SECOND AMENDMENT
SECOND AMENDMENT dated as of March 5, 2002 (this "Amendment") to the
Credit Agreement dated as of September 11, 2001, which was amended by a First
Amendment dated as of February 1, 2002 (the "Credit Agreement") among Volt
Information Sciences, Inc., Gatton Volt Consulting Group Limited, the Guarantors
party thereto, the Lenders party thereto, JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as Administrative Agent, and Fleet National Bank, as
Syndication Agent. Unless the context requires otherwise, capitalized terms used
herein without definition shall have the meanings ascribed to them in the Credit
Agreement.
R E C I T A L S
WHEREAS, the First Amendment to Credit Agreement added a new Section
5.11 to the Credit Agreement, which Section requires the grant of certain
collateral, the joinder in that certain Joint and Several Guaranty of Payment
dated September 11, 2001 (the "Original Guaranty") by certain collateral grantor
Subsidiaries and a new amendment to the Credit Agreement to account for such
collateral and such new Guarantors; and
WHEREAS, pursuant to said Section 5.11, the collateral grantors
required thereunder are entering into a Security Agreement (the "Security
Agreement") of even date herewith in favor of JPMorgan Chase Bank, as
"Collateral Agent", and the original Guarantors under the Original Guaranty,
together with the new "Guarantors" required under said Section 5.11 (the "New
Guarantors"), are making an Amended and Restated Joint and Several Guaranty of
Payment of even date herewith (the "Restated Guaranty") which, among other
things, amends and restates the Original Guaranty;
NOW, THEREFORE, in consideration of the mutual agreements contained
in the Credit Agreement and herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby mutually agree as follows:
I. AMENDMENTS
The Credit Agreement is hereby amended as follows:
1.1. The following definitions are hereby added to Section 1.01 in
their respective proper alphabetical order:
"Collateral" means "Collateral" as that term is defined in the
Security Agreement.
"Collateral Agent" means "Collateral Agent" as defined in the
Security Agreement.
Exhibit 4.01(a) 1
"Collateral Documents" means the Security Agreement and any
other instruments, documents or agreements pursuant to which any
Borrower or Guarantor grants any collateral to the Administrative
Agent (as Collateral Agent or otherwise) or any of the Lenders as
security for the obligations of the Borrowers or the Guarantors, or
both, arising under this Agreement or any other instrument or
agreement entered into in connection herewith, and includes any
financing statement or amendment thereof.
"Second Amendment to Credit Agreement" means that certain
Second Amendment, dated as of March 5, 2002, to the Credit
Agreement.
"Security Agreement" has the meaning assigned to such term in
a recital to the Second Amendment to Credit Agreement, as the same
may be amended, supplemented or otherwise modified in accordance
with its terms and in accordance herewith.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided,
however, in the event that, by reason of mandatory provisions of
law, any or all of the attachment, perfection or priority of the
Collateral Agent's security interest in any Collateral is governed
by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for purposes
of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such provisions.
1.2. The following terms in Section 1.01 are redefined, in their
entirety, as follows:
"Credit Document" means each of (i) this Agreement, each Note
(if any), each application and other agreement in respect of any
Letter of Credit, in each case as supplemented, modified, or amended
from time to time, (ii) the Guaranty of Payment, (iii) the
Collateral Documents, and (iv) each instrument or agreement
supplementing (by joinder or otherwise), modifying or amending, or
waiving any provision of, any Credit Document.
"Guarantors" means, collectively, Volt Management Corp., a
Delaware corporation, Volt Delta Resources, Inc., a Nevada
corporation, DataNational, Inc., a Delaware corporation, Volt
Information Sciences Funding, Inc., a Delaware corporation, Volt
Directories S.A., Ltd., a Delaware corporation (formerly known as
Volt-Autologic Directories S.A., Ltd.), Volt Technical Resources,
LLC, a Delaware limited liability company (formerly a Delaware
corporation known as Volt Human Resources, Inc.), Volt
Telecommunications Group, Inc., a Delaware
Exhibit 4.01(a) 2
corporation, DataNational of Georgia, Inc., a Georgia corporation,
Volt Delta Resources, Inc., a Delaware corporation; and every other
domestic Subsidiary required to become a Guarantor under Section
5.10 or Section 2.20.
