each of WEST PHARMACEUTICAL SERVICES, INC., a Pennsylvania corporation
(together with its assigns, the 'Company"), WEST PHARMACEUTICAL SERVICES OF
FLORIDA, INC., a Florida corporation (together with its successor and assigns,
"West Florida"), and WEST PHARMACEUTICAL SERVICES LAKEWOOD, INC., a Delaware
corporation (together with its successors and assigns, "West Lakewood") (the
Company, West Florida and West Lakewood are referred to herein, collectively, as
the "Obligors") agrees with you as follows:
1. AUTHORIZATION OF NOTES
The Obligors will authorize the issue and sale of $100,000,000 aggregate
principal amount of their 6.81% Senior Notes due April 8, 2009 (the "Notes",
such term to include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement or the Other Agreements (as hereinafter defined)).
The Notes shall be substantially in the form set out in Exhibit 1, with such
changes therefrom, if any, as may be approved by you and the Obligors. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES
Subject to the terms and conditions of this Agreement, the Obligors will
issue and sell to you and you will purchase from the Obligors, at the Closing
provided for in Section 3, Notes in the principal amount specified opposite your
name in Schedule A at the purchase price of 100% of the principal amount
thereof. Contemporaneously with entering into this Agreement, the Obligors are
entering into separate Note Purchase Agreements (the "Other Agreements")
identical with this Agreement with each of the other purchasers named in
Schedule A (the "Other Purchasers"), providing for the sale at such Closing to
each of the Other Purchasers of Notes in the principal amount specified opposite
its name in Schedule A. Your obligation hereunder and the obligations of the
Other Purchasers under the Other Agreements are several and not joint
obligations and you shall have no obligation under any Other Agreement and no
liability to any Person for the performance or non-performance by any Other
Purchaser thereunder.
3. CLOSING
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Hebb & Gitlin, One State Street,
Hartford, Connecticut 06103, at 10:00 a.m., eastern time, at a closing (the
"Closing") on April 8, 1999. At the Closing the Obligors will deliver to you the
Notes to be purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $2,000,000 as you may request)
dated the date of the Closing and registered in your name (or in the name of
your nominee), as indicated in Schedule A, against payment by federal funds wire
transfer in immediately available funds in the amount of the purchase price
therefor as directed by the Obligors in Schedule C. If at the Closing the
Obligors shall fail to tender such Notes to you as provided above in this
Section 3, or any of the conditions specified in Section 4 shall not have been
fulfilled to your satisfaction, you shall, at your election, be relieved of all
further obligations under this Agreement, without thereby waiving any rights you
may have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your satisfaction, prior to or at the
Closing, of the following conditions:
4.) Representations and Warranties.
The representations and warranties of the Obligors in this Agreement shall
be correct when made and at the time of the Closing.
4.2 Performance; No Default.
The Obligors shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by them prior to or at the Closing and after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
Schedule 5.14) no Default or Event of Default shall have occurred and be
continuing.
4.3 Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2, 4.6, 4.7, and 4.9 have been
fulfilled.
(b) Secretary's Certificate. Each Obligor shall have delivered to you
a certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery
of the Notes, this Agreement and the Other Agreements.
4.4 Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to you,
dated the date of the Closing from
(a) Dechert Price & Rhoads, counsel for the Obligors, covering the
matters set forth in Exhibit 4.4(a) and covering such other matters
incident to the transactions contemplated hereby as you or your counsel may
reasonably request (and such Obligors hereby instruct their counsel to
deliver such opinion to you) and
(b) Hebb & Gitlin, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b) and
covering such other matters incident to such transactions as you may
reasonably request.
4.5 Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (a) be permitted by
the laws and regulations of each jurisdiction to which you are subject, without
recourse to provisions (such as Section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (b) not violate any applicable
law or regulation (including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and (c) not subject you to any
tax, penalty or liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If requested by
you, you shall have received an Officer's Certificate certifying as to such
matters of fact as you may reasonably specify to enable you to determine whether
such purchase is so permitted.
4.6 Sale of Other Notes.
Contemporaneously with the Closing the Obligors shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes to be purchased by
them at the Closing as specified in Schedule A.
4.7 Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Obligors shall have
paid on or before the Closing the fees, charges and disbursements of your
special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the Closing.
4.8 Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP Service Bureau
(in cooperation with the Securities Valuation Office of the National Association
of Insurance Commissioners) shall have been obtained for the Notes.
4.9 Changes in Corporate Structure.
Except as specified in Schedule 4.9, no Obligor shall have changed its
jurisdiction of incorporation or been a party to any merger or consolidation,
nor shall any Obligor have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
4.10 Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to you and your special counsel, and you
and your special counsel shall have received all such counterpart originals or
certified or other copies of such documents as you or they may reasonably
request.
5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS
Each Obligor represents and warrants to you that:
5.1 Organization; Power and Authority.
Each Obligor is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each Obligor has the corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Other Agreements and the Notes and to perform the
provisions hereof and thereof.
5.2 Authorization, etc.
This Agreement and the Other Agreements and the Notes have been duly
authorized by all necessary corporate action on the part of the Obligors, and
this Agreement constitutes, and upon execution and delivery thereof each Note
will constitute, a legal, valid and binding obligation of each Obligor
enforceable against such Obligor in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3 Disclosure.
The Company, through its agent, PNC Capital Markets, Inc., has delivered to
you and each Other Purchaser a copy of a Private Placement Memorandum, dated
January, 1999 (the "Memorandum"), relating to the transactions contemplated
hereby. Except as disclosed in Schedule 5.3, this Agreement, the Memorandum, the
documents, certificates or other writings identified in Schedule 5.3 and the
financial statements listed in Schedule 5.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Except as disclosed in the Memorandum
or as expressly described in Schedule 5.3, or in one of the documents,
certificates or other writings identified therein, or in the financial
statements listed in Schedule 5.5, since December 31, 1998, there has been no
change in the financial condition, operations, business or properties of the
Company or any of its Subsidiaries except changes that individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect.
5.4 Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4 is (except as noted therein) a complete and correct
list of the Company's Subsidiaries, showing, as to each Subsidiary, the
correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its Capital Stock or similar equity
interests outstanding owned by the Company and each other Subsidiary.
(b) All of the outstanding shares of Capital Stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified
as a foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the
business it transacts and proposes to transact.
5.5 Financial Statements.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule 5.5. All
of said financial statements (including in each case the related schedules
and notes) fairly present in all material respects the consolidated
financial position of the Company and its Subsidiaries as of the respective
dates specified in such Schedule and the consolidated results of their
operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the
case of any interim financial statements, to normal year-end adjustments).
5.6 Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Obligors of this
Agreement, the Other Agreements and the Notes will not
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any
property of the Company or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other Material agreement or
instrument to which the Company or any Subsidiary is bound or by which
the Company or any Subsidiary or any of their respective properties
may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or
any Subsidiary.
5.7 Governmental Authorizations, etc.
Assuming the accuracy of your representation made in Section 6.1,
no consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by the Obligors of this
Agreement, the Other Agreements or the Notes.
5.8 Litigation; Observance of Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of any Obligor,
threatened against or affecting the Company or any Subsidiary or any
property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation
Environmental Laws) of any Governmental Authority, which default or
violation, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
5.9 Taxes.
The Company and its Subsidiaries have filed all income tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments
payable by them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or in the aggregate
Material or (b) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which the Company or a Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. The Federal income tax liabilities of the
Company and its Subsidiaries have been determined by the Internal Revenue
Service and paid for all fiscal years up to and including the fiscal year ended
December 31, 1994.
5.10 Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to their
respective Material properties, including all such properties reflected in the
most recent audited balance sheet referred to in Section 5.5 or purported to
have been acquired by the Company or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement, except for those defects
in title and Liens that, individually or in the aggregate, would not have a
Material Adverse Effect. All Material leases are valid and subsisting and are in
full force and effect in all material respects.
5.11 Licenses, Permits, etc.
Except as disclosed in Schedule 5.11, the Company and its Subsidiaries own
or possess all licenses, permits, franchises, authorizations, patents,
copyrights, service marks, trademarks and trade names, or rights thereto, that
are Material, without known conflict with the rights of others, except for those
conflicts that, individually or in the aggregate, would not have a Material
Adverse Effect.
5.12 Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA), and
no event, transaction or condition has occurred or exists that would
reasonably be expected to result in the incurrence of any such liability by
the Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA Affiliate,
in either case pursuant to Title I or IV of ERISA or to such penalty or
excise tax provisions or to Section 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent
actuarial valuation report, did not exceed the aggregate current value of
the assets of such Plan allocable to such benefit liabilities. The term
"benefit liabilities" has the meaning specified in section 4001 of ERISA
and the terms "current value" and "present value" have the meaning
specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities)
under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of
the last day of the Company's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard
to liabilities attributable to continuation coverage mandated by section
4980B of the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is
subject to the prohibitions of section 406 of ERISA or in connection with
which a tax could be imposed pursuant to section 4975 (c)(1)(A)-(D) of the
Code. The representation by the Company in the first sentence of this
Section 5.12(e) is made in reliance upon and subject to the accuracy of
your representation in Section 6.2 as to the Sources to be used to pay the
purchase price of the Notes to be purchased by you.
(f) Schedule 5.12 sets forth all ERISA Affiliates and all "employee
benefit plans" maintained by the Company (or any "affiliates" thereof) or
in respect of which the Notes could constitute an "employer security"
("employee benefit plan" has the meaning specified in section 3 of ERISA,
"affiliate" has the meaning specified in section 407(d) of ERISA and
section V of the Department of Labor Prohibited Transaction Exemption 95-60
(60 FR 35925, July 12,1995) and "employer security" has the meaning
specified in section 407(d) of ERISA).
5.13 Private Offering by the Company.
Neither any of the Obligors nor anyone acting on behalf of any of them has
offered the Notes or any similar Securities for sale to, or solicited any offer
to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any person other than you, the Other Purchasers and not more than
10 other Institutional Investors, each of which has been offered the Notes at a
private sale for investment. Neither any of the Obligors nor anyone acting on
behalf of any of them has taken, or will take, any action that would subject the
issuance or sale of the Notes to the registration requirements of Section 5 of
the Securities Act.
5.14 Use of Proceeds; Margin Regulations.
The Obligors will apply the proceeds of the sale of the Notes as set forth
in Schedule 5.14. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin
stock does not constitute more than 1% of the value of the consolidated assets
of the Company and its Subsidiaries and none of the Obligors has any present
intention that margin stock will constitute more than 1% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of buying
or carrying" shall have the meanings assigned to them in said Regulation U.
5.15 Existing Indebtedness.
Except as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Company and its Subsidiaries
as of December 31, 1998 (except that such list reflecting all such Indebtedness
secured by any Lien shall be as of March 31, 1999), since which date there has
been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of the Company or its
Subsidiaries. Neither the Company nor any Subsidiary is in default, and no
waiver of default is currently in effect, in the payment of any principal or
interest on any Indebtedness of the Company or such Subsidiary and no event or
condition exists with respect to any Indebtedness of the Company or any
Subsidiary that would permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Indebtedness to become due and
payable before its stated maturity or before its regularly scheduled dates of
payment.
5.16 Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Obligors hereunder nor their use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17 Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, the Transportation Acts (49 U.S.C.), as amended, or the
Federal Power Act, as amended.
5.18 Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or has
received any written notice of any claim, and no proceeding has been instituted
raising any claim against the Company or any of its Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of
them or other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise disclosed
to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring
on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except. in each
case, such as could not reasonably be expected to result in a Material
Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them and has not disposed of any Hazardous Materials in
a manner contrary to any Environmental Laws in each case in any manner that
could reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
5.19 Year 2000.
The Company and its Subsidiaries have reasonable grounds for believing
that they will be Year 2000 Compliant and Ready on or before June 30, 1999.
"Year 2000 Compliant and Ready" means that
(a) the Company and its Subsidiaries' hardware and software systems,
with respect to the operation of their business, will (i) handle
satisfactorily date information involving any and all dates before, during
and/or after January 1, 2000, including accepting input, providing output
and performing date calculations in whole or in part and (ii) operate
accurately, without Material interruption, on and in respect of any and all
dates before, during and/or after January 1, 2000, and without any Material
change in performance; and
(b) the Company and its Subsidiaries have developed alternative plans
to ensure business continuity in all Material respects in the event of the
failure of the items identified in clauses (i) and (ii) in the foregoing
clause (a).
