Exhibit 2.3
-----------
FIRST AMENDMENT
FIRST AMENDMENT dated as of July 29, 2004 (this "Amendment") to the Amended and
Restated Credit Agreement dated as of April 12, 2004, (the "Credit Agreement")
among Volt Information Sciences, Inc., Gatton Volt Consulting Group Limited, the
Guarantors party thereto, the Lenders party thereto and JPMorgan Chase Bank, as
Administrative Agent, (the "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, Volt Delta Resources, Inc. ("Delta Inc."), the Domestic Borrower and
other Subsidiaries have entered into agreements (collectively, the "Nortel
Agreement") with Nortel Networks, Inc. and certain of its affiliates
(collectively, "Nortel"), in anticipation of which Nortel Agreement, among other
things, Delta Inc. has converted to a limited liability company under Nevada law
("Delta"), and pursuant to which Nortel Agreement Nortel intends to acquire a
24% Equity Interest in Delta;
WHEREAS, in connection with the Nortel Agreement the Domestic Borrower is
required to obtain the release of Delta as a Guarantor under the Credit
Agreement and the Guaranty of Payment and as a Collateral Grantor Subsidiary
under the Subsidiary Security Agreement;
WHEREAS, the Domestic Borrower and Delta have requested certain amendments to
and consents under the Credit Agreement in connection with the Nortel Agreement,
as well as the consent of the Lenders for the said releases of Delta; and
WHEREAS, the Lenders are willing to agree to such amendments and to grant such
consent on the terms and conditions hereinafter set forth;
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 effective as of the Nortel Effective Date
(provided the First Amendment Date (defined below) also has occurred), as
follows:
1.1. The following definitions are hereby added to Section 1.01 in
their respective alphabetical order:
"Delta" means Volt Delta Resources, LLC, a Nevada
limited liability company that resulted from the conversion of
Volt Delta Resources, Inc., a Nevada corporation.
"Delta Approved Intercompany Debt" shall mean: (i) up
to an aggregate principal amount at any one time outstanding,
calculated without duplication, of
$5,000,000 of unsecured Intercompany Debt (other than Delta
Group Intercompany Debt); or (ii) up to an aggregate principal
amount at any one time outstanding, calculated without
duplication, of $10,000,000 of Intercompany Debt (other than
Delta Group Intercompany Debt) which is (A) secured only by
accounts receivable of one or more members of the Delta Group,
and (B) otherwise made on commercially reasonable terms and
conditions, with customary or market interest rates, repayment
terms, advance rates and eligibility criteria for accounts
receivable.
"Delta Group" means, collectively, (x) Delta RHI, (y)
Delta and (z) Delta's subsidiaries.
"Delta Group Intercompany Debt" means loans, advances
and any other extension of credit made by any member(s) of the
Delta Group to any other member(s) of the Delta Group.
"Delta RHI" means Volt Delta Resource Holdings, Inc.,
a Nevada corporation.
"First Amendment" shall mean the First Amendment
dated as of July __________, 2004, to this Agreement, which
First Amendment also amends the Guaranty of Payment and the
Subsidiary Security Agreement.
"First Amendment Date" means the effective date of
the First Amendment.
"Nortel" means Nortel Networks, Inc., collectively
with its applicable affiliates.
"Nortel Agreement" shall have the meaning given to
such term in the recitals to the First Amendment.
"Nortel Effective Date" means the closing date of the
Nortel Transaction.
"Nortel Transaction" means, collectively, (x) the
transaction contemplated to occur on the Nortel Effective Date
in accordance with the Nortel Agreement, and (y) the
$2,000,000 payment obligations of the Domestic Borrower
payable to Nortel on the sixth and eighteenth monthly
anniversaries of the Nortel Effective Date, all as described
on Schedule A to the First Amendment.
1.2. Section 1.01 is amended to delete the references to "Volt Delta
Resources, Inc." in the terms "Eligible Group A Receivables" and "Guarantors".
1.3. The definition of "Account Receivable" in Section 1.01 is amended
to read in its entirety as follows:
2
"Account Receivable" shall have the meaning assigned to the
term "Accounts" under the Subsidiary Security Agreement and,
for purposes of this Agreement, shall mean an "Account" of a
Collateral Grantor Subsidiary.