"Guaranty of Payment" means the Restated Guaranty as that term
is defined in a recital to the Second Amendment to Credit Agreement,
as the same may be joined in, supplemented, amended or otherwise
modified pursuant to Section 2.20 or Section 5.10, or otherwise.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due
or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed
by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than
30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of
a like nature, in each case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not
secure any monetary obligations and do not materially
detract from the value of the affected property or
interfere with the ordinary conduct of business of the
Domestic Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include
any Lien securing Indebtedness, unless the encumbrance in question
arises under a Collateral Document.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate
in effect at its principal office in New York City; each change in
the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
Exhibit 4.01(a) 3
"Transactions" means the execution, delivery and performance
by the Borrowers and the Guarantors (as applicable) of this
Agreement, each of the other Credit Documents, the borrowing of
Loans, the use of the proceeds thereof, the issuance of Letters of
Credit hereunder, the guaranteeing of the Indebtedness incurred
hereunder, and the granting of the Liens on the Collateral under the
Security Agreement.
1.3. A comma followed by the words "in each amendment to this
Agreement, and in each other Credit Document" are added after the word
"Agreement" and before the words "shall be true and correct" in clause (a) of
Section 4.02.
1.4 The phrase "Notwithstanding Section 6.02(g) and 6.03(b)(ii),"
which begins both the next to last sentence of Section 5.11 and the last
sentence of Section 5.12, is hereby deleted and replaced with: "Notwithstanding
Sections 6.02(g), 6.03(a)(iii), 6.03(a)(iv), 6.03(b)(ii), 6.07 or any other
provision of this Agreement,".
1.5 The period at the end of Section 6.03(a) is replaced with a
semi-colon and the following is added after such semi-colon: "provided, however,
that if any assets (constituting Collateral) of any of the collateral grantors
under the Security Agreement will be sold, assigned, transferred or otherwise
disposed of in any way by virtue of any of the actions otherwise permitted under
any of the foregoing clauses (i) through (iv), the parties to such merger or
other such action shall notify the Administrative Agent and shall take all steps
reasonably required by the Administrative Agent to preserve the Collateral
Agent's first priority perfected security interest in all such Collateral, prior
to consummation of such action."
1.6 The words "the Security Agreement," are added after "Guaranty of
Payment," in both places where the latter appears in clause (c) of Article VII.
1.7 The words "and the Security Agreement" are added after
"(including the Guaranty of Payment" and before the closing parenthesis in both
places where the latter appears in clause (n) of Article VII.
1.8 A new clause "(p)" is added after clause (o) (with the
punctuation adjusted accordingly) in Article VII of the Credit Agreement, as
follows:
"(p) (i) an event of default shall occur under paragraph 8 of the
Guaranty of Payment, or (ii) a "Grantor" thereunder (A) shall
default under any provision of Section 8, 9 or 12 of the Security
Agreement, or (B) shall be in default for a period of ten (10) days
or more under any provision of any other Section of the Security
Agreement other than a default under such another Section as to
which clause (c) of this Article VII applies;"
1.9 Clause (iv) of the portion of Article VII following (new) clause
(p) is amended to add the following after the words "Guaranty of Payment" and
before the semi-colon: "and/or the Collateral Agent's rights under the Security
Agreement".
Exhibit 4.01(a) 4
1.10 The following sentence is added at the end of paragraph (a) of
Article VIII: "The duties of the Administrative Agent shall include serving as
the Collateral Agent."
1.11 The reference to "The Chase Manhattan Bank" in the addresses
set forth in Section 9.01 are changed to "JPMorgan Chase Bank".
1.12 The word "and" is replaced with a comma immediately before
clause (iii) in Section 9.03(a), and the following is added at the end of the
said clause (iii) and before the period: ", and (iv) all costs, expenses, taxes,
assessments and other changes incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Collateral Document or any other document referred to therein".
II. MISCELLANEOUS
2.1. The New Guarantors hereby join in the Credit Agreement as
amended by this Amendment, as signatory parties thereto.