6. REPRESENTATIONS OF THE PURCHASER
6.1 Purchase for Investment.
You represent that you are purchasing the Notes for your own account or for
one or more separate accounts maintained by you or for the account of one or
more pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property shall at all times be
within your or their control. You understand that the Notes have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Obligors are
not required to register the Notes.
6.2 Source of Funds.
You represent that at least one of the following statements is an accurate
representation as to each source of funds (a "Source") to be used by you to pay
the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account" as defined in
United States Department of Labor Prohibited Transaction Exemption ("PTE")
95-60 (60 FR35925, July 12, 1995) and there is no "employee benefit plan"
(as defined in section 3(3) of ERISA and section 4975(e)(1) of the Code
(treating as a single plan all plans maintained by the same employer or
employee organization or affiliate thereof)) with respect to which the
amount of the general account reserves and liabilities of all contracts
held by or on behalf of such plan exceeds 10% of the total reserves and
liabilities of such general account (exclusive of separate account
liabilities plus surplus, as set forth in the National Association of
Insurance Commissioners' Annual Statement filed with your state of
domicile; or
(b) if you are an insurance company, the Source does not include
assets allocated to any separate account maintained by you in which any
employee benefit plan (or its related trust) has any interest, other than a
separate account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or credited, to
such plan and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment performance of
the separate account; or
(c) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant to this paragraph (c), no employee benefit plan or group
of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or
(d) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of PTE 84-14 (the "QPAM Exemption")) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the OPAM Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the assets of all
other employee benefit plans established or maintained by the same employer
or by an affiliate (within the meaning of Section V(c)(1) of the QPAM
Exemption) of such employer or by the same employee organization and
managed by such OPAM, exceed 20% of the total client assets managed by such
OPAM, the conditions of Part 1(c) and (g) of the OPAM Exemption are
satisfied, neither the OPAM nor a person controlling or controlled by the
OPAM (applying the definition of "control" in Section V(e) of the OPAM
Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and
(ii) the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the Company in
writing pursuant to this paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Company in writing pursuant to this
paragraph (f); or ( g) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
7. INFORMATION AS TO OBLIGORS, ETC.
7.) Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 45 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal
year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Company's Quarterly Report on Form 10-0
prepared in compliance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b) Annual Statements -- within 90 days alter the end of each fiscal
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries, for such
year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP, and
accompanied by an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such financial
statements present fairly, in all material respects, the financial position of
the companies being reported upon and their results of operations and cash flows
and have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, provided that
the delivery within the time period specified above of the Company's annual
report on form 10-K for such fiscal year (together with the Company's annual
report to shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b); (c) SEC and Other Reports -- promptly upon
their becoming available, one copy of (i) each financial statement, report,
notice or proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report, each
registration statement that shall have become effective (without exhibits except
as expressly requested by such holder), and each final prospectus and all
amendments thereto filed by the Company or any Subsidiary with the Securities
and Exchange Commission;
(d) Notice of Default or Event of Default -- promptly, and in any event
within five days after a Responsible Officer becoming aware of the existence of
any Default or Event of Default, a written notice specifying the nature and
period of existence thereof and what action the Obligors are taking or propose
to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days after a
Responsible Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the Company or an
ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in
section 4043(b) of ERISA and the regulations thereunder, for which notice
thereof has not been waived pursuant to such regulations as in effect on
the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the threatening
by the PBGC of the institution of, proceedings under section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer
Plan that such action has been taken by the PBGC with respect to such
Multiemployer Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title 1 cr IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then existing,
would reasonably be expected to have a Material Adverse Effect; and
(f) Q9 Requested Information -- with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its obligations hereunder and
under the Notes (other than so-called "management letters" from the relevant
Obligors independent certified public accountants) as from time to time may be
reasonably requested by any such holder of Notes.
7.2 Officer's Certificate.
Each set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a certificate of
a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Section 10.3 through Section 10.5
hereof, inclusive, Section 10.7 and clause (ix) of Section 10.8(a) during
the quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as
the case may be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
its Subsidiaries from the beginning of the quarterly or annual period
covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or
an Event of Default or, if any such condition or event existed or exists
(including, without limitation, any such event or condition resulting from
the failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with
respect thereto.
7.3 Inspection.
The Company shall permit the representatives of each holder of Notes that
is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the Company,
to visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its Subsidiaries with the
Company's officers, and, with the consent of the Company (which consent
will not be unreasonably withheld), to visit the other offices and
properties of the Company and each Subsidiary, all at such reasonable times
and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company and the other Obligors to visit and inspect any of
the offices or properties of the Company or any Subsidiary, to examine all
their respective books of account, records, reports and other papers, to
make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and
independent public accountants (and by this provision the Obligors
authorize said accountants to discuss the affairs, finances and accounts of
the Company and its Subsidiaries), all at such times and as often as may be
requested.
8. PREPAYMENT OF THE NOTES
8.1 Payment at Maturity.
The Obligors will pay all of the principal amount of the of the Notes
remaining outstanding, if any, on April 8, 2009. 8.2 Optional Prepayments with
Make-Whole Amount.
The Obligors may, at their option, upon notice as provided below, prepay at
any time all, or from time to time any part of, the Notes (but, if in part, in
an amount not less than $1,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Obligors will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
such date, the principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined in
accordance with Section 8.4), and the interest to be paid on the prepayment date
with respect to such principal amount being prepaid, and shall be accompanied by
a certificate of a Senior Financial Officer as to the estimated Make-Whole
Amount due in connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Obligors shall
deliver to each holder of Notes a certificate of a Senior Financial Officer
specifying the calculation of such Make-Whole Amount as of the specified
prepayment date.
8.3 Prepayment in connection with Asset Disposition.
(a) Notice of Debt Prepayment Offer. If the Obligors shall make a Debt
Prepayment Offer in connection with an Asset Disposition, they will give
written notice of such offer to each holder of Notes within 10 months after
the consummation thereof, which notice shall contain and constitute an
offer to prepay a Ratable Portion of the Notes held by such holder on a
date (the "Proposed Prepayment Date") specified in such notice that is not
less than 30 days and not more than 60 days after the date such notice
shall be given, and shall be accompanied by the certificate described in
subparagraph (d) of this Section 8.3. If the Proposed Prepayment Date shall
not be specified in such offer, the Proposed Prepayment Date shall be the
60th day after the date such notice shall be given.
(b) Acceptance; Rejection. A holder of Notes may accept the offer to
prepay made pursuant to this Section 8.3 by causing a notice of such
acceptance to be delivered to the Company at least 10 days prior to the
Proposed Prepayment Date. A failure by a holder of Notes to respond to an
offer to prepay made pursuant to this Section 8.3 shall be deemed to
constitute an acceptance of such offer by such holder.
(c) Prepayment. Prepayment of the Notes to be prepaid pursuant to this
Section 8.3 shall be at 100% of the principal amount of such Notes,
together with interest on such Notes accrued to the date of prepayment and
the applicable Make-Whole Amount. The prepayment shall become due and
owing, and shall be made, on the Proposed Prepayment Date.
(d) Officer's Certificate. Each offer to prepay the Notes of any
holder pursuant to this Section 8.3 shall be accompanied by a certificate,
executed by a Senior Financial Officer and dated the date of such offer,
specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this Section 8.3; (iii) the computation, in reasonable detail,
of the Ratable Portion of the Notes held by such holder which is offered to
be prepaid; and (iv) the interest that would be due on such Ratable Portion
to be prepaid, accrued to the Proposed Prepayment Date.
8.4 Allocation of Partial Prepayments
In the case of each partial prepayment of the Notes, the principal amount
of the Notes to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
8.5 Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Obligors shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and canceled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6 Purchase of Notes
The Obligors will not and will not permit any Affiliate to purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except (a) upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement, the Other Agreements and the Notes
or (b) pursuant to an offer to purchase made by an Obligor or an Affiliate pro
rata to the holders of all Notes at the time outstanding upon the same terms and
conditions. Any such offer shall provide each holder with sufficient information
to enable it to make an informed decision with respect to such offer, and shall
remain open for at least 30 days. If the holders of greater than or equal to 50%
of the principal amount of the Notes then outstanding accept such offer, the
Obligors shall promptly notify the remaining holders of such fact and the
expiration date for the acceptance by holders of Notes of such offer shall be
extended by the number of days necessary to give each such remaining holder at
least 10 Business Days from its receipt of such notice to accept such offer. The
Obligors will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment, prepayment or purchase of Notes pursuant to any provision of
this Agreement or the Other Agreements and no Notes may be issued in
substitution or exchange for any such Notes.
8.7 Make-Whole Amount
The term "Make-Whole Amount" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 8.2 or Section 8.3 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due
dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor
(applied on the same periodic basis as that on which interest on the Notes
is payable) equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, 0.50% over the yield to maturity implied by (a) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business Day
preceding the Settlement Date with respect to such Called Principal, on the
display designated as Page "678" on the Bridge Telerate Service (or such
other display as may replace Page 678 on the Bridge Telerate Service) for
actively traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement Date,
or (b) if such yields are not reported as of such time or the yields
reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields
have been so reported as of the second Business Day preceding the
Settlement Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor publication)
for actively traded U.S. Treasury securities having a constant maturity
equal to the Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield will be determined, if necessary, by
(i) converting U.S. Treasury bill quotations to bond-equivalent yields in
accordance with accepted financial practice and (ii) interpolating linearly
between (1) the actively traded U.S. Treasury security with the constant
maturity closest to and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with the constant maturity closest
to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year) that will
elapse between the Settlement Date with respect to such Called Principal
and the maturity date of the Notes.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to
its scheduled due date, provided that if such Settlement Date is not a date
on which interest payments are due to be made under the terms of the Notes,
then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 8.2,
Section 8.3 or Section 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or Section 8.3 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS
Each Obligor covenants that so long as any of the Notes are outstanding:
9.1 Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws, and will obtain and
maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to the
extent necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations would not reasonably be expected, individually or in the
aggregate, to have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company and its
Subsidiaries taken as a whole.
9.2 Insurance.
The Company will and will cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3 Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance would not, individually
or in the aggregate, have a materially adverse effect on the business,
operations, affairs, financial condition, properties or assets of the Company
and its Subsidiaries taken as a whole.
9.4 Payment of Taxes.
The Company will and will cause each of its Subsidiaries to file all income
tax or similar tax returns required to be filed in any jurisdiction and to pay
and discharge all taxes shown to be due and payable on such returns and all
other taxes, assessments, governmental charges, or levies payable by any of
them, to the extent such taxes and assessments have become due and payable and
before they have become delinquent, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment if (i) the amount, applicability
or validity thereof is contested by the Company or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the Company or a
Subsidiary has established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Subsidiary or (ii) the nonpayment of all such
taxes and assessments in the aggregate would not reasonably be expected to have
a materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Subsidiaries taken as a
whole.
9.5 Corporate Existence, etc.
Each Obligor will at all times preserve and keep in full force and effect
its corporate existence. Subject to Sections 10.6 and 10.7, the Company will at
all times preserve and keep in full force and effect the corporate existence of
each of its Subsidiaries (unless merged into the Company or a Subsidiary) and
all rights and franchises of the Company and its Subsidiaries unless, in the
good faith judgment of the Company, the termination of or failure to preserve
and keep in full force and effect such corporate existence, right or franchise
would not, individually or in the aggregate, have a materially adverse effect on
the business, operations, affairs, financial condition, properties or assets of
the Company and its Subsidiaries taken as a whole.
10. NEGATIVE COVENANTS
Each Obligor covenants that so long as any of the Notes are outstanding:
10.1 Transactions with Affiliates.
The Company will not and will not permit any Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
10.2 Line of Business.
The Company will not, and will not permit any of its Subsidiaries to,
engage in any business if, as a result, the general nature of the business in
which the Company and its Subsidiaries, taken as a whole, would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Subsidiaries is engaged on the date of this Agreement as
described in the Memorandum.
10.3 Consolidated Funded Debt.
The Company will not at any time permit Consolidated Funded Debt to exceed
50% of Consolidated Total Capitalization, in each case determined at such time.