1.4. Section 3.01 is amended and restated in its entirety as follows:
"Each of the Domestic Borrower and the Subsidiaries is duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now
conducted and, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction
where such qualification is required. The Nevada corporation
known as Volt Delta Resources, Inc., as in existence on the
Effective Date, was converted prior to the First Amendment
Date into a Nevada limited liability company named Volt Delta
Resources, LLC."
1.5. (A) Sections 5.01(l) is amended to add the following at the end
thereof:
"; provided, however, that the obligations of the Borrowers
and the Guarantors under this subsection (l) as to information
regarding any member of the Delta Group shall be subject to
the confidentiality provisions set forth in the Nortel
Agreement (and the agreements contemplated thereby being
entered into as of the Nortel Effective Date). However, the
Borrowers and the Guarantors shall use all reasonable efforts
to obtain Nortel's approval to permit disclosure of anything
that would be required under this subsection but for the
foregoing proviso clause."
(B) Section 5.02 is amended by adding the following at the end
thereof:
"The obligations of the Borrowers and the Guarantors under
this Section 5.02 to provide notices shall be subject, in the
case of notices relating to the Delta Group, to the
confidentiality provisions set forth in the Nortel Agreement
(and the agreements contemplated thereby being entered into as
of the Nortel Effective Date). However, the Borrowers and the
Guarantors shall use all reasonable efforts to obtain Nortel's
approval to permit disclosure of anything that would be
required under this Section but for the foregoing sentence."
(C) Section 5.06 is amended by adding the following language
at the end thereof:
"The obligations of the Borrowers and the Guarantors under
this Section 5.06, as they relate to access, inspection and
discussion rights pertaining to any member of the Delta Group
shall subject to the confidentiality provisions set forth in
the Nortel Agreement (and the agreements contemplated thereby
being entered into as of the Nortel Effective Date). However,
the Borrowers and the Guarantors shall use all reasonable
efforts to obtain Nortel's approval to permit any such access,
inspection and discussions that would be required under this
Section but for the foregoing sentence."
3
(D) Section 5.09 is amended by adding the following at the end
thereof:
"Notwithstanding the foregoing, nothing in this Section 5.09
shall be deemed to require any Borrower or Guarantor to cause
any member of the Delta Group to be or become a party to, or
otherwise to become obligated under, this Agreement or any
other Credit Document."
(E) A new Section 5.10(c) is added which shall read as
follows:
"(c) Notwithstanding anything in this Section 5.10 to the
contrary, no member of the Delta Group shall be required to
become or continue as a Guarantor or a Collateral Grantor
Subsidiary. However, the Domestic Borrower shall not permit
any member of the Delta Group to incur Intercompany Debt other
than (i) Delta Approved Intercompany Debt and (ii) Delta Group
Intercompany Debt. If any member of the Delta Group shall
become indebted in an aggregate principal amount, calculated
without duplication, of $5,000,000 or more on account of
Intercompany Debt (whether secured or unsecured), other than
Delta Group Intercompany Debt, the Domestic Borrower will so
notify the Administrative Agent and inform the Administrative
Agent of the details with respect thereto. In addition, in the
case of Delta RHI, it shall be a condition to the
applicability of the first sentence of this subsection (c)
that the only assets of such corporation be its Equity
Interest in Delta, cash, Permitted Investments and receivables
on account of Intercompany Debt owing to it."
1.6. Clause (g) of Section 6.01 is amended to read in its entirety as
follows:
"(g) Guarantees by the Domestic Borrower of Indebtedness of
Subsidiaries, except that Guarantees otherwise permitted by
the foregoing shall be prohibited to the extent such
(Subsidiary) Indebtedness would otherwise be prohibited under
this Agreement; provided, however, that no such (otherwise
permitted) Guarantee may be a Guarantee of any obligations on
account of Debt for Borrowed Money owing by any member of the
Delta Group; and provided, further, that, after treating any
such (otherwise permitted) Guarantee for a member of the Delta
Group as Delta Approved Intercompany Debt, the aggregate
principal amount at any one time outstanding under that
Guarantee and other Delta Approved Intercompany Debt,
calculated without duplication, shall not exceed either of the
quantitative limits set forth in the definition of `Delta
Approved Intercompany Debt'."