2.2 The Domestic Borrower hereby represents and warrants that the
Senior Notes Payoff has been completed.
2.3 Each Borrower and each Guarantor (subject, mutatis mutandis, to
Section 9.17 of the Credit Agreement) hereby represents and warrants that:
(a) the execution, delivery and performance of each Borrower and
Guarantor (as applicable) of this Amendment, the Restated Guaranty, the Security
Agreement and any other agreement, instrument or document executed and delivered
in connection with this Amendment: (i) is within its corporate or limited
liability company powers (as applicable), (ii) has been duly authorized by all
necessary corporate or limited liability company action (as applicable), (iii)
does not contravene any law, rule or regulation applicable to it and (iv) does
not violate or create a breach or default under its organizational documents or
any contractual provision binding on it or affecting it or any of its property;
(b) the Restated Guaranty, the Security Agreement, this Amendment
(and the Credit Agreement as amended hereby) constitute its legal, valid and
binding obligation enforceable against it (where such Borrower or Guarantor is a
party thereto) in accordance with its terms, except as enforcement thereof may
be subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally,
and (ii) general principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law);
(c) after giving effect to this Amendment, the Restated Guaranty,
the Security Agreement and to the transactions contemplated hereby and thereby:
(i) there is no Default; and (ii) all obligations of the Borrowers and the
Guarantors under or in connection with the Credit Agreement, as amended hereby
and the other Credit
Exhibit 4.01(a) 5
Documents, are payable in accordance with the terms of the Credit Agreement as
amended hereby, without any defense, setoff or counterclaim of any kind; and
(d) the representations and warranties of each Borrower and each
Guarantor appearing in the Credit Documents were (and are, in the case of the
Restated Guaranty and the Security Agreement) true and correct in all material
respects as of respective the dates when made and, after giving effect to this
Amendment, the Restated Guaranty and the Security Agreement, and the
transactions contemplated hereby and thereby, continue to be true and correct in
all material respects on the date hereof, except: (i) as to any such
representation or warranty which by its terms applies only as to a specified
(earlier) date; and (ii) in the case of any other representation or warranty, to
the extent of changes resulting from transactions or events not prohibited by
the Credit Documents.
2.4. The Domestic Borrower agrees to pay on demand all reasonable
costs and expenses of the Administrative Agent incurred by it in connection with
or arising out of the negotiation, preparation, review, execution and delivery
of this Amendment, the Restated Guaranty and the Security Agreement and the
agreements and instruments referred to herein and therein and the transactions
contemplated hereby and thereby (including search fees and the reasonable fees
and expenses of counsel to the Administrative Agent).
2.5. On or before March 15, 2002, Gatton shall provide the
Administrative Agent with a certificate of resolution, incumbency and corporate
documents, with respect to the First Amendment to Credit Agreement and this
Amendment, together with such other documents and certificates as the
Administrative Agent may reasonably request, all in form and substance
satisfactory to the Administrative Agent. If the Proposed Securitization has not
closed prior to April 15, 2002, the Domestic Borrower shall cause its outside
counsel to provide the Administrative Agent with an opinion letter, reasonably
satisfactory to counsel to the Administrative Agent, with respect to the First
Amendment to Credit Agreement, this Amendment, the Restated Guaranty and the
Security Agreement. At any time and from time to time, upon the written request
of the Administrative Agent and at the sole cost and expense of the Domestic
Borrower, the Borrowers and the Guarantors will promptly execute, acknowledge
and/or deliver all such further instruments and agreements and take such further
actions as may be reasonably necessary or appropriate to more fully implement
the purposes of this Amendment, the Credit Agreement as amended hereby, and the
other Credit Documents. Failure to comply with any of the foregoing provisions
of this Section 2.5 within fifteen (15) days after either the stated due date
thereof (where applicable) or notice thereof from the Administrative Agent
(where there is no stated due date above), shall constitute an additional Event
of Default.
2.6. The Credit Agreement, as amended hereby, and the other Credit
Documents are hereby ratified and confirmed and shall continue in full force and
effect. All references in any Credit Document to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended by this Amendment,
and as the same may be further amended, supplemented or otherwise modified from
time to time.