In determining the Company's compliance with this Section 10.3, there shall be
deducted from the calculation of Consolidated Funded Debt (including the
calculation thereof needed to determine Consolidated Total Capitalization) an
amount equal to the cash and marketable securities held by the Company and its
Subsidiaries on the date of determination of Consolidated Funded Debt, but only
to the extent that such amount may be applied to the prepayment of Consolidated
Funded Debt at such time without penalty or premium, provided that if such
Consolidated Funded Debt were so prepaid,
(a) such prepayment would not conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default or create
any obligation under, any instrument evidencing Debt of the Company or its
Subsidiaries or any other agreement of the Company or its Subsidiaries, and
(b) no Default or Event of Default would exist immediately prior to such
prepayment, or would result therefrom.
10.4 Priority Debt.
The Company will not at any time permit Priority Debt to exceed 18% of
Consolidated Total Capitalization in each case determined at such time.
10.5 Interest Charges Coverage Ratio.
The Company will not permit the ratio of (a) the sum of (i) Consolidated
EBIT for any period of four consecutive fiscal quarters of the Company plus (ii)
50% of the depreciation and amortization taken into account in determining
Consolidated Net Income for such period to (b) Consolidated Interest Expense for
such period to be less than 2.50 to 1.00.
10.6 Merger, Consolidation, etc.
The Company will not, and will not permit any of its Subsidiaries to,
consolidate with, merge with, or acquire all or substantially all of the assets
of any other Person, or Transfer substantially all of its assets in a single
transaction or series of transactions to any Person (except that any Subsidiary
of the Company may (x) consolidate with or merge with, or Transfer substantially
all of its assets in a single transaction or series of transactions to, the
Company (with the Company being the survivor thereof) and (y) Transfer all of
its assets in compliance with the provisions of Section 10. 7 and upon
satisfaction of the requirements of paragraph (a) of this Section 10.6 (it being
understood that the reference to "surviving entity" in such paragraph shall be
deemed to be a reference to the transferee of such assets)), provided, however,
that the foregoing restriction does not apply to the consolidation or merger of
the Company or any Subsidiary with, or the Transfer of substantially all of the
assets of the Company or any Subsidiary in a single transaction or series of
transactions to, any Person so long as:
(a) immediately prior to, and immediately after giving effect to, any
such transaction involving a Subsidiary, no Default or Event of Default
would exist and if such Subsidiary was an Obligor the surviving entity
becomes an Obligor upon consummation of any such transaction pursuant to
such agreements and instruments as shall be reasonably satisfactory to the
Required Holders, and the Company shall have caused to be delivered to each
holder of Notes an opinion of nationally recognized independent counsel, or
other independent counsel reasonably satisfactory to the Required Holders,
to the effect that all such agreements and instruments are enforceable in
accordance with their terms and comply with the terms hereof;
(b) immediately prior to, and immediately after giving effect to, any
such transaction involving the Company, no Default or Event of Default
would exist and either
(i) the Company is the surviving or acquiring corporation, or
(ii) if the Company is not the surviving or acquiring
corporation, such corporation shall have executed and delivered to
each holder of Notes its assumption of the due and punctual
performance and observance of each covenant and condition of this
Agreement, the Other Agreements, and the Notes (pursuant to such
agreements and instruments as shall be reasonably satisfactory to the
Required Holders), and the Company shall have caused to be delivered
to each holder of Notes an opinion of nationally recognized
independent counsel, or other independent counsel reasonably
satisfactory to the Required Holders, to the effect that all
agreements or instruments effecting such assumption are enforceable in
accordance with their terms and comply with the terms hereof.
No such Transfer of substantially all of the assets of the Company or a
Subsidiary shall have the effect of releasing the Company from its liability
under this Agreement, the Other Agreements or the Notes.
10.7 Sale of Assets, etc.
The Company will not, and will not permit any of its Subsidiaries to, make
any Asset Disposition, unless:
(a) in the good faith opinion of the Company, such disposition is in
exchange for consideration having a Fair Market Value at least equal to
that of the property exchanged; and
(b) immediately after giving effect to such disposition;
(i) no Default or Event of Default would exist; and
(ii) the Disposition Value of all property that was the subject
of any Asset Disposition occurring during the period of 360 days
ending on and including the date of such disposition would not exceed
10% of Consolidated Total Assets determined as of the end of the then
most recently ended fiscal year of the Company.
If prior to the consummation of a Transfer, the Company shall deliver a
written notice to all holders of the Notes stating that all of the Net Proceeds
Amount arising therefrom is to be applied to a Debt Prepayment Offer or a
Property Reinvestment Application within 360 days after such consummation, then
such Transfer shall not be deemed an Asset Disposition for purpose of clause
(b)(ii) of this Section 10.7. If the Company does not apply the Net Proceeds
Amount as specified in such notice within such 360 day period, then such
Transfer shall be deemed to have been an Asset Disposition at the time of the
consummation thereof, and the Company's compliance with this Section 10.7 as of
such time shall be determined on such basis.
10.8 Liens.
(a) Negative Pledge. The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly create, assume,
incur or suffer to be created, assumed or incurred or to exist (upon
the happening of a contingency or otherwise), any Lien on or with
respect to any property or asset (including, without limitation, any
document or instrument in respect of goods or accounts receivable) of
the Company or any such 22 WEST PHARMACEUTICAL SERVICES. INC. NOTE
PURCHASE AGREEMENT
Subsidiary, whether now owned or held or hereafter acquired, or any income or
profits therefrom, or assign or otherwise convey any right to receive income or
profits, except:
(i) Taxes, etc.-- Liens for taxes, assessments or other
governmental charges that are not yet due and payable or the payment
of which is not at the time required by Section 9.4;
(ii) Legal Proceedings -- Liens arising from judicial
attachments, judgments or awards, the time for the appeal or petition
for rehearing of which has not expired, or in respect of which the
Company or a Subsidiary is in good faith pursuing an appeal or other
proceeding for review,
(iii) Ordinary Course Liens -- Liens (other than any Lien imposed
by ERISA) incurred or deposits made in the ordinary course of business
(A) in connection with workers' compensation, unemployment
insurance, social security and other like laws,
(B) to secure (or to obtain letters of credit that secure)
the performance of tenders, statutory obligations, surety and
performance bonds (of a type other than set forth in Section
10.8(a)(ii)), bids, leases (other than Capitalized Leases),
purchase, construction or sales contracts and other similar
obligations, in each case not incurred or made in connection with
the borrowing of money, the obtaining or advances or credit or
the payment of the deferred purchase price of property,
(C) to secure the claims or demands of materialmen,
mechanics, carriers, warehousemen, vendors, repairmen, landlords,
lessors and other like Persons, arising in the ordinary course of
business, and
(D) in the nature of reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases and other similar title exceptions or
encumbrances affecting real property,
provided that (1) any amounts secured by such Liens are not overdue, or, if
overdue, such Liens are being contested in good faith and (2) such Liens do
not, in the. aggregate, materially detract from the value of such property
or materially impair the use of such property in the conduct of the
business of the Company or any Subsidiary, or the conduct of the business
of the Company and the Subsidiaries taken as a whole; (iv) Existing Liens-
Liens in existence as of the date of the Closing securing Debt and listed
in Schedule 5.15;
(v) Subsidiary Liens - Liens on property of any of the Subsidiaries
securing Debt owing to the Company; 23
(vi) Purchase Money Liens Liens on tangible property (or any'
improvement thereon) acquired or constructed by the Company or any
Subsidiary after the date of the Closing to secure Debt of the Company or
such Subsidiary incurred in connection with such acquisition or
construction, provided that
(A) no such Lien shall extend to or cover any property other than
the property (or improvement thereon) being acquired or constructed,
(B) the principal amount of Debt secured by any such Lien,
together with the aggregate principal amount of all other Debt secured
by Liens on such property, shall not exceed the lesser of (I) an
amount equal to the Fair Market Value (as determined in good faith by
the Board of Directors of the Company) of such property so acquired or
constructed and (II) the cost to the Company or such Subsidiary of
such property (or improvement thereon) so acquired or constructed, and
(C) such Lien shall be created concurrently with or within 120
days after such acquisition or the substantial completion of such
construction;
(vii) Acquisition Liens - Liens existing on property of a Person
immediately prior to its being consolidated with or merged into the Company or a
Subsidiary or its becoming a Subsidiary, or any Lien existing on any property
acquired by the Company or any Subsidiary at the time such property is so
acquired (whether or not the Debt secured thereby shall have been assumed),
provided that (A) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person's becoming a
Subsidiary or such acquisition of property, and
(B) each such Lien shall extend solely to the item or items of
property so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an improvement to or
is acquired for specific use in connection with such acquired property;
(viii) Renewals - Liens securing renewals, extensions (as to
time) and refinancings of Debt secured by the Liens covered by clauses
(i) though (vii), inclusive, provided that
(A) the amount of Debt secured by each such Lien is not
increased in excess of the amount of Debt outstanding on the date
of such renewal, extension or refinancing,
(B) none of such Liens is extended to include any additional
property of the Company or any Subsidiary, and
(C) immediately after such renewal, extension or refinancing
no Default or Event of Default would exist; and
(ix) Priority Debt - Liens securing Debt of the Company or any
Subsidiary and not otherwise permitted by clauses (i) through (viii),
inclusive, of this Section 10.8(a), but only to the extent that
Priority Debt does not at any time exceed 18% of Consolidated Total
Capitalization.
(b) Financing Statements. The Company will not, and will not permit any of
the Subsidiaries to, sign or file a financing statement under the Uniform
Commercial Code of any jurisdiction that names the Company or such Subsidiary as
debtor, or sign any security agreement authorizing any secured party thereunder
to file any such financing statement, except, in any such case, a financing
statement filed or to be filed to perfect a security interest that the Company
or such Subsidiary is entitled to create, assume or incur, or permit to exist,
under the foregoing provisions of this Section 10.8 or to evidence for
informational purposes a lessor's interest in property leased to the Company or
any such Subsidiary.
11. EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Obligors default in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration or
otherwise; or
(b) the Obligors default in the payment of any interest on any Note
for more than five Business Days after the same becomes due and payable; or
(c) any Obligor defaults in the performance of or compliance with any
term contained in Sections 10.1 through 10.8, inclusive, or Section 7.1(d);
or
(d) any Obligor defaults in the performance of or compliance with any
term contained herein (other than those referred to in paragraphs (a), (b)
and (c) of this Section 11) and such default is not remedied within 30 days
after the earlier of (i) a Responsible Officer obtaining actual knowledge
of such default and (ii) the Company receiving written notice of such
default from any holder of a Note (any such written notice to be identified
as a "notice of default" and to refer specifically to this paragraph (d) of
Section 11); or
(e) any representation or warranty made in writing by or on behalf of
any Obligor or by any officer of any Obligor in this Agreement or the Other
Agreements or in any writing furnished in connection with the transactions
contemplated hereby proves to have been false or incorrect in any material
respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness that is outstanding in an
aggregate principal amount in excess of $10,000,000 beyond any period of grace
provided with respect thereto or
(ii) the Company or any Subsidiary is in default in the performance of
or compliance with any term of any evidence of any Indebtedness in an
aggregate outstanding principal amount in excess of $10,000,000 or of any
mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such
Indebtedness has become, or has been declared, due and payable before its
stated maturity or before its regularly scheduled dates of payment; or
(g) the Company or any Subsidiary (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a petition for
relief or reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an assignment
for the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for
the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction enters an
order appointing, without consent by the Company or any of its Subsidiaries, a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, or constituting
an order for relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company or any of its Subsidiaries, or any such
petition shall be filed against the Company or any of its Subsidiaries and such
petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in
excess of $10,000,000 are rendered against one or more of the Company and its
Subsidiaries and which judgments are not, within 30 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged within 30
days after the expiration of such stay; or
(j) if
(i) any Plan shall fail to satisfy the minimum funding standards of
ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted
under section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA section 4042 to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the Company
or any ERISA Affiliate that a Plan may become a subject of any such
proceedings,
(iii) the aggregate "amount of unfunded benefit liabilities" (within
the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, shall exceed $10,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title IV of ERISA or
the penalty or excise tax provisions of Title I of ERISA or the Code
relating to employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or
(vi) the Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a
manner that would increase the liability of the Company or any Subsidiary
thereunder;
and any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events, would
reasonably be expected to have a Materially Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default with respect to any Obligor described in
paragraph (g) or (h) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses clause (i)
of paragraph (g)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, the
Required Holders may at any time at its or their option, by notice or
notices to the Company, declare all the Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes
at the time outstanding affected by such Event of Default may at any time,
at its or their option, by notice or notices to the Company, declare all
the Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Obligors
acknowledge, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the
Obligors (except as herein specifically provided for) and that the provision for
payment of a Make-Whole Amount by the Obligors in the event that the Notes are
prepaid or are accelerated as a result of an Event of Default, is intended to
provide compensation for the deprivation of such right under such circumstances.