1.7. Clause (h) of Section 6.01 is amended to read in its entirety as
follows:
"(h) other Indebtedness of the Domestic Borrower not
constituting: (A) Debt for Borrowed Money; (B) a Guarantee on
behalf of a member of the Delta Group (effectively) prohibited
under Section 6.01(g); or (C) a performance, trade, bid or
other kind of guaranty of any kind on behalf of any member(s)
of the Delta Group if after treating such guaranty as Delta
Approved Intercompany Debt (having a value determined by the
4
Administrative Agent, in its reasonable discretion), the
aggregate principal amount at any one time outstanding under
such guaranty and other Delta Approved Intercompany Debt,
calculated without duplication, shall not exceed either of the
quantitative limits set forth in the definition of `Delta
Approved Intercompany Debt'."
1.8. Clause (i) of Section 6.01 is amended to read in its entirety as
follows:
"(i) other Indebtedness of the Domestic Borrower and its
Subsidiaries (other than any member of the Delta Group) not
exceeding an aggregate principal amount of $5,000,000 at any
time;".
1.9. A new clause (j) is added at the end of Section 6.01 (and the
punctuation is adjusted accordingly), which shall read as follows:
"(j) other Indebtedness (including any Guarantees) of members
of the Delta Group other than Delta RHI (and not of any of the
Borrowers or the other Subsidiaries, unless otherwise
permitted under this Section 6.01 or under Section 6.04)
obtained on either a secured or an unsecured basis; provided,
however, that any such Indebtedness which is Intercompany Debt
must constitute either (i) Delta Approved Intercompany Debt or
(ii) Delta Group Intercompany Debt; and".
1.10. A new clause (k) is added at the end of Section 6.01 (and the
punctuation is adjusted accordingly), which shall read as follows:
"(k) the payment obligations of the Domestic Borrower as
described in clause (y) of the definition of `Nortel
Transaction', insofar as those payments may constitute
"deferred purchase price", under the definition of
Indebtedness."
1.11. A new clause (g) is added to Section 6.02 (and the punctuation is
adjusted accordingly), which new clause shall read in its entirety as follows:
"(g) Liens on assets of any member of the Delta Group other
than Delta RHI (and not on any assets of any Borrower or any
other Subsidiary), provided that the Indebtedness or other
obligations of any member of the Delta Group secured thereby
itself is not prohibited under this Agreement.
1.12. Section 6.03(a) is amended to add the following sentence at the
end thereof:
"Notwithstanding the foregoing, foregoing clauses (ii) and
(iii) of this subsection shall not apply where (A) the
surviving Subsidiary would be a member of the Delta Group
(unless only involving members of the Delta Group), or (B) the
recipient of sold, leased, transferred or otherwise disposed
of assets would be a member of the Delta Group (unless the
transferor was a member of the Delta Group).
5
1.13. Section 6.03(b)(vi) shall be amended by adding the following at
the end thereof:
"; provided, however, that the Nortel Transaction (including
the sale of Equity Interests in certain newly formed
subsidiaries that are, or upon consummation of the Nortel
Transaction will be, part of the Delta Group, as described on
Schedule A to the First Amendment, and the sale of the 24%
Equity Interest in Delta) shall be deemed to be the only
permitted sale, conveyance or other transfer for the purposes
of this Section 6.03(b)(vi) for the period beginning on April
12, 2004 and ending on April 11, 2005."
1.14. The final paragraph Section 6.03(b) is amended by adding "(other
than any member of the Delta Group)" after the word "Subsidiary" therein.
1.15. Section 6.04 is amended to add the following sentence at the end
thereof:
"Notwithstanding the foregoing exceptions, the Domestic
Borrower will not permit Delta RHI to have or hold any asset
of any kind other than as is permitted under Section 5.10(c).
1.16. Section 6.05 is amended to add the following sentence at the end
thereof:
"Notwithstanding the foregoing, if the "Put/Call Option"
described on Schedule A to the First Amendment constitutes a
Swap Agreement, the same shall be deemed permitted hereunder."
1.17. Section 6.07(b) is amended by adding the following at the end
thereof:
"Notwithstanding any of the foregoing, the following
transactions will be permitted: (i) the Nortel Transaction,
(ii) transactions between or among members of the Delta Group,
(iii) transactions between any member of the Delta Group and
the Domestic Borrower and any other Subsidiary as long as such
transaction is (A) consistent with past practices or (B) at
such prices and on terms and conditions not less favorable to
the Domestic Borrower or such other Subsidiary than could be
obtained on an arm's length basis from unrelated third
parties."
