AMENDMENT AND WAIVER NO. 1
AMENDMENT AND WAIVER NO. 1 ("Amendment No. 1"), dated as of April
29, 1998, to that certain Credit Agreement, dated as of January 8, 1998 (as
amended, supplemented or otherwise modified to date, the "Credit
Agreement", capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Credit Agreement), by and among
OUTSOURCING SERVICES GROUP, INC., a Delaware corporation, as a guarantor,
its wholly-owned Subsidiaries AEROSOL SERVICES COMPANY, INC., a California
corporation, and PIEDMONT LABORATORIES, INC., a Georgia corporation, as the
initial Borrowers and, following consummation of the Kolmar Acquisition,
KOLMAR LABORATORIES, INC., a Delaware corporation (Kolmar"), as an
additional Borrower, each financial institution from time to time party to
the Credit Agreement (each a "Lender" and, collectively, "Lenders"), BT
COMMERCIAL CORPORATION, a Delaware corporation, as agent for Lenders and
the Issuing Bank (as defined in the Credit Agreement) (in such capacity,
"Agent"), and XXXXXX FINANCIAL, INC., acting as co-agent (in such capacity,
"Co-Agent").
RECITALS
WHEREAS, Kolmar intends to acquire all or substantially all of
the manufacturing assets of A-D Contract Packaging, Inc., a California
corporation and a subsidiary of Norden, Inc., a New Jersey corporation;
WHEREAS, Kolmar Canada Inc., a wholly owned subsidiary of Xxxxx
("Kolmar Canada"), intends to acquire all or substantially all of the
manufacturing assets of Yardley of London Limited, a corporation
incorporated under the laws of England and Wales (collectively, the
"Yardley Assets"); and
WHEREAS, in connection with such acquisitions, Borrowers have
requested that Lenders make certain revisions to the Credit Agreement and
Lenders are willing to amend the Credit Agreement on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and upon execution and delivery hereof by Borrower and
the Majority Lenders, the parties hereto hereby agree as follows:
AGREEMENT
SECTION 1. AMENDMENT AND WAIVER
1.1 Section 1.1 of the Credit Agreement is amended by asserting in
appropriate alphabetical order the following new definitions:
"A-D Acquisition means the acquisition by Kolmar on or before May 15,
1998 of all or substantially all of the manufacturing assets,
including equipment, of A-D Contract Packaging, Inc., a California
corporation and a subsidiary of Norden, Inc., a New Jersey
corporation, for an aggregate consideration not to exceed $1,065,000."
"Yardley Acquisition means the acquisition by Kolmar Canada on or
before December 31, 1998 of all or substantially all of the
manufacturing assets, including equipment, of Yardley of London
Limited, a corporation incorporated under the laws of England and
Wales, for an aggregate consideration not to exceed $975,000."
1.2 The Required Lenders acknowledge and agree that each of the A-D
Acquisition and the Yardley Acquisition constitutes an "Acquisition" under,
and as defined in, the Credit Agreement.
1.3 Section 8.7 of the Credit Agreement is amended by deleting the
word "and" as it appears at the end of clause (h) thereof, by deleting the
period at the end of clause (i) thereof and substituting the words "; and"
in lieu thereof, and by inserting immediately following clause (i) thereof
the following new clause (j):
"(j) Indebtedness incurred by Xxxxx to finance the A-D
Acquisition in an aggregate principal amount not to exceed $400,000 at
any time outstanding."
1.4 The Required Lenders waive compliance with the requirements of
Section 8.20(a) so as to permit Kolmar Canada to make the Yardley
Acquisition.
1.5 The Required Lenders waive compliance with the requirements in
Section 8.20(b) of the Credit Agreement that (i) the A-D Acquisition be
approved by the board of directors of A-D Contract Packaging, Inc. and/or
Norden, Inc.; and (ii) the Yardley Acquisition be approved by the board of
directors of Yardley of London Limited.
1.6 The Required Lenders waive compliance with the requirement of
Section 8.20(f) of the Credit Agreement in connection with the A-D
Acquisition and the Yardley Acquisition.