12.2 Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
12.3 Rescission.
At any time after any Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the Required Holders, by written notice to
the Company, may rescind and annul any such declaration and its consequences if
(a) the Obligors have paid all overdue interest on the Notes, all principal of
and Make-Whole Amount, if any, on any Notes that are due and payable and are
unpaid other than by reason of such declaration, and all interest on such
overdue principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes, at the Default
Rate, (b) all Events of Default and Defaults, other than nonpayment of amounts
that have become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right consequent thereon.
12.4 No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Obligors under Section 15, the Obligors
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes.
The Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the Company
for registration of transfer or exchange (and in the case of a surrender for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note or his attorney
duly authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), each of the Obligors shall execute and
deliver, at the Obligors' expense (except as provided below), one or more new
Notes (as requested by the holder thereof) in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the surrendered Note.
Each such new Note shall be payable to such Person as such holder may request
and shall be substantially in the form of Exhibit 1. Each such new Note shall be
dated and bear interest from the date to which interest shall have been paid on
the surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. The Obligors may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations of
less than $2,000,000, provided that if necessary to enable the registration of
transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $2,000,000. Any transferee, by its acceptance of a
Note registered in its name (or the name of its nominee), shall be deemed to
have made the representation set forth in Section 6.2.
13.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Purchaser or another holder of a Note with a
minimum net worth of at least $10,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof,
a new Note, dated arid bearing interest from the date to which interest
shall have been paid on such lost, stolen, destroyed or mutilated Note or
dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon.
14. PAYMENTS ON NOTES
14.1 Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if any,
and interest becoming due and payable on the Notes shall be made in Lionville,
Pennsylvania at the principal office of the Company in such jurisdiction. The
Obligors may at any time, by notice to each holder of a Note, change the place
of payment of the Notes so long as such place of payment shall be either the
principal office of the Company in such jurisdiction or the principal office of
a bank or trust company in such jurisdiction.
14.2 Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Obligors will pay all sums becoming due on such Note for
principal, Make-Whole Amount, if any, and interest by the method and at the
address specified for such purpose below your name in Schedule A, or by such
other method or at such other address as you shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, you shall surrender
such Note for cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant: to Section 14.1. Prior to any sale
or other disposition of any Note held by you or your nominee you will, at your
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Obligors will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by you
under this Agreement and that has made the same agreement relating to such Note
as you have made in this Section 14.2.
15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Obligors will pay all costs and expenses (including reasonable attorneys' fees
of a special counsel and, if reasonably required, local or other counsel)
incurred by you and each Other Purchaser or holder of a Note in connection with
such transactions and in connection with any amendments, waivers or consents
under or in respect of this Agreement, the Other Agreements or the Notes
(whether or not such amendment, waiver or consent becomes effective), including,
without limitation: (a) the costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under
this Agreement, the Other Agreements or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement, the Other Agreements or the Notes, or by reason
of being a holder of any Note, and (b) the costs and expenses, including
financial advisors' fees, incurred in connection with the insolvency or
bankruptcy of the Company or any Subsidiary or in connection with any work-out
or restructuring of the transactions contemplated hereby and by the Notes. The
Obligors will pay, and will save you and each other holder of a Note harmless
from, all claims in respect of any fees, costs or expenses if any, of brokers
and finders (other than those retained by you).
15.2 Survival.
The obligations of the Obligors under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement, the Other Agreements or the Notes, and the
termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement, the Other Agreements and the Notes,
the purchase or transfer by you of any Note or portion thereof or interest
therein and the payment of any Note, and may be relied upon by any subsequent
holder of a Note, regardless of any investigation made at any time by or on
behalf of you or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of any Obligor
pursuant to this Agreement shall be deemed representations and warranties of
such Obligor under this Agreement. Subject to the preceding sentence, this
Agreement, the Other Agreements and the Notes embody the entire agreement and
understanding between you and the Obligors and supersede all prior agreements
and understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER
17.1 Requirements.
This Agreement, the Other Agreements and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Obligors and the Required Holders, except that (a) no amendment or waiver of any
of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term
(as it is used therein), will be effective as to you unless consented to by you
in writing, and (b) no such amendment or waiver may, without the written consent
of the holder of each Note at the time outstanding affected thereby, (i) subject
to the provisions of Section 12 relating to acceleration or rescission, change
the amount or time of any prepayment or payment of principal of, or reduce the
rate or change the time of payment or method of computation of interest or of
the Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12,17 or
20.
17.2 Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered decision
with respect to any proposed amendment, waiver or consent in respect of any
of the provisions hereof or of the Notes. The Company will deliver executed
or true and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 to each holder of outstanding
Notes promptly following the date on which it is executed and delivered by,
or receives the consent or approval of, the requisite holders of Notes.
(b) Payment. The Obligors will not directly or indirectly pay or cause
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes
as consideration for or as an inducement to the entering into by any holder
of Notes of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each holder of Notes
then outstanding even if such holder did not consent to such waiver or
amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17 applies
equally 1:0 all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Obligors without regard to whether such Note has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between any Obligor and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4 Notes held by Obligors, etc.
Solely for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under this
Agreement, the Other Agreements or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by any Obligor or any of
its Affiliates shall be deemed not to be outstanding.
18. NOTICES
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified
for such communications in Schedule A, or at such other address as you or
it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(iii) if to any Obligor, to such Obligor at the address set forth at
the beginning hereof to the attention of the General Counsel, or at such
other address as such Obligor shall have specified to the holder of each
Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. Each
Obligor agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit any Obligor or any other holder 9f Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of any Obligor or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of such Obligor or such Subsidiary, provided that such term does not
include information that
(a) was publicly available or otherwise known to you prior to the time
of such disclosure,
(b) subsequently becomes publicly available through no act or omission
by you or any person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure by
any Obligor or any Subsidiary or
(d) constitutes financial statements delivered to you under Section
7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to
(i) your directors, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by your Notes),
(ii) your financial advisors and other professional advisors who
agree to hold confidential the Confidential Information substantially
in accordance with the terms of this Section 20,
(iii) any other holder of any Note,
(iv) any Institutional Investor to which you sell or offer to
sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section
20),
(v) any Person from which you offer to purchase any Security of
any Obligor (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this
Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over you,
(vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that
requires access to information about your investment portfolio, or
(viii) any other Person to which such delivery or disclosure may
be necessary or appropriate
(A) to effect compliance with any law, rule, regulation or
order applicable to you, (B) in response to any subpoena or other
legal process,
(C) in connection with any litigation to which you are a
party or
(D) if an Event of Default has occurred and is continuing,
to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or
for the protection of the rights and remedies under your Notes
and this Agreement.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
21. SUBSTITUTION OF PURCHASER
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. MISCELLANEOUS
22.1 Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2 Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding,
any payment of principal of or Make-Whole Amount or interest on any Note that is
due on a date other than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed in the computation of
the interest payable on such next succeeding Business Day.
22.3 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4 Construction.
Each covenant contained herein shall be construed (absent express provision
to the contrary) as being independent of each other covenant contained herein,
so that compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
22.5 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto.
22.6 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
22.7 Release of Obligors.
Subject to the next succeeding sentence, at such time as any Obligor, other
than the Company, has been effectively released from any and all obligations
under or in respect of the Bank Credit Agreement and the Company has delivered
to the Required Holders a certificate or other written statement from the Banks
(or an agent acting on their behalf) to that effect, then such Obligor shall be
released from all liabilities hereunder or in respect of the Notes automatically
without any action on the part of any party hereto or any other Person. The
release provided For in the preceding sentence shall only be effective upon
delivery of such certificate or other written statement from the Banks (or an
agent acting on their behalf) if:
(a) no Default or Event of Default is continuing at such time; and
(b) at such time such Obligor has no Debt outstanding to any Person,
or any commitment to have Debt outstanding to any Person other than the
Company or a Wholly-Owned Subsidiary of the Company.
[Remainder of page intentionally blank; next page is signature page.]
<PAGE>
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it
to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
WEST PHARMACEUTICAL SERVICES, INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: Vice President Treasurer and
Assistant Secretary
WEST PHARMACEUTICAL SERVICES OF FLORIDA, INC.
By:. /s/ Stephen J. White
Name: Stephen J. White
Title: Vice President
WEST PHARMACEUTICAL SERVICES LAKEWOOD), INC.
By: /s/ Stephen M. Heumann
Name: Stephen M. Heumann
Title: President
The foregoing is hereby agreed to as of the
date thereof.
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By:___________________
Name:
Title:
<PAGE>
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
WEST PHARMACEUTICAL SERVICES, INC.
By:___________________
Name:
Title:
WEST PHARMACEUTICAL SERVICES OF FLORIDA, INC.
By:____________________
Name:
Title:
WEST PHARMACEUTICAL SERVICES LAKEWOOD, INC.
By: _____________________
Name:
Title:
The foregoing is hereby agreed to as of the
date thereof.
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: /s/ Jon M. Lucia
Name: Jon M. Lucia
Title: Assistant Vice President and Investment Officer
<PAGE>
SCHEDULE A
INFORMATION AS TO PURCHASERS
<TABLE>
<CAPTION>
<S> <C>
--------------------------------------------------------------------------------
Purchaser Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name in Which Note is Registered THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; R-l; $50,000,000
Principal Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Federal Funds Wire Transfer
Bank of New York
Method New York, New York
ABA No.: 021~O0O.:018
Account Information For the Account of:
The Prudential Insurance Company of America
Account No.: 890-0304-391
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services, Inc.
Description of
Security:
681%. Senior Notes Due April 8, 2009
Security Number: 95531* AA 6
Due Date and Application (as among principal
premium and interest) of
the payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices The Prudential Insurance Company of America
Related to Payments c/o Prudential Capital Group
Four Gateway Center, 71h Floor
100 Mulberry Street
Newark, New Jersey 07102-4077
Attn: Trade Management Group
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices The Prudential Insurance Company of America
c/o Prudential Capital Group
- Private Placements
One Gateway Center, 11"' Floor
Newark, New Jersey 07102-5311
Attn: Managing Director
Recipient of telephonic prepayment notices:
Manager, Trade Management Group
(973) 802-7398
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By ------------------------------
Name:
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes Law Department of Purchaser
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tax Identification Number 22-1211670
--------------------------------------------------------------------------------
Schedule A-1
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name in Which Note is Registered GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; R-2; $10,000,000
Principal Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Federal Funds Wire Transfer
Norwest Bank Minnesota, N.A.
Method 733 Marquette Avenue.
Investors Bldg.. 5" Floor
Minneapolis, Minnesota 55479-0047
Account Information ABA No.: 09100019
TRUST CLEARING #0000840245
FFC/Great-West Life & Annuity Insurance Co.
/12468800
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services, Inc.
Description of
Security:
6.81% Senior Notes Due April 8, 2009
Security Number: 95531* AA6
Due Date and Application (as among principal
premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices Related to Norwest Bank Minnesota, N.A.
Payments 733 Marquetle Avenue,
Investors Bldg., 5h Floor
Minneapolis, Minnesota 55479-0047
Attention: Income Collections
Fax: (612) 667-3331
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices Great-West Life & Annuity Insurance Company
8515 East Orchard Road
3'~ Floor, Tower 2
Englewood, Colorado 80111
Attention: Corporate Finance Investments
Fax: (303) 689-6193
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By___________________
Name:
Title:
By___________________
Name:
Title:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes Norwest Bank Minnesota, N.A.