1.18. Section 6.08 is amended by: (a) adding a new clause (iv) therein
(and the punctuation is adjusted accordingly), as follows:
"(iv) the foregoing shall not apply in the case of any
prohibition, restriction or condition imposed under (A) any
agreement or instrument pertaining to Indebtedness of any
member of the Delta Group or (B) the Members Agreement (as
referenced on Schedule A to the First Amendment).";
and (b) by adding "prohibitions," before the word "restrictions" in clauses (i),
(ii) and (iii) thereof.
6
1.19. Section 6.10(a) shall be amended in its entirety to read as
follows:
"The Domestic Borrower will not permit or suffer Consolidated
Tangible Net Worth: (i) at any time prior to the close of the
first fiscal quarter in which the sale of the 24% Equity
Interest in Delta pursuant to the Nortel Agreement is
reflected on the Domestic Borrower's financial statements, to
be less than $220,000,000; (ii) for the first fiscal quarter
in which such sale is reflected in the Domestic Borrower's
financial statements, to be less than $220,000,000 when
calculated without reference to adjustments resulting from
such sale; or (iii) at any time after the first quarter in
which such sale is reflected on such financial statements, to
be less than 93% of Consolidated Tangible Net Worth as shown
on the first financial statements of the Domestic Borrower in
which such sale is reflected. The Administrative Agent and the
Domestic Borrower shall promptly confirm in writing the dollar
amount constituting the minimum requirement under foregoing
clause (iii).
1.20. Section 6.10(b) shall be amended by adding the following at the
end thereof:
"; provided, however, that EBIT attributable to Delta or to
any other Subsidiary which is not (directly or indirectly)
wholly-owned by the Domestic Borrower (a "Non-Wholly Owned
Subsidiary") shall be included in the foregoing calculation
only to the extent of cash actually received by the Domestic
Borrower or a (directly or indirectly) wholly-owned Subsidiary
from Delta or such other Non-Wholly Owned Subsidiary in the
form of a dividend or similar distribution; and provided,
further, that, for the purposes of calculating this ratio,
only 76% of Delta's (or the equivalent percentage of Equity
Interests owned directly or indirectly by the Domestic
Borrower in any other Non-Wholly Owned Subsidiary) Interest
Expense shall be included therein."
1.21. Section 9.12 is amended and restated in its entirety to read as
follows:
"Each of the Administrative Agent, the Issuing Bank and the
Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this
Section, (i) to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights
or obligations under this Agreement, or (ii) any actual or
prospective counterparty (or its advisors) to any swap or
derivative
7
transaction relating to the Domestic Borrower and its
obligations, (g) with the consent of any Borrower or
Subsidiary or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from
a source other than a Borrower or Subsidiary. For the purposes
of this Section, "Information" means all information received
from any Borrower or any Subsidiary relating to any Borrower
or any Subsidiary or any of their respective businesses, other
than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by a Borrower or a
Subsidiary; provided that, in the case of information received
from a Borrower or a Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such
Person would accord to its own confidential information."
II. MISCELLANEOUS
2.1. The Lenders hereby: (a) ratify the conversion of Delta Inc. into
Delta as contemplated above; and (b) consent to the Nortel Transaction.
2.2. Effective as of the Nortel Effective Date (provided the First
Amendment Date also has occurred): (a) Delta is hereby released from any and all
obligations it has as (i) a Guarantor under the Credit Agreement or the Guaranty
of Payment, or both, and (ii) a Collateral Grantor Subsidiary under the
Subsidiary Security Agreement (or as a "Grantor" thereunder, as defined
therein), as those documents existed prior to the effectiveness of Article I of
this Amendment; (b) the Liens granted by Delta under the Subsidiary Security
Agreement and any other Collateral Document are hereby released; (c) any and all
rights of setoff granted by Delta under or in connection with the Credit
Agreement, the Guaranty of Payment or the Subsidiary Security Agreement are
hereby terminated; (d) Delta is hereby removed as a party to the Credit
Agreement, the Guaranty of Payment, the Subsidiary Security Agreement and each
other Credit Document to which it had been a party; (e) the Credit Agreement,
the Guaranty of Payment, the Subsidiary Security Agreement and the other
applicable Credit Documents are deemed amended accordingly; and (f) Delta is
authorized to file any UCC-3 termination statement with respect to the
foregoing.
2.3. Effective upon the releases, terminations and other events
contemplated in foregoing Section 2.2, the Borrowers, the Guarantors other than
Delta (hereinafter, the "Continuing Guarantors") and the Collateral Grantor
Subsidiaries other than Delta (hereinafter the "Continuing Collateral Grantor
Subsidiaries") hereby reaffirm their obligations under the Credit Agreement, the
Guaranty of Payment, the Subsidiary Security Agreement and the other Credit
Documents, as applicable, and hereby expressly approve of the release and
removal of Delta therefrom.
