AMENDMENT NO. 7 TO CREDIT AGREEMENT
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AMENDMENT NO. 7 TO
CREDIT AGREEMENT
This AMENDMENT NO. 7 TO CREDIT AGREEMENT (this "Amendment") is dated as of August 15, 2002 and entered into by and among OUTSOURCING SERVICES GROUP, INC., a Delaware corporation ("OSG"), as Guarantor, its wholly-owned Subsidiaries, AEROSOL SERVICES COMPANY, INC., a California corporation, PIEDMONT LABORATORIES, INC., a Georgia corporation, KOLMAR LABORATORIES, INC., a Delaware corporation, ACUPAC PACKAGING, INC., a New Jersey corporation, and PRECISION PACKAGING AND SERVICES, INC., an Ohio corporation (the "Borrowers"), the banks and other financial institutions signatory hereto that are parties as Lenders to the Credit Agreement referred to below (the "Lenders"), BT COMMERCIAL CORPORATION, as agent (in such capacity, the "Agent") for the Lenders and the Issuing Bank (as defined in the Credit Agreement referred to below) and XXXXXX FINANCIAL, INC., acting as co-agent (in such capacity, the "Co-Agent").
Recitals
Whereas, the Borrowers, OSG, the Lenders, the Co-Agent and the Agent have entered into that certain Credit Agreement dated as of January 8, 1998 (as amended, supplemented or otherwise modified to date, the "Credit Agreement"; capitalized terms used in this Amendment without definition shall have the meanings given such terms in the Credit Agreement); and
Whereas, the Borrowers have requested that the Lenders agree to extend the Expiration Date under the Credit Agreement; and
Whereas, the Lenders are willing to agree to grant such extension, subject to the conditions and on the terms set forth herein;
Now Therefore, in consideration of the premises and the mutual agreements set forth herein, the Borrowers, OSG, the Lenders, the Co-Agent and the Agent agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions and on the terms set forth in this Amendment and in reliance on the representations and warranties of the Borrowers and OSG set forth in this Amendment, the Credit Agreement is hereby amended to (a) delete the definition of Expiration Date and replace it with the following:
"Expiration Date" shall mean July 7, 2003.
and (b) establish a reserve against the Borrowing Base, commencing on September 30, 2002 and increasing on the last day of each month thereafter, in an amount for each such month equal to 1/6th of the semi-annual interest payment on the Subordinated Debt; provided that, upon meeting the conditions to Revolving Loans in Section 5.02 of the Credit Agreement, Borrowers may borrow the amount of interest due on such Subordinated Debt (and the reserve shall be reduced to such extent) to make payments to OSG to pay such interest if payment is then permitted under Section 8.11 of the Credit Agreement.
2. FEES. The Borrowers, jointly and severally, agree to pay to the Agent, for the ratable benefit of the Lenders, the following fees, each of which is fully earned on the date on which this Amendment becomes effective in accordance with its terms, and non-refundable when paid:
(a) on the effective date of this Amendment, a work fee equal to $60,000; and
(b) on September 30, 2002, a fee equal to one-quarter of one percent (0.25%) of the Commitments outstanding on the date hereof, less the amount of the work fee paid under clause (a).
Such fees shall be part of the Obligations and secured by the Collateral
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS AND OSG. In order to induce the Lenders, the Co-Agent and the Agent to enter into this Amendment, the Borrowers and OSG represent and warrant to each Lender, the Co-Agent and the Agent that the following statements are true, correct and complete:
3.1 Power and Authority. Each of the Credit Parties has all corporate power and authority to enter into this Amendment and, as applicable, the Consent of Guarantors attached hereto (the "Consent"), and to carry out the transactions contemplated by, and to perform its obligations under or in respect of, this Amendment and the Credit Agreement as amended hereby.
3.2 Corporate Action. The execution and delivery of this Amendment and the Consent and the performance of the obligations of each Credit Party under or in respect of this Amendment and the Credit Agreement as amended hereby have been duly authorized by all necessary corporate action on the part of each of the Credit Parties.
3.3 No Conflict or Violation or Required Consent or Approval. The execution and delivery of this Amendment and the Consent and the performance of the obligations of each Credit Party under or in respect of this Amendment and the Credit Agreement as amended hereby do not and will not conflict with or violate (a) any provision of the articles or certificate of incorporation or bylaws or other governing documents of any Credit Party, (b) any Requirement of Law, (c) any order, judgment or decree of any court or other governmental agency binding on any Credit Party or any of its Subsidiaries, or (d) any indenture, agreement or instrument to which any Credit Party or any of its Subsidiaries is a party or by which any Credit Party or any of its Subsidiaries, or any property of any of them, is bound, and do not and will not require any consent or approval of any Person.
3.4 Execution, Delivery and Enforceability. This Amendment and the Consent and the Credit Agreement as amended hereby and each other Credit Document have been duly executed and delivered by each Credit Party thereto and are the legal, valid and binding obligations of such Credit Party, enforceable in accordance with their terms, except as enforceability may be affected by applicable bankruptcy, insolvency, and similar proceedings affecting the rights of creditors generally.
3.5 No Default or Event of Default. No event has occurred and is continuing or will result from the execution and delivery of this Amendment that would constitute a Default or an Event of Default.