733 Marquette Avenue. 5"' Floor
Minneapolis, Minnesota 55479-0047
Attention: Security Clearance
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tax Identification Number 84-0467907
--------------------------------------------------------------------------------
Schedule A-2
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name THE GREAT-WEST LIFE ASSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name in Which Note is Registered GERLACH & CO.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; Principal R-3; $5,000,000
Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Federal Funds Wire Transfer
Citibank NYC/Cust
Method ABA #02 1000089
Credit A/C #36853718
Account Information For further credit to:A/C #091595 Great
-West life Assurance Co. Bonds U.S.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services. Inc.
Description of
Security:
6.81% Senior Notes Due April 8, 2009
Security Number: 95531* AA6
Due Date and Application (as among
principal, premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices Related Citibank, N.A.
to Payments Investor Services Division
Securities Processing Services
20 Exchange Place/Level C
New York, New York 10043
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices The Great-West Life Assurance Company
100 Osborne Street North
Winnipeg, Manitoba
CANADA R3C 3A5
Attention: Securities Accounting
Fax: (204) 946-8849
with a copy to:
Great-West Life & Annuity Insurance Company
Investments Division
8515 East Orchard Road. 3T2
Englewood, Colorado 80111
Fax: (303) 689-6193
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions THE GREAT-WEST LIFE ASSURANCE COMPANY
By___________________
Name:
Title:
By__________________
Name:
Title:
--------------------------------------------------------------------------------
Schedule A-3
<PAGE>
---- ---------------------------------------------------------------------------
Purchaser Name THE GREAT-WEST LIFE ASSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes Citibank, NA.
Investor Services Division
Securities Processing Services
20 Exchange Place/Level C
New York, New York 10043
Custody Account #091595 Great-West
Life Assurance Co. - Bonds U.S.
Schedule A-4
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name MUTUAL OF OMAHA INSURANCE COMPANY
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Name in Which Note is Registered MUTUAL OF OMAHA INSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; Principal R-4; $5,000,000
Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Federal Funds Wire Transfer
Chase Manhattan Bank
Method ABA No.: 021000021
Private Income Processing
Account Information For credit to: Mutual of
Omaha Insurance Company
Account No.: 900-9000200
a/c: G07096
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services, Inc.
Description of
Security:
6.81% Senior Notes Due April 8, 2009
Security Number: 95531* AA6
Due Date and Application (as among
principal, premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices Related The Chase Manhattan Bank
to Payments 4 New York Plaza, 13"' Floor
New York, NY 10004
Attn: Income Processing - I. Pipperato
a/c: G07096
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices 4 - Investment Loan Administration
Mutual of Omaha Insurance Company
Mutual of Omaha Plaza
Omaha, NE 68175-1011
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions MUTUAL OF OMAHA INSURANCE COMPANY
By___________________
Name:
Title:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes The Chase Manhattan Bank
North America Insurance - 6" floor
Attn: Ann Marie Mazza
3 Chase Metrotech Center
Brooklyn, NY 11245
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tax Identification Number 47-0246511
--------------------------------------------------------------------------------
Schedule A-5
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name in Which Note is Registered SALKELD & CO.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; Principal R-5; $5,000,000
Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Method Federal Funds Wire Transfer
Account Information Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFTCode: BKTRUS33
ABA No: 021001033
Account Number 99-911-145
FCC #: 097833
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services, Inc.
Description of
Security:
6.81% Senior Notes Due April 8, 2009
Security Number: 95531* AA6
Due Date and Application (as among
principal, premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices Related to GE Financial Assurance
Payments Account: General Electric
Capital Assurance Company
Two Union Square
601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Tel: (206) 516-2871
Fax: (206) 516-4740
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices GE Financial Assurance
Account: General Electric Capital
Assurance Company
Two Union Square
601 Union Street
Seattle, WA 98101
Attn: Investment Dept., Private Placements
Tel: (206) 516-4954
Fax: (206) 516-4863
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By___________________
Name:
Title:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes Bankers Trust Co.
14 Wall Street, 4'~ Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #097833
Attn: Lorraine Squires
Tel: (212) 618-2200
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tax Identification Number 91-6027719
--------------------------------------------------------------------------------
Schedule A-6
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name GE LIFE AND ANNUITY ASSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name in Which Note is Registered SALKELD & CO.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; Principal R-6; $10,000,000
Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Method Federal Funds Wire Transfer
Account Information Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFT Code: BKTRUS33
ABA No: 021001033
Account Number 99-911-145
FCC #: 097828
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services, Inc.
Description of
Security:
6.81% Senior Notes Due April 8, 2009
Security Number: 95531* AA 6
Due Date and Application (as among
principal, premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices Related to GE Financial Assurance
Payments Account: GE Life and Annuity
Assurance Company
Two Union Square
601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Tel: (206) 516-2871
Fax: (206) 516-4740
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices GE Financial Assurance
Account: GE Life and Annuity
Assurance Company
TWO Union Square
601 Union Street
Seattle, WA 98101
Attn: Investment Dept., Private Placements
Tel: (206) 516-4954
Fax: (206) 516-4863
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions GE LIFE AND ANNUITY ASSURANCE COMPANY
By___________________
Name:
Title:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes Bankers Trust Co.
14 Wall Street, 4~h Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #097828
Attn: Lorraine Squires
Tel: (212) 618-2200
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tax Identification Number 54-0283385
--------------------------------------------------------------------------------
Schedule A-7
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name JACKSON NATIONAL LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name in Which Note is Registered Jackson National Life Insurance Company
By PPM America Inc
Attorney-in-fact
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Registration Number; Principal R-7; $15,000,000
Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Payment on Account of Note Federal Funds Wire Transfer
NORTHERN TRUST CHGO
Method ABA No.: 071-000-152
Credit Account #5186041000
Account Information For Further Credit to: 26-91241/Jackson
National Life Insurance Company
Attn: Tarsa Lewis
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Accompanying Information Name of Company:
West Pharmaceutical Services, Inc.
Description of
Security:
6.81% Senior Notes Due April 8. 2009
Security Number: 95531* AA6
Due Date and Application (as among
principal, premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices Related Susan Perrino
to Payments Private Placements
PPM America Inc.
225 West Wacker Drive
Chicago, IL 60606
Tel: 312-634-1205
Fax: 312-634-0054
and
Oscell Owens
Northern Trust Company
801 5 Canal St, Floor ClN
Chicago, IL 60607
Tel: 312-444-5754
Fax: 312-630-8179
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address for All other Notices Joseph Dimberio
Vice President, Private Placements
PPM America, Inc.
225 West Wacker Drive, Suite 1200
Chicago, IL 60606-1228
Tel: 312-634-2597
Fax: 312-634-0054
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other Instructions By: PPM America, Inc., as attorney
in fact, on behalf of Jackson
National Life Insurance Company
By____________________
Name:
Title:
--------------------------------------------------------------------------------
Schedule A-8
<PAGE>
--------------------------------------------------------------------------------
Purchaser Name JACKSON NATIONAL LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Instructions re Delivery of Notes Northern Trust Company
40 Broad Street. 19th Floor
Acct. #2691241/Jackson National
Life Insurance Company
New York, NY 10004
Attn: Jose Mero
Tel: 212.701.7507
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tax Identification Number 38-1659835
--------------------------------------------------------------------------------
Schedule A-9
</TABLE>
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any Person, any other
Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person. As used in this definition, "Control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an "Affiliate" is a reference to an Affiliate of the
Company.
"Agreement" is defined in Section 17.3.
"Asset Disposition" means any Transfer except:
(a) any Transfer from a Subsidiary to the Company or a Wholly-Owned
Subsidiary, or
(b) any Transfer from the Company to a Wholly-Owned Subsidiary, or
(c) any Transfer made in the ordinary course of business and involving
only property that is either (i) inventory held for sale or (ii) equipment,
fixtures, supplies or materials of a type no longer utilized in the
operation of the business of the Company or its Subsidiaries or that is
obsolete, or
(d) any sale of Capital Stock of the Company and its Subsidiaries.
"Bank Credit Agreement" means the Credit Agreement dated as of August 28,
1995, among the Obligors, the Banks set forth on the signature pages thereof,
and Corestates Bank, N.A., as agent for such Banks, as may be amended, restated,
or otherwise modified or replaced from time to time. "Banks" means the banks
initially party to the Bank Credit Agreement and each other bank or other Person
from time to time acting as a lender or other provider of financial
accommodations to the Obligors under the Bank Credit Agreement.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City are required or authorized to be closed.
"Capital Stock" means, as to any Person, any class of capital stock, share
capital or similar equity interest of such Person.
Schedule B-I
<PAGE>
"Capitalized Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capitalized Lease Obligations" means, with respect to any Person, the
amount of the obligation of such Person as the lessee under a Capitalized Lease
that would, in accordance with GAAP, appear as a liability on a balance sheet of
such Person.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder from time to time.
"Company" is defined in the first paragraph of this Agreement.
"Confidential Information" is defined in Section 20.
"Consolidated EBIT" means, for any period, Consolidated Net Income for such
period plus, to the extent deducted in the determination of such Consolidated
Net Income: (a) Consolidated Interest Expense; and (b) taxes imposed on or
measured by income or excess profits.
"Consolidated Funded Debt" means (a) all Debt, liabilities, and obligations
now existing or hereafter arising for money borrowed by any of the Obligors or
their Subsidiaries, whether or not evidenced by any note, indenture, or
agreement (including without limitation, the Notes and any indebtedness for
money borrowed from an Affiliate, but not including trade accounts payable), (b)
standby letter of credit outstanding of any Obligor or any Subsidiary to the
extent drawn as of the date of determination of Debt, (c) all Debt of others for
money borrowed (including an Affiliate) with respect to which an Obligor or any
Subsidiary has become liable by way of a guarantee or indemnity to the extent
such Debt is not included in (a) or (b) above, and (d) Capitalized Lease
Obligations of the Obligors and their Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any period, the sum
(without duplication) of the following (in each case, eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance with
GAAP):
(a) all interest in respect of Debt of the Company and its
Subsidiaries (including imputed interest on Capitalized Lease Obligations)
deducted in determining Consolidated Net Income for such period together
with all interest capitalized or deferred during such period and not
deducted in determining Consolidated Net Income for such period, and
(b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Income for such period.
Schedule B-2
<PAGE>
"Consolidated Net Income" means, for any period, the gross revenues of the
Company arid its Subsidiaries for such period less all expenses and other proper
charges (including taxes on income) determined on a consolidated basis in
accordance with GAAP consistently applied, but excluding in any event:
(a) earnings or losses attributable to minority interests;
(b) any restoration during such period to income of any contingency
reserve, except to the extent that provision for such reserve was made during
such period out of income accrued during such period;
(c) any gains or losses arising from any write-up or write down of assets;
(d) extraordinary or nonrecurring gains or losses;
(e) net earnings and losses of any Person accrued prior to the date it
became a Subsidiary;
(f) any portion of the net earnings of any Subsidiary that for any reason
is unavailable for payment of dividends or other distributions to the Company or
any other Subsidiary;
(g) net earnings or losses of any Person (other than a Subsidiary) in which
the Company or any Subsidiary shall have an ownership interest unless such net
earnings shall have actually been received by the Company or such Subsidiary in
the form of a cash distribution;
(h) net earnings or losses of any Person, substantially all the assets of
which have been acquired in any manner by the Company or any Subsidiary,
realized by such other Person prior to the date of such acquisition; and
(i) net earnings or losses of any Person to which the assets of the Company
or any Subsidiary shall have been sold, transferred or disposed of, or into
which the Company or any Subsidiary shall have merged or consolidated, prior to
the date of such transaction.
"Consolidated Net Worth" means, at any time,
(a) the total assets of the Company and its Subsidiaries which would be
shown as assets on a consolidated balance sheet of the Company and its
Subsidiaries as of such time prepared in accordance with GAAP, after eliminating
all amounts properly attributable to minority interests, if any, in the stock
and surplus of Subsidiaries, minus
(b) the total liabilities of the Company and its Subsidiaries which would
be shown as liabilities on a consolidated balance sheet of the Company and its
Subsidiaries as of such time prepared in accordance with GAAP.
Schedule B-3
<PAGE>
"Consolidated Senior Debt" means, as of any date of determination, all Debt
of the Company and its Subsidiaries, other than any such Debt that is
subordinated in right of payment in any respect to the Notes, outstanding on
such date after eliminating all offsetting debits and credits between the
Company and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of the
Company and its Subsidiaries in
accordance with GAAP.