8
2.4. (A) Each Borrower and each Continuing Guarantor (subject, mutatis
mutandis, to Section 9.17 of the Credit Agreement) hereby represents and
warrants, both as of the First Amendment Date and the Nortel Effective Date,
that:
(a) the execution, delivery and performance of each Borrower, each
Continuing Guarantor and each Collateral Grantor Subsidiary (as applicable) of
this Amendment 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 (including, without limitation, those under the Nortel Agreement);
(b) this Amendment (and the Credit Agreement as amended hereby)
constitute its legal, valid and binding obligation, enforceable against it
(where such Borrower, such Guarantor or such Collateral Grantor Subsidiary 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 and the Nortel Agreement (and
any other agreements made pursuant to the Nortel Agreement) and to the
transactions contemplated hereby and thereby: (i) there is no Default; and (ii)
all obligations of the Borrowers, the Continuing Guarantors and the Continuing
Collateral Grantors Subsidiaries under or in connection with the Credit
Agreement, as amended hereby, and the other Credit Documents, as amended hereby,
are payable in accordance with the terms of the Credit Agreement and other
Credit Documents, all as amended hereby, without any defense, setoff or
counterclaim of any kind;
(d) the representations and warranties of each Borrower, each
Continuing Guarantor and each Continuing Collateral Grantor Subsidiary appearing
in the Credit Documents were true and correct in all material respects as of
respective the dates when made and, after giving effect to this Amendment, 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; and
(e) the description of the Nortel Transaction, as set forth on Schedule
A hereto, is in all material respects a true and correct summary description of
the transactions contemplated in the Nortel Agreement, and will continue to be
true and correct in all material respects upon the effectiveness of the
amendments to the Credit Agreement and the other Credit Documents set forth in
this Amendment.
9
(B) Delta hereby represents and warrants that:
(a) the execution, delivery and performance by Delta of this Amendment
and any other agreement, instrument or document executed and delivered in
connection with this Amendment: (i) is within its limited liability company
powers, (ii) has been duly authorized by all necessary limited liability company
action, (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 (including, without limitation, those under the Nortel Agreement);
(b) this Amendment constitutes its legal, valid and binding obligation,
enforceable against it 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) the description of the Nortel Transaction, as set forth on Schedule
A hereto, is in all material respects a true and correct summary description of
the transactions contemplated in the Nortel Agreement, as set forth on Schedule
A hereto, and will continue to be true and correct in all material respects upon
the effectiveness of the amendments to the Credit Agreement and the other Credit
Documents set forth in this Amendment.
2.5. 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 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).
2.6. (a) 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, the Continuing Guarantors and the Continuing Collateral
Grantor Subsidiaries 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 2.6(a) 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.
Notwithstanding the foregoing, nothing in this Section 2.6(a) shall be deemed to
require any Borrower or Continuing Guarantor or Continuing Collateral Grantor
Subsidiary to cause any member of the Delta Group to be or become a party to, or
otherwise to become obligated under, the Credit Agreement or any other Credit
Document at any time from or after the Nortel Effective Date.
(b) At any time and from time to time, prior to the Nortel Effective
Date, upon the written request of the Administrative Agent and at the sole cost
and expense of the Domestic Borrower, Delta will promptly execute, acknowledge
and/or deliver all such further instruments
10
and agreements and take such further actions as may be reasonably necessary or
appropriate to more fully implement the purpose 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 2.6(b) within (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. Notwithstanding the foregoing,
nothing in this Section 2.6(b) shall be deemed to require Delta to be or become,
or to cause any other member of the Delta Group to become, a party to, or
otherwise to become obligated under, the Credit Agreement or any other Credit
Document at any time from or after the Nortel Effective Date; provided, however,
that Delta shall not be released from responsibility for any representations and
warranties made by it in this Amendment prior to the Nortel Effective Date.
2.7. Each of the parties hereto other than Delta agree and acknowledge
that the Credit Agreement, as amended hereby, and the other Credit Documents as
amended hereby (including, without limitation, all security interests
thereunder), are hereby ratified and confirmed in all respects, and shall
continue in full force and effect. All references in any Credit Document to the
Credit Agreement, the Guaranty of Payment or the Subsidiary Security Agreement
shall be deemed to be references to the Credit Agreement, the Guaranty of
Payment or the Subsidiary Security Agreement (as applicable), as amended by this
Amendment, and as the same may be further amended, supplemented or otherwise
modified from time to time.