SECTION 2. CONDITIONS TO EFFECTIVENESS
This Amendment No. 1 shall be effective upon the execution and
delivery to Agent of the following (the date of satisfaction of such
conditions being the "Amendment Effective Date"):
2.1 a counterpart hereof by Borrowers and the Majority Lenders;
provided, however, that any Borrower and/or any Lender may deliver its
counterpart signature page hereto by telecopy to Agent or Agent's counsel,
which delivery shall be binding on such Borrower and such Lender, and
provided, further that any such Borrower and Lender shall promptly provide
Agent or Agent's counsel with an adequate number (as determined by Agent)
of originally executed signature pages hereto;
2.2 a counterpart of the Consent of Guarantors and Grantors in the
form attached hereto as Exhibit A (the "Consent") by each Guarantor and
Credit Party party to a Security Agreement; provided, however, that any
such Guarantor and/or Credit Party may deliver its counterpart of the
Consent by telecopy to Agent or Agent's counsel, which delivery shall be
binding on such Guarantor and Credit Party; and provided further that any
such Guarantor and Credit Party shall promptly provide Agent or Agent's
counsel with an adequate number (as determined by Agent) of originally
executed counterparts of the Consent;
2.3 a certificate of the Secretary of each Borrower, each Guarantor
and each Credit Party party to a Security Agreement certifying (i) that
there existed no Default or Event of Default, after giving effect to this
Amendment No. 1 and that the execution, delivery and performance of this
Amendment No. 1 will not cause a Default or Event of Default, and (ii) as
to the incumbency of the officer executing this Amendment No. 1 and the
Consent and the resolutions of its Board of Directors approving this
Amendment No. 1 and the Consent; and
2.4 the certificates, financial statements and other documents and
instruments required to be delivered on or before the Amendment Effective
Date pursuant to Section 8.20 (other than clause (f) thereof) of the Credit
Agreement in connection with the A-D Acquisition and the Yardley
Acquisition.
SECTION 3. COVENANTS
Kolmar Canada covenants and agrees to provide written notification
to the Agent, as soon as reasonably practicable (and in any event no later
than the sixtieth day following the date on which Kolmar Canada acquires
the Yardley Assets) (the date by which such notification is required to be
given, the "Notification Date"), of the location at which the Yardley
Assets are to be kept by Kolmar Canada and to promptly execute and deliver
all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Agent may request, in order to
perfect and protect a first priority perfected security interest therein in
favor of the Administrative Agent for the benefit of the Lenders.
Notwithstanding anything to the contrary herein, the failure by Kolmar
Canada provide such notification on or before the Notification Date shall
constitute an Event of Default under the Credit Agreement.
SECTION 4. MISCELLANEOUS PROVISIONS
4.1 EFFECT ON AND RATIFICATION OF THE CREDIT AGREEMENT.
Except as specifically modified hereby, the Credit Agreement
remains in full force and effect and is hereby ratified and confirmed.
4.2 FEES AND EXPENSES.
Borrowers acknowledge that all costs, fees and expenses incurred by
Agent and its counsel with respect to this Amendment No. 1 shall be for the
account of Borrowers.
4.3 HEADINGS.
Section headings in this Amendment No. 1 are included herein for
convenience of reference only and shall not constitute a part of this
Amendment No. 1 for any other purpose or be given any substantive effect.
4.4 COUNTERPARTS.
This Amendment No. 1 may be executed in any number of counterparts,
and by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
4.5 APPLICABLE LAW.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT NO.
1 AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT NO.
1, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW
PROVISIONS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW) AND DECISIONS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Amendment and Waiver No. 1 has been duly
executed on behalf of each of the undersigned as of the date first written
above.
AEROSOL SERVICES COMPANY, INC.,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
PIEDMONT LABORATORIES, INC.,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
KOLMAR LABORATORIES, INC.,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
BT COMMERCIAL CORPORATION,
as Agent and as a Lender
By: /s/ Xxxx X. Xxxx
---------------------------
Name: Xxxx X. Xxxx
Title: Vice President
IN WITNESS WHEREOF, this Amendment and Waiver No. 1 has been duly
executed on behalf of each of the undersigned as of the date first written
above.
XXXXXX FINANCIAL, INC.,
as Co-Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx/Xxxxxx X. McKersol
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx/Xxxxxx X. McKersol
Title: Vice President/Vice President
SUMITOMO BANK OF CALIFORNIA,
as a Lender
By: /s/ X.X. Xxxx
---------------------------
Name: X.X. Xxxx
Title: Senior Vice President
FLEET CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CONSENT OF GUARANTORS AND GRANTORS
This undersigned as "Guarantors" under their respective Guarantees
and "Grantors" under their respective Security Agreements hereby
acknowledge the foregoing Amendment and Waiver No. 1, confirm their
respective Guarantees and Security Agreements and agree that their
respective obligations under such Guarantees and Security Agreements are
not impaired or adversely affected by such Amendment and Waiver No. 1, and
that such Guarantees and Security Agreements remain in full force and
effect.
OUTSOURCING SERVICE GROUP INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
AEROSOL SERVICES COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
PIEDMONT LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
KOLMAR LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
EXHIBIT A
CONSENT OF GUARANTORS AND GRANTORS
This undersigned as "Guarantors" under their respective Guarantees
and "Grantors" under their respective Security Agreements hereby
acknowledge the foregoing Amendment and Waiver No. 1, confirm their
respective Guarantees and Security Agreements and agree that their
respective obligations under such Guarantees and Security Agreements are
not impaired or adversely affected by such Amendment and Waiver No. 1, and
that such Guarantees and Security Agreements remain in full force and
effect.
OUTSOURCING SERVICE GROUP INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
AEROSOL SERVICES COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
PIEDMONT LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
KOLMAR LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