"Consolidated Total Assets" means, as of the date of any determination
thereof, all assets of the Company and its Subsidiaries, as shown on a
consolidated balance sheet and determined in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of (i)
Consolidated Funded Debt plus (ii) Consolidated Net Worth.
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but including, without limitation, all liabilities
created or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(e) its redemption obligations, prior to the maturity of the Notes, in
respect of all Redeemable Preferred Stock; and
(f) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (e) hereof.
Debt of any Person shall include all obligations of such Person of the character
described in clauses (a) through (e) to the extent such Person remains legally
liable in respect thereof, notwithstanding that any such obligation is deemed to
be extinguished under GAAP.
"Debt Prepayment Offer" means, with respect to any Transfer of property by
the Company or any Subsidiary, the offer, in writing, by the Company or such
Subsidiary of cash in an amount equal to the Net Proceeds Amount with respect to
such Transfer to pay Consolidated Senior Debt (other than Consolidated Senior
Debt in respect of any revolving credit or similar facility providing the
Company or any Subsidiary with the right to obtain loans or other extensions of
credit from time to time, except to the extent that in connection with such
payment of Consolidated Senior Debt the availability of credit under such credit
facility is permanently reduced by an amount not less than the amount of such
proceeds applied to the payment of such Consolidated Senior Debt) and any
Schedule B - 4
<PAGE>
interest accrued with respect thereto, provided that in connection with any such
Transfer and offer, the Company shall have offered to prepay the Ratable Portion
of each outstanding Note in accordance with Section 8.3. For purposes of Section
10.7, the Net Proceeds Amount in respect of any Transfer shall be deemed applied
to a Debt Prepayment Offer upon the extension of the offer in respect thereof,
regardless of whether such offer is accepted, provided that the actual
prepayment in respect of any issue of Debt is made within 60 days of the
acceptance of such offer.
"Default" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"Default Rate" means that rate of interest that is the greater of (i) 2%
per annum above the rate of interest stated in clause (a) of the first paragraph
of the Notes or (ii) 2% over the rate of interest publicly announced by the Bank
of New York in New York, New York, as its "base" or "prime" rate.
"Disposition Value" means, at any time, with respect to any property
(a) in the case of property that does not constitute Subsidiary Stock,
the book value thereof, valued at the time of the disposition thereof in
good faith by the Company, and
(b) in the case of property that constitutes Subsidiary Stock, an
amount equal to that percentage of the book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that the
book value of such Subsidiary Stock represents of the book value of all of
the outstanding Capital Stock of such Subsidiary (assuming, in making such
calculations, that all Securities convertible into such Capital Stock are
so converted and giving full effect to all transactions that would occur or
be required in connection with such conversion) determined at the time of
the disposition thereof, in good faith by the Company.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems. "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under section 414
of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
Schedule B-5
<PAGE>
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
Schedule B-6
<PAGE>
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation, and
polychlorinated biphenyls)
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Indebtedness" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but including, without limitation, all liabilities
created or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and
other financial institutions (whether or not representing obligations for
borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Indebtedness shall not include overnight borrowings incurred in any clearing
account or overdraft account so long as such borrowings are paid in full as of
the close of business on the following day.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note holding more than 5% of the aggregate principal amount of
the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or
Schedule B-7
<PAGE>
Capitalized Lease, upon or with respect to any property or asset of such Person
(including in the case of stock, stockholder agreements, voting trust agreements
and all similar arrangements).
"Make- Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business, operations, affairs,
financial condition assets, or properties of the Company and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the
Obligors to perform their obligations under this Agreement, the Other Agreements
and the Notes, or (c) the validity or enforceability of this Agreement, the
Other Agreements or the Notes.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of any property
by any Person, an amount equal to the result (if positive) of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer) received by such Person in respect of such transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer
(including, without limitation, all income taxes payable by such Person in
connection therewith).
"Notes" is defined in Section 1.
"Obligor" is defined in the introductory sentence of this Agreement.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities
extend to the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC' means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
Schedule B-8
<PAGE>
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" means, in respect of any corporation, shares of the
Capital Stock of such corporation that are entitled to preference or priority
over any other shares of the Capital Stock of such corporation in respect of
payment of dividends or distribution of assets upon liquidation.
"Priority Debt" means, at any time, without duplication, (a) all Debt of
the Company arid its Subsidiaries secured by Liens not permitted under any of
clauses (i) to (viii), inclusive, of Section 1O.8(a),plus (b) all Debt and
Preferred Stock of Subsidiaries (other than Debt of any Subsidiary owed to, or
Preferred Stock of any Subsidiary held by, the Company or any Wholly-Owned
Subsidiary, and Debt of any Subsidiary which is an Obligor). Notwithstanding
clause (a) of the preceding sentence, any Debt of a Subsidiary secured by a Lien
permitted by Section 1O.8(a)(iv) shall constitute Priority Debt.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, choate or
inchoate.
"Property Reinvestment Application" means, with respect to any transfer of
property, the application of an amount equal to the Net Proceeds Amount with
respect to such Transfer to the acquisition by the Company or any Subsidiary of
operating assets of the Company or any Subsidiary of a nature similar, and a
value at least equivalent, to the property subject to such transfer.
"Proposed Prepayment Date" is defined in Section 8.3 (a).
"PTE" is defined in Section 6.2.
"Purchaser" means the Persons listed as purchasers of Notes on Schedule A.
"QPAM Exemption" is defined in Section 6.2(d).
"Ratable Portion" means, for any Note, in connection with a Transfer, an
amount equal to the product of
(a) the Net Proceeds Amount in respect of such Transfer, multiplied by
(b) a fraction the numerator of which is the outstanding principal
amount of such Note and the denominator of which is that portion of
Consolidated Senior Debt to which a Debt Prepayment Offer is made (as set
forth in the definition of such term).
"Redeemable" means, with respect to the Preferred Stock of any Person, each
share of such Person's Preferred Stock that is:
Schedule B-9
<PAGE>
(a) redeemable, payable or required to be purchased or otherwise
retired or extinguished, or convertible into Debt of such Person (i) at a
fixed or determinable date, whether by operation of sinking fund or
otherwise, (ii) at the option of any Person other than such Person, or
(iii) upon the occurrence of a condition not solely within the control of
such Person; or
(b) convertible into other Redeemable Preferred Stock.
"Required Holders" means, at any time, the holders of at least a majority
of the principal amount of the Notes at the time outstanding (exclusive of Notes
then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this agreement.
"Security" has the meaning set forth in section 1(1) of the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Short Term Debt" means Debt of the Company or its Subsidiaries with a
maturity of less than 365 days.
"Source" is defined in Section 6.2.
"Subsidiary" means a corporation with respect to which a majority of the
Voting Stock (other than stock having such power only by reason of the happening
of a contingency) is at the time owned by the Company or by one or more
Subsidiaries of the Company.
"Subsidiary Stock" means, with respect to any Person, the Capital Stock (or
any options or warrants to purchase stock or other Securities exchangeable for
or convertible into any Capital Stock) of any Subsidiary of such Person.
"Swaps" means, with respect to any Person, payment obligations with respect
to interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
Schedule B-10
<PAGE>
"Transfer" means, with respect to any Person, any transaction in which such
Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Stock. For purposes of determining the
application of the Net Proceeds Amount in respect of any Transfer, the Company
may designate any Transfer as one or more separate Transfers each yielding a
separate Net Proceeds Amount. In any such case, (a) the Disposition Value of any
property subject to each such separate Transfer and (b) the amount of
Consolidated Total Assets attributable to any property subject to each such
separate Transfer shall be determined by ratably allocating the aggregate
Disposition Value of, and the aggregate Consolidated Total Assets attributable
to, all property subject to all such separate Transfers to each such separate
Transfer on a proportionate basis.
"Voting Stock" means Capital Stock of any class or classes of a corporation
the holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing similar
functions), irrespective of whether or not at the time stock of any other class
or classes shall have or might have special
voting power or rights by reason of the happening of any contingency.
"West Florida" is defined in the first paragraph of this Agreement.
"West Lakewood" is defined in the first paragraph of this Agreement.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one hundred
percent (100%) of all of the equity interests (except directors' qualifying
shares) and Voting Stock of which are owned by any one or more of the Company
and the Company's other Wholly-Owned Subsidiaries at such time.
Schedule B-1l
<PAGE>
SCHEDULE C
PAYMENT INSTRUCTIONS
FIRST UNION NATIONAL BANK
Philadelphia, PA
ABA No. 031201467
Acct. No. 2100010518545
West Pharmaceutical Services, Inc.
Schedule C-1
<PAGE>
Schedule 4.9
None
<PAGE>
Schedule 5.3
Additional Disclosures
None
<PAGE>
Schedule 5.4
ORGANIZATION A~D OWNERSHIP OF SHARES OF SUBSIDIARIES
<TABLE>
<CAPTION>
<S> <C> <C>
Jurisdiction of Percentage of Shares
its Organization of Capital Stock
West Pharmaceutical Services, Inc. Pennsylvania Parent Co.
The West Company of Michigan, Inc. Michigan 100.0
West Pharmaceutical Services Lakewood, Inc. Delaware 100.0
Paco Packaging, Inc. Delaware 100.0
Paco Technologies, Inc. Delaware 100.0
Paco Laboratories, Inc. Delaware 100.0
Charter Laboratories, Inc. Delaware 100.0
West Pharmaceutical Services Canovanas, Inc. Delaware 100.0
Citation Plastics Co. New Jersey 100.0
West Pharmaceutical Services Vega Alta, Inc. Delaware 100.0
West Pharmaceutical Services of Florida, Inc. Florida 100.0
Senetics, Inc. Colorado 100.0
West International Sales Corporation U.S. Virgin Islands 100.0
West Pharmaceutical Services of Delaware, Inc. Delaware 100.0
West Pharmaceutical Services Colombia S.A. Colombia 52.1 (1)
The West Company Holding GmbH Germany 100.0
The West Company (Custom & Germany 100.0
Specialty Services) GmbH
The West Company Danmark A/S Denmark 100.0
The West Company Italia S.R.L. Italy 95.0 (2)
West Pharmaceutical Services France S.A. France 99.99(3)
The West Company Verwaltungs GmbH Germany 100.0
The West Company Deutschland GmbH & Co KG Germany 100.0
The West Company Hispania S.A. Spain 27.4(4)
Pharma-Gummi Beograd Yugoslavia 84.7(5)
The West Company (Mauritius) Ltd. Mauritius 100.0
West Pharmaceutical Services Group Limited England 100.0
West Pharmaceutical Services Drug Delivery & England 100.0
Clinical Research Centre Ltd.
West Pharmaceutical Services Cornwall Ltd. England 100.0
Plasmec PLC England 100.0
West Pharmaceutical Services Lewes Ltd. England 100.0
The West Company Argentina S.A. Argentina 100.0
West Pharmaceutical Services Brasil Ltda. Brasil 100.0
The West Company Venezuela C.A. Venezuela 100.0
The West Company Singapore Pty. Ltd. Singapore 100.0
West Pharmaceutical Services Australia Pty. Ltd. Australia 100.0
West Company Korea Ltd. Korea 100.0
</TABLE>
(1) In addition, 46.16 % is owned directly by West Pharmaceutical Services,
Inc.; 1.55% is held in treasury by West Pharmaceutical Services Colombia S.A.
(2) In addition, 5 % is owned directly by West Pharmaceutical Services, Inc.
(3) In addition, .01% is owned directly by nine individual shareholders.
(4) In addition, 54.7% is owned directly by West Pharmaceutical Services, Inc.;
17.9% is owned by one shareholder.
(5) Affiliated company accounted for on the cost basis.