2.8. This Amendment sets forth the entire agreement of the parties with
respect to the subject matter hereof.
2.9. 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.
2.10. 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.
2.11. 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.
2.12. This Amendment shall become effective as of the date when each of
the following conditions ((a) through (e)) shall have been satisfied, provided
that (i) such conditions are satisfied on or before August 31, 2004, and (ii)
all amendments to the Credit Agreement, the Guaranty of Payment and the
Subsidiary Security Agreement shall only become effective on the Nortel
Effective Date but only if this Amendment has otherwise become effective on or
before the Nortel Effective Date:
(a) the Administrative Agent shall have received counterparts of (i)
this Amendment executed and delivered by each of the Borrowers, the Continuing
Guarantors, Delta, the Lenders and the Administrative Agent;
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 this Amendment
and, in the case of Delta, with respect to the Nortel Agreement and the
transactions contemplated thereby, from the Domestic Borrower, all Continuing
Guarantors and Delta (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) each Lender shall have been paid an amendment fee equal to $5,625.
The Administrative Agent shall notify the Borrowers, the Continuing Guarantors,
Delta and the Lenders of the occurrence of the First Amendment Date and of the
date when the amendments to the Credit Agreement, the Guaranty of Payment and
the Subsidiary Security Agreement shall have become effective, and any such
notice shall be conclusive and binding. The Administrative Agent is authorized
to fill in the First Amendment Date at the outset of this Amendment and in
Section 1.1 hereof. The Domestic Borrower shall promptly notify the
Administrative Agent of the occurrence of the Nortel Effective Date.
12
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,
(a New York corporation) as a Lender and as Administrative Agent
By: /s/ William Shaw By: /s/ Cynthia Lash
-------------------------------------------------- --------------------------------------------------
Name: William Shaw Name: Cynthia Lash
Title: Chairman Title: Vice President
GATTON VOLT CONSULTING GROUP VMC CONSULTING CORP.,
LIMITED a Delaware corporation
(a United Kingdom corporation)
By: /s/ James J. Groberg By: /s/ Ludwig M. Guarino
-------------------------------------------------- --------------------------------------------------
Name: James J. Groberg Name: Ludwig M. Guarino
Title: Director Title: Treasurer
MELLON BANK, N.A., DATANATIONAL, INC.
as a Lender (a Delaware corporation)
By: /s/ Marla A. De Yulis By: /s/ Ludwig M. Guarino
-------------------------------------------------- --------------------------------------------------
Name: Marla A. De Yulis Name: Ludwig M. Guarino
Title: Assistant Vice President Title: Treasurer
WELLS FARGO BANK, N.A., VOLT DIRECTORIES S.A., LTD.
as a Lender (a Delaware corporation f/k/a Volt-Autologic
Directories S.A., Ltd.)
By: /s/ Kathleen Rosof By: /s/ Ludwig M. Guarino
-------------------------------------------------- --------------------------------------------------
Name: Kathleen Rosof Name: Ludwig M. Guarino
Title: Vice President Title: Treasurer
LLOYD TSB BANK PLC, VOLT INFORMATION SCIENCES
as a Lender FUNDING, INC. (a Delaware corporation)
By: /s/ Janaina Nascimiento By: /s/ Ludwig M. Guarino
-------------------------------------------------- --------------------------------------------------
Name: Janaina Nascimiento Name: Ludwig M. Guarino
Title: BO, Corporate Banking Title: Treasurer
VOLT TELECOMMUNICATIONS
GROUP, INC., a Delaware corporation
By: /s/ Richard Heath By: /s/ Ludwig M. Guarino
-------------------------------------------------- --------------------------------------------------
Name: Richard Heath Name: Ludwig M. Guarino
Title: VP, Corporate Banking Title: Treasurer
VOLT DELTA RESOURCES, LLC DATANATIONAL OF GEORGIA, INC., a
(a Nevada limited liability company) Georgia corporation
By: /s/ Ludwig M. Guarino By: /s/ Ludwig M. Guarino
-------------------------------------------------- --------------------------------------------------
Name: Ludwig M. Guarino Name: Ludwig M. Guarino
Title: Treasurer Title: Treasurer
13