Exhibit 4.01(a) 6
2.7. This Amendment sets forth the entire agreement of the parties
with respect to the subject matter hereof.
2.8. Neither this Amendment nor any provision hereof may be waived,
amended or modified except pursuant to an agreement complying with Section
9.02(b) of the Credit Agreement.
2.9. This Amendment shall be construed in accordance with and
governed by the laws of the State of New York without regard to conflicts of
laws principles of New York State law other than ss. 5-1401 of the New York
General Obligations Law.
2.10. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which taken together shall
constitute but one agreement. Delivery of an executed signature page of this
Amendment by telecopy shall be as effective as delivery of a manually executed
counterpart of this Amendment.
2.11. This Amendment shall become effective as of the date first
above written, provided that each of the following conditions shall have been
satisfied on or before March 8, 2002:
(a) the Administrative Agent shall have received counterparts of (i)
this Amendment executed and delivered by each of the Borrowers, the Guarantors,
the Required Lenders and the Administrative Agent, (ii) the Restated Guaranty
executed and delivered by all of the Guarantors (including the New Guarantors),
and (iii) the Security Agreement, executed and delivered by the Administrative
Agent and the collateral grantors required under Section 5.11;
(b) all legal matters incident to this Amendment, the other
instruments and agreements relating hereto and the transactions contemplated
hereby shall be satisfactory to the Administrative Agent (who shall be entitled
to rely on the advice of its counsel in connection therewith);
(c) the Administrative Agent shall have received certificates of
resolution, incumbency and corporate documents, with respect to the Restated
Guaranty, the Security Agreement, the First Amendment to Credit Agreement and
this Amendment from the Domestic Borrower and all Guarantors (as applicable),
together with such other documents and certificates as it may reasonably
request, all in form and substance satisfactory to the Administrative Agent in
its reasonable discretion; and
(d) counsel to the Administrative Agent shall have been paid its
accrued and unpaid (through February 28, 2002) legal fees and disbursements with
respect to the facility established under the Credit Agreement.
The Administrative Agent shall notify the Borrowers, the Guarantors
and the Lenders if and when all of the foregoing conditions shall have been
satisfied, and such notice shall be conclusive and binding.
Exhibit 4.01(a) 7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
VOLT INFORMATION SCIENCES, INC. JPMORGAN CHASE BANK (f/k/a The
(a New York corporation) Chase Manhattan Bank), as a Lender and as
Administrative Agent
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
GATTON VOLT CONSULTING GROUP
LIMITED VOLT MANAGEMENT CORP.
(a United Kingdom corporation) (a Delaware corporation)
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
FLEET NATIONAL BANK, VOLT DELTA RESOURCES, INC.
as a Lender (a Nevada corporation)
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
BANK OF AMERICA, N.A., DATANATIONAL, INC.
as a Lender (a Delaware corporation)
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
MELLON BANK, N.A., VOLT DIRECTORIES S.A., LTD.
as a Lender (a Delaware corporation f/k/a Volt-Autologic
Directories S.A., Ltd.)
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
▇▇▇▇▇ FARGO BANK, N.A.,
as a Lender VOLT TECHNICAL RESOURCES, LLC.
(a Delaware limited liability company,
formerly a Delaware corporation known as
Volt Human Resources, Inc.)
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
Exhibit 4.01(a) 8
▇▇▇▇▇ ▇▇▇▇ TSB PLC, VOLT INFORMATION SCIENCES
as a Lender FUNDING, INC. (a Delaware corporation)
By: By:
----------------------------------------- -------------------------------------------
Name: Name:
Title: Title:
By: VOLT TELECOMMUNICATIONS
----------------------------------------- GROUP, INC., a Delaware corporation
Name:
Title: By:
-------------------------------------------
Name:
Title:
VOLT DELTA RESOURCES, INC., a
Delaware corporation
By:
-------------------------------------------
Name:
Title:
DATANATIONAL OF GEORGIA, INC., a
Georgia corporation
By:
-------------------------------------------
Name:
Title:
Exhibit 4.01(a) 9