<PAGE>
Schedule 5.5
Financial Statements
Annual Reports for the Fiscal Years Ended December 31, 1993 through 1998
<PAGE>
Schedule 5.8
None
<PAGE>
Schedule 5.11
None
<PAGE>
SCHEDULE 5.12
EMPLOYEE BENEFIT PLANS
Employee Benefit Plans:
1. The West Company, Incorporated Salaried Employees' Retirement Plan
2. PACO Pharmaceutical Services, Inc. Savings Plan
3. The West Company, Incorporated Hourly Employees' Pension Plan
4. The West Company Savings Plan
5. PACO Pharmaceutical Services, Inc. Retirement Plan
for Salaried Employees
6. The West Company, Incorporated Supplemental Employees' Retirement Plan
ERISA Affiliates:
West Pharmaceutical Services Inc. and all U.S. incorporated subsidiaries listed
on Schedule 5.4 except West Pharmaceutical Services of Delaware, Inc., Citation
Plastics Co. and Senetics Inc.
<PAGE>
Schedule 5.14
Use of Proceeds
Refinance existing debt, make acquisitions and General Corporate Purposes
<PAGE>
Schedule 5.15
THE WEST COMPANY. INC.
CONSOLIDATED DEBT ANALYSIS
as of December 31, 1998
($0OO~s)
<TABLE>
<CAPTION>
<S> ................................. <C> <C> <C> <C> <C>
SHORT-TERM
AND CURRENT
PORTION OF
LONG-TERM LONG-TERM TOTAL RATE(1) MATURITY
DOMESTIC
Short-Term
First Union: Interest Rate Swap .... $ 3,000 $ 0 $ 3,000 6.54% April, 2001
First Union: Interest Rate Swap ....... $ 3,000 $ 0 $ 3,000 6.78% July, 2001
First Union: Interest Rate Swap ....... $ 3,000 $ 0 $ 3,000 6.51% August, 2001
First Union: Revolver ................. $ 16,638 $ 0 $ 16,638 5.50% February, 1999
First Union: ..... GBP 3,950 $ 6,554 $ 0 $ 6,554 8.12% January, 1999
Total Short Term ........................ $ 32,192 $ 0 $ 32,192 6.34%
Long-Term:
Tax Exempt:
Chase Manhattan-Puerto Rico IRB ....... $ 0 $ 4,771 $ 4,771 5.95% January, 2005
Morgan New York-Kinston, NC IRB ....... $ 0 $ 6,273 $ 6,273 4.30% October, 2005
Taxable:
City of Kinston, NC-Equipment Purchase ...$ 101 $ 30 $ 131 5.31% November, 1999
First Union: Revolver ....................$ 0 $ 48,362 $ 48,362 5.52% February, 1999
Paco Convertible Bonds ...................$ 0 $ 3,340 $ 3,340 6.50% March, 2007
Total Long-Term: .........................$ 101 $ 62,776 $ 62,877 5.48%
TOTAL DOMESTIC DEBT ......................$ 32,293 $ 62,776 $ 95,069 5.77%
INTERNATIONAL:
Short-Term
First Union: ............... GBP 401 $ 665 $ 0 $ 665 6.35% May, 1999
First Union: ............ GBP 204 $ 339 $ 0 $ 339 6.35% May, 1999
First Union: GBP 1,288 ............. $ 2,137 $ 0 $ 2,137 6.35% July, 1999
Total Short-Term ...................... $ 3,141 $ 0 $ 3,141 6.35%
Long-Term:
Sparkasse: .............. DEM 851 $ 517 $ 0 $ 517 8.17% April, 2007
Sparkasse: .............. DEM 270 $ 0 $ 162 $ 162 3.50% March, 2000
Sparkasse: .............. DEM 7,320 $ 0 $ 4,383 $ 4,383 8.17% April, 2007
Dresdner: ............... DEM 4,000 $ 0 $ 2,395 $ 2,395 6.80% June, 2002
Sparkasse: .............. DEM 1,500 $ 0 $ 898 $ 898 3.78% January, 1999
Dresdner: .............. DEM 1,000 $ 0 $ 599 $ 599 3.78% January, 1999
Dresdner: ............... DEM 19,218 $ 0 $ 11,518 $ 11,518 3.76% March, 1999
First Union:GBP 6,950 .............. $ 0 $ 11,533 $ 11,533 7.23% October, 2003
First Union:GBP 2,000 ............... $ 0 $ 3,319 $ 3,319 6.52% June, 1999
First Union:GBP 2,000 ............... $ 0 $ 3,319 $ 3,319 6.45% June, 1999
FIH: ................... DKK 26,784 $ 142 $ 4,069 $ 4,211 6.94% February, 2016
Total Long-Term ....................... $ 659 $ 42,195 $ 42,855 6.10%
TOTAL INTERNATIONAL DEBT: ............. $ 3,800 $ 42,195 $ 45,996 6.12%
TOTAL CONSOLIDATED DEBT: .............. $ 36,093 $104,971 $141,065 5.89%
</TABLE>
<PAGE>
Schedule 5.15
The West Company, Inc.
Summary of Letters of Credit
as of December31, 1998
Wachovia Bank, NA.
Beneficiary: Zurich Insurance Company
Amount: U.S. $1,511,202.00
Expiration Date: October 1,1999
Notification Date: August 1,1999 (60 days)
Annual Fee: 30 basis points or $4,533.61
Purpose: To guarantee our deductible under the workers
compensation, general liability and automobile policies.
PNC Bank
Beneficiary: Morgan Guaranty Trust Company of New York
& Nations Bank of North Carolina
Amount: U.S. $7,879,110.00
Expiration Date: December 1,1999
Notification Date: September 1,1999 (90 days)
Annual Fee: 65 basis points or $51,214.22
Purpose: To provide a financial guarantee supporting the
remarketing of our industrial revenue bonds.
Banque Nationale de Paris IJC No. C-21 11
Beneficiary: New Jersey Department of Environmental Protection
Amount: U.S. $950,000.00
Expiration Date: December 18, 1999
Notification Date: August 20,1999 (120 days)
Annual Fee: 37.5 basis points or $3.61 1.38
Purpose: To guarantee the Wayne facility EPA cleanup.
Banque Nationale de Paris LJC No. C-21 10
Beneficiary: New Jersey Department of Environmental Protection
Amount: U.S. $ 60,750
Expiration Date: December 17, 1999
Notification Date: August 20, 1999 (120 days)
Annual Fee: 37.5 basis points or $230.98
Purpose: To guarantee the Newton facility EPA cleanup.
First Union National Bank
Beneficiary: Korea Exchange Bank
Amount: U.S. $140,000.00
Expiration Date: Jan. 3, 2000
Notification Date: Dec 19, 1999(15 days)
Annual Fee: 125 basis points or $1,750.00
Purpose: To guarantee West Company Korea LTD credit facility.
First Union National Bank
Beneficiary: WestPac Banking Corporation
Amount: AUD 200,000
Expiration Date: June 17,1999
Notification Date: April 18. 1999 (60 days)
Annual Fee: 125 basis points or $1,771.00
Purpose: To guarantee West Pharmapackaging PTY LTD credit facility.
First Union National Bank
Beneficiary: Zurich American Insurance Group
Applicant: Paco Pharmaceutical Services. Inc.
Amount: USD 735,420.00
Expiration Date: Dec. 27, 1999
Notification Date: Nov 27. 1999 (30 days)
Annual Fee: 30 basis points or $2,236.90
Purpose: To guarantee PACO's deductable under the workers
compensation policy
First Union National Bank
Beneficiary: Zurich American Insurance Group
Applicant: Paco Pharmaceutical Services, Inc.
Amount: USD 539,580.00
Expiration Date: March 7, 1999
Notification Date: February 5,1999 (30 days)
Annual Fee: 30 basis points or $1,618.74
Purpose: To guarantee Paco's deductable under the workers
compensation policy.
<PAGE> EXHIBIT 1
FORM OF NOTE
WEST PHARMACEUTICAL SERVICES, INC.
and certain other Obligors
6.8 1% SENIOR NOTE DUE APRIL 8,2009
No. R- __________ [Date]
$________________ PPN_____________
FOR VALUE RECEIVED, the undersigned, West Pharmaceutical Services, Inc., a
Pennsylvania corporation (herein called the "Company"), West Pharmaceutical
Services of Florida, Inc., a Florida corporation ("West Florida"), and West
Pharmaceutical Services Lakewood, Inc., a Delaware corporation ("West
Lakewood"), (the Company, West Florida and West Lakewood are referred to herein,
collectively, as the "Obligors"), hereby jointly and severally promise to pay to
___________________________ or registered assigns, the principal sum of
_____________________ DOLLARS ($_______) on April 8, 2009, with interest
(computed on the basis of a 360-day year and actual days elapsed) (a) on the
unpaid balance thereof at the rate of 6.81% per annum from the date hereof,
payable quarterly, on the 8th day of each of July, October, January and April in
each year, commencing with the 8th day of July, October, January or April next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreements referred to below), payable quarterly as aforesaid (or, at
the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.81% or (ii) 2.0% over the rate of
interest publicly announced by Bank of New York from time to time in New York,
New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreements
referred to below.
This Note is one of a series of joint and several Senior Notes (herein
called the "Notes") issued pursuant to separate Note Purchase Agreements, dated
as of April 8,1999 (as from time to time amended, the "Note Purchase
Agreements"), between the Obligors and the respective Purchasers named therein
and is entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase Agreements and (ii) to
have made the representation set forth in Section 6.2 of the Note Purchase
Agreements.
This Note is a registered Note and, us provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Obligors may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Obligors will not be affected by any notice to
the contrary.
The Obligors will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW
OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPALS OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
WEST PHARMACEUTICAL SERVICES, INC.
By:___________________
Name:
Title:
WEST PHARMACEUTICAL SERVICES OF FLORIDA, INC.
By:___________________
Name:
Title:
WEST PHARMACEUTICAL SERVICES LAKEWOOD, INC.
By:______________________
Name:
Title:
Exhibit 1-2
<PAGE>
EXHIBIT 4.4(a)
FORM OF OPINION OF SPECIAL COUNSEL TO THE OBLIGORS
[Letterhead of Counsel for Obligors]
April __, 1999
To the Persons Listed on
Annex 1 hereto
Re: $100,000,000 6.81% Senior Notes Due 2009, issued by West Pharmaceutical
Services, Inc., West Pharmaceutical Services of Florida, Inc. and West
Pharmaceutical Services Lakewood, Inc.
Ladies and Gentlemen:
We have acted as special counsel to WEST PHARMACEUTICAL SERVICES, INC., a
Pennsylvania corporation (together with its successors and assigns, the
"Company"), WEST PHARMACEUTICAL SERVICES OF FLORIDA, INC., a Florida corporation
(together with its successors and assigns, "West Florida"), and WEST
PHARMACEUTICAL SERVICES LAKEWOOD, INC., a Delaware corporation (together with
its successors and assigns, "West Lakewood") (the Company, West Florida and West
Lakewood are referred to herein, collectively, as the "Obligors") in connection
with the separate Note Purchase Agreements, each dated as of April 8, 1999
(collectively, the "Note Purchase Agreement"), among the Obligors and each of
the purchasers listed on Annex 1 attached hereto (the "Purchasers"), which
provide, among other things, for the issuance and sale by the Obligors of their
6.81% Senior Notes due 2009, in the aggregate principal amount of $100,000,000.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings assigned to them by or pursuant to the terms of the Note
Purchase Agreement.
This opinion is being furnished to you at the request of the Obligors
pursuant to Section 4.4(a) of the Note Purchase Agreement.
In acting as such special counsel, we have examined originals, or copies
otherwise identified to our satisfaction, of the following documents:
(a) the Note Purchase Agreement;
(b) the Obligors' 6.81% Senior Notes due 2009, dated the date hereof,
in the form of Exhibit 1 to the Note Purchase Agreement, and in the
principal amounts and with the registration numbers respectively set forth
in Schedule A to the Note Purchase Agreement (the "Notes"); and
(c) a letter to Hebb & Gitlin and the undersigned from PNC Capital
Markets. Inc., dated the date hereof, making certain representations with
respect to the manner in which the Notes were offered (the "Offeree
Letter").
In addition, we have also examined: (i) such corporate records of the
Obligors as we have considered appropriate, including certified copies of
the certificate of incorporation and bylaws of the Obligors and resolutions
of the boards of directors of the Obligors, each as in effect on the date
hereof; (ii) a long-form good standing certificate of each of the Obligors
from their respective jurisdictions of organization; and (iii) originals,
or copies certified or otherwise identified to our satisfaction, of such
other documents, records, instruments and certificates of public officials
as we have deemed necessary or appropriate to enable us to render this
opinion.