3.6 No Material Adverse Effect. No event has occurred that has resulted, or could reasonably be expected to result, in a Material Adverse Effect.
3.7 Senior Debt. All Obligations of the Borrowers, whether now outstanding or hereafter created or incurred, constitute "Guarantor Senior Debt" under the terms of the Subordinated Debt Documents, and all Obligations of OSG, whether now outstanding or hereafter created or incurred, constitute "Senior Debt" under the terms of the Subordinated Debt Documents.
3.8 Representations and Warranties. Each of the representations and warranties contained in the Credit Documents is and will be true and correct in all material respects on and as of the date hereof and as of the effective date of this Amendment, except to the extent that such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects as of such earlier date.
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall be effective only if and when signed by, and when counterparts hereof shall have been delivered to the
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Agent (by hand delivery, mail or telecopy) by, the Borrowers, OSG and all Lenders and only if and when each of the following conditions is satisfied:
4.1 Consent of Guarantors. Each of the Guarantors shall have executed and delivered to the Agent the Consent.
4.2 No Default or Event of Default; Accuracy of Representations and Warranties. No Default or Event of Default shall exist and each of the representations and warranties made by the Credit Parties herein and in or pursuant to the Credit Documents shall be true and correct in all material respects as if made on and as of the date on which this Amendment becomes effective (except that any such representation or warranty that is expressly stated as being made only as of a specified earlier date shall be true and correct as of such earlier date), and the Borrowers shall have delivered to the Agent a certificate confirming such matters.
4.3 Refinancing Commitments. The Borrowers shall have delivered to the Agent firm commitments of one or more lenders to refinance the Obligations in full, which commitments shall not expire prior to September 30, 2002, or such other evidence of refinancing as is acceptable to the Agent [and the Lenders].
4.4 Work Fee. The Borrowers shall have paid to the Agent, for the ratable benefit of the Lenders, the work fee set forth in Section 2(a) above.
4.5 Expense Reimbursements. The Borrowers shall have paid all expense reimbursements due to the Agent pursuant to Section 11.10 of the Credit Agreement.
5. EFFECT OF THIS AMENDMENT. From and after the date on which this Amendment becomes effective, all references in the Credit Documents to the Credit Agreement shall mean the Credit Agreement as amended hereby. Except as expressly amended hereby or waived herein, the Credit Agreement and the other Credit Documents, including the Liens granted thereunder, shall remain in full force and effect, and are hereby ratified and confirmed.
6. APPLICABLE LAW. THE VALIDITY, INTERPRETATIONS AND ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND DECISIONS OF THE STATE OF NEW YORK.
7. COMPLETE AGREEMENT. This Amendment sets forth the complete agreement of the parties in respect of any amendment to any of the provisions of any Credit Document or any waiver thereof.
8. CATCHLINES & COUNTERPARTS. The catchlines and captions herein are intended solely for convenience of reference and shall not be used to interpret or construe the provisions hereof. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by telecopy), all of which taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by a duly authorized officer as of the date first above written.
| OUTSOURCING SERVICES GROUP, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| AEROSOL SERVICES COMPANY, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| PIEDMONT LABORATORIES, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| KOLMAR LABORATORIES, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
[signatures continue]
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| ACUPAC PACKAGING, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| PRECISION PACKAGING AND SERVICES, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
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| BT COMMERCIAL CORPORATION, as Agent |
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| By: | /s/ XXXXXXX XXXXXXXX |
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| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust Company), as a Lender | ||||
| By: | /s/ XXXXXXX XXXXXXXX |
|||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
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| XXXXXX FINANCIAL, INC., as Co-Agent and as a Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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| PNC BANK, NATIONAL ASSOCIATION as a Lender |
||||
| By: | /s/ XXXXXXX X. XXXX |
|||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Vice President | |||
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| CALIFORNIA BANK & TRUST, as a Lender |
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| By: | /s/ XXXX X. XXXXXXX, XX. |
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| Name: | Xxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President | |||
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| FLEET CAPITAL CORPORATION, as a Lender |
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| By: | /s/ XXXXXXX X. XXX XXXXXXXXXX |
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| Name: | Xxxxxxx X. Xxx Xxxxxxxxxx | |||
| Title: | Senior Vice President | |||
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Each of the undersigned is a Guarantor of the Obligations of the Borrowers under the Credit Agreement and hereby (a) consents to the foregoing Amendment, (b) acknowledges that notwithstanding the execution and delivery of the foregoing Amendment, the obligations of each of the undersigned Guarantors are not impaired or affected and the Guaranties continue in full force and effect, and (c) ratifies its Guaranty.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Consent of Guarantors as of the 15th day of August, 2002.
| OUTSOURCING SERVICES GROUP, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| AEROSOL SERVICES COMPANY, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| PIEDMONT LABORATORIES, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| KOLMAR LABORATORIES, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| ACUPAC PACKAGING, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| PRECISION PACKAGING AND SERVICES, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| KOLMAR CANADA, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
| OSG XXXXX-XXX, INC. | ||||
| By: | /s/ XXXXX XXXXXX |
|||
| Name: | Xxxxx Xxxxxx | |||
| Title: | VP & CFO | |||
AMENDMENT NO. 7 TO CREDIT AGREEMENT
CONSENT OF GUARANTORS