In our examination of the aforesaid documents, we have assumed,
without independent investigation, the following: (i) the authenticity of
all documents submitted to us as originals, (ii) the conformity of any
documents submitted to us as certified, photostatic, reproduced or
conformed copies to their respective originals and the authenticity of all
such originals, (iii) the authenticity of all signatures other than those
of officers of the Obligors, (iv) the legal capacity of all individuals who
have executed the Note Purchase Agreement and the Notes, and (v) the
enforceability of the Note Purchase Agreement against each party thereto
other than the Obligors. In addition, we have assumed that the Obligors
have received fair consideration and reasonably equivalent value in
exchange for their execution and delivery of the Note Purchase Agreement
and the Notes.
In rendering our opinion, we have relied, to the extent we deem
necessary and proper, on;
(i) warranties and representations as to certain factual matters
contained in the Note Purchase Agreement; and
(ii) the Offeree Letter.
Based on the foregoing, and subject to the assumptions, exceptions and
qualifications set forth herein, we are of the opinion that:
1. Each of the Obligors is duly organized, validly existing and, to the
extent recognized in such jurisdiction, in good standing under the laws of its
jurisdiction of organization, and each Obligor has the requisite corporate power
and authority to execute and perform the Note Purchase Agreement and to issue
the Notes and has the full corporate power and corporate authority to conduct
the activities in which it now engages and is duly licensed or qualified and is
in good standing as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary.
2. Each of the Obligors has the requisite corporate power and authority to
execute and deliver each of the Note Purchase Agreement and the Notes and to
perform its obligations thereunder.
3. Each of the Note Purchase Agreement and the Notes has been duly
authorized by all necessary action on the part of each of the Obligors. has been
executed and delivered by duly authorized officers of each of the Obligors and
constitutes the legal, valid and binding obligation of each of the Obligors,
enforceable against each such Obligor in accordance with its terms.
4. The execution and delivery of the Note Purchase Agreement and the Notes,
and the issuance and sale of the Notes, by the Obligors and the performance by
the Obligors of their obligations thereunder will not (i) violate, conflict
with, result in a breach of or constitute a default under, the Obligors'
certificates of incorporation or by-laws or any applicable law or regulation of
the United States or the laws of each Obligors' respective jurisdiction of
organization or, to the best of our knowledge after due inquiry in respect
thereof, the agreements identified in Annex 2 hereto, or (ii) result in the
creation or imposition of any Lien upon any of the Obligors' properties or the
properties of a Subsidiary.
5. To the best of our knowledge (based solely on the officers' certificates
of each of the Obligors), there are no actions, suits or proceedings pending or
threatened against or affecting the Obligors or any Subsidiary or any of their
respective properties in any court or before any arbitrator of any kind or
before any Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
6. No consent, approval or authorization of, or registration, filing, or
declaration with, any Governmental Authority of the United States or the States
of Pennsylvania, Florida or Delaware is required in connection with the offer,
issue, sale and delivery of the Notes, or the execution, delivery or performance
by the Obligors of the Note Purchase Agreement or the Notes.
7. The offering, issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreement and the Notes are
exempt from the registration requirements of the Securities Act of 1933, as
amended, and the qualification of an indenture with respect to the Notes under
the Trust Indenture Act of 1939, as amended, is not required in connection with
such transactions.
8. Neither the issuance of the Notes nor the intended use of the proceeds
of the Notes as set forth in Schedule 5.14 of the Note Purchase Agreement will
violate Regulations U, T or X of the Board of Governors of the Federal Reserve
Board.
9. No Obligor is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, nor is any Obligor a "holding
company" or "affiliate" of a "holding company," or "subsidiary company" of a
"holding company," or "public utility" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
All opinions herein contained with respect to the enforceability of
documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought.
(b) the enforceability of certain terms provided in the Note Purchase
Agreement and the Notes may be limited by:
(i) applicable bankruptcy, reorganization, arrangement,
insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally as at the time in effect;
(ii) common law or statutory requirements with respect to
commercial reasonableness; and
(iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or equity).
(c) We are not admitted to the Bar of the State of New York and,
accordingly, in rendering all opinions with respect to matters governed by
New York law, we have assumed that such law is the same, in all material
respects, as the law of the State of Pennsylvania;
We acknowledge that this opinion is being issued at the request of the
Obligors pursuant to Section 4.4(a) of the Note Purchase Agreement and we
agree that the parties listed on Annex I hereto may rely and are relying
hereon in connection with the consummation of the transactions contemplated
by the Note Purchase Agreement. In addition, future holders of the Notes
may rely on this opinion as if it were addressed to them.
Very truly yours,
[COUNSEL FOR OBLIGORS]
<PAGE>
ANNEX 1
Addressees
Exhibit 4.4(a)-5
<PAGE>
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL FOR THE PURCHASERS
[Letterhead of Hebb & Gitlin]
April , 1999
To the Persons Listed
on Annex 1 hereto
Re: $100,000,000 6.81% Senior Notes Due 2009, issued by West
Pharmaceutical Services, Inc., West Pharmaceutical Services of
Florida, Inc. and West Pharmaceutical Services Lakewood, Inc.
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements, dated as of
April 8, 199!) (collectively, the "Note Purchase Agreement"), among WEST
PHARMACEUTICAL SERVICES, INC., a Pennsylvania corporation (together with its
successors and assigns, the "Company"), WEST PHARMACEUTICAL SERVICES OF FLORIDA
INC., a Florida corporation (together with its successors and assigns, "West
Florida"), and WEST PHARMACEUTICAL SERVICES LAKEWOOD, INC., a Delaware
corporation (together with its successors and assigns, "West Lakewood")(the
Company, West Florida and West Lakewood are referred to herein, collectively, as
the "Obligors") and each of the purchasers listed on Schedule A attached thereto
(the "Purchasers"), which provide, among other things, for the issuance and sale
by the Obligors of their 6.81% Senior Notes due 2009, in the aggregate principal
amount of $100,000,000. The capitalized terms used herein and not defined herein
have the respective meanings assigned to them by or pursuant to the terms of the
Note Purchase Agreement.
We have acted as special counsel to the Purchasers in connection with the
transactions contemplated by the Note Purchase Agreement. This opinion is
delivered to you pursuant to Section 4.4(b) of the Note Purchase Agreement. In
acting as such counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Obligors' 6.81% Senior Notes due 2009, dated the date hereof,
in the form of Exhibit 1 to the Note Purchase Agreement, and in the
principal amounts and with the registration numbers set forth on Schedule A
to the Note Purchase Agreement (the "Notes");
(c) an Officer's Certificate of the Company delivered pursuant to
Section 4.3(a) of the Note Purchase Agreement;
(d) a certificate of the Secretary of each of the Obligors delivered
pursuant to Section 4.3(b) of the Note Purchase Agreement;
(e) a letter to Hebb & Gitlin and Dechert Price & Rhoads from PNC
Capital Markets, Inc., dated April 1, 1999, making certain representations
with respect to the manner in which the Notes were offered (the "Offeree
Letter");
(f) the opinion of Dechert Price & Rhoads, counsel to the Obligors,
dated the date hereof;
(g) the opinion of Ruden McClosky Smith Schuster & Russell, P.A.,
special Florida counsel to West Florida, dated the date hereof; and
(h) originals, or copies certified or otherwise identified to our
satisfaction, of such other documents, records, instruments and
certificates of public officials as we have deemed necessary or appropriate
to enable us to render this opinion.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the following: (i) the authenticity of all documents
submitted to us as originals, (ii) the conformity of any documents submitted to
us as certified, photostatic, reproduced or conformed copies to their respective
originals and the authenticity of all such originals, (iii) the authenticity of
all signatures, (iv) the legal capacity of all individuals who have executed any
of the Note Purchase Agreement and the Notes, and (v) the enforceability of the
Note Purchase Agreement against each party thereto other than the Obligors. In
addition, we have assumed that the Obligors have received fair consideration and
reasonably equivalent value in exchange for their execution and delivery of the
Note Purchase Agreement and the Notes.
In rendering our opinion, we have relied, to the extent we deem necessary
and proper, on:
(i) warranties and representations as to certain factual matters
contained in the Note Purchase Agreement;
(ii) the Offeree Letter; and
(iii) said opinions of Dechert Price & Rhoads and Ruden McClosky
Smith Schuster & Russell, P.A. referred to in clauses (f) and (g)
above with respect to all questions concerning the valid existence and
good standing of, and the authorization, execution and delivery of
instruments by, each of the Obligors (except that we have made an
independent examination of certified copies of the certificates or
articles of incorporation of the Obligors and the certificates
specified in clause (d) above), and our conclusions as to such matters
are subject to the same assumptions and qualifications as are
contained in said opinions. Based on such investigation as we have
deemed appropriate, such opinions of Dechert Price & Rhoads and Ruden
McClosky Smith Schuster & Russell, P.A. satisfactory in scope and form
to us and in our opinion the Purchasers and we are justified in
relying thereon.
Based on the foregoing, we are of the following opinions:
1. Each of the Obligors is validly existing and in good standing
under the laws of its jurisdiction of organization.
2. Each of the Obligors has the requisite corporate power and
authority to execute and deliver each of the Note Purchase Agreement
and the Notes and to perform its obligations thereunder.
3. Each of the Note Purchase Agreement and the Notes has been
duly authorized by all necessary corporate action on the part of each
of the Obligors, has been executed and delivered by duly authorized
officers of each of the Obligors and constitutes the legal, valid and
binding obligation of each such Obligor, enforceable against each such
Obligor in accordance with its terms.
4. The execution and delivery of the Note Purchase Agreement and
the Notes, and the issuance and sale of the Notes, by the Obligors and
the performance by such Obligors of their obligations thereunder will
not violate, conflict with, result in a breach of or constitute a
default under, such Obligors' certificates or articles of
incorporation or by-laws.
5. No consents, approvals or authorizations of Governmental
Authorities are required on the part of the Obligors under the laws of
the United States of America or the State of New York in connection
with the offer, issue, sale and delivery of the Notes, or the
execution, delivery or performance by the Obligors of the Note
Purchase Agreement or the Notes. Our opinion in this paragraph 5 is
based solely on a review of generally applicable laws of the United
States of America and New York, and not on any search with respect to,
or review of, any orders, decrees, judgments or other determinations
specifically applicable to the Obligors.
6. The offering, issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Purchase Agreement and the
Notes are exempt from the registration requirements of the Securities
Act of 1933, as amended, and the qualification of an indenture with
respect to the Notes under the Trust Indenture Act of 1939, as
amended, is not required in connection with such transactions.
All opinions herein contained with respect to the enforceability
of documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to
the discretion of the court before which any proceedings therefor may
be brought; and
(b) certain terms provided in the Note Purchase Agreement and the
Notes may be limited by
i) applicable bankruptcy, reorganization, arrangement,
insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally as at the time in
effect; and
(ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at
law or equity).
We express no opinion as to the law of any jurisdiction other than the law
of New York, the laws of Pennsylvania, Florida and Delaware (but only in
reliance on the opinions of Dechert Price & Rhoads and Ruden McClosky Smith
Schuster & Russell, P.A.), and United States federal law.
Subsequent holders of the Notes may rely on this opinion as if it were
addressed to them.
Very truly yours,
<PAGE>
ANNEX 1
Addressees
The Prudential Insurance Company of America
do Prudential Capital Group
One Gateway Center, 11th Floor
Newark, New Jersey 07102-5311
Great-West Life & Annuity Insurance Company
8515 East Orchard Road
3rd Floor, Tower 2
Englewood, CO 80111
The Great-West life Assurance Company
100 Osborne Street North
Winnipeg, Manitoba
CANADA R3C 3M
Mutual of Omaha Insurance Company
4-Investment Loan Administration
Mutual of Omaha Plaza
Omaha, NE 68175-1011
GE Financial Assurance
Account: General Electric Capital Assurance Company
Two Union Square
601 Union Street
Seattle, WA 98101
GE Financial Assurance
Account: GE life and Annuity Assurance Company
Two Union Square
601 Union Street
Seattle, WA 98101
Jackson National life Insurance Company
PPM America, Inc.
225 West Wacker Drive, Suite 1200
Chicago, IL 60606-1228
